J-A26030-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PAUL J. BENEC IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

ARMSTRONG CEMENT & SUPPLY CORP., 

DENNIS C. SNYDER AND DAVID SNYDER

No. 139 WDA 2016

Appeal from the Order Entered January 6, 2016

in the Court of Common Pleas of Butler County

Civil Division at No(s): 2014-10943

BEFORE: BENDER, P.J.E., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY RANSOM, J.: FILED NOVEMBER 22, 2016

Appellant, Paul Benec, appeals from the order entered January 6, 

2016, which granted the preliminary objections in the nature of a demurrer 

filed by Armstrong Cement & Supply Corp., Dennis C. Snyder, and David 

Snyder. We affirm.

The relevant facts and procedural history are as follows. Appellant is 

the former executive vice president of marketing at Armstrong Cement & 

Supply Corp. (“Armstrong”). Second Am. Compl. ¶¶ 16, 37. 1

In 1983, Russ Haller, then president of Armstrong, approached 

Appellant with an offer of employment. Second Am. Compl. ¶¶ 14-15. The 

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1

For purposes of this appeal and in light of the procedural posture of the 

case, we accept as true the pleadings set forth in Appellant’s Second 

Amended Complaint, 9/9/15, at 1-19.
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oral offer included a stock bonus. Second Am. Compl. ¶ 15. The 

subsequent written offer of employment, however, included the term “stock 

option.” Second Am. Compl. ¶ 16. The relevant provision of the contract 

read:

5. Stock Options – will be offered in a non-voting class B stock 

that will be warranted at each anniversary date of this contract. 

The stock awarded will be equivalent to five percent of the total 

outstanding shares of the present class A voting stock and will 

be awarded on the basis of one-third of the five percent at the 

end of the first year, one-third of the five percent at the end of 

the second year, and one-third of the five percent at the end of 

the third year.

Second Am. Compl. ¶ 19; Ex. 2. 

Mr. Haller informed Appellant, verbally, that the terms “stock options” 

and “stock bonuses” were intended synonymously. Second Am. Compl. ¶ 

17. Prior to signing the contract, Appellant again inquired as to the meaning 

of the term “stock option,” and Mr. Haller assured him that the agreement 

provided a “stock bonus” rather than a stock option. Second Am. Compl. ¶ 

21. Appellant signed an employment contract on January 4, 1984. Second 

Am. Compl. ¶ 18, Ex. 2. Appellant avers that pursuant to the agreement, he 

is thus entitled to 2,213.23 shares of stock in Armstrong. Second Am. 

Compl. ¶ 23. 

Appellant attached to his complaint a copy of the original offer letter, 

the employment contract, and a copy of the offer letter signed in 1987 by 

the then-president of Armstrong, Wayne Sell. Second Am. Compl. ¶¶ 24-25, 

Ex. 1-3. The offer letter lists the total shares of Armstrong stock 
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outstanding. Second Am. Compl. ¶¶ 24-25, Ex. 3. Appellant avers that, 

over the thirty years of his employment, various Armstrong entities have 

failed to pay him dividends or distribution of income. Second Am. Compl. ¶¶ 

35-38.

Appellant filed a complaint in civil action on November 3, 2014. 

Appellees filed preliminary objections by demurrer to the complaint. 

Appellant filed a brief in opposition, and Appellees filed a reply in support of 

their objections. On April 2, 2015, by memorandum opinion, the court 

sustained Appellees’ objections and dismissed the complaint without 

prejudice.

On April 21, 2015, Appellant filed an amended complaint. Appellees 

filed preliminary objections by demurrer, Appellant filed an answer in 

opposition, and Appellees filed a reply brief in support of their objections. 

On August 18, 2015, the court granted Appellees’ preliminary objections and 

by memorandum opinion, dismissed the complaint without prejudice.

On September 9, 2015, Appellant filed his second amended complaint, 

raising the following counts: contract reformation due to mutual mistake of 

fact; reformation of contract by estoppel; minority shareholder oppression 

common law cause of action; minority shareholder oppression pursuant to 

18 P.S. § 1767; breach of fiduciary duty; breach of contract; detrimental 

reliance; unjust enrichment; declaratory judgment pursuant to 42 Pa.C.S. § 

7531; and shareholder derivative action. 
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Appellees filed preliminary objections by demurrer. Appellant filed an 

answer in opposition, and Appellees filed a reply brief in further support of 

their objections. On January 6, 2016, the court issued a memorandum 

opinion granting Appellees’ preliminary objections and dismissed Appellant’s 

second amended complaint with prejudice.

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) 

statement. The trial court issued a 1925(a) statement incorporating its prior 

memorandum opinions.

Herein, Appellant raises the following issues for our review:

1. Did the trial court err in sustaining preliminary objections on 

the contract reformation claims based upon a mutual mistake 

made by the parties regarding the meaning of the term “stock 

option”?

2. Did the trial court err in sustaining preliminary objections on 

the contract reformation claims based upon a unilateral mistake 

made by Appellant regarding the meaning of the term “stock 

option”?

3. Did the trial court err in sustaining preliminary objections on 

the breach of contract and declaratory judgment claims, since 

the term “stock option” was latently and patently ambiguous?

4. Did the trial court err in sustaining preliminary objections on 

the detrimental reliance and unjust enrichment claims, since 

these claims were adequately plead?
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5. Did the trial court err in sustaining preliminary objections to 

Counts I, II and III, since Appellant had standing as a 

shareholder?2

Appellant’s Brief at 2 (unnecessary capitalization omitted).

Our standard of review is settled.

[We must] 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 a demurrer should be 

sustained, it should be resolved in favor of overruling the 

preliminary objections.

Majorsky v. Douglas, 58 A.3d 1250, 1268-69 (Pa. Super. 2013) (quoting 

Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011)). 

The instant appeal is essentially a contracts dispute. Contract 

interpretation is a question of law and our standard of review is de novo. 

Kraisinger v. Kraisinger, 928 A.2d 333, 339 (Pa. Super. 2007). When 

interpreting a contract:

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2 Appellant’s original complaint raised, as its first three counts, common law 

and statutory claims for minority shareholder oppression, and breach of 

fiduciary duty. Compl. at ¶¶ 33-46. In Appellant’s second amended 

complaint, these claims appear as Counts III, IV, and V. Second Am. 

Compl. at ¶¶ 52-68.
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[t]he fundamental rule . . . is to ascertain and give effect to the 

intent of the contracting parties. The intent of the parties to a 

written agreement is to be regarded as being embodied in the 

writing itself. The whole instrument must be taken together in 

arriving at contractual intent. Courts do not assume that a 

contract's language was chosen carelessly, nor do they assume 

that the parties were ignorant of the meaning of the language 

they employed. When a writing is clear and unequivocal, its 

meaning must be determined by its contents alone.

Murphy v. Duquesne University Of The Holy Ghost, 777 A.2d 418, 429 

(Pa. 2001) (internal citations and quotation marks omitted). “In 

ascertaining the intent of the parties to a contract, it is their outward and 

objective manifestations of assent, as opposed to their undisclosed and 

subjective intentions, that matter.” Espenshade v. Espenshade, 729 A.2d 

1239, 1243 (Pa. Super. 1999).

Several of Appellant’s arguments rely on the admission of parol

evidence, namely conversations between Appellant and various Armstrong 

board members regarding the term “stock options.” These conversations 

are intrinsic to many of Appellant’s claims. To the extent that we may 

address these issues together, this Court will do so.

Parol evidence is prior or contemporaneous oral representations or 

agreements concerning a subject that is specifically covered by the written 

contract, which purports to cover the entire agreement of the parties. See 

Bowman v. Meadow Ridge, Inc., 615 A.2d 755, 758 (Pa. Super. 1992). 

In the absence of fraud, accident, or mistake, or where the contract is 

ambiguous, parole evidence is inadmissible. Yocca v. Pittsburgh Steelers 
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Sports, Inc., 854 A.2d 425, 436 (Pa. 2004). In the instant matter, the 

contract, by its terms, is the final agreement between the parties. Second 

Am. Compl. at Ex. 2. Thus, unless one of the exceptions apply, the 

conversations between Appellant and Mr. Haller constitute inadmissible parol 

evidence.

A patent ambiguity appears on the face of the instrument and arises 

from the defective, obscure, or insensible language used. Z & L Lumber 

Co. of Atlasburg v. Nordquist, 502 A.2d 697, 699 (Pa. Super. 1985) 

(citation omitted). A latent ambiguity arises from extraneous or collateral 

facts rendering the meaning of a written contract uncertain. Id. Such facts 

must constitute objective indicia that the terms of the contract are 

susceptible to different meanings. Id. at 699; see also Krizovensky v. 

Krizovensky, 624 A.2d 638, 643 (Pa. Super. 1993). In either type of 

ambiguity, the inquiry focuses on what the agreement manifestly expressed, 

not what the parties may have silently intended. Delaware County v. 

Delaware County Prison Employees Independent Union, 713 A.2d 

1135, 1138 (Pa. 1998). 

Appellant argues that the term “stock options” is patently ambiguous. 

Appellant’s Brief, at 29-42. According to Appellant, the term “awarded” 

suggests a gift and therefore renders the contract patently ambiguous. This 

argument is unavailing. Both this Court and Black’s Law Dictionary have 

defined the term “stock option” as “an option to buy or sell a specific 
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quantity of stock at a designated price for a specified period regardless of 

shifts in market value during the period.” MacKinley v. Messerschmidt, 

814 A.2d 680, 682 (Pa. Super. 2002) (citing Black’s Law Dictionary 1431 

(7th ed. 1999)). Moreover, Pennsylvania courts have indeed used the term 

“awarded” when dealing with stock options offered by an employer. See 

Fisher v. Fisher, 769 A.2d 1165, 1167 (Pa. 2001) (referring to the 

“periodic award of stock options”), Marchlen v. Twp. of Mt. Lebanon, 746 

A.2d 566, 567 (Pa. 2000) (referring to stock option awards). Both cases use 

the language “award” to refer to the option to purchase stocks at a set price. 

See Fisher, 769 A.2d at 1167 (referring to stock options awarded and 

noting that husband routinely exercised the options when they vested); see 

also Marchlen, 746 A,2d at 567 (referring to employees exercising options 

to purchase stocks and that after the award of the option, employees must 

remain with the company for one year). Thus, there was no patent 

ambiguity in the wording of the contract.

Appellant’s argument that the contract is latently ambiguous is equally 

unavailing. According to Appellant, the lack of an option price and term 

creates an ambiguity in the terms of the contract. We disagree. The 

contract states solely that stock options “will be offered,” which indicates an 

offer to purchase and not a gift. As noted by the trial court, this provision 

contemplates a future offer of stock options, i.e, at the end of the terms 

1985, 1986, and 1987, rather than a present offer. Thus, the lack of a 
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specified option price and term does not create a latent ambiguity. As 

Appellant has not identified an objective indication of ambiguity, the trial 

court properly excluded extrinsic parol evidence. See Krizovensky, 624 

A.2d at 643. 

Appellant also asserts that the conversations should be admissible 

because of a mutual mistake between the parties. Appellant’s Brief at 8-20. 

According to Appellant, both parties mistakenly believed that the wording of 

the contract provided for the award of a stock bonus. Because this 

constituted a mistake of fact, Appellant concludes that he is entitled to 

reform the contract. Id. at 8-17.

“Mutual mistake of fact may serve as a defense to the formation of a 

contract and occurs when the parties have an erroneous belief as to a basic 

assumption of the contract at the time of formation which will have a 

material effect on the agreed exchange as to either party.” Voracek v. 

Crown Castle USA Inc., 907 A.2d 1105, 1107–08 (Pa. Super. 2006).3 A 

mutual mistake occurs when the instrument fails to set forth the true 

agreement of the parties. Id. The language of the contract should be 

interpreted in the light of the subject matter, apparent purpose of the 

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3

In Voracek, for example, the “mistake of fact” was a hiring manager 

mistakenly sending the wrong employment agreement to be signed by the 

new hire. See Voracek, 907 A.2d at 1108. 
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parties, and conditions existing when executed. Voracek, 907 A.2d at 

1108.

While a mutual mistake of fact may serve as a defense to the 

formation of a contract, a mistake of law does not. See Betta v. Smith, 81 

A.2d 538, 539 (Pa. 1951); see also Voracek, 907 A.2d at 1107. A mistake 

of law is “a mistake as to the legal consequences of an assumed state of 

facts.” Acme Markets, Inc. v. Valley View Shopping Center, Inc., 493 

A.2d 736, 737 (Pa. Super. 1985). A mistake of law does not allow for 

recovery. Id. at 737. Incorrect interpretations of legal documents are 

considered mistakes of law. Id.

In the instant case, Appellant’s attempt to establish a mutual mistake 

of fact is without merit. Even accepting as true Appellant’s allegation that 

Mr. Haller intended the phrase “stock options” to mean “stock bonuses,” the 

issue remains the legal effect of the phrase rather than any concrete, mutual 

mistake of fact. Appellant did not plead, as in Voracek, that he reviewed 

and accepted a different form of the contract than the contract he eventually 

signed. He pleaded only that the parties intended the contract to have a 

different effect than it did. 

Consequently, Appellant has not established the existence of any 

exception that would require the admission of parol evidence, and, thus, the 

conversations regarding the parties’ intent will not be considered when 
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determining Appellant’s contract claims. With this background in mind, we 

now turn to Appellant’s assertions of trial court error.

First, Appellant claims that the trial court erred in sustaining 

preliminary objections to his contract reformation claim based upon a mutual 

mistake by the parties regarding the meaning of the term “stock options.” 

Appellant argues that, because both parties intended to confer a stock bonus 

rather than a stock option, this constituted a mistake of fact that should 

allow for the reformation of a contract. Appellant’s Brief at 8-20.

However, as discussed above, Appellant has not established a mutual 

mistake of fact but, at best, a mutual mistake of law that does not constitute 

a defense to the formation of a contract. See Acme Markets, Inc., 493 

A.2d at 737. Additionally, Appellant’s cause of action cannot be cured by 

further amendment, as his acceptance of employment was based upon his 

erroneous interpretation of the contract. Id. at 738. Thus, we find no error 

in the trial court’s dismissal of this cause of action. See Majorsky, 58 A.3d 

at 1269. 

Second, Appellant claims that the trial court erred in sustaining 

preliminary objections to his contract reformation claim based upon a 

unilateral mistake. Appellant’s Brief at 20-25. However, Appellant did not 

raise this issue in his Pa.R.A.P. 1925(b) statement and, consequently, has 

waived it for purposes of appeal. See Commonwealth v. Castillo, 888 

A.2d 775, 780 (Pa. 2005) (quoting Commonwealth v. Lord, 719 A.2d 306, 
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309 (Pa. 1998) (“[a]ny issues not raised in a [Rule] 1925(b) statement will 

be deemed waived.”)

Third, Appellant claims that the trial court erred in sustaining 

preliminary objections to his breach of contract and declaratory judgment 

claims, since the term “stock option” was both latently and patently 

ambiguous and parol evidence should have been admitted to determine the 

parties’ intent. Appellant’s Brief at 29-42. 

The three elements needed to establish a breach of contract action are 

the existence of a contract, a breach of duty imposed by the contract, and 

damages. Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 716 

(Pa. Super. 2005) (quoting J. F. Walker Co., Inc. v. Excalibur Oil Group, 

Inc., 792 A.2d 1269 (Pa. Super. 2002)). As we have noted above, 

Appellant has not established a latent or patent ambiguity requiring the 

admission of parol evidence to determine the parties’ intent. Thus, we may 

look only to the terms of the employment contract itself, which provides that 

stock options will be offered at certain intervals during his employment. See

Second Am. Compl. ¶ 19; Ex. 2. 

Appellant pleaded the existence of a valid contract of employment 

providing for stock options. However, Appellant failed to plead that he was 

not offered stock options at the appropriate intervals pursuant to the 

employment contract, nor did he plead that he attempted or sought to 

exercise said options. Thus, Appellant is unable to establish a breach of 
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contract action. See Sullivan, 873 A.2d at 716; see Majorsky, 58 A.3d at 

1269.

Similarly, Appellant’s arguments regarding the trial court’s dismissal of 

his declaratory judgment count fail. The Declaratory Judgments Act provides 

that:

any person interested under a . . . contract, or other writings 

constituting a contract . . . may have determined any question of 

construction or validity arising under the instrument . . . and 

obtain a declaration of rights, status, or other legal relations 

thereunder. 

42 Pa.C.S. § 7533. In order to establish a right to relief through a 

declaratory judgment, a plaintiff must establish a direct, substantial and 

present interest. Bromwell v. Michigan Mut. Ins. Co., 716 A.2d 667, 670 

(Pa. Super. 1998). Further, a plaintiff must demonstrate that an actual 

controversy exists. Id. In the instant case, Appellant has established 

standing, in that he has pleaded a valid contract of employment. Appellant 

has established an actual controversy, namely, the interpretation of the term 

“stock options.” However, based upon our previous discussion, Appellant is 

not entitled to relief. Thus, we discern no legal error in the trial court’s 

dismissal of the claim. See Majorsky, 58 A.3d at 1269.

Fourth, Appellant argues that the trial court erred in sustaining 

preliminary objections to his claims of detrimental reliance and unjust 

enrichment, as the claims were adequately pleaded. Appellant’s Brief at 42-

49.
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“A cause of action under detrimental reliance or promissory estoppel 

arises when a party relies to his detriment on the intentional or negligent 

representations of another party, so that in order to prevent the relying 

party from being harmed, the inducing party is estopped from showing that 

the facts are not as the relying party understood them to be.” Rinehimer 

v. Luzerne Cty. Cmty. Coll., 539 A.2d 1298, 1306 (Pa. Super. 1988). 

To establish a claim for promissory estoppel, a claimant must prove 1) 

a promise, 2) which the promisor should reasonably expect to induce action 

or forebearance of a definite and substantial character on the part of the 

promisee, 3) which does induce such action or forbearance is binding, and 4) 

injustice can be avoided only by the enforcement of the promise. See 

Weavertown Transport Leasing, Inc. v. Moran, 834 A.2d 119, 1174 (Pa. 

Super. 2003). The doctrine of promissory estoppel permits a claimant to 

enforce a promise in the absence of consideration. Sullivan, 873 A.2d at 

717. However, the doctrine cannot be loosely applied, or any promise, 

regardless of the complete absence of consideration, would be enforceable. 

Id. Thus, where there is a valid contract, the question of a defendant’s 

liability may be decided properly and finally on contractual principals of offer 

and acceptance, and promissory estoppel does not apply. See, e.g., Lobar 

v. Lycoming Masonry, Inc., 876 A.2d 997, 1000-01 (Pa. Super. 2005).

In the instant case, there is a valid contract. It is supported by 

consideration. See Greene v. Oliver Realty, Inc., 526 A.2d 1192, 1195 
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(Pa. 1987) (noting that in an employment contract consideration may be any 

bargained for exchange). Appellee agreed to provide Appellant with a 

number of benefits, specifically, a salary, company car, life insurance, bonus 

plan, stock options, an expense account, country club membership, and 

hospitalization and medical insurance. In return, Appellant agreed to 

provide Appellee services as an executive vice-president of marketing, which 

he did for thirty years. Thus, although Appellant disagrees with the 

interpretation of the terms of the contract, he cannot recover based on a 

claim for promissory estoppel. See Sullivan, 873 A.2d at 717.4

Similarly, his claim for unjust enrichment must fail. This Court has 

held that where a written or express contract exists, as it does in the instant 

matter, we may not make a finding of unjust enrichment. See Mitchell v. 

Moore, 729 A.2d 1200, 1203 (Pa. Super. 1999).

Finally, Appellant claims that the trial court erred in concluding that 

Appellant lacked standing to pursue claims of minority shareholder 

oppression and breach of fiduciary duty. Appellant argues that he is not 

required to attach a physical stock certificate to his complaint and that, 

because he pleaded he is the owner of Armstrong stock, he has established 

____________________________________________

4 Although the trial court used a different analysis, we may affirm if it is 

correct on any legal ground or theory, regardless of the reason adopted by 

the trial court. Al Hamilton Contracting Co. v. Cowder, 644 A.2d 188, 

190 (Pa. Super. 1994).
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a prima facie case of shareholder oppression and fiduciary duty. Appellant’s 

Brief at 49.

A trial court’s ruling regarding standing is subject to a de novo

standard of review and our plenary scope of review entitles us to examine 

the entire contents of the record. See Rock v. Rangos, 61 A.3d 239, 250 

(Pa. Super. 2013). A party seeking judicial resolution of a controversy 

“must establish as a threshold matter that he has standing to maintain the 

action.” Johnson v. American Standard, 8 A.3d 318, 329 (Pa. 2010). A 

party who is not adversely affected in any way by the matter he seeks to 

challenge is not aggrieved by the matter and therefore has no standing to 

obtain judicial resolution of his challenge. Id. To establish standing,

[a]n individual can demonstrate that he has been aggrieved if he 

can establish that he has a substantial, direct and immediate 

interest in the outcome of the litigation. A party has a substantial 

interest in the outcome of litigation if his interest surpasses that 

of all citizens in procuring obedience to the law. The interest is 

direct if there is a causal connection between the asserted 

violation and the harm complained of; it is immediate if that 

causal connection is not remote or speculative.

Fumo v. City of Philadelphia, 972 A.2d 487, 496 (Pa. 2009).

Appellant seeks to establish a cause of action for breach of fiduciary 

duty and minority shareholder oppression. Pennsylvania courts have long 

held that majority shareholders have a fiduciary duty to protect the interests 

of the minority. Hill v. Ofalt, 85 A.3d 540, 550 (Pa. Super. 2014). Where 

a majority shareholder acts oppressively towards a minority shareholder, the 

majority shareholder breaches that fiduciary duty. Id.; see also Ford v. 
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Ford, 875 A.2d 894, 906 (Pa. Super. 2005). The oppressed shareholder 

thus has standing to assert a direct breach of fiduciary duty claim or may 

pursue other remedies available under the Business Corporation Law. See 

Ford, 878 A.2d at 904; see also 15 Pa.C.S. § 1767(a)(2).

Appellant asserts, throughout his complaint, that he is entitled to 

stocks. This assertion is premised upon his interpretation of the contract. 

However, entitlement is not the same as ownership. Appellant’s contract did 

not confer automatic ownership of the stock but, instead, the option to 

purchase stock. Appellant has not pleaded, and indeed cannot plead, that 

he owns any stocks. Thus, the trial court properly dismissed this count.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2016