J-A20037-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

DeLUCA ENTERPRISES, INC., AND 

DeLUCA OFFICE ASSOCIATES, G.P., 

: 

:

: 

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

v. : 

: 

SAP AMERICA, INC., AND IDS SCHEER 

AMERICAS, INC., 

APPEAL OF: DeLUCA OFFICE 

ASSOCIATES, G.P., 

 Appellant 

: 

: 

: 

: 

: 

: 

: No. 3278 EDA 2013 

Appeal from the Judgment entered on October 24, 2013

in the Court of Common Pleas of Bucks County, 

Civil Division, No. 2008-02365 

BEFORE: FORD ELLIOTT, P.J.E., MUNDY and MUSMANNO, JJ. 

MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 05, 2014 

DeLuca Office Associates, G.P. (“DeLuca”), appeals from the Judgment 

entered against it and DeLuca Enterprises, Inc.1

 (collectively referred to as 

“Plaintiffs”), and in favor of SAP America, Inc. (“SAP”), and IDS Scheer 

Americas, Inc. (“IDS”).2 We affirm. 

 The trial court concisely set forth in its Opinion the relevant facts and 

procedural history underlying this appeal, which we adopt herein by 

 

 

1

 DeLuca Enterprises, Inc. is not a party to this appeal. 

2

 IDS is not a party to this appeal. 
J-A20037-14

- 2 - 

reference. See Trial Court Opinion, 2/10/14, at 2-5.3, 4

 On appeal, DeLuca presents the following issues for our review: 

Did the trial court abuse its discretion and/or commit an error of 

law in granting a nonsuit in favor of [SAP] on [DeLuca’s] breach 

of contract claim against [SAP]: 

a. [B]y prejudging and prematurely deciding, and as a 

result dismissing, Count 1 of [DeLuca’s] Amended 

Complaint[, i.e., breach of contract,] before the close of 

[DeLuca’s] case[-]in[-]chief[?] 

b. [B]y failing to find that [DeLuca] presented sufficient

evidence for the jury to find that [SAP] failed to deliver 

the [Enterprise Resource Planning] Software for the 

Homebuilding Industry [] containing the functional 

specifications [DeLuca] contracted for, as admitted by 

[SAP’s] former Senior Vice President, Keith Peterson 

[“Peterson”], thereby allowing the jury to conclude that 

[SAP] breached its contract with [DeLuca?] 

c. [B]y failing to find that [DeLuca] presented sufficient

evidence for the jury to find that [SAP] denied [DeLuca] 

the “use” of the software[,] as agreed under the terms of 

the [Software Licensing Agreement,] thereby allowing the 

jury to conclude that [SAP] breached its contract with 

[DeLuca?] 

d. Without considering the full and complete testimony of 

[Peterson]? 

Brief for Appellant at 6 (some capitalization omitted). 

 

3 We observe that SAP moved for nonsuit regarding Plaintiffs’ breach of 

contract claim against SAP after the conclusion of Plaintiffs’ case-in-chief. 

The trial court judge, the Honorable Robert J. Mellon, granted SAP’s Motion

at that time. 

4

In DeLuca’s Post-Trial Motion, DeLuca requested that the trial court vacate 

its grant of SAP’s Motion for Nonsuit, and grant DeLuca a new trial (before a 

different judge) on its breach of contract count against SAP. Therefore, only 

DeLuca’s breach of contract count is relevant to this appeal.
J-A20037-14

- 3 - 

Initially, we express our disapproval of the Rule 1925(b) Concise 

Statement filed by DeLuca. DeLuca’s Statement, which is anything but 

concise, is 14 pages in length and sets forth 20 separate issues (and 28 subissues), many of which are redundant and voluminous. See Rule 1925(b) 

Concise Statement, 12/16/13; see also Pa.R.A.P. 1925(b)(4)(iv) (providing 

that “[t]he Statement should not be redundant or provide lengthy 

explanations as to any error.”); Trial Court Opinion, 2/10/14, at 5 

(expressing disapproval of DeLuca’s Rule 1925(b) Concise Statement). 

Although we acknowledge that Rule 1925(b) provides that, without more, 

the number of issues raised in a Concise Statement will not be grounds for 

finding waiver, this principle applies only “[w]here non-redundant, nonfrivolous issues are set forth in an appropriately concise manner[.]” 

Pa.R.A.P. 1925(b)(4)(iv); see also Tucker v. R.M. Tours, 939 A.2d 343, 

346 (Pa. Super. 2007) (stating that “Pa.R.A.P. 1925(b) is not satisfied by 

simply filing any statement. Rather, the statement must be ‘concise’ and 

coherent as to permit the trial court to understand the specific issues being 

raised on appeal.”); Kanter v. Epstein, 866 A.2d 394, 401 (Pa. Super. 

2004) (stating that “[b]y raising an outrageous number of issues” in a Rule 

1925(b) statement, an appellant impedes the trial court’s ability to prepare 

an opinion addressing the issues on appeal, thereby effectively precluding 

appellate review). Based on DeLuca’s voluminous and redundant Rule 

1925(b) Statement, we could deem all of its issues waived and dismiss the 
J-A20037-14

- 4 - 

appeal. Nevertheless, we, like the trial court, will address the merits of the 

issues. 

DeLuca challenges the trial court’s grant of nonsuit regarding DeLuca’s 

breach of contract claim against SAP. 

The trial court, on the oral motion of a party, may enter a 

nonsuit if the plaintiff has failed to establish a right to relief. 

Pa.R.C.P., Rule 230.1, 42 Pa.C.S.A. In evaluating the trial 

court’s grant of a nonsuit, we must view the evidence adduced 

on behalf of the plaintiff as true, reading it in the light most 

favorable to [the plaintiff]; giving [the plaintiff] the benefit of 

every reasonable inference that a jury might derive from the 

evidence and resolving all doubts, if any, in [the plaintiff’s] 

favor. Additionally, a compulsory nonsuit may be entered only 

in cases where it is clear that the plaintiff has not established a 

cause of action. When so viewed, a nonsuit is properly entered 

if the plaintiff has not introduced sufficient evidence to establish 

the necessary elements to maintain a cause of action. 

Kefer v. Bob Nolan’s Auto Serv., Inc., 59 A.3d 621, 631 (Pa. Super. 

2012) (quotation marks, brackets, ellipses and citations to case law 

omitted). 

Additionally, to the extent that DeLuca challenges the trial court’s 

denial of its Post-Trial Motion seeking a new trial, our standard of review is 

as follows: “When reviewing the denial of a motion for new trial, we must 

determine if the trial court committed an abuse of discretion or error of law 

that controlled the outcome of the case.” Brady v. Urbas, 80 A.3d 480, 

483 (Pa. Super. 2013) (citation and brackets omitted).

 DeLuca first argues that the trial court committed reversible error by 

“clearly prejudging and prematurely deciding [DeLuca’s] claim for breach of 

contract against SAP [] in the very early stages of [DeLuca’s] 
J-A20037-14

- 5 - 

case[-]in[-]chief ....” Brief for Appellant at 22.5

 In support of this claim, 

DeLuca emphasizes Judge Mellon’s following question to DeLuca’s counsel, 

made outside of the presence of the jury during the direct examination of 

one of DeLuca’s witnesses, James DeLuca: “Counsel, you can help me, 

because this is a fraud [in] the inducement case and we are now talking 

about the execution of a contract, aren’t we?” N.T., 5/10/13, at 44-45; see 

also Trial Court Opinion, 2/10/14, at 16 (setting forth the full exchange 

between Judge Mellon and counsel for DeLuca). According to DeLuca, 

[t]he significance of the Trial Court’s error [regarding this 

question to DeLuca’s counsel] is that [DeLuca] was pursuing only 

two causes of action as against [SAP]: Breach of Contract, and 

Civil Conspiracy based on [SAP’s] fraudulent actions in concert 

with [IDS.] Contrary to the Trial Court’s admonition of 

[DeLuca’s] counsel[,] ... [DeLuca] did not plead a cause of action 

for fraud in the inducement against [SAP], but rather against 

IDS .... By dismissing questions about the execution of the 

[Software Licensing Agreement (“SLA”)], the Trial Court clearly 

exhibited a pre-disposition to dismiss [DeLuca’s] breach of 

contract claim ....

Brief for Appellant at 23. 

Our review of the record discloses no evidence supporting DeLuca’s 

assertion that Judge Mellon had “prejudged” or “prematurely decided” 

DeLuca’s breach of contract claim. In his Opinion, Judge Mellon addressed 

DeLuca’s challenge as follows:

There is no evidence on the record showing prejudgment or 

predetermined decision making by the [Trial] Court. ... DeLuca 

received a fair trial. [DeLuca was] allowed to present all of [its] 

 

5

 As noted above, the record is clear that the trial court did not actually rule 

upon SAP’s Motion for Nonsuit until after the conclusion of DeLuca’s case-inchief. 
J-A20037-14

- 6 - 

witnesses and the trial was conducted in a fair manner .... At no 

point did the [Trial] Court interject in an inappropriate manner, 

or limit DeLuca from presenting [its] case. 

Trial Court Opinion, 2/10/14, at 15; see also id. at 16 (wherein Judge 

Mellon stated that he “did not limit James DeLuca’s testimony in any way, as

he testified for three days of the trial.”). Judge Mellon’s analysis is 

supported by the record, and we discern no reversible error in his isolated 

comment. Further, Judge Mellon’s comment in no way indicates that he had 

prejudged DeLuca’s breach of contract claim against SAP.6

 Contrary to 

DeLuca’s assertion, Judge Mellon did not “dismiss[] questions about the 

execution of the SLA[,]” i.e., the contract between SAP and DeLuca. 

We will next address DeLuca’s related second and third issues 

together, as both assert that the trial court erred in granting a nonsuit based 

upon its determination that DeLuca had failed to establish a prima facie

claim for breach of contract against SAP. See Brief for Appellant at 24-43. 

DeLuca first argues that the trial court erred in determining that, as SAP had 

undisputedly delivered the Enterprise Resource Planning (“ERP”) software7 to 

DeLuca, and the software was never run by DeLuca, DeLuca could not 

 

6

Indeed, Judge Mellon’s comment was actually made in reference to 

evidence that DeLuca’s counsel had presented regarding IDS’s 

implementation efforts under IDS’s separate agreement with DeLuca. 

DeLuca did not raise a breach of contract claim against IDS. 

7 DeLuca maintains that “the [] ERP software promised by [SAP] was to be 

an integrated solution for the Homebuilding Industry with state-of-the-art 

Variant Configuration (i.e., construction options coordination and fully 

integrated pricing and system management) functionality embedded within 

the [] ERP system[.]” Brief for Appellant at 27.
J-A20037-14

- 7 - 

establish a prima facie claim for breach of contract. Id. at 24-25, 26-28, 38. 

Specifically, DeLuca maintains that SAP breached the SLA by failing to 

deliver an “All-in-One [] fully integrated software system” that met the 

“agreed upon ... ERP functional specifications.” Id. at 25, 27, 38. In support 

of this claim, DeLuca points to the trial testimony of Peterson (SAP’s former 

Senior Vice President), asserting that “Peterson admitted that [DeLuca] 

licensed ERP software[,] i.e.[,] a fully integrated software system built upon 

modules licensed under the SLA[.]” Id. at 25 (citing N.T., 5/14/13, at 162). 

According to DeLuca, the trial court erred in failing to adequately consider 

Peterson’s admission, and its import to establishing a breach of the SLA, 

including a finding that “the software did not meet what [SAP] had agreed to

license to [DeLuca].” Brief for Appellant at 25-26, 34. 

DeLuca further contends that the trial court erred in “dismiss[ing] 

[DeLuca’s] claim for breach of contract because [SAP] merely promised to 

‘deliver the software’ ... and ‘delivered the software as required under the 

SLA[.]’” Id. at 38-39 (quoting Trial Court Opinion, 2/10/14, at 12). 

Additionally, DeLuca argues that the trial court erred in failing to find 

that SAP breached “paragraphs 1.9 and 2.1(a) of the SLA,[8] ... [which] 

contractually licensed the ‘use’ of the ERP software to enable [DeLuca] to 

activate, access [and] employ the software[.]” Brief for Appellant at 40 

 

8 These provisions are set forth and discussed in the trial court’s Opinion. 

See Trial Court Opinion, 2/10/14, at 12 n.58. 
J-A20037-14

- 8 - 

(footnote added; some internal quotation marks and capitalization omitted);

see also id. at 37-38. 

Finally, DeLuca argues that SAP breached the SLA by “failing to ... 

provide training [to DeLuca’s] employees in the [u]se of [SAP’s] ... ‘Variant 

Configurator’ ... management functionality purportedly already embedded in 

[SAP’s] ERP software licensed to [DeLuca.]” Id. at 39. 

In its Opinion, the trial court thoroughly addressed each of DeLuca’s

above-mentioned claims, set forth the applicable law, discussed the relevant 

evidence of record, and determined that the court properly granted a nonsuit 

on DeLuca’s breach of contract claim. See Trial Court Opinion, 2/10/14, at 

7-13. After review, we find that the trial court’s cogent analysis is supported 

by the law and the record, and we therefore affirm on this basis as to 

DeLuca’s second and third issues. See id. 

 In its final issue, DeLuca argues that Judge Mellon erred by granting 

SAP’s Motion for Nonsuit because he failed to consider at trial all of 

Peterson’s testimony. Brief for Appellant at 43-47. Specifically, DeLuca 

contends that, during the playing to the jury of the videotaped deposition of 

Peterson, Judge Mellon left the courtroom “at several points,” and, according 

to DeLuca, never read the deposition transcript of Peterson’s testimony. Id.

at 43-44.

 The trial court addressed this claim in its Opinion and determined that 

DeLuca waived the claim by its failure to object to this alleged impropriety. 

See Trial Court Opinion, 2/10/14, at 17; see also Pa.R.A.P. 302(a) 
J-A20037-14

- 9 - 

(providing that “issues not raised in the lower court are waived and cannot 

be raised for the first time on appeal.”). Additionally, the trial court correctly 

determined that even if this claim was not waived, it lacks merit because the 

court had, in fact, “considered the entire weight of the evidence, including [] 

Peterson’s testimony, in granting the [n]onsuit.” Trial Court Opinion, 

2/10/14, at 9; see also id. (explaining the content of Peterson’s relevant 

testimony). We affirm with regard to this issue based on the trial court’s 

rationale, which is supported by the record. See id. at 9, 17. 

 After reviewing the record, and viewing all of the evidence adduced at 

trial in the light most favorable to DeLuca, we conclude that the trial court 

properly determined that DeLuca had failed to establish a prima facie cause 

of action for breach of contract against SAP, and correctly granted SAP’s 

Motion for Nonsuit regarding this count. Additionally, the trial court properly 

denied DeLuca’s Post-Trial Motion seeking a new trial on the breach of 

contract count. Therefore, we affirm the Judgment entered against DeLuca. 

 Judgment affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/5/2014