J

### -S65040-18
NON-PRECEDENTIAL DECISION - SEE 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 ofCommon 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'scomplaint with prejudice. We reverse and remand. 

### Appellant, proceeding 

### pro se, 

### initiated this action in July 

### of 2017 

### with a 

### complaintalleging, among 

### otherthings, breach of 

### contract. Appellant alleges he was detained in NewJersey by NewJerseyState Police in 1989. He

### further alleges 

### thatthe NewJersey 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 

### preliminaryJ

### -S65040-18 objections, Appellantfiled 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 reviewofan

### ordersustaining 

### preliminary objections,we 

### mustaccept all well-pleaded facts in the 

### plaintiff's complaint and all reasonable inferences drawn

### from those facts. 

## Stoloffv. 

### Nieman MarcusGrp.,

### 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 

### thatorder results in dismissal ofthe 

### entire lawsuit, is 

### appropriate only in cases 

### that are free and clear 

### from doubt. 

### Id. "To be free and clear 

### from doubt

### thatdismissal is 

### appropriate, it 

### must appear

### with 

### certaintythatthe law would not 

### permit recovery bythe 

### plaintiff upon thefacts averred. Any 

### doubt should be resolved by a refusal to sustain the 

### objections." 

### Id. This Court reviews the 

### trial court's orderfor 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). 

## -2J

### -S65040-18
In sustaining Appellee's 

### objection

### forfailureto 

### 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 Appellantfailed to 

### complywith 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 preliminaryobjections. Considering all well-pled facts and reasonable inferences to be drawn 

### therefrom, Appellant alleged (1) 

### thatAppellee agreed to 

### retrieve moneyfrom 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) 

### thatAppellee kept

### the 

### $43,000.00 in breach ofthe 

### parties'agreement. In our

1 "When anyclaim ordefense 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 courtalso noted an action

### Appellant filed 

### twenty years ago based uponthesame

### allegations. The

### trialcourt did notdeem

### thataction a 

### sufficient basis 

### forsustainingAppellee's 

### preliminaryobjections. We agree, inasmuch as the facts ofthe 

### 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 

### thatarises

### from it, is not 

### properly before us on review of an 

### ordersustaining 

### preliminary objections. 

## -3J

### -S65040-18 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 

### pertinentfacts are 

### simple, and Appellee has alleged 

### them with sufficient specificity, even ifthe

### 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 

### prose 

### complaint will not be dismissed 

### just because it is not

### artfully drafted."); 

### Moore v. 

### McComsey, 459A.2d 841, 842 (Pa. Super. 1983) 

### ("Although his

### prose 

### complaintwas 

### 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 

### pertinentquestion 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 

### complaintsdoes 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

### thatAppellant is alleging an oral 

### agreement. 

## -4J

### -S65040-18

He referencescorrespondence and a powerof

### attorney, butdoes 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 

### complaintwith prejudice. A simple 

### amendmentwould cure

### this defect.3 Finally, we 

### rejectthetrial court's suggestion 

### that Appellant haswaived all his issues because his Pa.R.A.P. 

### 1925(b) 

### statementwasvague. 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)

### statementwithout knowledgeofthe

### 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), 

### appealdenied, 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. 

## Hillv. 

### 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

## ofLuongo, 823 A.2d 942, 969 (Pa. Super. 

### 2003), 

### appeal denied, 847 A.2d 1287 (Pa. 

### 2003)) (emphasis from 

### Luongo). 

## -5J

### -S65040-18 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 thecircumstances ofthis case and the applicable law, we will not conclude 

### that Appellant's vague concise 

### statement resulted in 

### waiver. In 

### light of

### theforegoing, 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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