J-A26028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BURTON SAMUEL COMENSKY                         IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

DUQUESNE BUSINESS ADVISORY CORP.

                                                    No. 402 WDA 2016


                   Appeal from the Order February 16, 2016
              in the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): GD-06-016735


BEFORE: BENDER, P.J.E., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY RANSOM, J.                       FILED DECEMBER 12, 2016

      Burton Samuel Comensky (“Appellant”) appeals from the trial court’s

Order of February 16, 2016, granting summary judgment and striking

Appellant’s New Matter in favor of Duquesne Business Advisory Corporation

(“Appellee” or “Duquesne”). We affirm.

      The trial court outlined the relevant procedural and factual history as

follows:
            [Appellant] alleges in his Complaint that he and [Appellee]
      entered into a contract for the purchase of property in
      Duquesne, Pennsylvania. [Appellant’s] proffered proof for this
      contract is a November 14, 2005 letter which he attaches to his
      Complaint. The letter, drafted by the President of [Appellee]
      indicates that if [Appellant] transfers the deed to the subject
      property to [Appellee], then [Appellee] would pay [Appellant]
      the sum of $12,000.00 and accept the liens against the property
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       only.1 [Appellant] has not, to this date, transferred the deed to
       the property to [Appellee]. Although [Appellant] signed the
       letter from the President of [Appellee], described above,
       purportedly indicating an intention to accept the terms of that
       offer, on the same day counsel for [Appellant] forwarded a
       counteroffer correspondence to [Appellee] setting forth
       additional terms.[2]     The counteroffer letter indicated that
       [Appellee] would be assuming liens and judgments against
       [Appellant] personally and also disclosed the involvement of GLS
       Capital Services, Inc. [Appellant’s] counteroffer was rejected by
       correspondence from the solicitor of [Appellee] to counsel for
       [Appellant] dated December 7, 2005. That correspondence also
       explicitly revoked [Appellee’s] original November 14, 2005 offer.
       No other facts are offered or proffered by [Appellant] in his
       Complaint, or otherwise, which would support the contention
       that    [Appellant]    and   [Appellee]    entered   into   and/or
       consummated a valid and binding contract.
              [The instant Complaint in Civil Action was filed by
       Appellant on July 17, 2006. Appellee filed an Answer on August
       9, 2006. The case was inactive for almost ten years until August
       5, 2015, when Appellant filed a pleading titled New Matter and
       subsequently filed Praecipie for Issue/Jury Trial.]
              [Appellee] filed a Motion for Summary Judgment [on
       January 19, 2016] outlining the unchallenged factual history set
       forth above, attaching the relevant correspondence, and seeking
       dismissal of all of [Appellant’s] claims. The Motion for Summary
       Judgment was scheduled by Calendar Control for argument
       before the [trial court] on February 16, 2016.          [Appellant]
       acknowledges notification, but did not appear for the oral
       argument on the Motion for Summary Judgment. [That same
       day, the court granted Appellee’s Motion for Summary Judgment
       and Motion to Strike Appellant’s New Matter. Appellant timely
       filed a Motion for Reargument and a Motion for Reconsideration,
       both of which, were denied. Appellant then timely filed a Notice

____________________________________________


1
  See Verified Complaint in Assumpsit (“Complaint”), 7/17/06, Plaintiff’s
Exhibit “A”. Appellant signed this letter on November 22, 2005. Id.
2
  See Answer to Verified Complaint in Assumpsit (“Answer”), 8/9/06,
Defendant’s Exhibit “A”. This letter by Appellant’s counsel is dated
November 22, 2005. Id.



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      of Appeal and        filed   a   court-ordered   Pa.R.A.P.   1925(b)
      statement.]

Trial Court Opinion, 5/4/16, at 1-2.

      Appellant presents the following questions for our review:

      1. Summary Judgment should not have been granted as there
         are issues of material fact[].

      2. As a jury trial was requested and taken to issue the instant
         case should have proceeded.

      3. [F]acts as presented as New Matter could have been re-stated
         as Amendment to complaint.

      4. All [Appellee’s] filings post initial answer lacked verifications.

      5. [The court] should have [a]llowed [M]otion for Reargument.

Appellant’s Brief at 5.

      We review an order granting summary judgment for an abuse of

discretion. Indalex, Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA,

83 A.3d 418, 420 (Pa. Super. 2013). Our standard of review is plenary, and

we view the record in the light most favorable to the nonmoving party. Id.

A party bearing the burden of proof at trial is entitled to summary judgment

“whenever there is no genuine issue of any material fact as to a necessary

element of the cause of action or defense which could be established by

additional discovery or expert report[.]” Pa.R.C.P. 1035.2(1). In response

to a summary judgment motion, the nonmoving party cannot rest upon the

pleadings, but rather must set forth specific facts demonstrating a genuine

issue of material fact. Pa.R.C.P. 1035.3.




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     Appellant asserts Duquense breached a contract between them.

Appellant’s Brief at 12-14. As this Court has recognized:

     A cause of action for breach of contract must be established by
     pleading (1) the existence of a contract, including its essential
     terms, (2) a breach of a duty imposed by the contract and (3)
     resultant damages. Corestates Bank, N.A. v. Cutillo, 723 A.2d
     1053, 1058 (Pa. Super. 1999). While not every term of a
     contract must be stated in complete detail, every element must
     be specifically pleaded. Id. at 1058.

      ***

     It is axiomatic that consideration is “an essential element of an
     enforceable contract.” Stelmack v. Glen Alden Coal Co., 14
     A.2d 127, 128 (Pa. 1940). See also Weavertown Transport
     Leasing, Inc. v. Moran, 834 A.2d 1169, 1172 (Pa. Super.
     2003) (stating, “[a] contract is formed when the parties to it (1)
     reach a mutual understanding, (2) exchange consideration and
     (3) delineate the terms of their bargain with sufficient clarity.”).
     “Consideration consists of a benefit to the promisor or a
     detriment to the promiser. Weavertown, 834 A.2d at 1172
     (citing Stelmack). “Consideration must actually be bargained
     for as the exchange for the promise.” Stelmack,[]14 A.2d at
     129.

Pennsy Supply, Inc. v. Am. Ash Recycling Corp. of Pa., 895 A.2d 595,

600 (Pa. Super. 2006) (parallel citations omitted).    Whether a contract is

supported by consideration presents a question of law.      Davis & Warde,

Inc. v. Tripodi, 616 A.2d 1384 (Pa. Super. 1992).

     As an initial matter, we must first determine whether an enforceable

contract existed. Our Court observed the following in Yarnall v. Almy, 703

A.2d 535, 538–39 (Pa. Super. 1997):

     In order to form a contract, there must be an offer, acceptance,
     and consideration or mutual meeting of the minds. An alleged
     acceptance of an offer is not unconditional and, therefore, is not

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     an “acceptance” if it materially alters the terms of the offer. As
     such, a reply which purports to accept an offer, but instead
     changes the terms of the offer, is not an acceptance, but, rather,
     is a counter-offer, which has the effect of terminating the
     original offer. Further, it is well established that the acceptance
     of any offer or counter-offer must be “unconditional and
     absolute.”

Yarnall, 703 A.2d 538–39 (internal citations omitted).

     In the instant case, Appellee signed Duquesne’s letter offering to

purchase Appellant’s house for $12,000.00 and accept the liens against the

property.   Complaint, 7/17/06, Plaintiff’s Exhibit “A”.      However, Appellant

attached a separate letter rejecting portions of Duquesne’s offer and

substantially changing its terms by requiring that Duquesne assume

personal    liens   and    judgments   against   Appellant.    Answer,   8/9/06,

Defendant’s Exhibit “A”. Appellant’s letter thereby created a counter-offer,

not an acceptance.        Here, there was no evidence of an “unconditional and

absolute” acceptance of this new and modified agreement by Appellant. On

the contrary, upon receipt of Appellant’s counter-offer, Duquesne expressly

rejected Appellant’s counter-offer and explicitly revoked its initial offer.

Answer, Defendant’s Exhibit “B”. Appellant failed to put forth any evidence

or legal authority to the contrary.     Thus, no enforceable contract existed,

and Appellant’s breach of contract suit must fail. Yarnall, 703 A.2d 538-39.

     Moreover, we note that Appellant’s action against Duquesne also fails

for lack of consideration tendered.       Duquesne’s offer was conditional on

Appellant’s transfer of the deed to Appellant’s home. Such transfer would


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constitute a benefit to the offeror, Duquesne.     Weavertown, 834 A.2d at

1172.      To date, the deed has not been transferred to Duquesne.

Accordingly, the trial court acted correctly in granting summary judgment in

favor of Duquesne, since no material fact remained in issue and the

uncontroverted evidence established that no contract existed.

        Appellant asserts in his second issue that the trial court erroneously

precluded him from a jury trial. Appellant’s Brief at 15-16. We disagree. It

is well established that summary judgment serves the purpose of promoting

judicial economy by eliminating cases prior to trial if a party cannot make

out a claim or defense. Miller v. Sacred Heart Hosp., 753 A.2d 829, 832

(Pa. Super. 2000); see also Commonwealth v. Bowers, 155 A. 605, 608

(Pa. 1931) (“A jury trial can only be demanded where there is a disputed

question of fact.   The court is not required to award a jury trial in cases

where there is no dispute of fact and it would be obliged to decide the case

against the claimant, as a matter of law, on his petition.”).

        Appellant contends in his third issue that his New Matter pleading

should not have been set aside as “time is not a bar to refiling it under the

title[,] Amended Complaint.”     Appellant’s Brief at 16.   Appellant's claim is

waived for his failure to cite case law or other legal authority in support, as

required by Pa.R.A.P. 2119. See, e.g., Commonwealth v. Zewe, 663 A.2d

195, 199 (Pa. Super. 1995) (noting that failure to develop legal argument

results in waiver of claim).


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      In his fourth claim, Appellant argues that all of Duquesne’s pleadings

after its Answer lacked verification as required by Pa.R.C.P. 1024.

Appellant’s Brief at 17.      The pertinent portion of Rule 1024 governing

verification is as follows:

      (a) Every pleading containing an averment of fact not appearing
      of record in the action or containing a denial of fact shall state
      that the averment or denial is true upon the signer's personal
      knowledge or information and belief and shall be verified.

Pa.R.C.P. 1024.     All pleadings filed by Appellee subsequent to its Answer

contained facts of record. As such, Appellant’s claim fails. Id.

      In Appellant’s final claim, he argues that the trial court should have

granted his Motion for Reargument because he had a legitimate excuse to be

absent from the Summary Judgment Hearing. Appellant’s Brief at 17. The

trial court observed:

             Although [Appellant] asserts in his 1925(b) filing that “an
      ex-parte hearing was held where [Appellant] was absent with a
      legitimate reason for being absent[,]” [Appellant] provides no
      further explanation or excuse for his absence.[FN] [Appellant] at
      no time attempted to contact the [c]ourt or opposing counsel in
      advance in order to reschedule the argument. Moreover, and
      more substantively, [Appellant] points to no evidence or facts of
      record that could or would support his contentions that he and
      the [Appellee] entered into a valid and binding contract that this
      [c]ourt could enforce.
           [FN]
                     [Appellant’s] previously filed Motion for
           Reargument lists: an ice storm, busses backed up,
           inability to get a ride, inability to communicate with
           Court from home, a heart condition aggravated by
           stress, dizzy spells, chest pains, a low[-]dose aspirin
           regimen, and dizzy spells brought on by the phones
           being out, as among the causes for his absence. None
           of the items listed have been corroborated, and


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          notwithstanding [Appellant’s] assertions, and the fact
          that the Greater Pittsburgh area experienced a very
          modest weather event on February 16, 2016 (less than
          one inch of rain and snow)[,] [c]ourt business was,
          otherwise, conducted on February 16, 2016 without
          interruption or incident.

Trial Court Opinion, 5/4/16 at 2-3 (footnote in the original). We agree and

add that Appellant’s claim is waived for failure to cite to legal support.

Pa.R.A.P. 2119.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2016




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