Yazbek, K. v. Hill International ( 2022 )

J-A04040-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KARIM ANTOINE YAZBEK : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
HILL INTERNATIONAL, INC. : No. 1808 EDA 2021
Appeal from the Order Entered August 12, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 201101528
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 12, 2022
Karim Yazbek appeals from the order sustaining the preliminary
objections of his former employer, Hill International, Inc. (“Hill”), and
dismissing his complaint sounding in breach of contract and common law
wrongful termination. We affirm.
This case stems from an employment relationship between Yazbek and
Hill. We take the following statement of facts from the operative complaint
and documents attached to it.1 We also recite some of the parties’
statements in their pleadings on preliminary objections, to give context. Hill
is a Delaware corporation with headquarters in Philadelphia and operations
____________________________________________
1 See Alatrista v. Diamond Club, 267 A.3d 1257, 1259-60 (Pa.Super.
2021).
J-A04040-22
in Qatar;2 the events surrounding Yazbek’s claim allegedly occurred in
Qatar.3 Yazbek is a Canadian citizen who has had two periods of
employment with Hill. He ended the first voluntarily in 2011.4
Hill rehired Yazbek in February 2016 as Vice President/Country
Manager at its Qatar location.5 Yazbek and Hill entered into a written
employment contract at that time (“First Contract”). The First Contract
provided that any disputes between Yazbek and Hill had to be resolved
“exclusively” by the courts of Qatar and would be governed by Qatari law.6
Yazbek also agreed in the First Contract to execute any standard form labor
contract required by Qatari law.7 According to Hill, he followed through on
that promise when the parties entered into a second contract a short while
later, in March 2016 (“Second Contract”).8 The Second Contract stated that
____________________________________________
2 Hill disputes that it is the entity that employed Yazbek. See Hill’s
Preliminary Objections to Plaintiff’s Second Am. Comp., ¶ 1. That question is
not before us. We refer to Appellee by the name appearing in the caption
and by the short form “Hill” without intending to express an opinion on the
resolution of this question.
3See Reply in Further Support of Hill’s Preliminary Objections to Plaintiff’s
Second Am. Comp.at 2; Second Am. Comp., ¶ 2.
4 Yazbek’s Answer in opposition to Defendant’s Preliminary Objections to
Plaintiff’s Second Am. Comp., ¶1; Second Am. Comp., ¶¶ 9-13 & Ex. B at 1.
5 Id. ¶ 14.
6 Id., Ex. A, ¶¶ 4.1.
7 Id., Ex. A, ¶ 15.
8Id. ¶ 17. See also Hill’s Preliminary Objections to Plaintiff’s Second Am.
Comp. ¶ 5.
-2-
J-A04040-22
its provisions were governed by Qatari law, which would serve as basis for
resolving any dispute between the parties “unless the conditions of the
contract include more favourable [sic] advantage to” Yazbek.9
Yazbek was later injured on the job in May 2017, when a company
vehicle drove over his left foot, resulting in arterial thrombosis. 10 Yazbek
alleges that Hill “was on notice of the incident as a claim was promptly
filed,”11 but Hill allegedly “never compensated him for his workplace
injury.”12
Thereafter, Hill purportedly told Yazbek that he should cease
operational duties on July 1, 2019.13 According to Yazbek, “There was a final
agreement documented but not signed between [Yazbek] and [Hill] that is
dated August 1, 2019." (“Unsigned Agreement”).14 The Unsigned Agreement
alleged and offered Yazbek “voluntary redundancy” and specified that
Yazbek’s last day of employment would be December 31, 2019.15 However,
on September 25, 2019, Hill informed Yazbek that his last day would be
____________________________________________
9 Second Am. Comp., Ex. B ¶ 7(d).
10 Id. ¶¶ 33-35.
11 Id. ¶ 36.
12 Id.
13 Id. ¶ 27.
14 Id. ¶ 18; see also Second Am. Comp., Ex. C.
15 Id. ¶ 19.
-3-
J-A04040-22
December 24, 2019, and he would only be paid “entitlements” up to and
including that date.16
Yazbek filed the instant suit on November 17, 2020. After two rounds
of preliminary objections, Yazbek filed the amended complaint at issue on
March 29, 2021 (“Second Amended Complaint”). The Second Amended
Complaint had two counts: one for breach of all three contracts referenced
above and one for common law wrongful termination. Yazbek attached a
copy of the Unsigned Agreement to the Second Amended Complaint. The
Unsigned Agreement has multiple comments in the margins that, inter alia,
ask for clarification, seek removal of a clause, and indicate that a term is
“not in line with Qatari law.”17 The Unsigned Agreement contains a signing
requirement: “Notwithstanding that this Agreement is marked without
prejudice, it will, when signed by both Parties named below and dated,
become open and binding.”18 It also contains a clause that would require
that any dispute be submitted to mediation “after which it may be referred
to the competent courts of Doha[, Qatar].”19
Hill again filed preliminary objections that included a demurrer to both
counts. Ultimately, the trial court issued an order sustaining Hill’s
____________________________________________
16 Id. ¶¶ 20-21.
17Id. Ex. C at 2-4.
18 Id. Ex. C, ¶ 16.
19 Id. Ex. C, ¶ 15.
-4-
J-A04040-22
preliminary objection to legal sufficiency and dismissed the Second Amended
Complaint. The order stated that on the one hand, “If the [Unsigned
Agreement] is valid, which is the basis of [Yazbek’s] [Second Amended
Complaint], this matter is subject to the forum selection clause dictating this
matter be heard in Qatar.” The order continued that on the other hand, “If
the [Unsigned Agreement] is not valid, [Yazbek] has failed to raise a proper
cause of action.”20 Yazbek filed the instant timely appeal and both Yazbek
and the trial court complied with Pa.R.A.P. 1925.
Yazbek raises the following issues for our review:
1) Whether the trial court erred in finding that, if the [Unsigned
Agreement] is valid, this matter is subject to forum selection clause
dictating that this matter be heard in Qatar?
2) Whether the trial court erred in finding that, if the [Unsigned
Agreement] is not valid, [Yazbek] has failed to state a cause of
action for breach of contract and/or wrongful termination?
Yazbek’s Br. at 7.
We review an order sustaining preliminary objections “to determine
whether the trial court committed an error of law.” Joyce v. Erie Ins.
Exch., 74 A.3d 157, 162 (Pa.Super. 2013) (quoting Feingold v. Hendrzak,
15 A.3d 937, 941 (Pa.Super. 2011)). We apply the same standard on appeal
as the trial court used when it entertained the objections. Id. “When
considering preliminary objections, all material facts set forth in the
____________________________________________
20 Order, 8/11/2021, n.1.
-5-
J-A04040-22
challenged pleadings are admitted as true, as well as all inferences
reasonably deducible therefrom.” Id. (quoting Feingold, 15 A.3d at 941).
The court should examine the allegations of the complaint and statements in
documents and exhibits attached to it. Alatrista, 267 A.3d at 1259-60. A
court may sustain preliminary objections that seek the dismissal of a cause
of action “only in cases in which it is clear and free from doubt that the
pleader will be unable to prove facts legally sufficient to establish the right to
relief.” Joyce, 74 A.3d at 162 (quoting Feingold, 15 A.3d at 941).
In his first issue, Yazbek claims the trial court misapprehended his
argument regarding the Unsigned Agreement. (He makes no argument
regarding the First Contract or the Second Contract.) He claims that he
recognizes that the Unsigned Agreement is unenforceable. Instead, he
claims that an oral contract existed between himself and Hill and that some
of the terms of the Unsigned Agreement memorialize terms of the oral
agreement. He asserts that the court erred by dismissing the case at the
preliminary objection stage because he could have proven the existence of
the verbal contract through discovery. He claims that the parties verbally
agreed to additional compensation due to his injury and that his final date of
employment was to be December 31, 2019. He also avers that he never
verbally agreed to resolve all employment disputes in accordance with Qatari
law only.
“A cause of action for breach of contract must be established by
pleading (1) the existence of a contract, including its essential terms, (2) a
-6-
J-A04040-22
breach of a duty imposed by the contract and (3) resultant damages.”
Pennsy Supply, Inc. v. Am. Ash Recycling Corp. of Pa., 895 A.2d 595,
600 (Pa.Super. 2006).
Where the existence of an informal contract is alleged, it is
essential to the enforcement of such an informal contract that
the minds of the parties should meet on all the terms[,] as well
as the subject matter. If anything is left open for future
negotiation, the informal paper cannot form the basis of a
binding contract.
GMH Assocs., Inc. v. Prudential Realty Group, 752 A.2d 889, 900 (Pa.
Super. 2000) (citation and quotation marks omitted).
Yazbek has not cited any legal authority to support his contention that
a verbal agreement was formed in this case. Nor has he identified for us the
specific allegations of the Second Amended Complaint that he claims support
a finding of an enforceable oral contract. Hence, this issue is waived. See
Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014) (“[W]here an
appellate brief fails to . . . develop [an] issue in [a] meaningful fashion
capable of review, that claim is waived. It is not the obligation of an
appellate court to formulate [an] appellant's arguments for him”) (citation
omitted).
Even if it were not waived, his argument would fail. The allegations of
the Second Amended Complaint regarding any alleged oral contract are
sparse. We find only two paragraphs that conceivably could refer to the
alleged oral agreement and even they do not do so explicitly. The two
paragraphs read:
-7-
J-A04040-22
18. There was a final agreement documented but not signed
between Plaintiff and Defendant that is dated August 1, 2019.
(Please see the August 1, 2019 contract attached as “Exhibit C”).
19. This contract offers voluntary redundance and contemplated
a termination of employment date of December 31, 2019.
Second Am. Comp. ¶¶ 18-19.
Neither of these paragraphs contain any allegations to support a
finding of the formation of an oral contract. Furthermore, we agree with the
trial court that the Unsigned Agreement itself indicated that a “meeting of
the minds” never occurred between the parties. See GMH Assocs., 752
A.2d at 900. The notes throughout the margins of the Unsigned Agreement
fatally undermine Yazbek’s contention that the Unsigned Agreement
memorialized a preexisting verbal agreement that the parties intended to be
enforceable. What is more, the Unsigned Agreement specifies that it will
become “binding” only when signed and dated by both parties. This
seemingly precludes enforcement of any oral contract. Yazbek does not
attempt to explain away the contradiction. Instead, Yazbek chooses the
terms of the Unsigned Agreement he believes should be enforceable, e.g.,
his date of termination being December 31, 2019, and ignores this
unfavorable term. The trial court did not err by finding Yazbek’s allegations
insufficient to support his contract claim. Joyce, 74 A.3d at 162. Yazbek’s
first issue warrants no relief.
In his second issue, Yazbek disputes the sustaining of the preliminary
objection to his wrongful termination count. He claims that his termination
-8-
J-A04040-22
was in retaliation for the workers’ compensation claim he filed in Qatar and
allegedly constitutes a violation of Pennsylvania law. He claims his injury
developed slowly, which accounts for the delay in his termination from the
2017 injury until his termination in 2019. Yazbek admits that he never filed
a workers’ compensation claim in Pennsylvania but argues that Hill had
notice of his claim in Qatar.
Once again, we find Yazbek’s argument unavailing. The sole authority
Yazbek cites is Shick v. Shirey, 716 A.2d 1231 (Pa. 1998). Shick does
concern a common law cause of action for wrongful termination for a
retaliatory discharge in response to a workers’ compensation claim.
However, Shick is readily distinguishable. It concerned an at-will employee
who filed a Pennsylvania workers’ compensation claim. Here, Yazbek’s
employment relationship with Hill is contractual and governed by the First
and Second Contracts, which each specify that any dispute arising between
the parties is subject to Qatari law. Moreover, Yazbek admits he never filed a
Pennsylvania workers’ compensation claim. As such, we conclude that the
trial court aptly sustained Hill’s preliminary objection to the legal sufficiency
of Yazbek’s wrongful termination claim. Therefore, Yazbek’s second issue on
appeal also must fail.
Order affirmed.
-9-
J-A04040-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2022
- 10 -