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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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 ado pt 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

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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 dismis sing, 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 d eliver

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 tha t

[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 [DeL uca]

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

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 Plain tiffs’ breach of

contract claim against SAP after the conclusion of Plainti ffs’ case

- in -chief.

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

at that time.

4 

### In DeLuca’s Post -Trial Motion, DeLuca requested that the trial court v acate

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

DeL uca’s breach of contract count is relevant to this appea l.

### J-A20037- 14

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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 leng thy

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

(expressing disapproval of DeLuca’s Rule 1925(b) Concise S tat ement).

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

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

finding waiver, this principle applies only “[w]here n on -redundant, nonfrivolous issues are set fort h 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) i s not satisfied by

simply filing any statement. Rather, the statement mu st 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 appe llant impedes the trial court’s ability to prepare

an opinion addressing the issues on appeal, thereby effe ctively precluding

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

1925(b) Statement, we could deem all of its issues waive d and dismiss the

### J-A20037- 14

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

issues.

DeLuca challenges the trial court’s grant of nonsuit reg arding 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 righ t 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 ad duced

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

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

every reasonable inference that a jury might derive f rom the

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

favor. Additionally, a compulsory nonsuit may be ente red only

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

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

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, o ur standard of review is

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

determine if the trial court committed an abuse of discr etion 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 reve rsible 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

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case[-]in[- ]chief ....” Brief for Appellant at 22. 5 

### In support of this claim,

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

made outside of the presence of the jury during the d irect examination of

one of DeLuca’s witnesses, James DeLuca: “Counsel, you can h elp 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). Accordin g to DeLuca,

[t]he significance of the Trial Court’s error [regardin g 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 admonitio n of

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

for fraud in the inducement against [SAP], but rathe r against

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

[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 “prematu rely 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 presen t all of [its]

5 

### As noted above, the record is clear that the trial cour t did not actually rule

upon SAP’s Motion for Nonsuit until after the conclusion of DeLuca’s case

- in

chief.

### J-A20037- 14

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

po int did the [Trial] Court interject in an inappropri ate 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 testi mony in any way, as

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

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

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

prejudged DeLuca’s breach of con tract claim against SAP. 6 

### Contrary to

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

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

We will next address DeLuca’s related second and third issu es

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

upon its determination that DeLuca had failed to estab lish 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 deter mining that, as SAP had

undisputedly delivered the Enterprise Resource Planning (“ERP”) software 7 

### to

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

6 

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

evidence that DeLuca’s counsel had presented regarding ID S’s

implementation efforts under IDS’s separate agreement with DeLuca.

DeLuca did not raise a breach of contract claim agains t 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) functionali ty embedded within

the [] ERP system[.]” Brief for Appellant at 27.

### J-A20037- 14

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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 admitte d 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 bre ach of the SLA,

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

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

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

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

‘deliver the software’ ... and ‘delivered the software as r equired 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 SL A, [ 8] 

### ... [which]

contractually licensed t he ‘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 co urt’s Opinion.

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

### J-A20037- 14

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(footnote added; some internal quotation marks and cap italization omitted);

see also id. at 37-38.

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

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

Configurator’ ... management functionality purportedly already embedded in

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

In its Opinio n, 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 pro perly granted a nonsuit

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

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

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

DeLuca’s second and third issues. See id.

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

SAP’s Motion for Nonsuit because he failed to consider a t 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 p oints,” and, according

to DeLuca, never read the deposition transcript of Pete rson’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 thi s alleged impropriety.

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

### J-A20037- 14

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(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 t he 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 conclud e that the trial court

properly determined that DeLuca had failed to establi sh a prima facie cause

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

Motion for Nonsuit regarding this count. Additionall y, 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 en tered against DeLuca.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/5/2014