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Home My WebLink About2010-2823 EXPERT TECHNOLOGIES, INC., : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : MICROBYTES, INC., : DEFENDANTS : NO. 10-2823 CIVIL IN RE: PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS AND TO ENFORCE SETTLEMENT AGREEMENT BEFORE GUIDO, J. AND EBERT J. ORDER OF COURT th AND NOW , this 12 day of April, 2012, upon consideration of Plaintiff’s Motion for Judgment on the Pleadings and to Enforce Settlement Agreement, IT IS HEREBY ORDERED AND DIRECTEDGRANTED that the Motion is and judgment in the amount of $11,500.00 plus reasonable attorneys’ fees and costs is entered in Plaintiff’s favor and against Defendant. By the Court, M. L. Ebert, Jr., J. Ryan Siney, Esquire Attorney for Plaintiff P. O. Box 88 Harrisburg, PA 17108 Allan Opsitnick, Esquire Attorney for Defendant 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 EXPERT TECHNOLOGIES, INC., : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : MICROBYTES, INC., : DEFENDANTS : NO. 10-2823 CIVIL IN RE: PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS AND TO ENFORCE SETTLEMENT AGREEMENT BEFORE GUIDO, J. AND EBERT J. OPINION AND ORDER OF COURT EBERT, J., April 11, 2012- Background Pending before this Court is a dispute between Xpert Technologies, Inc. (“Plaintiff”) and Microbytes, Inc. (“Defendant”). A brief procedural history is provided to better illustrate the timeframe of events. This civil action commenced on April 28, 2010, when Plaintiff filed a 1 complaint. On August 20, 2010, Defendant filed Preliminary Objections to Plaintiff’s 2 Complaint. On November 15, 2010, Plaintiff and Defendant (the “parties”) entered into a 3 Settlement Agreement and Mutual Release (“Settlement Agreement”). On March 11, 2011, 4 Plaintiff was granted leaved to file an amended complaint. On March 17, 2011, Plaintiff filed an 5 amended complaint. On April 27, 2011, Defendant filed an Answer and New Matter to 1 Pl.’s Complaint, filed Apr. 28, 2010. 2 Def.’s Preliminary Objections, filed Aug. 20, 2010. 3 Pl.s’ Motion for Judgment on the Pleadings and to Enforce Settlement Agreement, filed Aug. 19, 2011, Exhibit B. [hereinafter Pl.’s Motion, Ex. __ ]. 4 Order of the Court, filed, Mar. 11, 2011. 5 Pl.’s First Amended Complaint, filed Mar. 17, 2011 [hereinafter Amended Cmpl.]. 1 6 Plaintiff’s amended complaint. On May 17, 2011, Plaintiff filed a reply to Defendant’s New 78 Matter. On August 19, 2011, Plaintiff filed a motion for judgment on the pleadings. The material facts of this case are not in dispute. Plaintiff is a Pennsylvania corporation 9 which provides computer programing and consulting services. Defendant is a Pennsylvania 10 corporation which provides software consulting services and training. On January 2, 2009, the parties finalized a Supplier Agreement where Plaintiff would provide technical services 11 personnel to assist Defendant’s clients. Plaintiff’s personnel would then submit invoices to 12 Defendant to be paid within thirty (30) days. Plaintiff submitted invoices to Defendant 13 spanning the time periods from February through May of 2009. Defendant did not fully pay 14 Plaintiff for invoices, as per the Supplier Agreement, resulting in $14,770 owed. Plaintiff then filed a civil suit against Defendant for, inter alia, breach of contract in the amount of $14,770 15 plus costs, attorney’s fees, and interest. After the filing of the civil suit, the parties reached a Settlement Agreement where Defendant would make twenty-four (24) monthly payments of $500 for a total amount of 16 $12,000 in total satisfaction of all outstanding claims. On or about November 15, 2010, 17 Defendant made a $500 payment to Plaintiff, but has not made any additional payments. There is no dispute between the parties that a valid Supplier Agreement or subsequent Settlement 6 Def.’s Answer and New Matter to Plaintiff’s First Amended Complaint, filed Apr. 27, 2011 [hereinafter Def.’s Answer]. 7 Pl.’s Reply to Defendant’s New Matter, filed May 17, 2011. 8 Pl.’s Motion. 9 Pl.’s Amended Cmpl. ¶¶ 1-2. 10 Pl.’s Amended Cmpl. ¶¶ 3-4. 11 Pl.’s Amended Cmpl. ¶¶ 3-4. 12 Pl.’s Amended Cmpl. ¶¶ 5, 11-17; Pl.’s Motion, Ex. A. 13 Pl.’s Amended Cmpl. ¶ 14. 14 Pl.’s Amended Cmpl. ¶ 17. 15 Pl.’s Amended Cmpl. ¶ ¶ 17,19. 16 Pl.’s Amended Cmpl. ¶¶ 21-25; Pl.’s Motion, Ex. B.; Def.’s Answer ¶¶ 22, 24. 17 Pl.’s Amended Cmpl. ¶ 51. 2 18 Agreement exists or the amount owed to Plaintiff under the Settlement Agreement. However, Defendant maintains that no breach of contract has occurred because Defendant intends to pay the amount owed to Plaintiff within the Settlement Agreement’s stated time period of 24 19 months. Discussion Judgment on the Pleadings “Entry of a judgment on the pleadings is permitted under Pennsylvania Rule of Civil Procedure 1034 which provides for such judgment after the pleadings are closed, but within such time as not to delay trial.” American Rock Mechanics, Inc. v. N. Abbonizio Contractors, Inc., 887 A.2d 322, 323 (Pa. Super. 2005); see also Bata v. Central-Penn Nat. Bank of Philadelphia, 224 A.2d 174, 178 (Pa. 1966). In determining whether a judgment on the pleadings is warranted, “a trial court must confine its consideration to the pleadings and relevant documents and accept as true all well pleaded statements of facts, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed.” McAllister v. Millville Mut. Ins. Co., 640 A.2d 1283, 1285 (Pa. Super. 1994). Judgment on the pleadings may not be entered where material issues of fact are in dispute, however, “the granting of a motion for judgment on the pleadings may be appropriate in cases that turn upon the construction of a written agreement.” DiAndrea v. Reliance Sav. and Loan Ass’n, 456 A.2d 1066, 1070 (Pa. Super. 1983); see Allstate Fire and Cas. Ins. Co. v. Hymes, 29 A.3d 1169, 1171 (Pa. Super. 2011). 18 Def.’s Answer ¶¶ 5, 21. 19 Def.’s Answer ¶¶ 23-24. 3 Breach of Contract “Generally speaking, for a plaintiff to successfully maintain a cause of action for breach of contract requires that the plaintiff establish: (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” Gorski v. Smith, 812 A.2d 683, 692 (Pa. Super. 2002). Often the language of a contract and the interpretation of that language are essential in determining whether a duty imposed by the contract was breached. See, e.g., Bruan v. Wal-Mart Stores, Inc., 24 A.3d 875, 957 (Pa. Super. 2011). Interpreting the terms of a contract is a question of law to be decided by the court. Id. (citing McCullen v. Kutz, 985 A.2d 769, 773 (Pa. 2009)). The Pennsylvania Supreme Court has made it clear that the intent of the parties is “embodied in the writing itself, and when the words are clear and unambiguous the intent is to be gleaned exclusively from the express language of the agreement.” Delaware County v. Delaware County Prison Employees Indep. Union, 713 A.2d 1135, 1137 (Pa. 1998). “It is a general rule of law in the Commonwealth that where a contract refers to and incorporates the provisions of another, both shall be construed together.” Trombetta v. Raymond James Financial Services, Inc., 907 A.2d 550, 560 (Pa. Super. 2006). “If contracting parties choose, they may express their agreement in one or more writings and, in such circumstances, the several documents are to be interpreted together, each one contributing (to the extent of its worth) to the ascertainment of the true intent of the parties.” International Milling Co. v. Hachmeister, Inc., 110 A.2d 186, 191 (Pa. 1955). Analysis In the case sub judice, the Supplier Agreement and subsequent Settlement Agreement is clear and unambiguous. Defendant does not dispute the existence of the Settlement Agreement or 4 the amount of settlement. Upon the full and final satisfaction of the Settlement Agreement, the parties agreed to mutually release the other from all claims. Final satisfaction could have been achieved as set forth in paragraph 2 of the Settlement Agreement reproduced below: 2. Payment from MicroBytes to Xpert. As evidenced by the installment Promissory Note (“Note”) executed concurrent herewith and fully incorporated herein, MicroBytes shall pay to Xpert the sum of twelve thousand dollars and no cents ($12,000.00) … in twenty four (24) monthly installments of five hundred dollars ($500.00) each. The Settlement Agreement incorporated the Promissory Note which outlined in greater detail Defendant’s repayment schedule as set forth in paragraph one, section “a”: 1. Schedule. Payments pursuant to this Note shall be made as follows: a.Five hundred dollars and no cents ($500.00) no later than 5:00 P.M. Eastern time on November 1, 2010 and on the first day of each and every subsequent month through and including October 1, 2012. Additionally, the Settlement Agreement contained a “time is of the essence” clause in paragraph 10 subsection “g” and the Promissory Note contains an “acceleration” clause in paragraph 5. These clauses required Defendant to make monthly payments to Plaintiff in a timely manner pursuant to the designated payment schedule or default and face the penalty of having the entire 20 balance owed due immediately. Also, paragraph 7 of the Promissory Note provided reimbursement of Plaintiff’s expenses and reasonable attorneys’ fees for the cost of enforcing and collecting monies owed pursuant to the Settlement Agreement. Here, Defendant is in default of the Settlement Agreement. Defendant has failed to make additional payments beyond the first $500 payment to Plaintiff. Defendant argues that default has not occurred because the “24 month period mentioned in the Agreement has not expired.” Contrary to Defendant’s argument, the clear and unambiguous language of the Settlement 20 The Promissory Note allows for a “Right to Cure” for the first time Defendant fails to deliver any payment. Defendant does not allege an attempt to cure. 5 Agreement, and incorporated Promissory Note, plainly required payment of $500 “monthly installments” beginning November 1, 2010 and every subsequent month through October 1, 2012. Therefore, Defendant has failed to comply with the Settlement Agreement and Plaintiff is entitled to enforcement of the settlement in the amount of $11,500.00 plus reasonable costs and attorneys’ fees. Finally, Defendant argues that Judgment on the Pleadings is inappropriate because material issues of fact exist. This Court disagrees. “Because Pennsylvania is a fact pleading jurisdiction,” Defendant must plead more than legal theory. American Rock Mechanics, Inc. v. N. Abbonizio Contractors, Inc., 887 A.2d 322, 324 (Pa. Super. 2005). However, Defendant simply avers “the defenses of failure of consideration, accord and satisfaction, and payment.” Defendant has “failed to develop [its] defense beyond a legal conclusion” and thus, “does not preclude an entry of judgment on the pleadings.” Id. Conclusion For the above reasons, this Court finds no material issues of fact exist and Defendant has breached the Settlement Agreement with Plaintiff. Accordingly, the follow Order is entered: th AND NOW , this 12 day of April, 2012, upon consideration of Plaintiff’s Motion for Judgment on the Pleadings and to Enforce Settlement Agreement, 6 IT IS HEREBY ORDERED AND DIRECTEDGRANTED that the Motion is and judgment in the amount of $11,500.00 plus reasonable attorneys’ fees and costs is entered in Plaintiff’s favor and against Defendant. By the Court, M. L. Ebert, Jr., J. Ryan Siney, Esquire Attorney for Plaintiff P. O. Box 88 Harrisburg, PA 17108 Allan Opsitnick, Esquire Attorney for Defendant 564 Forbes Avenue, Suite 1301 Pittsburgh, PA 15219 7