Conte v. R & A Food Services, Inc.

LAZZARA, Judge.

The appellants, Randy Conte and Debbie Conte (the Contes), appeal the trial court’s dismissal with prejudice of count I of their two-count complaint which alleged a breach of contract on the part of appellee, R & A Food Services, Inc. (R & A).1 We conclude that the trial court erred in dismissing count I by improperly considering an affirmative defense raised by R & A in a motion to dismiss. Accordingly, we reverse and remand with directions to reinstate this count.

The trial court dismissed the Contes’ claim for breach of contract based on the defense of merger which R & A…