*1 FLORIST, INC., Appellant, THE JOHNSTON CORPORATION O’Neil TEDCO CONSTRUCTION Corporation, Appellees. Personal Care Pennsylvania. Superior Court of Argued Dee. 1994. April 1995.

Filed *3 Pribanic, Oak, appellant. Victor H. White for Kline, Paul for Pittsburgh, appellees. S. CAVANAUGH, WIEAND, ROWLEY, P.J.,

Before and McEWEN, SOLE, JOHNSON, CIRILLO, DEL HUDOCK SAYLOR, and JJ.

CAVANAUGH, Judge. Florist, from the Inc. the by Johnston This is an for relief. post-trial its motion denying 1993 order October reasons, affirm. we following For trial court by the summarized ably facts were The follows: TEDCO Construction [Appellee December

On care a personal contract to build into a entered Corporation] Corporation Personal Care Village facility [O’Neil Depart- (O’Neil) financed U.S. project was a This ]. (HUD). Pursu- Development and Housing Urban ment totaled landscaping HUD, amount for approved ant to to accom- estimates $20,000.00. TEDCO obtained Although that was amount approximate for the landscaping plish this HUD, principal, the owner’s McKay, Ronald approved by and to deal landscaping scope expand decided On behalf contractor. landscaping his own directly with landscaping,” up to “beef O’Neil, McKay wanted Ronald friend, neigh- and client exclusively with his he dealt Florist, Inc. of Johnston Guffey, Chairman bor —Earle of the 1987, McKay, on behalf Ron the Summer of During Florist, owner, Guffey, on behalf and Earle landscaping services price Inc., scope negotiated themselves, with facility between care personal for the an esti- developed being involved. Johnston TEDCO not O’Neil, nothing with McKay it to mate and submitted for, negotiations During to TEDCO. ever submitted *4 ser- of, landscaping contract for performance and the outlining a letter to TEDCO vices, never wrote Johnston done, TEDCO a breakdown gave never to be what was was what the work costs, TEDCO never told concerning like, told and never it would look to be and what going services. landscaping would be involved TEDCO what landscaping its own handling was Because the owner the name of sub-contrac- work, TEDCO never submitted seeking approval was when it landscaping work tor for Indeed, procedures. to HUD pursuant its sub-contractors the workers or certified that never checked TEDCO wages minimum prevailing being paid were Johnston not was a sub- because Johnston guidelines under HUD of TEDCO. contractor began Johnston deliver August on

Beginning was no contract Although there job to the site. materials on TEDCO, Sep- delivered these materials others with being delivered September 21 and were tember to the given by bid” Johnston “landscaping to a pursuant owner. 24, 1987 Johnston submit-

It not until September was scope owner for the proposal ted to the alone a detailed significant that this detailed price. and its It is landscaping owner, O’Neil and directly to the proposal was submitted to TED- provided was McKay. Ronald This estimate never CO. construction, TEDCO did not the course of the

During work John- supervise landscaping being performed the activities of nothing ston did more than coordinate work not interfere with Johnston to ensure that its did that this de- subcontractors. It was established TEDCO’s supervision typical lack of gree of coordination and industry dealing suppliers when with practices construction directly the owner. or contractors who contract with in early Novem- project finally completed When was ber, 1987, Earle as Chairman of Johnston Guffey, Florist, McKay from as the payment Ronald demanded owner, TEDCO. In a letter Ronald rather than from owner, not Guffey Earle indicated it was McKay, work, agreed to TEDCO, it and approved who directed for it. pay Opinion, pp.

Trial at 2-4. Court complaint against filed a On December that, alleged landscaping a result alleging TEDCO Johnston, into TEDCO contract entered between *5 286 $28,650.00.1

owed Johnston a balance of An amended com 26, 1990, plaint was thereafter filed on March whereby John ston By added O’Neil as a defendant. agreement parties, the matter was submitted to compulsory arbitration. $28,650.00 12, 1992, An award of was entered on June favor An Johnston. was filed in the appeal by TEDCO Court of Common Pleas of Allegheny County. Following non-jury trial, Bigley the Honorable Gerald found in favor of TEDCO. Johnston filed post-trial motions which were denied 20,1993, October order of the trial court. Following entry order, of this an appeal was filed to this Court. This Court’s Central Legal notifying Staff contacted Johnston them that no judgment had been entered on the verdict and requesting that it a praecipe entry file of judgment. response No was had from In Johnston. order to reexamine the of Bonavi holding Cluver, 422 Pa.Super. (1993), tacola v. 619 A.2d 1363 den., alloc. and to determine whether the merits of may the case be decided even without entry judgment, this matter was certified en banc.

Finally, August on subsequent this Court’s notification to involved herein that this matter banc, would be heard en praeciped entry for the Thus, judgment. though appeal even was filed prior the entry judgment, jurisdiction it is clear that in appellate may courts perfected appeal after an notice has been filed upon the docketing judgment. of a final See Reuter v. Citi Bank, zens & Northern 410 Pa.Super.

(1991); Peles, Arcadia Inc. Company, (1990). A.2d Such are the circumstances of the However, present matter. prior due to Johnston’s refusal to Court, enter notification judgment upon to do so from this need to clarify arises this Court’s authority to address an from an upon order which has not been entered. $48,150.00.

1. The bill submitted to TEDCO from Johnston totaled A $19,500.00 already paid sum of had been to Johnston. *6 from be a only permitted will “Generally, appeal an or rule of permitted unless statute final order otherwise 12, Pa.Super. Lift, 421 America v. Arrow court.” Grove North (1992). An from an order 17, 369, appeal A.2d 371 617 301(a), Pa.R.A.P. interlocutory. is motions denying post-trial (c) (d). this Court can Thus, appeal follows that an to it the trial court’s judgments subsequent entered to only lie from motions, not from the order any disposition post-verdict of Finelli, Pa.Super. 293 Davanzo v. post-trial motions. denying (1981). entry judgment was 70, Because the of 437 A.2d 995 this Court’s exercise of to be a to the prerequisite considered appeal an quash to jurisdiction, long policy it was this Court’s had been entered. upon which not from an order v, Hohensee, (1968); 191, 245 A.2d 255 431 Pa. Basalyga See (1981); 141, 437 1245 Pa.Super. A.2d Reifer, v. 293 Enoch Pa.Super. 294 Corp., Transmission v. Columbia Gas Flossier Commonwealth, (1982); Dept. 86, v. Crosby A.2d 762 439 of den., 72, (1988), alloc. 522 548 A.2d 281 Pa.Super. 378 Transp., (1989). 576, Pa. 559 A.2d 37 Cluver, 422

However, supra, Pa.Super. in v. Bonavitacola 556, that it would 1363, of this decided panel A.2d a Court 619 motions, denying post-trial from an order appeal not an quash instead, judicial economy, decide in the interest would In interlocutory order. lying of an from the appeal merits Bonavitacola, trial court’s filed from the appellants appeal an Legal Central Staff post-trial of their motions. Our denial however, request such judgment, enter appellants advised to professionals, health stat- Appellants, who were was refused. expose judgment would entry for the praecipe ed that to in of their medical insurance. Refus- liability them excess this Court appeal, motion to ing appellee’s quash that the judicial economy required that the mandates stated heard. Court reasoned: appeal This “was party appeals as the from which long As order on the matters intended a final clearly pronouncement to be order], ... in opinion [accompanying discussed jurisdiction us ... we is before have appeal properly 410 Murphy Murphy, v. parties’ address the claims.” 288 (1991), allocatur

Pa.Super. 650 denied, (1992). Pa. 606 A.2d 902 The rationale behind treating appeal as one from an entered judg- ment is which appeal progress proceed, to allow the v. Northeast- judicial resources. [McCormick economizing PA, ern Bank (1989); Summit 522 Pa. Bank, Fasteners v. Harleysville Nat’l. denied, allocatur (1991),

A.2d 203 A.2d 902 (1992) also Murphy Murphy, ]. See A.2d at [599 650]. which, quash Were we to from an order except for final, the entry judgment, is otherwise we would expend judicial resources the decision to one of quash, inevitably praecipe would to enter prothonotary judg- *7 ment, and a subsequent appeal permitted would be McCormick, 251, supra, See follow. 522 Pa. 561 A.2d 328 Allen, v. citing Commonwealth 501, 3, 278 505 n. Pa.Super. 653, 420 A.2d (1980). 654 n. 3 Bonavitacola, 563, 619 A.2d at 1367. See also 422 Pa.Super. McCormick, supra, 522 Pa. 251, 561 A.2d 328.

However, the law of this long recog Commonwealth has nized that entry judgment jurisdictional of is a matter. requirement “The that judgment jurisdiction be docketed is al.” Murphy Brong, v. 340, 343, 509, 321 Pa.Super. 468 A.2d Hilliard, Hilliard v. (1983); 317, 511 319, 295 Pa.Super. 441 1251, Unterberger v. (1982); A.2d 1252 Assurance Co. Life of Pennsylvania, 469, 470, 34, (1981); 286 Pa.Super. 429 A.2d 35 Builders, Inc., v. Gadbois Leb-Co 523, 525, 290 Pa.Super. 434 DiDomenico, 1267, (1981); Coren v. A.2d 1268 Pa.Super. 291 331, 333, (1981). 1252, Moreover, 435 A.2d 1253 entry “the of judgment prerequisite is a to our jurisdiction.” exercise of Finelli, Davanzo v. 70, 72, 995, 293 Pa.Super. 437 A.2d 996 Cooke, Inc., (1981); Firestone Tire & Rubber v.Co. W.P. 289 333, 334, (1981); Myers, Slaseman v. Pa.Super. 433 A.2d 93 165, (1981). also 2 Pa.Super. 285 427 A.2d See 166 1976). 1038(b):1, § Goodrich-Amram 2d at 501 On the other hand there are some instances a party wherein has failed to enter judgment appellate and our courts may “regard as done that to have been done.” McCormick v. North ought which Pa., eastern Bank 522 Pa. 251, 1, 328, 254 n. 561 A.2d 330 n. of

289 Bank, 410 Nat’l Harleysville v. (1989); 1 Fasteners Summit (1991), 1, 203, 1 allocatur 56, 205 n. n. 599 A.2d Pa.Super. (1992); denied, Commonwealth n. 3 Allen, 505 n. cases, failure (1980). However, in all these above cited mere result of was the judgment to enter of the refusal, Bonavitaco was case outright not as oversight, la, case here. and which was the 301(a) provides: Procedure Appellate Rule of

Pennsylvania Appealable Requisites Order for an Rule 301. (a) court order a Entry Upon Below. No Docket upon it been entered until has appealable shall court. Where under in the lower docket appropriate more in two or an is entered below order applicable practice dockets, purposes order has been entered for first appropriate in the when it has been entered appeal docket. rule, it is following In Note

Pa.R.A.P. Pa.C.S. no to Rule 301 states 1986 Amendment “[t]he added until entered in the docket appealable order shall be order to to reduction of an deletes reference not does every case. This deletion prerequisite judg- order to reduction an requirement eliminate the Note, 301, 42 Pa.R.A.P. ment in case.” See appropriate *8 added). (emphasis Pa.C.S. imperative that upon jurisdictional the clear

Based the exercise of prerequisite a judgment be entered as cases, that, there is no review, conclude in all such judicial we appeal the merits of such an authority for court to review by parties judgment. in a to enter even the face of refusal Cluver, To the extent that Bonavitacola (1993), den., alloc. judicial econo review in the interest permit appellate would it judgment, to enter my when the have refused specifically disapproved.2 judgment remedy to enter Although appropriate upon

2. the failure may we dismissal ordinarily quash appeal, be to note that would entered, now Since has been we will address the appeal. merits of Johnston’s Two issues are for our presented 1) review: whether an oral contract existed between TEDCO 2) Johnston; and whether on may TEDCO be held liable

a contract between Johnston O’Neil. argues

Johnston first that it had an oral contract with TEDCO, thus, unpaid TEDCO is liable to it for the $28,500.00. amount of In support position, of its importance stresses the of three “invoices” were sent to during TEDCO the course of of the performance landscaping project indicated the materials used on the were “Sold to Thus, Tedco.” At no time did act on these invoices. Johnston avers that TEDCO’s silence as to these documents was its In acceptance support of the oral contract. of its (Second) argument, Johnston cites the Restatement of Con- tracts, 69, which in provides, pertinent part: section

(1) offer, reply Where an offeree fails to to an silence his and inaction as an operate acceptance following cases only:

(a) Where an offeree takes the benefit of services offered with reasonable opportunity reject them and reason to appropriate disposition. Pennsylvania also be an method of Rule of Appellate provides: Procedure 902 Taking Appeal Manner of appeal permitted by right An law as of from a lower court to an appellate by filing appeal court shall be taken a notice of with the (time clerk of the lower court within the time allowed Rule 903 appeal). appellant any step Failure of an to take other than the timely filing appeal validity of a notice of does not affect the of the appeal, subject appellate but it is to such action as the court deems include, to, appropriate, may which but is not limited remand of procedural step may matter to the lower that the court so omitted be taken. Rule, provided: Pa.R.A.P. Pa.C.S. In a comment to this it is change The 1986 revision to the last sentence of the rule indicates a approach to formal defects. The reference to dismissal of the toward, preference remanding has been deleted in favor of a procedural step may the matter to the lower court that the so omitted taken, thereby enabling appellate court to the merits of reach Nevertheless, appeal. appeal ultimately dismissal remains possible necessary steps alternative where counsel to take the fails comet the defect. Pa.C.S., added). *9 (emphasis Pa.R.A.P. 42 Comment

291 of com- expectation the they that were offered with know pensation. (1977). (Second) § 69 of Contracts

Restatement found, essential can all of the Before a contract be Therefore, in determin must of the contract exist. elements enforceable, must examine we ing an agreement whether bound to be both have manifested intent whether the terms are suffi by terms of whether agreement, the the If definite, all existed. and whether consideration ciently exist, be consid agreement the shall three of these elements Co., Burkett Insurance 368 binding. ered and v. Allstate valid 600, (1987), grounds, 534 vacated on other A.2d 819 Pa.Super. (1988). Furthermore, in the case of 1036 Pa. A.2d contract, by said and done the a oral what was disputed said by was intended what was and parties, as well what by fact to resolved the parties, questions done the are by v. fact, in trial court. Solomon trier of this instance the (1968). Luna, “The burden is of the evidence preponderance on plaintiff prove the the defendant is a contract to which existence Werner, party.” Viso

(1977).

TEDCO, contract for support position of its that a upon the parties, did not between the relies payment exist 1) were not alleged “invoices” following facts record: delivery slips payment, merely for but rather were invoices that had been delivered that indicated certain materials 2) site; landscaping job negotiated and O’Neil of the knowledge and had no the terms contract TEDCO 3) $20,000.00 contract, costs; only nor the HUD allowed TEDCO never aware landscaping was 4) $48,150.00; did not amount had increased supervise landscaping. progression court, testimony, found reviewing all of The trial after that: overwhelmingly evidence in this case established

The was no or other contract between Johnston there oral *10 TEDCO for the full services to landscaping amounting $48,150.00. pursued The claim which against [Johnston] landscaping TEDCO was the result of a contract for ser- provided by vices to the owner of the personal Johnston [O’Neil], care At facility, principal, McKay. and its Ronald for, of, all land- during negotiations performance times services, scaping only McKay dealt with Ronald [Johnston] only payment. and O’Neil and looked to them for It is clear that it was after financial and only encountered [O’Neil] other difficulties that turned its on sights Johnston TEDCO payment. for Opinion, p.

Trial Court at 5. After our review of the evidence and the made findings court, agree trial we with the trial court’s conclusion that no oral contract existed between TEDCO and Johnston. Clearly, given presented, the evidence Johnston did not meet Further, proving its burden of that an oral contract existed. (Second) in rejecting Johnston’s claim that Restatement § applicable, Contracts 69 is we cannot find that TEDCO accepted the offer It alleged through silence. is well settled “[sjilence that, will not constitute in acceptance an offer duty absence of a to speak.” Enterprises, Chorba Davlisa Inc., (1982); Restate- (Second) Also, § ment of Contracts 69. section 69 cannot be in satisfied that we can find no of record that proof TEDCO had performed reason to know that Johnston its with services expectation Thus, would it. compensate given the fact that TEDCO was not involved in the negotia- Johnston, tions with we can find no duty upon TEDCO to them, respond to the “invoices” that were sent to unsigned, by Johnston. alternative, that,

In the assuming asserts itself, contract existed between O’Neil and as TEDCO has sumed the responsibility pay to on remaining debt contract. The Statute of Frauds provides, pertinent part, to for debt another

§ 3. answer Promise execu- whereby charge any to brought No shall be action damages answer administrator, upon any promise or tor defendant, estate, whereby charge or out of his own debt or default to answer any promise, upon special action another, which such agreement upon unless thereof, or note be some memorandum brought, shall or charged to be writing, signed by party shall therewith, by him authorized. person or other some However, rule exists where exception § *11 33 P.S. 3. (in object” promisor of the “leading “main or the purpose” the TEDCO) or pecuniary own case is to serve its present 8,1, 406 593 Ziegler, Pa.Super. v. purpose. business Biller (1991). Thus, TED- 436, that since alleges 440 A.2d for responsible who was general CO was the contractor O’Neil, “completion of job of overall with completion busi- only pecuniary not advanced the work [Johnston’s] [TEDCO], final for the ness interests of it was indeed essential [TEDCO], pay- of final to closing project, payment sub-contractors.” by ment of the balance [TEDCO] Brief, Johnston’s at 17. p. Biller, in

As summarized in a object promisor, The rule whenever leading applies of his purpose order to some or business pecuniary advance own, though agreement into an oral even purports enter may in the of a agreement provision pay that form Barron, Armbruster, Inc. v. [Thomas debt of another. A. (1985) 409, 882, ], 413, quoting 491 A.2d 884 Pa.Super. 341 Accord, (1913). Simon, 125, 127 Goodling Pa.Super. 54 Metz, 641, 636, Pa. 89 Eastern Wood Products Co. v. 370 (1952). court explained, A.2d 330 As the Armbruster his surety-promisor’s purpose pri main is own where the or or sentimental mary advantage, gratuitous business in is present suretyship [Arm element often eliminated. 884], bruster, Thus, is at there Pa.Super. 341 491 A.2d in the formality or cautionary evidentiary less need for as to whether commercial context. Id. The determination making guaranty was promisor’s purpose a main a for 294 his or business ends is the trier pecuniary

serve own fact, and will not be reversed absent abuse discretion. Id., A.2d at Pa.Super. [884]. added).

Biller, (emphasis 593 A.2d at 440 urges this Court not to address this issue in because Johnston failed to raise the merits of this claim its “It a fundamental complaint. principle appel amended not or on a late review we will reverse decree theory that was not to the trial court.” Kimmel v. presented Commissioners, County Somerset (1975). contended, As not raised the Johnston has complaint merits of this issue either its amended or at trial. was brief in We note matter raised Johnston’s motions, support post-trial of its but the merits were never then, agree, addressed the trial court. We that the first time this is to be addressed is on appeal. issue Because issue of whether TEDCO’s main was to benefit itself purpose fact, is one for the trier of will not hear this matter. Court Moreover, issue, in our TED noted discussion the first made no oral promises CO to Johnston.

Judgment affirmed. *12 WIEAND, J., statement. concurring files HUDOCK, J., files a and in concurring dissenting opinion McEWEN, SAYLOR, JJ., which DEL join. SOLE and HUDOCK, Judge, concurring dissenting. and I join majority disposition the in its of the merits of this I that the appeal. agree entry judgment also while belated of by Appellant unquestionably gives jurisdiction, Ap- this court pellant’s prior refusal to enter notification to judgment upon do so court court by requires clarify authority this this to our appeal to address an from an order which upon judgment has My not been entered. with the dis- disagreement majority’s authority cussion of our under these results circumstances my from belief that we authority do have the to hear the appeal, while not I being required to. do not read Bonavita- Cluver, cola v. supra, as has not judgment where appeal that we hear an mandating to leaves our I believe Bonavitacola been entered. Rather as thus appeal, the and whether or not hear discretion holding. I with its concur interpreted, a sine entry judgment qua to be majority The finds the Supreme that our jurisdiction, yet acknowledges non to it in situations .found to exist certain jurisdiction Court has The rationale the judgment has not been entered. where may “regard in was we done Court those situations that v. North- ought that to have been done.” McCormick which PA, 561 A.2d 328. The supra, eastern Bank of the failure majority distinguishes those cases on the basis that the not judgment oversight, outright enter was result of in here. refusal as was the case Bonavitacola and is the if, as the sole majority opines, entry judgment But creating talisman then the intent of jurisdiction, exclusive must majority is the hold Logically, irrelevant. if there is no judgment, jurisdiction; if there is a there is our Court judgment, jurisdiction. Supreme there no Yet is very has in cited majority. held otherwise cases I court our Court has authorized our Supreme believe justice procedure when interest overlook defect it, judicial any procedural or as with other economy requires defect. SAYLOR, JJ„

McEWEN, join. DEL SOLE WIEAND, concurring. Judge, post-trial I order join majority’s holding denying that an an final and that appealable motions is not order which is only judgment will lie from thereafter entered. appeal entered; and, case, In now been judgment the instant has therefore, presently before this court deci- sion. merits, favor

On I agree Corporation Construction must affirmed. The *13 agreement by trial that there was no finding court’s Corporation for work ordered O’Neil pay Construction Care Johnston the Corporation performed by Personal Florist, amply supported by competent Inc. evidence. Therefore, an oral unnecessary it is to consider whether agreement by Corporation pay TEDCO Construction existed, work, if it enforceable such had would have been under to a relating promise pay the Statute of Frauds debt of another. Pennsylvania

COMMONWEALTH Eugene AHLBORN, Appellant. Robert Superior Pennsylvania. Court of

Submitted Jan. 1995. March 1995. Decided Reargument May Denied 1995.