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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

Appellee 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., JENKINS, J., and STRASSBURGER, J.*

DISSENTING MEMORANDUM BY JENKINS, J.: FILED JULY 17, 2015

I respectfully dissent.

As the learned majority accurately observes, 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. Keil v. Good, 356 

A.2d 768 (Pa.1976).

As our Supreme Court has explained, appellate review of a 

trial court’s decision to grant or deny judgment on the 

pleadings is limited to determining whether the trial court 

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* Retired Senior Judge assigned to the Superior Court.
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committed an error of law or whether there were facts 

presented which warrant a jury trial. In conducting this 

review, we look only to the pleadings and any documents 

properly attached thereto. Judgment on the pleadings is 

proper only where the pleadings evidence that there are no 

material facts in dispute such that a trial by jury would be 

unnecessary.

In passing on a challenge to the sustaining of a motion for 

judgment on the pleadings, our standard of review is 

limited. We must accept as true all well pleaded 

statements of fact of the party against whom the motion is 

granted and consider against him only those facts that he 

specifically admits. 

John T. Gallaher Timber Transfer v. Hamilton, 932 A.2d 963, 967 

(Pa.Super.2007).

Although Appellant and the majority contend that Appellant’s wellpleaded allegations, if proven, would satisfy the 13 Pa.C.S. § 2201(c)(2) 

exception to the Statute of Frauds, I disagree. The exception clearly states 

that a contract could be enforceable, even if not in writing as mandated by 

the Statute of Frauds, if “the party against whom enforcement is sought 

admits in his pleading, testimony or otherwise in court that a contract 

for sale was made...” 13 Pa.C.S. § 2201(c)(2) (emphasis added).

In his amended complaint, Appellant alleges Appellee Mr. Moore told 

him that he could have the Ferrari F40 for $800,000.00. Appellant claims 

Mr. Moore said at a meeting on January 1, 2014, “it’s your car.” He submits 

that, on January 6, 2014, after Appellant inspected the car with a mechanic, 

Mr. Moore shook his hand and said, “we have a deal.” Further, he avers that 

James Maghee, a mechanic, heard this conversation. Appellant further 
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alleges that Mr. Moore admitted to the existence of the oral contract over 

the phone and specifically said, “you’re going to be pissed at me,” when 

telling him that he had sold the Ferrari F40 to another buyer.1

If we take all of Appellant’s allegations as true, this situation is very 

unfortunate for him. However, nowhere in Appellant’s pleadings does he 

claim that Mr. Moore admitted to the existence of this oral contract in a 

pleading, testimony, or otherwise in court. Thus, Appellant fails to allege an 

exception to the Statute of Frauds, and his oral contract for the sale of 

goods for the Ferrari F40, which was well over $500.00, is not enforceable 

because it was not in writing.2

I would affirm the trial court’s order granting Appellees’ motion for 

judgment on the pleadings.

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1 Appellee specifically denies all of these allegations in his answer to 

Appellant’s complaint.

2 This case is distinguishable from the case upon which Appellant relies, 

Keil, 356 A.2d. In Keil, the plaintiffs alleged in their complaint that a 

written contract existed:

In paragraph 8 of their complaint, plaintiffs allege the 

existence of a writing which, if its existence is proven, 

would remove the bar of the Statute of Frauds.... In their 

answer[,] defendants deny the execution of such a deed. 

Thus, the pleadings framed a factual issue which, 

depending on whether plaintiffs’ allegations or defendants’ 

allegations were ultimately proven, might have removed 

the Statute of Frauds’ prohibition against enforcement of 

an oral contract for the sale of real estate.

Keil, 356 A.2d at 771.