J-S72002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SCOTT FLANAGAN, INDIVIDUALLY AND              IN THE SUPERIOR COURT OF
T/A FLANAGAN AUTO DETAILING                         PENNSYLVANIA

                          Appellants

                     v.

PEOPLES CHOICE FEDERAL CREDIT
UNION

                          Appellee                 No. 797 MDA 2016


                   Appeal from the Order Dated April 13, 2016
              In the Court of Common Pleas of Lackawanna County
                       Civil Division at No(s): 2014-03496


BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.:                  FILED NOVEMBER 02, 2016

     Appellant, Scott Flanagan, individually and trading as Flanagan Auto

Detailing, appeals from the order of the Lackawanna County Court of

Common Pleas, in this breach of contract action, that sustained the

preliminary objections of Appellee, Peoples Choice Federal Credit Union, to

Appellant’s amended complaint and dismissed the amended complaint with

prejudice. We affirm.

     The relevant facts and procedural history of this case are as follows.

In 2014, Appellant initiated an action against Appellee before a district

magistrate.    On June 4, 2014, the district magistrate entered judgment in

favor of Appellant and against Appellee in the amount of $6,336.50.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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Appellant filed a timely notice of appeal in the Lackawanna County Court of

Common Pleas on June 25, 2014; and on July 7, 2014, Appellant filed a

complaint against Appellee for breach of contract.      On August 11, 2014,

Appellee filed preliminary objections to Appellant’s complaint, in which

Appellee asserted Appellant had failed to plead sufficiently specific facts and

attach to the complaint copies of documents to demonstrate a contract

between the parties existed. Appellant opposed the preliminary objections.

By order dated May 21, 2015, the court sustained Appellee’s preliminary

objections with leave to file an amended complaint within 30 days.

      On July 10, 2015, Appellant filed an untimely amended complaint for

breach of contract and assumpsit.     In Count I of the amended complaint,

Appellant asserted that on January 7, 2014, Appellee gave written notice to

its members and the public of its intention to solicit bids on a 2010 Ford

Focus.   Appellant attached to the amended complaint a copy of Appellee’s

“Invitation to Bid,” addressed to members of the Appellee credit union,

which provided that Appellee would take bids on the vehicle on February 14,

2014, and sell the vehicle to the bidder whose bid was closest to the asking

price of $12,075.00.    Appellant claimed he gave Appellee an oral bid of

$6,500.00 before the deadline, and Appellee indicated it would accept and

seal Appellant’s bid. Appellant alleged that Appellee had previously accepted

oral bids from Appellant on behalf of his customers. Appellant averred that,

on February 14th, Appellee informed Appellant that his bid was insufficient,


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even though it was the closest to the asking price. Appellant maintained in

the amended complaint that Appellee had entered into a contract with him

for the sale of the Ford Focus because Appellee had agreed to accept the

closest bid to the asking price, and his bid was the closest bid. Appellant

charged Appellee with breach of that contract between the parties and

demanded an award of damages in the amount of $5,575.00, representing

the difference between his bid of $6,500.00 and the asking price of

$12,075.00, plus interest, costs, and fees.

        In Count II of the amended complaint, Appellant claimed he detailed,

stored, and displayed the 2010 Ford Focus at Appellee’s request, pending its

sale.    Appellant asserted he inferred, and the surrounding circumstances

implied, that Appellee would pay Appellant to detail, store, and display the

vehicle. Appellant averred Appellee failed to pay Appellant for these services

and is liable to Appellant in the amount of $600.00, plus interest, costs, and

fees, for detailing, storing, and displaying the Ford Focus.

        Appellee filed preliminary objections to Appellant’s amended complaint

on August 18, 2015.        In its preliminary objections, Appellee asserted

Appellant failed to plead sufficiently specific facts in the amended complaint,

and Appellant lacked capacity to sue. Appellee claimed Appellant failed to

allege in the amended complaint that he was a member of the Appellee

credit union. Appellee submitted Appellant also failed to plead specific facts

to establish that Appellant, as a non-member of the credit union, was


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entitled to bid on the Ford Focus. Appellee also averred Appellant failed to

plead sufficient facts to establish when and where: (a) Appellee allegedly

made the Invitation to Bid open to the general public; and (b) Appellee had

previously accepted bids from Appellant on behalf of his customers.

Appellant filed a brief in opposition to Appellee’s preliminary objections to

the amended complaint on November 12, 2015.

      By order dated April 13, 2016, the court sustained Appellee’s

preliminary objections to the amended complaint and dismissed it with

prejudice. Appellant filed a timely notice of appeal on May 12, 2016. On

June 13, 2016, the court ordered Appellant to file a concise statement of

errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b); and

Appellant timely complied on June 15, 2016.

      Appellant raises two issues for our review:

         WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
         DISCRETION IN SUSTAINING…APPELLEE’S PRELIMINARY
         OBJECTIONS, ON THE GROUND OF LACK OF CAPACITY TO
         SUE, WHERE APPELLEE FAILED TO RAISE SUCH
         CHALLENGE IN ITS ORIGINAL PRELIMINARY OBJECTIONS
         TO APPELLANT’S COMPLAINT AND APPELLANT CAN SUE
         AND OBTAIN RELIEF UNDER THEORIES OF BREACH OF
         CONTRACT AND ASSUMPSIT?

         WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
         DISCRETION IN HOLDING THE AMENDED COMPLAINT WAS
         NOT SUFFICIENTLY SPECIFIC TO ENABLE…APPELLEE TO
         PREPARE A DEFENSE?

(Appellant’s Brief at 4).

      In his first issue, Appellant argues Appellee improperly challenged


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Appellant’s capacity to sue in its preliminary objections to the amended

complaint.     Appellant claims Appellee should have raised all objections

applicable to the original complaint, including Appellant’s capacity to sue, in

Appellee’s preliminary objections to the initial complaint.     Even if Appellee

properly raised its objection to Appellant’s capacity to sue, Appellant avers

Appellee’s challenge fails because Appellant has the capacity to sue as a

living adult person without disability.          Appellant also submits Appellee

confused capacity to sue with the concept of standing, which Appellee could

not have raised in preliminary objections because standing is not an

enumerated ground for preliminary objections under Pa.R.C.P. 1028(a). 1

       In his second issue, Appellant argues his amended complaint is

sufficiently specific.   Appellant maintains he sufficiently alleged facts in his

amended complaint to establish how Appellee provided the Invitation to Bid

to the public. Appellant also avers Appellee is not entitled to more detail in

the amended complaint regarding the Invitation to Bid because Appellee
____________________________________________


1
   In its preliminary objections to Appellant’s amended complaint, Appellee
challenged Appellant’s capacity to sue in light of the Invitation to Bid.
Appellee asserted the Invitation to Bid was addressed to members of the
Appellee credit union; and Appellant was not a member. Appellee claimed
Appellant consequently did not have the capacity to sue Appellee for an
alleged breach of contract based on the Invitation to Bid. Appellant did not
reference the Invitation to Bid in the original complaint; Appellant also did
not attach a copy of the Invitation to Bid to the original complaint. As a
result, Appellee did not raise issues stemming from the Invitation to Bid in
its preliminary objections to the initial complaint. Thus, Appellee properly
raised objections arising from the Invitation to Bid in its preliminary
objections to the amended complaint.



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knows those details. Appellant concludes this Court should vacate the order

dismissing his amended complaint and remand with instructions to Appellee

to file an answer to the amended complaint within 20 days. We disagree.

      Our scope and standard of review in examining a challenge to an order

sustaining preliminary objections are as follows:

         In determining whether the trial court properly sustained
         preliminary objections, the appellate court must examine
         the averments in the complaint, together with the
         documents and exhibits attached thereto, in order to
         evaluate the sufficiency of the facts averred. Clemleddy
         Constr., Inc. v. Yorston, 810 A.2d 693 (Pa.Super.
         2002)[, appeal denied, 573 Pa. 682, 823 A.2d 143
         (2003)]. When sustaining the trial court's ruling will result
         in the denial of claim or a dismissal of suit, preliminary
         objections will be sustained only where the case is free and
         clear of doubt, and this Court will reverse the trial court’s
         decision regarding preliminary objections only where there
         has been an error of law or abuse of discretion. Id.

Rambo v. Greene, 906 A.2d 1232, 1235 (Pa.Super. 2006).

      Pennsylvania Rule     of Civil Procedure 1028 governs preliminary

objections, and states, in relevant part, as follows:

         Rule 1028. Preliminary Objections

         (a) Preliminary objections may be filed by any party to
         any pleading and are limited to the following grounds:

                                  *     *     *

            (3)   insufficient specificity in pleadings;

                                  *     *     *

            (5)   lack of capacity to sue…;

                                  *     *     *

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         (b) All preliminary objections shall be raised at one time.
         They shall state specifically the grounds relied upon and
         may be inconsistent. Two or more preliminary objections
         may be raised in one pleading.

                                 *    *    *

         (f)    Objections to any amended pleading shall be made
         by filing new preliminary objections.

Pa.R.C.P. 1028(a)(3), (a)(5), (b), (f). Concerning our review of a challenge

to an order sustaining preliminary objections for insufficient specificity, we

have stated:

         The pertinent question under Rule 1028(a)(3) is “whether
         the complaint is sufficiently clear to enable the defendant
         to prepare his defense,” or “whether the plaintiff's
         complaint informs the defendant with accuracy and
         completeness of the specific basis on which recovery is
         sought so that he may know without question upon what
         grounds to make his defense.” Ammlung v. City of
         Chester,…302 A.2d 491, 498 n. 36 ([Pa.Super.] 1973)
         (quoting 1 Goodrich–Amram § 1017(b)–9).

Rambo, supra at 1236.

      The pleadings standards set forth in Pa.R.C.P. 1019 provide, in

relevant part:

         Rule 1019. Contents of Pleadings.            General and
         Specific Averments

         (a) The material facts on which a cause of action or
         defense is based shall be stated in a concise and summary
         form.

                                 *    *    *

         (f) Averments of time, place and items of special damage
         shall be specifically stated.

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                                  *    *    *

         (h) When any claim or defense is based upon an
         agreement, the pleading shall state specifically if the
         agreement is oral or written.

            Note: If the agreement is in writing, it must be attached
            to the pleadings. See subdivision (i) of this rule.

         (i) When any claim or defense is based upon a writing,
         the pleader shall attach a copy of the writing, or the
         material part thereof, but if the writing or copy is not
         accessible to the pleader, it is sufficient so to state,
         together with the reason, and to set forth the substance in
         writing.

Pa.R.C.P. 1019(a), (f), (h), (i). Rule 1019 specifically requires:

         the pleader to disclose the material facts sufficient to
         enable the adverse party to prepare his case. A complaint
         therefore must do more than give the defendant fair notice
         of what the plaintiff’s claim is and the grounds upon which
         it rests.     It should formulate the issues by fully
         summarizing the material facts. Material facts are ultimate
         facts, i.e., those facts essential to support the claim.
         Evidence from which such facts may be inferred not only
         need not but should not be alleged…. Allegations will
         withstand challenge under [Rule] 1019(a) if (1) they
         contain averments of all of the facts the plaintiff will
         eventually have to prove in order to recover, and (2) they
         are sufficiently specific so as to enable defendant to
         prepare his defense.

Lerner v. Lerner, 954 A.2d 1229, 1235-36 (Pa.Super. 2008).              Material

facts include all the facts a plaintiff will eventually have to prove in order to

recover. Id. at 1236.

      “To maintain a cause of action in breach of contract, a plaintiff must

establish: (1) the existence of a contract, including its essential terms; (2) a


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breach of a duty imposed by the contract; and (3) resulting damages.”

Lackner v. Glosser, 892 A.2d 21, 30 (Pa.Super. 2006) (citing Gorski v.

Smith, 812 A.2d 683, 692 (Pa.Super. 2002), appeal denied, 579 Pa. 692,

856 A.2d 834 (2004)).     “For a contract to be enforceable, the nature and

extent of the mutual obligations must be certain, and the parties must have

agreed on the material and necessary details of their bargain.”     Lackner,

supra (citing Peck v. Delaware County Board of Prison Inspectors, 572

Pa. 249, 260, 814 A.2d 185, 191 (2002)).          “An enforceable contract

requires, among other things, that the terms of the bargain be set forth with

sufficient   clarity.”   Lackner,   supra   at   30-31   (citing   Biddle   v.

Johnsonbaugh, 664 A.2d 159, 163 (Pa.Super. 1995)).                  Clarity is

particularly important where an oral contract is alleged. Snaith v. Snaith,

422 A.2d 1379, 1382 (Pa.Super. 1980).

      There must be a “meeting of the minds” for an agreement to exist.

Accu-Weather, Inc. v. Thomas Broadcasting Co., 625 A.2d 75, 78

(Pa.Super. 1993).

         [T]he very essence of an agreement is that the parties
         mutually assent to the same thing…. Without such assent
         there can be no [enforceable] agreement…. The principle
         that a contract is not binding unless there is an offer and
         an acceptance is to ensure that there will be mutual
         assent….

         [I]t is equally well-established that an offer may be
         accepted by conduct and what the parties do pursuant to
         the offer is germane to show whether the offer is accepted.




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        With these precepts in mind, we look to the parties’
        “course of conduct” to assess the presence of a contract.

Id. (internal citations and quotation marks omitted).    “In cases involving

contracts wholly or partially composed of oral communications, the precise

content of which are not of record, courts must look to surrounding

circumstances and course of dealing between the parties in order to

ascertain their intent.” Boyle v. Steiman, 631 A.2d 1025, 1033 (Pa.Super.

1993), appeal denied, 538 Pa. 663, 649 A.2d 666 (1994) (holding prior

course of dealings between parties supported appellees’ claim of contract

formation between parties). Additionally:

        A contract implied in fact can be found by looking to the
        surrounding facts of the parties’ dealings.7   Offer and
        acceptance need not be identifiable and the moment of
        formation need not be pinpointed. Implied contracts…arise
        under circumstances which, according to the ordinary
        course of dealing and the common understanding of
        [people], show a mutual intention to contract.
           7
             A contract implied in fact has the same legal effect
           as any other contract. It differs from an express
           contract only in the manner of its formation. An
           express contract is formed by either written or verbal
           communication. The intent of the parties to an
           implied in fact contract is inferred from their acts in
           light of the surrounding circumstances.

Ingrassia Const. Co., Inc. v. Walsh, 486 A.2d 478, 483 (Pa.Super. 1984)

(internal citations and quotation marks omitted).

     Instantly, the trial court reasoned as follows:

        Here, [Appellant] has attached to his Amended Complaint
        a copy of an invitation to bid on the Ford Focus being sold
        by [Appellee] at auction. This invitation to bid, however,

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         specifically states that the auction is open to all members
         of the [Appellee] credit union. Significantly, at no time has
         [Appellant] alleged that he is or ever was a member of the
         credit union. Instead, [Appellant] avers that the credit
         union gave written notice of the invitation to bid not only
         to members of the credit union, but also to members of
         the public at large. [Appellant] has failed, though, to
         plead facts sufficient for [Appellee] to determine when and
         where such alleged notice was made to the public. We
         previously sustained [Appellee]’s Preliminary Objections
         [to Appellant’s initial complaint] on the same grounds and
         gave [Appellant] an opportunity to file a sufficiently
         amended pleading.         Because [Appellant] did not, we
         sustained     [Appellee]’s    Preliminary    Objections    [to
         Appellant’s     amended       complaint]    and     dismissed
         [Appellant]’s Amended Complaint.

(Trial Court Opinion, filed July 29, 2016, at 3) (citations to record omitted).

The record supports the trial court’s rationale. Moreover, Appellant alleged

no facts in the amended complaint concerning the circumstances of the

course of conduct between the parties regarding his claim that previously

Appellee had accepted verbal bids from Appellant on vehicles Appellee sold

at auction.   Likewise, Appellant failed to allege the circumstances of the

alleged prior course of conduct between the parties regarding what if

anything Appellee had agreed to pay, or had paid Appellant in the past, to

detail, store, and display vehicles Appellee auctioned.          Consequently,

Appellant failed to plead sufficiently specific facts to establish the existence

of an oral contract and/or implied contract between the parties.           See

Lackner, supra.

      Based on the foregoing, the trial court properly concluded Appellant’s

amended complaint lacked sufficient specificity and, as pled, failed to sustain

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a cause of action for either count.                Accordingly, we affirm the order

sustaining Appellee’s preliminary objections and dismissing Appellant’s

amended complaint with prejudice.2 See Rambo, supra.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/2/2016




____________________________________________


2
  Due to our disposition, we decline to address as unnecessary Appellant’s
argument concerning the legal concepts of capacity to sue and standing.



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