School Express, Inc. v. Upper Adams S.D.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

School Express, Inc., :

Appellant :

: No. 711 C.D. 2021

v. :

: Argued: December 12, 2022

Upper Adams School District :

BEFORE:

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McCULLOUGH FILED: January 9, 2023

School Express, Inc. (SEI) appeals from the June 7, 2021 Order of the

Court of Common Pleas of Adams County (trial court) granting Upper Adams School

District’s (School District) motion for judgment on the pleadings. Upon review, we

affirm.

I. FACTS AND PROCEDURAL HISTORY

On or about June 20, 2017, SEI and the School District entered into a

contract for the provision of transportation for school students (Transportation

Agreement). (Reproduced Record (R.R.) at 72a-79a.) The School District

contractually guaranteed that SEI would be assigned no less than 50% of the students

who are to be provided “non-traditional and/or non-school bus transportation each

academic year” for the calendar school years of 2017-2018, 2018-2019, 2019-2020,

2020-2021 and 2021-2022. Id. at 72a. Paragraph 4(1) of the Transportation Agreement

stated “[t]he [School District] will pay [SEI] according to the daily scheduled route as

prepared by [SEI] when any schools on the daily scheduled route operate.” Id.

Paragraph 4(3) provided that SEI would provide transportation on “regular school days

in each school term for schools served as indicated on the respective school calendars.”

Id. Pursuant to Paragraph 4(4) of the Transportation Agreement, SEI was to be

compensated on a per mile rate with a monthly fuel adjustment rate being assessed also

on a per mile basis. Id. Paragraph 4(5) stated that monthly billing procedures include

a fuel payment and that “[t]he contracted mileage rate and fuel adjustment rate included

payment for fuel used by the contracted vehicles which provide transportation services

as described in this contract.” Id. at 74a. The terms of the Transportation Agreement

also provided other incidental fee structures that increased over defined periods of time.

In this regard, Paragraph 4(6) relating to layover rates, provided that the School District

would pay a rate “per half-hour in excess of one half-hour of layover time.” Id.

Paragraph 4(7), relating to van assistants, stated that van assistants would be paid an

“hourly rate.” Id.

The Transportation Agreement obligated the School District to make

timely payments within 30 days of the receipt of any invoice. Id. at 74a. The School

District further was to provide SEI with rosters of students who required transportation

“no later than the second week of the new academic year.” Id. at 76a. The list of

students (Student Transportation Lists) permitted SEI to budget mileage and fuel costs.

See Complaint, ¶8.

On March 6, 2020, Governor Wolf issued a Proclamation of Disaster

Emergency proclaiming the existence of a disaster emergency as it related to COVID-

19 throughout the Commonwealth. (R.R. at 147a-49a.) On March 13, 2020, Governor

Wolf ordered the closing of all schools throughout the Commonwealth for a period of

10 business days. During this period, continuity of education was not permitted. All

2

schools, statewide, were closed during this period. In a March 19, 2020 Executive

Order, Governor Wolf ordered “all non-life sustaining business” closed with an

enforcement date to occur on March 21, 2020 at 12:01 a.m. Id. at 151a-52a.

Following the closure of all non-life sustaining businesses, on March 23,

2020, Governor Wolf issued an Executive Order mandating “individuals to stay at

home,” whereby residents of certain counties were ordered to stay at home “[e]xcept

as needed to access, support, or provide life sustaining business, emergency or

government services.” (Stay at Home Order). Id. at 154a-55a.

On March 27, 2020, Act 131 was signed into law, which amended the

Public School Code of 1949, Act of March 10, 1949, P.L. 30 (School Code), as

amended, to authorize the Pennsylvania Secretary of Education to permit and order the

closure of all school entities until the threat to the health and safety caused by the

COVID-19 pandemic had ended.

In Section 1501.8(l) of the School Code, 24 P.S. §15-1501.8(l),2 the

legislature provided school districts with the ability to renegotiate their contracts with

the districts’ various contractors in an effort to help mitigate the contractors’ losses.

Section 1501.8(l)(a) and (b) provides in this regard as follows:

(1) Each school entity may renegotiate a contract for school

bus transportation services to ensure contracted personnel

and fixed costs, including administrative and equipment, are

maintained during the period of school closure. During the

period of school closure, the school bus transportation

contractor shall submit weekly documentation to the school

entity that its complement levels remain at or above the level

on March 13, 2020, in order to continue being paid.

1

Act of March 27, 2020, P.L. 62, No. 13.

2

Section 1501.8 was added by Act 13.

3

(2) Notwithstanding any other provision of this act, if a

school entity continues to pay a school bus transportation

contractor or operates its own school bus transportation, the

school entity shall be eligible for reimbursement from the

Department of Education at a rate the school entity would

have received had the pandemic of 2020 not occurred, had

the minimum instruction days requirement not been waived

under subsection (b)(1) or had the Secretary of Education not

taken action under subsection (b)(2).

24 P.S. §15-1501.8(l)(a) and (b) (emphasis added).

On April 1, 2020, Governor Wolf amended the Stay at Home Order to

include Adams County, and ordered Adams County residents to stay at home except as

needed to access support or to be life sustaining, emergency or government services.

Continuity of live and in-person education at school facilities was not deemed to be a

life sustaining business.

On April 9, 2020, the Pennsylvania Secretary of Education issued an

Executive Order pursuant to Act 13, which, inter alia, closed all in-person instruction

at all Pennsylvania schools for the remainder of the 2019-2020 academic year. (R.R.

at 145a.)

As a result of the Executive Orders, the School District moved to full

remote instruction following the 10-day business closure mandated by Governor Wolf.

Full remote instruction continued through the end of the 2019-2020 academic year.

The School District did not pay SEI for days in which schools were not open or in

session because SEI’s vehicles were not in service, no miles were driven, no fuel was

consumed and no School District students were transported from March 13, 2010,

through the end of the academic year.

During this period, SEI made several demands for payment of invoices

from March 13, 2020, through the end of the 2019-2020 academic year. (R.R. at 80a.)

In addition to demands for compensation, SEI also made demands for Student

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Transportation Lists for those students that would be transported by SEI during the

2020-2021 academic year. According to the Transportation Agreement, those lists

were due “no later than the second week of the new academic year.” Id. at 76a.

SEI commenced the instant lawsuit on September 11, 2020, asserting one

count of breach of contract. Id. at 85a, 104a-05a, 107a-08a. In Paragraph 8 of the

Complaint, SEI averred that “in order to fulfill its contractual obligations, SEI is

required to expend significant fixed costs including the maintenance of insurance, its

vehicles and employees.” Id. at 86a. In Paragraph 18, SEI alleged that it did not

terminate its employees in response to the COVID-19 pandemic. Id. at 87a. In

Paragraph 35, SEI alleged that it “fulfilled and performed its obligations” under the

Transportation Agreement. Id. at 89a. SEI averred that it invoiced the School District

a total of $159,555.49 for March, April, May and June 2020 and attached an invoice as

an exhibit.3 Id. at 87a, 102a. SEI averred that the School District refused to pay any

amounts due and owing to SEI, beginning with those amounts invoiced March 16,

2020. Id. at 87a.

SEI further alleged that, based on the course of dealings between the

parties, the School District would provide the Student Transportation Lists prior to July

1st of each year. Id. at 88a. SEI alleged that because the School District did not

provide the lists for the 2020-2021 school year prior to July 1, the School District

breached the contract. Id. at 89a-90a.

The School District filed an answer with new matter on or about

November 2, 2020, denying the averments of the complaint and attaching as exhibits

Governor Wolf’s Disaster Proclamation, the March 13, 2020 Executive Order, the

March 19, 2020 Executive Order, the March 23, 2020 Stay at Home Order, the April

3

The invoice attached to the complaint did not contain a breakdown of the charges, miles

traveled, or fuel consumed, but rather listed the total monthly amounts past due. (R.R. at 102a.)

5

1, 2020 Stay at Home Order, and the Secretary of Education’s April 9, 2020 Executive

Order. The School District asserted that under the Transportation Agreement, in order

for SEI to be compensated, SEI must actually drive its service vehicles and provide

services to the School District and its students. It maintained that due to the COVID-

19 pandemic and government orders, schools were closed from March 16, 2020

through the end of the 2019-2020 academic year, and SEI rendered no services to the

School District during that period. In its new matter, the School District specifically

pleaded at Paragraphs 61, 63, 71, and 73 that the School District’s buildings were

closed, no one was physically present at the buildings, and no students were being

transported. Id. at 131a-32a. The School District also raised affirmative defenses based

upon the plain/clear meaning rule,4 impossibility of performance, frustration of

purpose, and prevention by governmental regulation or order. Id. at 111a. The School

District asserted that the COVID-19 pandemic negated the need for transportation

services. Id. The School District maintained it was under no obligation to provide

Student Transportation Lists until after the start of the new academic year, which is on

August 26, 2020. It attached as an exhibit a copy of the School District’s 2020-2021

school calendars. Id. at 121a, 165a-76a.

SEI replied with its answer to new matter on or about November 20, 2020.

SEI did not deny that the School District was closed to all live, in-person instruction at

School District facilities from March 13, 2020, through the end of the 2019-2020

academic year by function of various Executive Orders by the Wolf Administration.

Rather, it responded that the allegations were “conclusions of law to which no response

was required.” Id. at 201a-05a. Following the close of pleadings, the School District

filed a motion for judgment on the pleadings on February 17, 2021. Id. at 2a.

4

The School District raised this defense as to the meaning of “regular school days” and

“academic year” as used in the Transportation Agreement.

6

On June 7, 2021, the trial court issued an Order and Opinion granting the

School District’s motion based on its conclusion that there was no genuine issue of fact

concerning the breach of contract claim. The trial court held that the plain and

unambiguous language of the Transportation Agreement did not impose upon the

School District a duty to make payments when school was not operating. The trial

court recapped the Governor’s and Secretary of Education’s proclamations and

Executive Orders as they related to school closures. (Trial court op., 6/7/21 at 2.) The

trial court ruled that under its plain meaning, the term “regular school days” did not

include those days when school was held remotely due to the COVID-19 pandemic and

the Wolf Administration’s Executive Orders. Id. at 6. The trial court concluded that

the Transportation Agreement only required compensation on days when students were

actually transported to school by SEI. Id. The trial court found that, at no fault of the

School District, students and teachers were excluded from the school building until a

time which was then uncertain; thus, there was no place to which SEI could have

transported students as contemplated by the Transportation Agreement. Id. The trial

court further found that under the unambiguous terms of the Transportation Agreement,

SEI was only to receive compensation for its services on a per mile rate with monthly

fuel adjustment rates as assessed on a per mile basis. Id. The trial court found that the

Transportation Agreement did not include a flat service fee, nor did it include language

establishing payment if SEI was on standby. Id. The trial court further found that the

Transportation Agreement did not include any payment scheme pertaining to

maintenance and upkeep of the vehicles. Id.

The trial court held, alternatively, that even if the contract had been

breached, the COVID-19 pandemic made performance impractical and impossible, the

purpose of the contract was frustrated, and the Executive Orders excused performance.

7

With respect to SEI’s assertion that the School District breached the

contract by failing to provide Student Transportation Lists on or before July 1, 2020,

the trial court agreed with the School District’s assertion that the academic year began

on the first day of school. The trial court found that the plain language of paragraph 6

of the Transportation Agreement was not ambiguous as to when the Student

Transportation Lists must be provided to SEI. The trial court held that the relevant

portion of the contract states the School District “will provide [its] respective student

transportation lists to [SEI] no later than the second week of the new academic year.”

The trial court took judicial notice that the Board of School Directors determines and

adopts the academic calendar from one year to the next, and that in this case, the first

day of the new academic year was August 26, 2020. The trial court held that per the

agreement, the Student Transportation Lists did not need to be provided until

September 9, 2020.

SEI now appeals.

II. ISSUES

On appeal,5 SEI argues that the trial court misconstrued the standard for

judgment on the pleadings by accepting the School District’s affirmative defenses and

factual assertions and citing the COVID-19 pandemic as its primary reasoning because

those facts were beyond those contained in the pleadings. It further asserts that

judgment on the pleadings was improper because there are disputed issues of fact with

respect to whether (1) the School District breached the Transportation Agreement by

failing to pay the outstanding invoices; (2) the School District breached the

This Court’s scope of review on a grant of judgment on the pleadings is plenary. North

5

Sewickley Township v. LaValle, 786 A.2d 325, 327 (Pa. Cmwlth. 2001). The Court may only make

a determination of whether the trial court committed an error of law or abuse of discretion. Kerr v.

Borough of Union City, 614 A.2d 338, 339 (Pa. Cmwlth. 1992).

8

Transportation Agreement by failing to provide SEI with Student Transportation Lists

for the 2020-2021 academic year; (3) it was impossible for the School District to

perform under the Transportation Agreement; (4) the purpose of the Transportation

Agreement was frustrated; and (5) Governor Wolf’s Executive Orders excused the

School District from performing under the Transportation Agreement.

III. DISCUSSION

A. Standard of Review on Motion for Judgment on the Pleadings

The motion for judgment on the pleadings is one of several pretrial

mechanisms to save the parties the expense of having to go to trial on the merits before

examining the legal sufficiency of the case. DiAndrea v. Reliance Savings & Loan

Association, 456 A.2d 1066, 1069 (Pa. Super. 1983) “A motion for judgment on the

pleadings is in the nature of a demurrer in which all of the nonmovant’s well-pleaded

allegations are viewed as true, but only those facts specifically admitted by the

nonmovant may be considered against him.” Kerr, 614 A.2d at 339.

When considering the appropriateness of judgment on the pleadings, we

are guided by the following principles summarized in Del Quadro v. City of

Philadelphia, 437 A.2d 1262 (Pa. Super. 1981):

It is fundamental that a judgment on the pleadings should not

be entered where there are unknown or disputed issues of

fact. . . . In conducting this inquiry, the court should confine

its consideration to the pleadings and relevant documents. . .

. Since a motion for judgment on the pleadings is not a

motion for summary judgment, no affidavit or depositions

may be considered, nor is any matter before the court except

the pleadings.

Id. at 1263 (citations omitted).

9

The party moving for judgment on the pleadings “must admit the truth of

all the allegations of his adversary and the untruth of any of his own allegations that

have been denied by the opposing party.” Pfister v. City of Philadelphia, 963 A.2d

593, 597 (Pa. Cmwlth. 2009). When considering a motion for judgment on the

pleadings, the trial court must accept as true “all well pled statements of fact,

admissions and any documents properly attached to the pleadings presented by the

party against whom the motion is filed.” North Sewickley Township, 786 A.2d at 327.

For the court to sustain a grant of judgment on the pleadings, the moving party’s right

to succeed must be “certain” and the case “so free from doubt that trial would be a

fruitless exercise.” Id.

1.

In its first issue, SEI argues that the trial court misconstrued the standards

and requirements for judgment on the pleadings. SEI argues that its complaint

sufficiently set forth all material facts required to maintain a cause of action for breach

of contract. It submits that because the complaint did not include any mention of the

COVID-19 pandemic and resulting government orders, the trial court was required to

ignore the assertions by the School District that the COVID-19 pandemic negated the

need for SEI’s services because they were beyond those contained in the pleadings.

SEI contends that by considering that information, the trial court, in essence,

prematurely ruled that the School District’s affirmative defenses had merit. Citing

Goldman v. McShain, 247 A.2d 455, 461 (Pa. 1968), SEI argues that this was error

because where a defendant moves for judgment on the pleadings relying upon an

affirmative defense, granting such a motion is not appropriate unless the plaintiff has

failed to deny the allegations which raise the defense. SEI argues that because it

“denied each and every defense raised” by the School District, the trial court should

have denied the motion and allowed the parties to proceed to discovery to adequately

10

address the accuracy of all claims and defenses. (SEI’s Br. at 5.) We find no merit in

SEI’s argument.

First, we disagree that, by considering the effects on the need for student

transportation by the various executive orders of the Wolf Administration, the trial

court erroneously considered facts outside of the pleadings.

Under Pennsylvania law, judicial notice is governed by Pennsylvania Rule

of Evidence (Pa. R.E.) 201, which provides that a court may take judicial notice of

“fact[s] that [are] not subject to reasonable dispute.” Pa. R.E. 201(b). There are two

types of such facts: (1) facts which are “generally known within the trial court’s

territorial jurisdiction”; and (2) facts that “can be accurately and readily determined

from sources whose accuracy cannot reasonably be questioned.” Pa. R.E. 201(b)(1)-

(2). The practice of judicial notice serves judicial economy by relieving litigants and

courts of the obligation to adduce evidence regarding obvious facts. Wells v. Pittsburgh

Board of Public Education, 374 A.2d 1009, 1011 (Pa. Cmwlth. 1977). “It should not,

however, operate to deprive the opposing party of the opportunity to disprove a fact

subject to reasonable dispute.” Id. (citing Appeal of Albert, 92 A.2d 663, 666-67 (Pa.

1952)). In other words, “[d]isputed questions of fact are not within the domain of

judicial notice.” HYK Construction Co., Inc. v. Smithfield Township, 8 A.3d 1009,

1017 (Pa. Cmwlth. 2010) (citation omitted).

Here, the trial court judicially noticed the Governor’s signing of Act 13

into law and the subsequent Executive Orders of the Governor and Secretary of

Education. No amount of testimony could have proved these facts more nor could

testimony have disproved them. The effects of those orders were not subject to

reasonable dispute. All schools across Pennsylvania were closed from March 2020 to

the end of the 2019-2020 academic year, so no students needed to be transported to

11

school during that period. The School District merely pointed out the obvious. The

trial court was not required to view the complaint in a vacuum and accept SEI’s

assertion that it fully performed as required under the Transportation Agreement – even

though, as a matter of common knowledge, no School District students were

transported to school by SEI after March 13, 2020, because the schools along the daily

scheduled route were not operating due to the government shutdown. See Duzicky v.

Pennsylvania Board of Probation & Parole, 282 A.3d 389 (Pa. Cmwlth. 2022) (taking

judicial notice of the historic and novel COVID-19 pandemic and the Governor’s

response thereto, as well as the effect the pandemic had on prison operations at both

the county and state levels); Wiley v. Pennsylvania Board of Probation & Parole, 801

A.2d 644, 645 n.3 (Pa. Cmwlth. 2002) (court took judicial notice of the historic events

of September 11, 2001, and the Governor’s response thereto, citing Fatemi v. Fatemi,

537 A.2d 840 (Pa. Super. 1988) (matters of history, if sufficiently notorious to be

subject to general knowledge, will be judicially noticed)); In re Belemecich’s Estate,

192 A.2d 740 (Pa. 1963), reversed on other grounds, 375 U.S. 395 (1964) (taking

judicial notice that a country is behind the Iron Curtain, and that citizens of that country

do not have control of their property).6

6

This is not a case as in Wells, where we deemed it inappropriate for a court to take judicial

notice of the impossibility of operating a public school during a union-sanctioned strike. In Wells,

teachers filed a breach of contract action against the school board, arguing that they were entitled to

pay even though there was a teachers’ strike because they were at all times ready, able and willing to

work and would have done so but for the decision of the board to close down the entire school system.

The trial court took judicial notice of the “fact” that the strike made it impossible to keep the school

open. This Court held that this was error because “[a] factual matrix to determine whether the [b]oard

was ‘compelled’ to close the schools [had to] first be established.” 374 A.2d at 1012. Here, unlike

in Wells, it was indisputable that the School District’s facilities were closed and inaccessible for

traditional live instruction and it was impossible for the School District to provide students for

transport by SEI under the constraints of the executive orders.

12

Further, SEI argues that the trial court erroneously relied on the School

District’s affirmative defenses in granting the motion for judgment on the pleadings.

Contrary to SEI’s contention, the trial court did no such thing. Rather, it assessed the

averments of the complaint, construed the Transportation Agreement, concluded that

it was unambiguous and then, after exercising judicial notice that was entirely

warranted, determined that the School District did not, as a matter of law, breach the

Transportation Agreement.7 After concluding that there was no genuine issue of

material fact concerning the breach of contract claim, the trial court then noted that

“even if the contract had been breached, the COVID-19 pandemic made performance

impractical and impossible, the purpose of the contract was frustrated, and Executive

Orders excused performance.” (Trial ct. order, 6/7/21 at 9-10) (emphasis added).

7

SEI’s reliance on Goldman is also misplaced. Goldman held that a complaint may state a

claim upon which relief may be granted even though an affirmative defense exists. “[T]o say that a

possible affirmative defense exists to a complaint is not to say that such a complaint is legally

insufficient on its face.” Goldman, 247 A.2d at 461. The court stated “[t]hus, a defendant may not

rely on his affirmative defense to sustain a motion for judgment on the pleadings, unless of course

plaintiff has failed to deny the allegation in defendant’s new matter which raises the defense.”

Id. (emphasis added). Averments in a pleading to which a responsive pleading is required are

admitted when not denied specifically or by necessary implication. Pennsylvania Rule of Civil

Procedure (Pa.R.Civ.P.) 1029. The reply must include specific denial of factual allegations. Cercone

v. Cercone, 386 A.2d 1, 5 (Pa. Super. 1978). Here, SEI failed to specifically deny the factual

allegations in the School District’s new matter, stating only that they were “legal conclusions to which

no responsive pleading is required.” In Paragraphs 61 and 62, the School District averred that it was

“closed to all live, in-person instruction at District facilities from March 13, 2020 through the end of

the 2019-2020 academic year by function of various executive orders from the Wolf Administration”

and that “as a result, students, faculty, staff and administrative personnel were not present in the

physical locations of District buildings.” (R.R. at 131a.) These are not legal conclusions. They are

factual averments, which are undeniable. In Paragraphs 63, 64, 71 and 72, the School District alleged

that it was physically closed by operation of Executive Order, and transportation was not only not

needed but impossible to be provided under the then current state of the Commonwealth due to the

COVID-19 Pandemic. These are not legal conclusions either, but factual assertions. Because SEI

failed to specifically deny these factual allegations, the rule in Goldman does not apply. See Wimbish

v. School District of School Hills, 430 A.2d 710, 712 (Pa. Cmwlth. 1981).

13

Thus, we reject SEI’s first argument that the trial court misapplied the

standard for judgment on the pleadings by considering facts outside of the complaint.

2.

In its second issue, SEI argues that the trial court erroneously granted

judgment on the pleadings because a disputed issue of fact exists with respect to the

School District’s breach of the Transportation Agreement. SEI argues that because the

parties have different understandings of the meaning of “regular school days”

discovery was necessary to aid in the trial court’s interpretation. (SEI’s Reply Br. at 2.)

The material facts for a breach of contract claim are (1) there was a valid

contract between the parties; (2) the defendant breached the contract; and (3) the

plaintiff suffered damages as a result of defendant’s breach. McShea v. City of

Philadelphia, 995 A.2d 334, 340 (Pa. 2010).

It is axiomatic in Pennsylvania that questions related to interpretation of a

contract are questions of law for the Court, and not questions of fact. Wert v.

Manorcare of Carlisle PA, LLC, 124 A.3d 1248, 1259 (Pa. 2015); Codding v. Wood, 3

A. 455, 457 (Pa. 1886). A determination as to whether a contract’s terms are

ambiguous is a matter of law for the court. Starling v. Lake Meade Property Owners

Association, 162 A.3d 327, 346 (Pa. 2017).

“A contract is ambiguous if it is reasonably susceptible of different

constructions and capable of being understood in more than one sense.” Insurance

Adjustment Bureau v. Allstate, 905 A.2d 462, 468–69 (Pa. 2006). The “reasonably”

qualifier is important: there is no ambiguity if one of the two proffered meanings is

unreasonable. Trizechahn Gateway LLC v. Titus, 976 A.2d 474, 483 (Pa. 2009).

14

“It is [also] well established that the intent of the parties to a written

contract is to be regarded as being embodied in the writing itself, and when the words

are clear and unambiguous the intent is to be discovered only from the express language

of the agreement.” Wert, 124 A.3d at 1259.

[W]hen a written contract is clear and unequivocal, its

meaning must be determined by its contents alone. It speaks

for itself and a meaning cannot be given to it other than that

expressed. Where the intention of the parties is clear, there

is no need to resort to extrinsic aids or evidence. Hence,

where language is clear and unambiguous, the focus of

interpretation is upon the terms of the agreement as

manifestly expressed, rather than as, perhaps, silently

intended.

Id.

As such, a determination by the court on a motion for judgment on the

pleadings is proper in cases that turn upon the construction of a written contract.

DiAndrea v. Reliance Savings & Loan Association, 456 A.2d 1066, 1071 (Pa. Super.

1983) (holding the trial judge was at liberty to decide the determinative question of

contract interpretation when granting a motion for judgment on the pleadings).

In Kroiz v. Blumenfeld, 323 A.2d 339 (Pa. Super. 1974), Kroiz was a

subcontractor of the appellants, and agreed to install hardwood floors at the appellants’

apartment complex. Kroiz, pursuant to a clause in the subcontract, agreed to be liable

for materials furnished in connection with the work it performed. Id. at 340.

Subsequently, Cromer Corporation, a supplier of materials to Kroiz, sued the main

contractor, who joined Kroiz, for the price of goods it had supplied. Id. By letter,

Kroiz and Cromar agreed that the main contractor would pay Kroiz the amount of

money due it, under the subcontract, reserving in escrow $7,000 to pay any judgment

entered against the main contractor as a result of the existing litigation with the

15

supplier. Subsequently, a jury returned a verdict in favor of Cromar against Kroiz in

the amount of $6,736.55. Id. Kroiz thereafter demanded payment of the $7,000.00

held in escrow. Id. Cromar refused, arguing that the escrow agreement was intended

to withhold sufficient funds from Kroiz for the payment of any and all judgments

entered against the main contractor by the supplier. Id. at 340-41. Cromar contended

that the money should not be released from escrow until the outcome of a second suit

filed by the supplier against the main contractor for goods it ordered from the supplier.

Affirming judgment on the pleadings, the Superior Court found Cromar

had not pleaded any facts in support of its interpretation of the scope of the escrow

agreement, that the escrow agreement constituted the full understanding of the parties,

and that the terms of the escrow agreement clearly and unambiguously applied only to

the first litigation by the supplier.

In the present matter, SEI maintained that “regular school day” was clearly

defined within the Transportation Agreement as days which are “indicated by the

school calendar.” It argued that the Transportation Agreement required the School

District to pay SEI on every day of the school calendar regardless of whether students

were actually transported to school. It maintained that the School District was required

to “continue to pay upkeep costs” because at “any given point, SEI could have been

called to return to providing transportation services, [and] needed to be prepared for

such an eventuality.” (SEI’s Reply Br. at 3.)

As in Kroiz, the trial judge rejected SEI’s proffered interpretation and

found instead that the School District was only obligated to pay SEI for miles traveled

and fuel consumed by SEI vehicles on regular school days. The trial court concluded

that because school was conducted remotely and students, faculty and staff were not

exempt from the Governor’s Stay at Home Order, the remaining school days for the

16

2019-2020 academic year were not “regular school days” which would require

transportation of students under the terms of the Transportation Agreement. This

interpretation was derived from the clear language of the Transportation Agreement.

We find no error in it.8

Furthermore, the trial court did not err with respect to SEI’s claims

regarding the School District’s failure to timely provide SEI with Student

Transportation Lists.

Damages are an essential element of a breach of contract claim. Sullivan

v. Chartwell Investment Partners, 873 A.2d 710, 716 (Pa. Super. 2005). Here, the

complaint did not allege how SEI was damaged by the School District’s failure to

proffer its Student Transportation Lists on or before July 1, 2020.

As such, SEI failed to set forth a claim upon which relief can be afforded,

and the grant of judgment on the pleadings was appropriate.

IV. CONCLUSION

Given our disposition of the first two issues, we need not address SEI’s

remaining three arguments that judgment on the pleadings was erroneous because there

are disputed issues of fact with respect to the School District’s affirmative defenses

asserting that the COVID-19 pandemic and the resulting government orders: (1) made

8

Contrary to SEI’s assertion, it is not enough that the parties merely proffer different

interpretations. Those interpretations have to be reasonable. Trizechahn, 976 A.2d at 483. Clearly,

the trial court found SEI’s interpretation of the Transportation Agreement unreasonable. We cannot

conclude that this was error. SEI points to no language in the Transportation Agreement whatsoever

that supports its assertion that the School District was obligated to pay it on days it did not transport

students. As the trial court concluded, the Transportation Agreement contained no language that

would support the conclusion that it was a flat fee service contract and did not include any

contingencies in the event of school closures.

17

performance impossible or impractical; (2) frustrated the purpose of the Transportation

Agreement; and (3) prevented performance by the School District.9

The obvious purpose of an affirmative defense is to provide an excuse or

justification for non-performance. The School District’s affirmative defenses offered

excuses or legal justification in the event the trial court found it had breached the

Transportation Agreement. Because we have already determined that there was no

breach of contract based upon the plain contractual language of the Transportation

Agreement, it is unnecessary to reach the questions of whether there are outstanding

issues of fact with respect to the School District’s affirmative defenses.

The order of the trial court is affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge

9

In those remaining issues, SEI argues that there are outstanding issues of fact with respect

to the School District’s affirmative defenses of impossibility, frustration of purpose, and excuse of

performance because the General Assembly provided funding for the maintenance of school

transportation contracts during the COVID-19 pandemic. SEI contends that performance under the

contract was not impossible, frustrated or excused because the School District could have continued

issuing payment to SEI if it had simply obtained those funds. However, this assertion goes to the

underlying merits of the School District’s affirmative defenses, not to whether the School District

breached the Transportation Agreement, and we need not address it. We only note for purposes of

clarity and completeness that nothing in section 1501.8(1) of the School Code, 24 P.S. §15-1501.8(l),

mandated school districts to renegotiate their contracts with bus transportation companies. Rather,

the plain language of the statute states that school districts “may” renegotiate a contract for school

bus transportation services to ensure contracted personnel and fixed costs, including administrative

personnel and equipment, are maintained during the period of school closure, and that “if” they did

so, they would be reimbursed by the Department of Education.

18

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

School Express, Inc., :

Appellant :

: No. 711 C.D. 2021

v. :

:

Upper Adams School District :

ORDER

AND NOW, this 9th day of January, 2023, the June 7, 2021 Order of

the Court of Common Pleas of Adams County is hereby AFFIRMED.

________________________________

PATRICIA A. McCULLOUGH, Judge