J-A14005-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PROFESSIONAL SALES, INC., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

THE ESTATE OF JOSEPH S. BREHAUT, C. 

CHRISTOPHER MOORE, JR., A/K/A 

CHARLES C. MOORE, JR., EXECUTOR 

AND C. CHRISTOPHER MOORE, JR., 

A/K/A CHARLES C. MOORE, JR., 

INDIVIDUALLY AND JOSEPH S. BREHAUT 

AND C. CHRISTOPHER MOORE, JR., 

PARTNERSHIP T/D/B/A MOLL’S GARAGE,

Appellees No. 1957 MDA 2014

Appeal from the Order Entered October 15, 2014

In the Court of Common Pleas of Berks County

Civil Division at No(s): 14-818

BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 17, 2015

Professional Sales, Inc. appeals from the order entered October 15, 

2014, granting the motion for judgment on the pleadings filed by (1) the 

Estate of Joseph S. Brehaut, C. Christopher Moore, Jr. a/k/a Charles C. 

Moore, Jr., executor; (2) C. Christopher Moore, Jr. a/k/a Charles C. Moore, 

Jr., individually, and (3) Joseph S. Brehaut and C. Christopher Moore, Jr., 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-A14005-15

- 2 -

partnership t/d/b/a Moll’s Garage (collectively, Appellees). We reverse and 

remand.

Michael Haber is the Vice President of Professional Sales, Inc. 

(Appellant).1 On December 28, 2013, Mr. Haber arranged to meet Mr. 

Moore to discuss the purchase of a rare, 1991 Ferrari F40 automobile owned 

by Mr. Brehaut. On the day of the meeting, Mr. Brehaut passed away. 

Nevertheless, Mr. Moore advised Mr. Haber that he was the executor of Mr. 

Brehaut’s estate. Mr. Haber expressed Appellant’s interest in buying the car.

Mr. Haber and Mr. Moore spoke again on December 31, 2013, and 

arranged another meeting for January 1, 2014. At the meeting, they 

discussed an agreement to purchase the car. Mr. Moore stated he needed to 

discuss the agreement with others involved with the estate. A few days 

later, Mr. Haber and Mr. Moore spoke yet again. Mr. Moore advised Mr. 

Haber that the estate wanted to sell the car for eight hundred thousand 

dollars ($800,000.00).

On January 6, 2014, Mr. Haber brought a mechanic to inspect the 

Ferrari. Following the inspection, Mr. Haber and Mr. Moore orally agreed to 

the sale of the car for the asking price. The mechanic witnessed the 

agreement. Mr. Moore indicated that a transfer of money could not occur 

____________________________________________

1

In light of the procedural posture of the case, this background is derived 

solely from the averments in Appellant’s amended complaint.
J-A14005-15

- 3 -

until after he discussed the matter with the estate lawyer. Mr. Moore also 

advised Mr. Haber that there remained an outstanding loan against the car.

Later on January 6, 2014, Craig Prutzman of Tri-County Federal Credit 

Union called Mr. Haber and advised him that the amount needed to satisfy 

the outstanding loan was seventy-five thousand five hundred fifty-four and 

30/100 dollars ($75,554.30). Mr. Haber made arrangements to pay off the 

loan.

On January 10, 2014, Mr. Haber was contacted by a broker who 

offered to sell Mr. Haber a 1991 Ferrari F40. Due to the rarity of this specific 

car, Mr. Haber knew that this was the same car that he had agreed to 

purchase from Mr. Moore.

Mr. Haber immediately called Mr. Moore. Mr. Moore said, “You’re 

going to be pissed at me.” Amended Complaint at ¶ 70. Mr. Moore then 

advised Mr. Haber that he had sold the car to someone else for more money. 

During their conversation, Mr. Moore acknowledged that they had had an 

agreement.

Appellant commenced this action by complaint on January 17, 2014, 

later amended, alleging breach of contract.2 Appellees filed an answer with 

____________________________________________

2 Additional claims for specific performance and tortious interference with 

contractual relationships were withdrawn.
J-A14005-15

- 4 -

new matter, asserting the Statute of Frauds provision of the Pennsylvania 

Commercial Code, 13 Pa.C.S. § 2201.3 

Thereafter, Appellees filed a motion for judgment on the pleadings, 

and Appellant timely responded. In October 2014, the trial court granted 

Appellees’ motion and judgment was entered on their behalf.

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

statement. The trial court issued a responsive opinion.

Appellant contends the trial court erred in granting Appellees’ motion 

for judgment on the pleadings. See Appellant’s Brief at 3. According to 

Appellant, the Statute of Frauds is relevant to Mr. Haber’s alleged agreement 

with Mr. Moore, but Appellant argues that his well-pleaded allegations, if 

proven, would satisfy an exception to the general rule, citing in support 13 

Pa.C.S. § 2201(c)(2). We agree.

Because a motion for judgment on the pleadings is in the nature 

of a demurrer, the trial court must accept all of the well pleaded 

allegations of the party opposing the motion as true, while only 

those facts specifically admitted by the party opposing the 

motion may be considered against him. Furthermore, the court 

may consider only the pleadings themselves and any documents 

properly attached thereto in reaching its decision. In order to 

succeed on a motion for judgment on the pleadings, the moving 

party's right to prevail must be so clear that a trial would clearly 

be a fruitless exercise.

____________________________________________

3 Appellant did not reply to Appellees’ new matter. However, Appellees’ new 

matter did not include a notice to defend nor was it endorsed with a notice 

to plead. See Pa.R.C.P. 1026.
J-A14005-15

- 5 -

Keil v. Good, 356 A.2d 768, 769 (Pa. 1976) (internal quotation marks 

omitted). On appeal, we review the trial court’s decision for a clear error of 

law and consider whether facts disclosed by the pleadings should be tried 

before a fact finder. See Consolidation Coal Co. v. White, 875 A.2d 318, 

325 (Pa. Super. 2005). 

The Pennsylvania Statute of Frauds requires a writing indicating the 

terms of an oral agreement so there exists “no serious possibility of 

consummating fraud by its enforcement.” Keil, 356 A.2d at 771. The 

general rule is:

Except as otherwise provided in this section a contract for the 

sale of goods for the price of $500 or more is not enforceable by 

way of action or defense unless there is some writing sufficient 

to indicate that a contract for sale has been made between the 

parties and signed by the party against whom enforcement is 

sought or by his authorized agent or broker. A writing is not 

insufficient because it omits or incorrectly states a term agreed 

upon but the contract is not enforceable under this subsection 

beyond the quantity of goods shown in such writing.

13 Pa.C.S. § 2201(a). There are exceptions to the general rule, including 

the following:

A contract which does not satisfy the requirements of subsection 

(a) but which is valid in other respects is enforceable:

...

(2) if the party against whom enforcement is sought 

admits in his pleading, testimony or otherwise in court that 

a contract for sale was made, but the contract is not 

enforceable under this provision beyond the quantity of 

goods admitted[.]

13 Pa.C.S. § 2201(c)(2). 
J-A14005-15

- 6 -

Here, the Statute of Frauds clearly applies. At issue is the sale of a 

rare automobile valued well above the $500 threshold established by the 

general rule. See 13 Pa.C.S. § 2201(a). However, according to Appellant’s 

amended complaint, (1) Mr. Moore admitted the existence of an agreement 

and (2) there was an eyewitness to the agreement. See Amended 

Complaint at ¶¶ 54, 55. We must accept these allegations as true. Keil,

356 A.2d at 769. If Appellant can prove Mr. Moore’s admission that an oral 

contract for the sale of the 1991 Ferrari F40 was made, then Appellant will 

establish an exception to the Statute of Frauds. See 13 Pa.C.S. § 

2201(c)(2). Accordingly, Appellees were not entitled to judgment on the 

pleadings. See Consolidation Coal Co., 875 A.2d at 325.

The trial court dismissed Appellant’s arguments, noting factual 

distinctions between this case and Keil. See Trial Court Opinion at 5-6 

(observing that the Keil plaintiff’s pleadings referenced the existence of a 

writing that would, if proven, satisfy the Statute of Frauds); Keil, 356 A.2d 

at 771. We agree with the trial court’s conclusion that Appellant cannot 

meet the requirements of the general rule. Id. at 6. However, the court 

failed to examine the relevant exception to the general rule. See 13 Pa.C.S. 

§ 2201(c)(2). In our view, Appellant’s pleadings frame a factual issue 

worthy of development. 

Accordingly, we reverse the order of the trial court and remand for 

further proceedings.
J-A14005-15

- 7 -

Order reversed. Case Remanded. Jurisdiction relinquished.

Judge Strassburger files a concurring memorandum in which President 

Judge Emeritus Bender joins.

Judge Jenkins files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2015