Mina, A. v. ENET Advertising

J. A11011/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
ANTHONY S. MINA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
ENET ADVERTISING, : No. 3171 EDA 2013
OPTIMA WEBDESIGN, RONALD SHUR :
AND NICKOLAI POTAPOV :
Appeal from the Order Entered October 9, 2013,
in the Court of Common Pleas of Chester County
Civil Division at No. 2013-02649
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 16, 2015
Appellant appeals from the order dismissing his complaint with
prejudice. Finding no error, we affirm.
On November 11, 2011, appellant and appellee entered into a written
agreement wherein, in exchange for $25 per month, appellee agreed to host
an internet website advertising appellant’s business. There was also a
one-time charge of $200. The website was apparently created, but was
never precisely to appellant’s liking; consequently, over a period of months,
appellant communicated numerous changes that he wanted made to the
website. On the other hand, there were also later communications from
appellant to appellee directing it to make no changes to the website. When
appellant subsequently expressed a desire to have another entity host his
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website, he claims appellee would not provide access information to its
website.
Ultimately, on March 15, 2013, appellant filed a pro se complaint.
The first count presented a vague claim sounding in both breach of contract
and fraud. The complaint also contained three additional counts, all seeking
injunctive relief in the amount of $222,222 per day, until appellee provided
all website access information.
On May 7, 2013, appellee responded with a motion to dismiss the
complaint on the bases that the breach of contract claim failed to state any
damages or any basis for determining damages, and that the fraud claim
was not pleaded with sufficient particularity.
Oral argument was heard on September 12, 2013. Prior to the
hearing, appellee apparently submitted a memorandum to the court that
also argued that appellant’s tort claim was subsumed by the breach of
contract claim pursuant to the “gist of the action” doctrine. On October 9,
2013, the trial court dismissed appellant’s complaint. According to the trial
court’s opinion, it did so with prejudice because it was undisputed during the
hearing that appellee had performed the work required under the agreement
and there was no breach, and also that appellant could not possibly state a
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claim for fraud even if permitted to amend the complaint.1 (Trial court
opinion, 10/31/14 at 2-3 (by our count).) This timely appeal followed.
Appellant raises the following issues on appeal:
1. Judge Braxton abused his discretion dismissing
Plaintiff’s Breach of Contract claim because
Plaintiff’s Complaint stated an agreement that
was made between Plaintiff and Defendant, an
agreement that Plaintiff paid Defendant for and
an agreement Defendant refused to fulfill. A
jury is to determine whether a contract has
been proven, its terms and extent. O’Neil v.
ARA Services, Inc., 457 F Supp. 182 1978 U.S.
Dist. Lexis 16125, 151 LRRM 4846 (E.D. Pa.
1978)
2. Judge Braxton abused his discretion dismissing
Plaintiff’s Fraud claim because Plaintiff’s
Complaint stated an agreement that was made
between Plaintiff and Defendant, an agreement
that Plaintiff paid Defendant for and an
agreement Defendant refused to fulfill while
promising repeatedly to be fulfilling promised
agreement (While a mere breach of a promise
does not constitute fraud, nevertheless, fraud
may be predicated on the nonperformance of a
promise in certain cases where the promise is
the device to accomplish fraud Pichler v.
Snavely, 53 Lanc. Rev. 43 (Pa. Com. Pl.
1952)).
3. Judge Braxton abused his discretion by
allowing Defendant to enter another defense to
Plaintiff’s Complaint at September 12, 2013
hearing because Judge Braxton told Plaintiff on
May 20, 2013 that oral argument was being
heard on Defendant’s Motion to Dismiss
Plaintiff’s Complaint on May 20, 2013 and
Plaintiff was not entitled to another oral
1
We note that appellant has failed to have the hearing transcribed,
rendering it impossible to review the trial court’s conclusions in this regard.
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argument. Plaintiff had yet to file a response
to Defendant’s Motion to Dismiss filed May 7,
2013 and Judge Braxton found on May 20,
2013 that Plaintiff was unprepared for the
May 20, 2013 hearing which Court
Administration scheduled as “pre-trial
conference”, as such, Judge Braxton held oral
argument on the Motion to Dismiss on May 20,
2013. A true and correct copy of Defendants
[sic] argument memorandum which includes
defenses not raised in Defendant’s Motion to
Dismiss filed May 7, 2013, not heard by the
court on May 20, 2013 but allowed to be raised
by Defendant on September 12, 2013 is
attached hereto as Exhibit B.
4. Judge Braxton abused his discretion by
dismissing Plaintiff’s Complaint prior to
Discovery because Plaintiff filed a Notice to
Attend and Produce and Motion to Compel
Discovery on August 21, 2013 that Defendant
refused to comply with. The items Plaintiff
requested in Discovery and in the Notice to
Attend and Produce were all pertinent and
relevant to claims set forth against Defendant.
5. Judge Braxton abused his discretion by
dismissing Plaintiff’s Complaint because
Plaintiff and Defendant presented conflicting
testimony (while Plaintiff had evidence to
support his argument) and under the rules of
general application, questions of fact upon
conflicting evidence are to be determined by
the jury, while questions of law are to be
determined by the court. Carnicelli v. Bartram,
289 Pa. Super. 424, 433 A.2d 878 (1981).
Appellant’s brief at 6.
Preliminarily, we admonish appellant that engaging in repugnant
character assassination against both the trial court and a particular member
of this court does nothing to advance his cause. (Appellant’s brief at 4 and
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9.) Such ad hominem attacks are juvenile, and to the extent that they
challenge the integrity of the judges at issue, they instead give us pause to
doubt appellant’s own integrity. Appellant’s bizarre rant on page four of his
brief is likewise disturbing. (Appellant’s brief at 4.)
Turning now to the case at hand, we note that the motion to dismiss
filed in this case should have more properly been styled as a preliminary
objection in the nature of a demurrer. See Pa.R.C.P., Rule 1028(a)(4),
42 Pa.C.S.A. As such, the following standard of review is applied:
The standard of review we apply when
reviewing a trial court’s order granting preliminary
objections in the nature of a demurrer is as follows:
Our standard of review of an order of the
trial court overruling or granting
preliminary objections is to determine
whether the trial court committed an
error of law. When considering the
appropriateness of a ruling on
preliminary objections, the appellate
court must apply the same standard as
the trial court.
Preliminary objections in the
nature of a demurrer test the legal
sufficiency of the complaint. When
considering preliminary objections, all
material facts set forth in the challenged
pleadings are admitted as true, as well
as all inferences reasonably deducible
therefrom. Preliminary objections which
seek the dismissal of a cause of action
should be sustained 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. If any doubt exists as to whether
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a demurrer should be sustained, it
should be resolved in favor of overruling
the preliminary objections.
Liberty Mutual Insurance Co. v. Domtar Paper Co., 77 A.3d 1282, 1285
(Pa.Super. 2013) affirmed, A.3d , 2015 WL 1888572 (Pa. Apr 27,
2015), quoting Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa.Super. 2011).
We begin by finding that appellant has effectively waived his issues on
appeal. In the argument section of his brief, appellant merely repeats his
Statement of Questions Involved from page six of his brief, but without any
additional relevant analysis or discussion. Each issue described in the
Statement of Issues Involved amounts to two or three sentences. Such
spare argument does not allow meaningful appellate review. “[W]here an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful
fashion capable of review, that claim is waived.” Umbelina v. Adams, 34
A.3d 151, 161 (Pa.Super. 2011), appeal denied, 47 A.3d 848 (Pa. 2012),
quoting In re W.H., 25 A.3d 330, 339 (Pa.Super. 2011), appeal denied,
24 A.3d 364 (Pa. 2011) (citations omitted). We find appellant has waived
his claims. Nonetheless, for purposes of any further attempt at review by
appellant, we will briefly indicate why his complaint was properly dismissed.
In his first issue, appellant asserts that the breach of contract claim
was improperly dismissed. “A breach of contract action involves (1) the
existence of a contract, (2) a breach of a duty imposed by the contract, and
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(3) damages.” Kirschner v. K&L Gates LLP, 46 A.3d 737, 755 (Pa.Super.
2012), appeal denied, 65 A.3d 414 (Pa. 2013). After the hearing on the
motion to dismiss his complaint, the trial court stated:
Here, viewing the complaint in its entirety, it was not
abundantly clear whether the facts averred, if proved
true, would establish that plaintiff suffered damages
from the alleged actions or inaction of defendants.
Upon consideration of the positions advanced by the
parties at oral argument, it became apparent that
plaintiff could not state a claim in breach of contract
if given leave to amend the complaint. At oral
argument, there was no dispute as to the subject
matter and terms of the agreement between the
parties. It was also undisputed that defendants
performed the work required under the agreement
by creating the website with the pictures and
information provided by plaintiff to defendants, and
that the website is running. For this reason, we
believe that plaintiff cannot state a claim in breach of
contract against defendants. Thus, we find plaintiff’s
first issue to be without merit.
Trial court opinion, 10/31/14 at 2 (by our count).
At the hearing, the trial court indicated that there was no evidence of
any breach and that it was not disputed by appellant. Thus, the trial court
decided as a matter of law that there was no breach. As noted earlier,
appellant’s failure to provide us with a transcript of this hearing renders it
impossible for this court to review the trial court’s conclusion of law.
Moreover, our independent review of the complaint itself does not lead us to
conclude that the trial court was in error. We find no error.
In his second issue, appellant contends that the trial court erred in
dismissing his fraud claim. A claim for fraud must be averred with
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particularity. Ellison v. Lopez, 959 A.2d 395, 398 (Pa.Super. 2008),
appeal denied, 968 A.2d 233 (Pa. 2009). “The test for fraud is: (1) a
misrepresentation; (2) a fraudulent utterance; (3) an intention by the maker
that the recipient will thereby be induced to act; (4) justifiable reliance by
the recipient upon the misrepresentation; and (5) damage to the recipient as
a proximate result.” Id. Appellant’s complaint contained none of these
averments. Rather, the complaint contained precepts of fraud law, but no
averments regarding appellee in particular. Basically, the complaint only
stated that the website was not completed to appellant’s liking. Finally, the
trial court concluded that even if given leave to amend the complaint,
appellant could not state a cause of action for fraud. (Trial court opinion,
10/31/14 at 3 (by our count).)
In his third issue, appellant argues that the trial court improperly
permitted appellee to raise a defense that was not raised in the motion to
dismiss. We assume, because he does not identify the defense, that
appellant is referring to the gist of the action doctrine that was raised in
appellee’s hearing memorandum but not in the motion to dismiss. The trial
court did not dismiss any part of appellant’s complaint on this basis and
there is no prejudice to appellant.
In his fourth issue, appellant complains that the trial court improperly
dismissed the complaint before permitting discovery. Simply stated,
discovery cannot go forward until a litigant has demonstrated that a cause of
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action exists upon which discovery can be made. Appellant failed to
demonstrate a cause of action.
In his fifth and final issue, appellant posits that the trial court erred in
dismissing his complaint because the parties presented conflicting testimony
at the hearing. Again, without a hearing transcript we cannot review the
court’s findings that the existence of the agreement and appellee’s
performance were undisputed, and that no breach of contract existed as a
matter of law.
Accordingly, having found no merit in the issues on appeal, we will
affirm the order below.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2015
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