J-E03002-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LOUIS J. DOMIANO, JR. AND DEBRA 

DOMIANO,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

PENN SECURITY BANK, SUCCESSOR BY 

MERGER TO OLD FORGE BANK,

Appellee No. 628 EDA 2013

Appeal from the Order Entered January 29, 2013

In the Court of Common Pleas of Monroe County

Civil Division at No(s): 2160-CV-2012

LOUIS J. AND DEBRA DOMIANO, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

PENN SECURITY BANK, SUCCESSOR BY 

MERGER TO OLD FORGE BANK,

Appellee No. 643 MDA 2013

Appeal from the Order Entered March 12, 2013

In the Court of Common Pleas of Lackawanna County

Civil Division at No(s): 1703 CV 2012

BEFORE: BENDER, P.J.E., BOWES, PANELLA, DONOHUE, SHOGAN, ALLEN, 

LAZARUS, WECHT, and STABILE, JJ.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 24, 2014

This is a consolidated appeal by Louis J. and Debra Domiano (“the 

Domianos”) from orders sustaining demurrers and dismissing their 
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complaints in two breach of contract/quasi-contract actions that were filed in 

actions instituted in two different counties. The actions are identical except 

for the real estate collateral located in the respective counties.1 We affirm. 

We discern the following facts from the complaints filed by the 

Domianos. The Domianos were “debtors” in a Chapter 11 bankruptcy 

proceeding filed in the United States Bankruptcy Court for the Middle District 

of Pennsylvania. On June 15, 2010, the bankruptcy court approved a 

settlement agreement between the Domianos and Penn Security Bank (“the 

Bank”), successor by merger to Old Forge Bank; a copy of the agreement 

was appended to the complaints. By its terms, the settlement agreement 

imposed several conditions upon the Domianos before any performance 

would be required of the Bank. The Domianos were to provide a written 

commitment of financing sufficient to satisfy the remainder of their 

obligation to the Bank within sixty days of the date of the settlement 

agreement. In addition, within 120 days, the Domianos were obligated to 

pay $145,000 to the Bank. If the Domianos fulfilled both conditions, Penn 

Security would release a Scranton property from two mortgages, discontinue 

a Lackawanna County foreclosure action, and return the consent to entry of 

judgment and deed to the Domianos. Failure of the Domianos to tender the 

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1

 The parties were represented by the same respective counsel in both the 

Monroe County and Lackawanna County actions, which explains the identical 

pleadings. 
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written commitment within sixty days or pay the property settlement 

amount within 120 days constituted default. Settlement Agreement, 

6/15/10, at 3-7. 

The Domianos filed the instant complaints in contract and quasicontract against the Bank for breach of the settlement agreement. They 

alleged that they complied with “all material aspects of the agreement and 

delivered a mortgage commitment letter to the Defendant.” Complaints, at 

¶6. They averred further that the mortgage commitment letter was 

attached to each complaint as Exhibit C. Id. Exhibit C is correspondence 

dated August 18, 2010, from E. Robert Blank, President of Penn Business 

Credit, LLC., but unsigned by Mr. Blank. Specifically, the letter sets forth 

proposed terms for financing, but the signature line for Mr. Domiano 

reflecting that the terms were agreed to and accepted is blank. In addition 

to the signature, acceptance required payment of $10,000. The proposal 

expired on August 27, 2010. 

In the Monroe County lawsuit, the Domianos maintained that they had 

met the conditions and that the Bank was in breach of the settlement 

agreement because it refused to execute and deliver a deed to the Monroe 

County property. They asked the court to order the Bank to execute the 

deed and sought damages in excess of $100,000 for lost income from the 

non-returned property. Complaint, 4/23/12, at 2.
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The Bank filed preliminary objections in the nature of a demurrer 

pursuant to Pa.R.C.P. 1028(a)(4), and a brief in support thereof, alleging 

that the complaints, together with the appended unsigned documents, were 

legally insufficient to state a claim for breach of contract or quasi–contract. 

The Bank argued that the unexecuted writings relied upon by the Domianos 

and their failure to attach a copy of the $10,000 check and the 

countersigned letter to the complaint were legally insufficient to establish 

that the Domianos had secured a financing commitment from Penn Business 

Credit, which was a condition of the settlement agreement. 

The Domianos filed answers to the preliminary objections and asserted 

that the Bank was in possession of the signed documents, had acknowledged 

same, and that an additional production of the executed documents would 

constitute the pleading of evidence. Answer to Preliminary Objections, 

10/12/12, at ¶¶ 7, 11. The Domianos did not amend their complaint as of 

right or seek leave to amend their complaint to attach a signed copy or to 

plead additional facts to cure any deficiencies. 

Following oral argument on the preliminary objections in Monroe 

County, the trial court issued its January 29, 2013 order and opinion 

sustaining the Bank’s demurrer and dismissing the Domianos’ complaint with 

prejudice. The court found that, even if a copy of the executed letter had 

been appended to the complaint, the complaint could not survive a demurrer 

since the letter, in order to constitute a commitment, had to be both signed 
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by Mr. Domiano and returned with a check for $10,000. The Domianos did 

not attach a copy of the check or allege that they had tendered the $10,000 

payment to Penn Business Credit. Furthermore, the letter/proposal was 

dated beyond the sixty-day period for performance under the settlement 

agreement. 

In the Lackawanna County case, the parties, causes of action, claims, 

and requested relief were identical with respect to the collateral involved. 

Preliminary objections in the nature of a demurrer were pending in that 

action when the Monroe County order sustaining the demurrer was entered. 

Therein, the Bank filed a supplemental brief asking the trial court to take 

judicial notice of the January 19, 2013 Monroe County order and opinion. 

The Lackawanna County court heard oral argument on the preliminary 

objections on March 11, 2013, and sustained the demurrer, concluding that 

the claims, causes of action, and identities of the parties and their capacities 

were identical to those in the Monroe County action, and that the prior 

decision constituted res judicata.

The Domianos timely appealed from both adverse rulings and this 

Court, at the request of the Bank, consolidated them. The Domianos raise 

three issues for our review:

I. Whether the courts below properly considered a demurrer 

which did not raise the issue on which the court based its 

conclusion?

II. Whether the courts below properly concluded that no 

cognizable action did exist or could have been pleaded?
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III. Whether the courts below improperly refused to permit an 

amended complaint?

Appellants’ brief at 4.

In reviewing a trial court order overruling or sustaining preliminary 

objections, 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.” De Lage Landen Fin. Servs., Inc. v. Urban 

P'ship, LLC, 2006 PA Super 169, 903 A.2d 586, 589 (Pa. Super. 

2006).

“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.

Hykes v. Hughes, 2003 PA Super 397, 835 A.2d 382, 383 (Pa.Super. 

2003) (citations omitted).

Haun v. Cmty. Health Sys., 14 A.3d 120, 123 (Pa.Super. 2011).

The Domianos’ arguments pertain to both cases. For convenience, we 

will reference the Monroe County pleadings and briefs in addressing them. 

At the outset, the Domianos claim that the trial court “sustained an 

unasserted demurrer.” Appellants’ brief at 18. They allege that the only 

basis for relief the Bank asserted in its preliminary objections was a lack of 
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capacity to sue, which should have been raised via new matter. Appellants’ 

brief at 11.

We find the Domianos’ position to be somewhat disingenuous. In their 

brief in opposition to the preliminary objections, they acknowledged that the 

Bank was seeking a demurrer and argued that the complaint was legally 

sufficient. See Memorandum of Law of the Plaintiffs in Opposition to the 

Preliminary Objections of the Defendant, 12/31/12, at 5-7. Our review of 

the preliminary objections confirms that the Bank articulated that the 

Domianos’ complaint was legally insufficient because the allegations, 

together with the unexecuted supporting documents, failed to state a claim 

for breach of contract or quasi-contract. Such allegations constitute a 

demurrer. While the Bank also asserted a lack of capacity to sue, that was 

not the ground upon which relief was afforded. This issue is without merit. 

The Domianos next contend that they alleged in their complaint at 

“paragraph 6” that “the fully executed documents had been delivered to the 

counsel for the Bank.” See Appellants’ brief at 10. We find this to be a 

misrepresentation of the averments of the complaint. The Domianos 

actually pled that they “complied with all material aspects of the 

[settlement] agreement and delivered a mortgage commitment letter to the 

Defendant[,]” a copy of which was attached as Exhibit C.2 Exhibit C was a 

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2

 The Bank argued below that the Domianos were in default of the 

settlement agreement when they received the financing proposal dated 

(Footnote Continued Next Page)
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copy of an unexecuted letter from Penn Business Credit setting forth the 

terms of a financing proposal. In order to proceed, Mr. Domiano was 

required to sign the letter on the line evidencing acceptance and return the 

signed letter with a $10,000 check to Penn Business before August 27, 

2010. The Domianos did not attach a copy of the signed letter or the check, 

nor offer any explanation in their complaint why they could not do so. See

Pa.R.C.P. 1019.3 Hence, we conclude that the Bank’s preliminary objections 

sufficiently pled the basis for a demurrer, i.e., that the allegations of the 

complaint and supporting documents were legally insufficient to state a 

claim for breach of the settlement agreement. 

In their answer to the preliminary objections, the Domianos asserted 

that they had provided copies of the executed proposal to the Bank. 

However, the Bank denied this averment in its reply brief. The Domianos 

contend that the trial court, in sustaining the demurrer, impermissibly 

(Footnote Continued) _______________________

August 18, 2010, since more than sixty days had elapsed from the June 15, 

2010 approval of the settlement agreement by the Bankruptcy Court. 

3

 The Domianos assert in their brief to this Court that, “It would be a 

needless redundancy to require the Domianos to annex documents long 

since in the possession of the Bank and even drafted by the Bank counsel.” 

Appellants’ brief at 11. Although the Domianos do not identify the 

documents to which they refer, the only documents alleged to be missing 

were an executed copy of Exhibit C, the letter/proposal ostensibly authored 

by Mr. Blank of Penn Business Credit, LLC, and a copy of the $10,000 check 

required for acceptance. Pa.R.C.P. 1019(i) requires the pleader to attach a 

copy of any writing upon which the claim or defense is based, or, if the 

writing is not accessible, to so state and provide the reason why it is 

inaccessible. The Domianos did not comply with this requirement. 
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looked outside the pleadings and credited the Bank’s representation that it 

did not have a signed copy of the commitment letter. 

We disagree. The Monroe County trial court looked solely to the 

pleadings and attachments in sustaining the demurrer. Initially, the court 

observed that the letter from Penn Business Credit was dated more than 

sixty days after the settlement agreement and agreed with the Bank that the 

Domianos were in default of the provision requiring that a financing 

commitment be provided to the Bank within sixty days. Furthermore, the 

court concluded that Exhibit C was merely a financing proposal from Penn 

Business Credit LLC, not a commitment, and that financing would only “be 

provided upon execution of all required loan documents and the payment of 

specified fees in connection with your transaction.” Trial Court Opinion, 

1/29/13, at 5 (quoting Exhibit C). The proposal provided further that, if the 

Domianos “would like to proceed[,]. . . please countersign this term sheet 

where indicated below and return it by overnight mail together with your 

check in the amount of $10,000.00” Id. (quoting Exhibit C). Exhibit C was 

not signed. 

Furthermore, the court found that even if Exhibit C had been 

countersigned by Mr. Domiano, the complaint could not survive the 

demurrer. The court agreed with the Bank that, since the Domianos did not 

append to the complaint a copy of a check for $10,000, a demurrer was 

proper. In short, the Domianos failed to plead facts and supply documents 

demonstrating that they had timely secured the financing commitment that 
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was one of the conditions precedent to the Bank’s performance under the 

settlement agreement. We find no error or abuse of discretion on the part of 

the trial court in sustaining the demurrer. 

The Domianos complain on appeal that the trial court should have 

permitted them to amend their complaint. The Bank counters that the 

Domianos have waived any right to challenge the trial court’s decision to 

sustain the demurrer with prejudice, i.e., without leave to amend, since they 

failed to seek leave to amend below. In addition, the Bank directs our 

attention to Stempler v. Frankford Trust Company, 529 A.2d 521 

(Pa.Super. 1987), where we held on similar facts that it was not an abuse of 

discretion to dismiss the complaint without an opportunity to amend where 

an amendment would have been futile. 

We note first that the Domianos were permitted to amend their 

complaint as of course within twenty days of the filing of the preliminary 

objections, but opted not to do so. See Pa.R.C.P. 1028(c)(1). Furthermore, 

the record reveals that the Domianos never filed a motion with the trial court 

seeking leave to amend with a proposed amended complaint attached 

thereto. See Pa.R.C.P. 1033. There is no indication that they asked for 

leave to amend at oral argument on the preliminary objections. In their 

brief in opposition to preliminary objections, the Domianos did not even 

suggest that they could amend the complaint to cure any alleged 

deficiencies. Instead, the Domianos steadfastly maintained that, “the 

complaint adequately sets forth what events took place and beyond 
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[that] . . . a copy of the document was annexed to the complaint.” 

Memorandum of Law of the Plaintiffs in Opposition to the Preliminary 

Objections of the Defendant, 12/31/12, at 4. 

Thus, the Domianos failed to preserve this issue for appeal by 

neglecting to raise it in the trial court. See Pa.R.A.P. 302(a). However, 

waiver aside, they are not entitled to relief. We recognized in Harley 

Davidson Motor Co., Inc. v. Hartman, 442 A.2d 284, 286 (Pa.Super. 

1982), that there are cases “where it is clear that amendment is impossible 

and where to extend leave to amend would be futile.” The Bank is correct 

that, in those instances, it is not an abuse of discretion for the court to 

dismiss the complaint upon a demurrer. In re Estate of Luongo, 823 A.2d 

942, 969 (Pa.Super. 2003). 

The Monroe County trial court concluded that amendment would have 

proved futile because no cause of action for breach of contract or quasicontract would lie. Trial Court Opinion, 1/29/13, at 6. The court found it 

evident from the face of the complaint that the Domianos did not comply 

with the terms and conditions of the settlement agreement by timely 

procuring a financing commitment with Penn Business Credit, which was a 

condition precedent to the Bank’s performance pursuant to the settlement 
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agreement.4 Thus, no action for breach of contract could be maintained 

against the Bank. We agree that no amendment could cure this deficiency. 

For the foregoing reasons, we find no error or abuse of discretion on 

the part of the Monroe County trial court in sustaining the demurrer and 

dismissing the complaint with prejudice. The Domianos do not challenge on 

appeal the res judicata effect afforded that decision by the Lackawanna 

Court of Common Pleas in the action pending before it, and hence, we affirm 

that order as well. See Robinson Coal Co. v. Goodall, 72 A.3d 685, 689 

(Pa.Super. 2013) (“Application of the doctrine of res judicata as an absolute 

bar to a subsequent action requires that the two actions possess the 

following common elements: ‘(1) identity of the thing sued upon; (2) 

identity of the cause of action; (3) identity of the parties; (4) identity of the 

capacity of the parties.’”). 

Orders affirmed. 

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4

 The trial court also noted that the Domianos did not plead that they had 

tendered $145,000 to the Bank within 120 days of the date of approval of 

the settlement agreement, another condition to the Bank’s performance 

under the settlement agreement. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/24/2014