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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

FRANCISCO PEREZ 1 IN THE SUPERIOR COURT 

OF PENNSYLVANIA 

Appellant 

v. 

LOUIS R. RIZZUTO, ESQUIRE 

Appellee No. 30 MDA 2018 

Appeal from the Order Entered December 21, 2017 

In the Court of Common Pleas of Berks County 

Civil Division at No: 17-14528 

BEFORE: SHOGAN, STABILE, and McLAUGHLIN, JJ. 

MEMORANDUM BY STABILE, J.: FILED JULY 29, 2019 

Appellant, Francisco Perez, appeals pro se from the December 21, 2017 

order sustaining the preliminary objections of Appellee, Louis R. Rizzuto, 

Esquire, and dismissing Appellant's complaint with prejudice. We reverse and 

remand. 

Appellant, proceeding pro se, initiated this action in July of 2017 with a 

complaint alleging, among other things, breach of contract. Appellant alleges 

he was detained in New Jersey by New Jersey State Police in 1989. He further 

alleges that the New Jersey State Police confiscated $50,000.00 from him on 

that occasion and provided him a receipt. Appellant claims he hired Appellee 

to recover that money for him, and that Appellee successfully recovered 

$43,000.00 on Appellant's behalf and kept it. Appellant alleges that he 

compensated Appellee for his services. After Appellee filed preliminary 
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objections, Appellant filed an amended complaint, apparently without leave of 

court. Appellee did not object to the amended complaint on that basis, and 

filed a motion asking the trial court to apply his prior preliminary objections 

to the amended complaint. The trial court did so. Ultimately, the trial court 

found the preliminary objections to be dispositive of either complaint. Upon 

review, we conclude the trial court erred because Appellant's original and 

amended complaints both stated a cause of action for breach of contract. 

On review of an order sustaining preliminary objections, we must accept 

all well -pleaded facts in the plaintiff's complaint and all reasonable inferences 

drawn from those facts. Stoloff v. Nieman Marcus Grp., Inc., 24 A.3d 366, 

369 (Pa. Super. 2011) (quoting Ellenbogen v. PNC Bank, N.A., 731 A.2d 

175, 181 (Pa. Super. 1999)). An order sustaining preliminary objections, 

where that order results in dismissal of the entire lawsuit, is appropriate only 

in cases that are free and clear from doubt. Id. "To be free and clear from 

doubt that dismissal is appropriate, it must appear with certainty that the law 

would not permit recovery by the plaintiff upon the facts averred. Any doubt 

should be resolved by a refusal to sustain the objections." Id. This Court 

reviews the trial court's order for abuse of discretion or error of law. For a 

breach of contact claim, the plaintiff must plead "(1) the existence of a 

contract, including its essential terms, (2) a breach of the contract; and, (3) 

resultant damages." McCabe v. Maywood Univ., 166 A.3d 1257, 1262 (Pa. 

Super. 2017). 

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In sustaining Appellee's objection for failure to state a claim and lack of 

specificity, the trial court wrote that it was "generally unclear what 

arrangement [Appellant] had with [Appellee] regarding the confiscated 

funds[,]" and that Appellant failed to comply with Pa.R.C.P. No. 1019(h)' by 

failing to specify whether the agreement was oral or written. Trial Court 

Opinion, 8/9/18, at 6. The trial court also criticized Appellant for failing to 

attach correspondence that Appellant referenced in his complaint.2 Id. at 5- 

6. We conclude the trial court held Appellant's complaint to a much more 

stringent standard than is appropriate for preliminary objections. 

Considering all well -pled facts and reasonable inferences to be drawn 

therefrom, Appellant alleged (1) that Appellee agreed to retrieve money from 

the New Jersey State Police on Appellant's behalf; (2) that Appellee was 

compensated for providing that service; (3) that Appellee retrieved 

$43,000.00 on Appellant's behalf pursuant to the parties' agreement; and (4) 

that Appellee kept the $43,000.00 in breach of the parties' agreement. In our 

1 "When any claim or defense is based upon an agreement, the pleading shall 

state specifically if the agreement is oral or written." Pa.R.C.P. No. 1019(h). 

2 The trial court also noted an action Appellant filed twenty years ago based 

upon the same allegations. The trial court did not deem that action a sufficient 

basis for sustaining Appellee's preliminary objections. We agree, inasmuch as 

the facts of the prior action are not yet of record, and its existence has no 

bearing on whether Appellant has stated a claim and done so with sufficient 

specificity. The prior action, and any issue that arises from it, is not properly 

before us on review of an order sustaining preliminary objections. 

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view, those allegations are sufficiently specific to overcome Appellee's 

preliminary objections because they state a breach of contract claim. 

In other words, Appellant alleged an agreement, its basic terms, 

Appellee's receipt of consideration, Appellee's breach, and $43,000.00 in 

damages. The pertinent facts are simple, and Appellee has alleged them with 

sufficient specificity, even if the complaint is not a model of clarity. See, e.g. 

Hill v. Thomas, 635 A.2d 186, 189 (Pa. Super. 1993) ("Where [the] 

allegations are adequately set forth, a pro se complaint will not be dismissed 

just because it is not artfully drafted."); Moore v. McComsey, 459 A.2d 841, 

842 (Pa. Super. 1983) ("Although his pro se complaint was inartfully drafted, 

we are able to discern therefrom causes of action [...."]). All three elements 

of a breach of contract action are easily discernible from Appellant's 

allegations, and we perceive no reason why Appellee would be unable to 

prepare an appropriate defense. See, e.g. Rambo v. Greene, 906 A.2d 

1232, 1236 (Pa. Super. 2006) ("The pertinent question under Rule 1028(a)(3) 

[governing insufficient specificity of a pleading] is "whether the complaint is 

sufficiently clear to enable the defendant to prepare his defense[.]"). 

Appellant's failure to attach correspondence referenced in his complaints does 

not support a different conclusion. 

Concerning Rule 1019(h), the trial court correctly noted that Appellant 

does not specifically allege an oral agreement. Nonetheless, it is clear upon 

a fair reading of either complaint that Appellant is alleging an oral agreement. 

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He references correspondence and a power of attorney, but does not reference 

any written agreement regarding the terms of Appellee's legal services. We 

do not believe this technical defect was a sufficient basis for sustaining 

preliminary objections, much less dismissing the complaint with prejudice. A 

simple amendment would cure this defect.3 

Finally, we reject the trial court's suggestion that Appellant has waived 

all his issues because his Pa.R.A.P. 1925(b) statement was vague. Trial Court 

Opinion, 8/9/18, at 4. As the trial court concedes in its opinion, its order 

sustaining Appellee's preliminary objections was unaccompanied by any 

explanation of the court's reasoning. Id. Thus, Appellant was forced to file 

his Pa.R.A.P. 1925(b) statement without knowledge of the trial court's reasons 

for entering the order. Despite the resulting vague concise statement, the 

trial court prepared an opinion correctly anticipating the substance of 

Appellant's argument. In Commonwealth v. Poncala, 915 A.2d 97 (Pa. 

Super. 2006), appeal denied, 932 A.2d 1287 (Pa. 2007), this Court wrote 

that "if the appellant has no way to anticipate the court's rationale for its 

3 Rule of Civil Procedure 1033, governing amendment, has been amended 

several times in recent years, but its policy has always been to ensure that 

parties have their cases decided on the merits rather than legal formalities. 

Hill v. Ofalt, 85 A.3d 540, 557 (Pa. Super. 2014). "Even where a trial court 

sustains preliminary objections on their merits, it is generally an abuse of 

discretion to dismiss a complaint without leave to amend [...] where there is 

some reasonable possibility that amendment can be accomplished 

successfully. Id. (quoting In re Estate of Luongo, 823 A.2d 942, 969 (Pa. 

Super. 2003), appeal denied, 847 A.2d 1287 (Pa. 2003)) (emphasis from 

Luongo). 

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decision, the appellant's Rule 1925(b) statement will of necessity challenge 

the court's ruling in terms based on the available information." Id. at 100. 

"We do not require an appellant to guess what the trial court was thinking, 

and we will not penalize an appellant for failing to include in his concise 

statement an issue that he could not have known of until he read the trial 

court's Pa.R.A.P. 1925(a) opinion." Id. Given the circumstances of this case 

and the applicable law, we will not conclude that Appellant's vague concise 

statement resulted in waiver. 

In light of the foregoing, we conclude the trial court committed an error 

of law in sustaining Appellee's preliminary objections, and we reverse the 

order and remand for further proceedings. 

Order reversed. Case remanded. Jurisdiction relinquished. 

Judgment Entered. 

J seph D. Seletyn, 

Prothonotary 

Date: 7/29/2019 

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