author: BARATTA, J.,

text:
    Fisher v. Nazareth Ford Inc.

      Robert K.S. Abernathy, for plaintiff.

      Vivian I. Zumas, for defendant.
    June 19, 2014-
   BARATTA, J.,

STATEMENT OF REASONS

Facts and Procedural History

On October 14, 2013, the plaintiff, David Fisher, filed his original complaint. Although exhibits are referenced in this complaint, none of the alleged exhibits were attached.

On December 24, 2013, the defendant, Nazareth Ford Inc., d/b/a Brown-Daub Ford, filed preliminary objections, objecting to the plaintiff’s lack of capacity to sue and the legal insufficiency of the complaint. On December 24, 2013, the defendant also filed the affidavit of J. Shauger, general manager and owner of Nazareth Ford Inc., d/b/a Brown-Daub Ford, and two exhibits: a copy of the alleged settlement agreement between the parties and a receipt of the exchange of credit under the settlement agreement.

On January 8,2014, the plaintiff filed the first amended complaint. Again, no exhibits were attached. On January 31, 2014, the defendant filed preliminary objections to plaintiff’s first amended complaint, objecting to the legal insufficiency of the first amended complaint and the plaintiff’s failure to include the exhibits as required under Pa.R.C.P. 1019. The defendant filed a memorandum of law in support on the same day.

On February 19, 2014, the plaintiff filed the second amended complaint. The second amended complaint references exhibits “A” though “G.” However, plaintiff’s counsel failed to attach exhibits “D,” “E” and “F” to the complaint.

In the second amended complaint, plaintiff avers that he purchased a used 2009 Chevrolet Aveo (the “vehicle”) from the defendant’s dealership on February 21, 2012. Prior to the purchase, the defendant allegedly provided the plaintiff with a CARFAX report for the vehicle, which indicated that although the vehicle had been involved in an accident, no structural damages or repairs resulted. The plaintiff alleges that the defendant also made oral assurances as to the condition of the vehicle. As a result, the parties entered into a vehicle installment contract, under which the plaintiff received the vehicle for the purchase price of $11,979.00.

The plaintiff further avers that he obtained a CARFAX report later that evening that indicated the vehicle had been involved in a serious prior collision that caused extensive structural frame damage on or about October 22, 2011.

Upon learning of the prior condition of the vehicle, the plaintiff returned to the defendant’s dealership. The plaintiff alleges that the defendant refused to accept the vehicle, refund his money, or give him a credit. Further, the plaintiff contends that the defendant again represented to him that no structural damage to the car had resulted from the accident. The plaintiff alleges that the defendant demanded that the plaintiff make a down payment on the vehicle according to the agreement of sale, but allowed for the payment to be $500.00 instead of the previously agreed-upon $1,000.00. Allegedly, “[plaintiff] reluctantly made the payment and was asked to sign documentation which defendant told him was required in order to reflect receipt of down payment. (“Exhibit E”)” Second amended complaint ¶ 11. We again note that plaintiff failed to attach exhibit “E” to the complaint.

The plaintiff further avers that he was unable to trade the vehicle in for a new purchase at any other dealership because “[the vehicle] had undergone structural frame damage and as a result was virtually valueless.” Id. at ¶ 13. The plaintiff alleges that he obtained a “damage report” from action auto body on September 6, 2013, which indicated structural frame damage and repairs to the vehicle. On September 23,2013, the plaintiff obtained an appraisal of the vehicle, which indicated that it was worth $4,000.00 less than it would have been without the structural frame damage. Id. at ¶ 15. As such, the plaintiff alleges that the defendant sold the vehicle to in a “dangerous, unfit, unmerchantable, and unsafe condition,” and that he purchased the vehicle based upon the misrepresentations of the defendant. Id. at ¶¶ 16-19.

In his second amended complaint, the plaintiff raises the following causes of action: (1) fraud; (2) violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa.C.S.A. § 201-1, et seq. (the “UTPCPL”); (3) negligence; and (4) negligent misrepresentation. The plaintiff also attached: (1) a blank copy of the vehicle installment contract allegedly used during the transaction (exhibit “A”); a copy of the CARFAX vehicle history report that the defendant had allegedly given to the plaintiff prior to the sale, indicating a prior accident in 2011 but no structural damage (exhibit “B”); a second blank copy of the vehicle installment contract (exhibit “C”); and a copy of the CARFAX vehicle history report, indicating that structural damages resulted from the 2011 accident (exhibit “D”). The plaintiff reference exhibits “E,” “F” and “G,” but did not attach the same to his pleading.

On March 20, 2014, the defendant filed preliminary objections to the plaintiff’s second amended complaint. First, the defendant objects that the plaintiff lacks the capacity to sue because he signed the settlement agreement with the defendant, which is enforceable according to the principles of contract law. Second, the defendant raises a preliminary objection in the nature of a demurrer. The defendant argues that (1) the plaintiff had known that the Vehicle was in an accident at the time of purchase and (2) the plaintiff signed a settlement agreement two days after purchased the vehicle and received a $500.00 credit from the defendant. On April 17,2014, the defendant submitted a memorandum of law in support of its preliminary objections.

On April 9, 2014, the plaintiff filed an answer to defendant’s preliminary objections. Chiefly, the plaintiff argues that although he knew about the prior accident, the defendant concealed from him the extensive structural damage that resulted from that accident. The plaintiff also denies that he signed a settlement agreement; instead, he argues that the $500.00 reduction was applied to the down payment which was required by the defendant. Further, he contends that he “at no time agreed to release defendant of any liability nor did he agree to waive any claims regarding any matter whatsoever.” Answer to preliminary objections ¶ 12.

This matter was placed on the argument list of April 29, 2014, and argument was heard.

Legal Standard

In ruling on preliminary objections in the nature of a demurrer, the trial court may consider no testimony or evidence outside of the complaint. Mellon Bank, N.A. v. Fabinyi, 650 A.2d 895, 899 (Pa. Super. 1994) (citation omitted). In ruling upon a demurrer, we must accept as true all well-pleaded allegations and material facts averred in the complaint as well as all reasonable inferences deducible therefrom. Wurth v. City of Phila., 584 A.2d 403, 407 (Pa. Commw. Ct. 1990) (citation omitted). However, when ruling on preliminary objections, although a court must accept as true all clearly-pled facts, there is no such requirement as to a pleader’s legal conclusions or mere averments of law. Santiago v. Pa. Nat’l Mut. Cas. Ins. Co., 613 A.2d 1235, 1238-39 (Pa. Super. 1992) (citations omitted).

In the face of a demurrer, a complaint should only be dismissed in cases that are free and clear from doubt. Id. at 1238. If any theory of law will support a claim, preliminary objections should not be sustained as any doubt should be resolved against the objecting party. Foster v. Peat Marwick Main & Co., 587 A.2d 382, 384 (Pa. Commw. Ct. 1991); Ambrose v. Cross Creek Condos., 602 A.2d 864, 869 (Pa. Super. 1992). In order to grant a demurrer, it must be certain from the face of the complaint that the claims will not support recovery under any legal theory. Mellon Bank, 650 A.2d at 899; Eckell v. Wilson, 597 A.2d 696, 698 (Pa. Super. 1991), appeal denied, 607 A.2d 253 (Pa. 1992) (citations omitted).

Discussion

Standard Pennsylvania Practice 2d § 25:77 discusses the concept of a “speaking demurrer” and its application to preliminary objections:

When considering a demurrer a court cannot consider matters collateral to the complaint but must limit itself to such matters as appear therein, and an effort to supply facts missing from the objectionable pleading makes the preliminary objection in the nature of a demurrer an impermissible ‘speaking demurrer.’ A ‘speaking demurrer’ is defined as one which, in order to sustain itself, requires the aid of a fact not appearing on the face of the pleading objected to, or, in other words, which alleges or assumes the existence of a fact not already pleaded, and which constitutes the ground of objection and is condemned both by the common law and the code system of pleading. A ‘speaking demurrer’ cannot be considered in sustaining a preliminary objection.

See Armstrong Cnty. Memorial Hosp. v. Dep’t of Public Welfare, 67 A.3d 160 (Pa. Commw. Ct. 2013).

Before we discuss the merit of the preliminary objections, we feel compelled to note that defendant filed an affidavit of J. Shauger on December 24,2013, in which Mr. Shauger set forth assertions that plaintiff came into the defendant dealership on February 23,2012, with CARFAX reports that the vehicle was in an accident in October in October of 2011. Apparently, the plaintiff wanted a refund and negotiated a settlement with the defendant, which was reduced to writing dated and signed by the defendant. The alleged settlement agreement attached as an exhibit to the Shauger affidavit is a document on Brown-Daub Ford letterhead and bears the signature of the plaintiff. The document sets forth the following:

I, David Fisher, acknowledge that the 2009 Chevrolet Aveo I have purchased from Brown Daub Ford has two bad car facts reports. I have agreed, after negotiation, to settle this matter with a credit of $500 from Brown Daub Ford for the following VIN, KLITG66Z49B616808.

Affidavit of J. Shauger, exhibit “1” (Dec. 24, 2013).

Upon review of the affidavit and document, it appears that the defendant is assertion the existence of a classic “accord and satisfaction” between the plaintiff and defendant. Further, upon review of the plaintiff’s second amended complaint, it is also apparent that the accord and satisfaction document was the very document referenced by plaintiff’s counsel in paragraph 11 as the missing exhibit “E.” If so, the document seriously erodes the plaintiff’s second amended complaint, as an accord and satisfaction would be an affirmative defense.

However, given that these are preliminary objections, we cannot consider filings and assertions made outside of the complaint, as the document submitted with an assertion that an accord and satisfaction exists constitutes an improper speaking demurrer. The claim of accord and satisfaction is appropriate for an affirmative defense and a motion in summary judgment.

With regard to the preliminary objections, we first look to whether the plaintiff has set forth the required elements for its causes of action in his second amended complaint. The plaintiff set forth four causes of action: (1) fraud, (2) violation of the UTPCPL, (3) negligence, and (4) negligent misrepresentation.

A. Sufficiency of the Plaintiff’s Complaint

1. Fraud

In Pennsylvania, allegations of fraud require pleading with particularity. See Pa.R.C.P. 1019(b). “Fraud must be averred with particularity by the following elements: 1) a misrepresentation; 2) a fraudulent utterance of it; 3) the maker’s intent that the recipient be induced thereby to act; 4) the recipient’s justifiable reliance on the misrepresentation; and 5) damage to the recipient proximately caused.” Sevin v. Kelshaw, 611 A.2d 1232, 1236 (Pa. Super. 1992). Further, “fraud may arise from the making of a knowingly false representation of fact, from an intentional concealment of true facts which is calculated to deceive the other party, or from a nonprivileged failure to disclose facts to the other party.” Id. This concealment “must be intentional and it must relate to material information.” Id. Mere silence in the absence of a duty to speak, however, “cannot suffice to prove fraudulent concealment.” Id.

In the instant case, the plaintiff alleges in his second amended complaint that the defendant’s agents represented to him that “the vehicle had no structural frame damage and that it was free of defects of conditions hampering its use, value or safety.” Second amended complaint ¶ 21. The plaintiff further alleges that the defendant’s agents concealed the severity of the prior accident and the resulting structural frame damage to the car. Id. at ¶¶ 22-23. The plaintiff contends that the defendant had an affirmative duty to reveal this information under 37 Pa. code §§ 301.2(5), (6). Id. at ¶ 24. Finally, the plaintiff avers that he justifiably relied on these representations, and that his reliance on such misrepresentations proximately caused monetary and, apparently, mental damages. Id. ¶¶ 15, 31-32. As such, we find that the pleadings are legally sufficient with regard to the plaintiff’s fraud claim.

2. UTPCPL

The plaintiff contends in his second amended complaint that the defendant violated the UTPCPL, including, but not limited to, the following statutory provisions:

(v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has sponsorship, approval, status, affiliation, or connection that he does not have;
(vii) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another;
(ix) Advertising goods or services with intent not to sell them as advertised;
(xxii) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.

73 P.S. §§ 201~2(4)(v), (vii), (ix), (xxii).

A private cause of action is explicitly allowed under the UTPCPL. See Section 73 P.S. §201-9.2(a). In Fazio v. Guardian Life Ins. Co. of Am., the Superior Court of Pennsylvania explained the purposes and scope of private causes of action under the UTPCPL as follows:

The UTPCPL is Pennsylvania’s consumer protection law and seeks to prevent unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. The purpose of the UTPCPL is to protect the public from unfair or deceptive business practices. Our Supreme Court has stated [that] courts should liberally construe the UTPCPL in order to effect the legislative goal of consumer protection. The UTPCPL provides a right of action for anyone who suffers any ascertainable loss of money or property as a result of an unlawful method, act or practice.

Fazio v. Guardian Life Ins. Co. of Am., 62 A.3d 396, 405 (Pa. Super. 2013).

Under the catchall provision of the UTPCPL, “unfair methods of competition” and “deceptive acts or practices” can mean “[e]ngaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 P.S. § 201-2(4)(xxi). In 1996, the Pennsylvania General Assembly amended the UTPCPL and revised the catch-all provision to add “deceptive conduct” as a prohibited practice. Bennett v. A.T. Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145 (Pa. Super. 2012). Deceptive conduct “which creates a likelihood of confusion or misunderstanding” resulting in an ascertainable loss to the plaintiff thus creates a cognizable claim under the UTPCPL. Grimes v. Enterprise Leasing Co. of Philadelphia, LLC, 66 A.3d 330, 336 (Pa. Super. 2013).

Further, the UTPCPL must be construed liberally. See Keller v. Volkswagen of Am., Inc., 733 A.2d 642, 646 (Pa. Super. 1999). Therefore, not all the elements of common law fraud must be proven if a plaintiff alleges deceptive conduct under the catch-all provision. See Chiles v. Ameriquest Mortg. Co., 551 F. Supp. 2d 393, 399 (E.D. Pa. 2008). Instead, any allegations of deceptive conduct will suffice for a plaintiff to bring a cause of action under the UPTCPL’s catchall provision. Grimes, 66 A.3d at 336-37.

Here, the plaintiff pleads that the defendant’s representations and omissions, in the nature of the concealment of alleged past structural damage, created a likelihood of confusion or misunderstanding. See second amended complaint ¶¶ 16-19,36. As he alleged fraudulent or deceptive practices by the defendant, the plaintiff has sufficiently pled a cause of action under the UTPCPL falling under the “catch-all” provision, among others. Further, we must interpret the UTPCPL liberally in order to advance the legislative goal of consumer protection. As such, we find the pleadings legally sufficient with regard to the plaintiff’s UTPCPL claim.

3. Negligence

“A cause of action in negligence requires allegations that establish the breach of a legally recognized duty or obligation that is causally connected to the damages suffered by the complainant.” Sharpe v. St. Luke’s Hospital, 821 A.2d 1215, 1218 (Pa. 2003). Further, “the primary element in any negligence cause of action is that the defendant owes a duty of care to the plaintiff.” Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270, 280 (Pa. Super. 2005).

Here, the plaintiff alleges that the defendant failed to institute policies, train and supervise personnel, inspect the vehicle, and report defects to the plaintiff, despite his duty as a seller of vehicles to do so. See second amended complaint ¶ 38. Moreover, the plaintiff avers that this breach of the defendant’s duty proximately caused actual monetary and mental damages. See id. at ¶¶ 16-19, 39. As such, on the face of the second amended complaint, the plaintiff’s cause of action for negligence is legally sufficient.

4. Negligent Misrepresentation

Negligent misrepresentation requires proof of: “(1) [a] misrepresentation of a material fact; (2) made under circumstances in which the mispresenter ought to have known of its falsity; (3) with an intent to induce another to act on it; and (4) which results in injury to a party acting in justifiable reliance on the misrepresentation.” Bilt-Rite Construction, Inc., 866 A.2d at 277 (referencing Gibbs v. Erst, 647 A.2d 882, 290 (Pa. 1994)) (citing Restatement (Second) of Torts § 552). In order for there to be negligent misrepresentation, “the misrepresentation must concern a material fact and the speaker need not know his or her words are untrue, but must have failed to make a reasonable investigation of the truth of these words.” Id. Further, one party must owe a duty to the other for there to be a cause of action for negligent misrepresentation. See id.

Here, the plaintiff avers that the defendant had a duty to communicate information regarding the condition and safety of the vehicle, as well as the existence of structural damage. See second amended complaint § 41. Moreover, the plaintiff contends that the defendant “failed to exercise reasonable care or competence in obtaining or communicating the information.” Id. Further, the plaintiff contends that this information induced him to buy the vehicle and that he justifiably relied upon this information. See id. at ¶ 30. Finally, the plaintiff contends that he suffered damages as a result. See id. at ¶¶ 15-19. Therefore, we find that the plaintiff has adequately set forth a legally sufficient claim for negligent misrepresentation.

B. The Plaintiff’s Capacity to Sue

The defendant has brought a preliminary objection regarding the plaintiff’s lack of capacity to sue, arguing that under the terms of the settlement agreement, the plaintiff is precluded from bringing suit against it. Under Rule 1028(a)(5) of the Pennsylvania Rules of Civil Procedure, a preliminary objection by be filed on the grounds of lack of capacity of a party to sue. See Pa.R.C.P. 1028(a)(5). This preliminary objection cannot be determined from the facts of record. See Pa.R.C.P. 1028(c)(2), Note of the civil procedural rules committee. Instead, the lack of capacity of a party to sue must be determined by the evidence, including “by depositions or otherwise.” Pa.R.C.P. 1028(c)(2). Further, lack of capacity to sue “refers to the personal disability of a plaintiff by virtue of some statute.” Commonwealth ex rel. Sheppard v. Central Penn Nat’l Bank, 375 A.2d 874, 877 (Pa. Commw. Ct. 1977).

We view the plaintiff’s arguments as essentially asserting an affirmative defense of accord and satisfaction due to the defendant’s alleged endorsement and consent to a settlement agreement. See affidavit of J. Shauger, exhibit 1. A preliminary objection regarding the lack of capacity to sue “refers to some personal disability of a party to bring an action” and cannot be used in the place of raising an affirmative defense through a new matter in an answer. Commonwealth ex. rel Sheppard, 375 A.2d at 877; see also Pa.R.C.P. 1030. As such, we overrule the defendant’s preliminary objection regarding lack of capacity to sue.

Therefore, the defendant’s preliminary objections are overruled.

ORDER OF COURT

And now, this 19th day of June, 2014, upon consideration of the defendant, Nazareth Ford Inc., d/b/a Brown-Daub Ford’s, preliminary objections to the plaintiff, David Fisher’s, second amended complaint, and the plaintiff’s response thereto, it is hereby ordered that said preliminary objections are overruled.


source: Caselaw Access Project

author: HERRON, J.,

license: Public Domain

text:
    In re Estate of Boyce
    C.P. of Philadelphia County, O.C.
    No. 1123 IC of 2013
    April 9, 2014
   HERRON, J.,

Introduction

The appeal that has been filed on behalf of Marita K. Boyce raises the question of whether objections to the procedure for her adjudication of incapacity may be raised for the first time on appeal- where none of these issues were presented to the Orphans’ Court prior to the filing of the appeal. Beyond this issue of waiver is the larger question of whether the best interests of Marita Boyce would be served if the appeal were quashed so that a prompt, expeditious review hearing pursuant to 20 Pa.C.S. § 5512.2 could be held to protect her interests. Because of the extreme seriousness of the process for adjudicating a person incapacitated, this court is alarmed by the cat and mouse behavior of persons who have entered and then withdrawn their appearance on Ms. Boyce’s behalf. It is therefore respectfully suggested that the appeal should be quashed so that a review hearing can be held to protect the rights of Marita Boyce. So long as the appeal process continues, she will remain as an adjudicated incapacitated person.

Background

On August 29, 2013, the Philadelphia Corporation for the .aging filed a petition for the adjudication of incapacity and the appointment of a plenary guardian of the person and estate of Marita Boyce, an alleged incapacitated person. The petition stated that Ms. Boyce is a seventy-one year old women who resides in Philadelphia. PCA stated that it had received and investigated a report that Ms. Boyce was in need of protective services. It stated that she suffered from a mild dementia that interfered with her ability to make informed judgments about personal safety, medical care and finances. It proposed attorney Debra Speyer to serve as guardian. By decree dated September 17,2013, this court issued a preliminary decree that awarded a citation directed to Marita Boyce to show cause why she should not be adjudged an incapacitated person at a hearing to be held on October 30, 2013. The preliminary decree ordered that at least 20 days prior to the court hearing the citation and petition should be personally served on Ms. Boyce. It clearly specified that the contents and terms of the citation should be read and explained “to the maximum extent possible in language and terms the alleged incapacitated person is most likely to understand.” It also required notice by personal service or certified mail to all persons who would be entitled to share in the estate of the alleged incapacitated person.

Because of the inability to obtain service, an amended preliminary decree was issued on October 28, 2013 reiterating the same requirements of the September 17th decree that a new alias citation and petition be personally served on Ms. Boyce with appropriate notice to all other parties in interest with a hearing scheduled for December 11,2013. By decree dated December 2013, a new hearing date was scheduled for January 7,2014. Once again, a new alias citation was awarded directed to Marita Boyce and petitioners were once again required to provide personal service of alias citation, petition and notice on Marita Boyce. An affidavit of service dated December 16, 2013 was filed by George Phillips, of Dennis Richman Services, 1500 John F. Kennedy Boulevard, that on December 16, 2013 at 2:50 p.m. he made personal service of the alias citation and petition on Marita Boyce at 3034 Cedar Street. The affidavit stated that the documents were read to Ms. Boyce “explaining to her to the maximum extent possible, in language and terms she is most likely to have understood, the content and terms of same, and leaving same with her.”

By letter dated December 17, 2013, David Nagel, assistant counsel for the PCA, notified this court that after she was served with the alias citation, Ms. Boyce requested to be represented by counsel. In response to this letter, on December 17, 2013, this court appointed Suzanne Pritchard, an attorney highly experienced in these matters, to represent Marita Boyce. On December 24,2013, Margaret Boyce Furey (hereinafter Ms. Furey), who is the sister of Marita Boyce as well as an attorney, filed an entry of appearance on behalf of Marita Boyce. On that same date, she filed a demand for a jury trial. On the day prior to the scheduled January 7, 2014 hearing, Ms. Furey withdrew her appearance. At no point before or thereafter did Ms. Furey file any objections to the petition nor did she appear at the two hearings that were scheduled first for January 7, 2014 and then for February 12, 2014. At no point, did Ms. Furey formally — or informally — alert the court of an intention to replace Ms. Pritchard as counsel for Marita Boyce.

At the January 7, 2014 hearing, the court immediately tackled the issue of representation of Marita Boyce. After noting the presence of David Nagel, as counsel for PCA, and of Ms. Pritchard, as appointed counsel for Marita Boyce, the following colloquy occurred:

THE COURT:

My intention today was to struggle through the process of who represents whom. And Ms Furey requested a jury trial at one point, something that’s seldom, if ever, occurs around here.
So I frankly had thought that I would review the status of the matter and who represents whom with you today and then continue the matter for a jury trial, if that was going to be the direction this matter took. And then Miss Furey withdrew her representation and so the jury demand is no longer there and here we are today.

In response, Ms. Pritchard stated that she had spoken with her client as well with family members and interested parties who were unable to be present at the January hearing. She therefore requested that the hearing be relisted for a later date. The court agreed and gave the date of February 12, 2014 at 3:30 p.m. on the record as the new hearing date. A decree dated January 7, 2014 that appears on the docket reiterated that the hearing had been continued to February 12, 2014.

At the February 12, 2014 hearing, Mr. Nagel and Ms. Pritchard once again returned as counsel, but no party appeared to raise any objections. An affidavit of service on all interested parties was presented by Mr. Nagel. The written deposition of Dr. Kenneth Rosenstein was admitted after Ms. Pritchard concurred with his diagnosis. Both the PEF Code at section 5518 and the Philadelphia Orphans’ Court Rules at rule 14.2.B.(8)(a) provide for testimony at Incapacity hearings by written deposition by qualified persons. The court inquired whether Marita Boyce was present and was informed by Mr. Nagel that efforts to reach her had been to no avail and “maybe she left the home and she did not want to attend today.” The written interrogatories of Dr. Rosenstein stated that the incapacitated person’s physical or mental condition would not be harmed by her presence at the hearing. He then addressed the following question: “Should the alleged incapacitated person refuse to attend the hearing, would compelling his/her attendance be harmful to him or her physical mental condition?” His response: “Yes, it would.”

Testimony by Kay Boyce, the sister-in-law of Marita Boyce, was also presented in support of the petition. Kay Boyce stated that Marita had been taken advantage financially by neighbors and people who did “shoddy” work. One recent night, Marita Boyce was found under three blankets due to lack of heat in her home. Kaye Boyce expressed the opinion that Marita Boyce would be better protected and cared for in assisted living. She expressed the belief that Margaret Boyce (Furey) had been named as Marita’s agent under a power of attorney. Ms. Furey, however, has never informed this court of that agency.

By decree dated February 18, 2014 Marita Boyce was adjudicated as an incapacitated person in need of guardianship services and Robert Stump was appointed plenary guardian of her person and estate. Once again, an affidavit of service was filed by George Phillips that he had personally served Marita K. Boyce with this February 18, 2014 decree, “reading same to her, and explaining to her the content and terms of same in language and terms she is most likely to have understood.”

On March 19, 2014, attorney Michael S. Connor filed a notice of appeal on behalf of Marita Boyce from the February 18th order. This court thereafter issued a 1925(b) order to Mr. Connor to file a statement of matters that he intended to raise in the appeal to the Superior Court. On March 31, 2014, Mr. Connor withdrew his appearance for Marita K. Boyce, and Rosemary Ferrino entered her appearance. On April 1, 2014, Ms. Ferrino filed a nine page statement of matters complained of on appeal that raised fourteen enumerated issues. None of these issues had previously been raised before this court. If those issues had been raised, they would have been addressed. If a review hearing had been requested, it would have been granted.

Legal Analysis

A stated purpose of the incapacity statute is to protect the rights of incapacitated persons by establishing a system that permits an incapacitated person “to participate as fully as possible in decisions that affect them” and “when guardianship services are necessary, it is important to facilitate the finding of suitable individuals or entities willing to serve as guardians.” 20 Pa.C.S. § 5502 Yet, the “dangers of the incompetency statute have been recognized since its inception.” Estate of Rosengarten, 871 A.2d 1249, 1254 (Pa. Super. 2005). As Pennsylvania courts have noted, a statute “which empowers a court to declare an individual mentally incompetent and to place such individual’s business affairs in the hands of another is ‘a dangerous statute easily capable of abuse....’” Smith v. Smith, 365 Pa. Super. 195, 203, 529 A.2d 466, 470 (1987), app.denied, 517 Pa. 618, 538 A.2d 500 (1988), cert. denied 486 U.S 1056 (1988). The incapacity statute therefore contains numerous provisions to safeguard' the rights of alleged incapacitated persons. One critical provision, for instance, provides for prompt expeditious review hearings requested by the incapacitated person, guardian or any interested party. 20 Pa.C.S. §5512.2.

In the present case, Marita K Boyce was adjudicated an incapacitated person after two uncontested hearings held on January 7, 2014 and February 12, 2014. For a short period, she had been represented by her attorney sister, Margaret Boyce Furey, who made an entry of appearance on December 24, 2013 and filed a praecipe to demand a jury trial. The day prior to the scheduled January 7, 2014 hearing, however, Ms. Furey withdrew her entry of appearance on behalf of her sister. Ms. Furey did not appear at either hearing. As the court indicated at the beginning of the January 7th hearing, had Ms. Furey been present all efforts would have been taken to accommodate her demand for a jury trial. During her short tenure as attorney for her sister, she filed no objections to the petition for adjudication of incapacity. Although there was testimony at the February 12th hearing that Ms. Furey was named as the agent of Marita Boyce under a power attorney, Ms. Furey has not confirmed this important fact.

Under well-established Pennsylvania law, the failure to alert this court to the objections raised for the first time on appeal constitutes a waiver. Pennsylvania Rule of Appellate Procedure 302 provides: “Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” To preserve an issue for appellate review, “a party must make a timely and specific objection at the appropriate stage of the proceedings before the trial court. Failure to timely object to a basic and fundamental error will result in waiver of that issue.” In re S.C.B., a Minor, 990 A.2d 762, 767 (Pa. Super. 2010)(citations omitted). See also Com. v. Olsen, 82 A.3d 1041, 1050 (Pa. Super. 2013)(citations omitted)(Since a “defendant must make a timely and specific objection at trial or face waiver of her issue on appeal,” a DUI defendant’s claim that her due process rights were violated when the chemical testing form was not submitted to the jury was waived where she failed to timely obj ect to the fact that it was not published to the jury). While the waiver of objections on appeal comes up often in criminal cases, that issue was thoughtfully analyzed in a case involving waiver of an attorney-client privilege where the Superior Court concluded that such a privilege could be waived inadvertently by an attorney without his client’s explicit authorization. See e.g. Law Office of Douglas Harris v. Philadelphia Waterfront Partners, 957 A.2d 1223 (Pa. Super. 2008). In support of its conclusion that the privilege had been waived, the Harris court noted that “waiver through counsel’s failure to raise an issue before the trial court, either through explicit or implicit application of Rule 302 (a) or through common law waiver, is applied to every conceivable issue —from those involving other forms of privilege to those of constitutional magnitude.” Id., 957 A.2d at 1232 (citations omitted). In a sensitive case involving the termination of parental rights, a mother was deemed to have waived her objection to a hearing in the absence of her guardian ad litem where she failed to object at trial. In re S.C.B., 990 A.2d 762 (Pa. Super. 2010).

In the present case, this court appointed an attorney to represent Marita Boyce at the request of the Philadelphia Corporation of the aging, the agency that filed the petition to have Marita Boyce adjudicated an incapacitated person. No objection was raised to this appointment. Indeed, this appointment of an experienced, well respected attorney to represent Marita Boyce was intended to protect her interests since Chapter 55 of the PEF code “must be interpreted and the court’s actions guided by a scrupulous adherence to the principles of protecting the incapacitated person by the least restrictive means possible.” Estate of Rosengarten, 871 A.2d 1249, 1255 (Pa. Super. 2005). As the Rosengarten court observed, Marita Boyce has the clear right to “appointed counsel of her choosing” Id. at 1257 (emphasis added). Although Ms. Furey entered her appearance on Marita Boyce’s behalf, she withdrew as counsel before any hearing and without seeking to replace Ms. Pritchard. If Marita Boyce preferred an attorney of her own choosing to the counsel appointed by this court, her request to change representation should have been raised — and would have been granted.

While the principle of waiver applies to the issues raised on appeal, there is a more expeditious and humane approach available in this case to protect the interests of Marita Boyce. If the appeal is quashed, and jurisdiction returns to this court, a review hearing can — and should — be scheduled. This forum would give all an opportunity to assure that the interests and rights of Marita Boyce can be fully addressed and protected.

      . See docket entries for Marita K. Boyce, an alleged incapacitated person, O.C. No. 1123 AI of 2013 at February 19,2014 (Hearing exhibits filed).

      . 1/7/14 N.T. at 4 (emphasis added).

      . Philadelphia O.C. Rule 14.2.B(8)(a) provides:
      Evidence of Incapacity
      (a) Testimony: The petitioner must present testimony, whether in person or by deposition, from individuals qualified by training and experience in evaluating incapacities of the type alleged by petitioner, which establishes the nature and extent of the alleged incapacities and disabilities, and the person’s mental, emotional and physical condition, adaptive behavior and social skills.

      . 2/12/2014 N.T. at 3 (Nagel).

      . See Hearing Exhibits filed 2/19/14 (Written Deposition Pursuant to 20 Pa.C.S. §5518 of Dr. Kenneth Rosenstein, ¶23^)).

      . See 3/7/14 Proof of Service


author: WILLIAMSON, J.,

text:
    Halterman v. American National Insurance Co.

      C.P. of Monroe County,
    No. 1854 CIVIL 2013

      Kevin A. Hardy, for plaintiff.

      Gerard J. Geiger, for defendant.
    June 10, 2014
   WILLIAMSON, J.,

This matter comes before us on a Motion for Judgment on the Pleadings filed by American National Insurance Company (hereafter “defendant”) on March 20, 2014. On May 1, 2014, Brianna Halterman, Administratrix of the Estate of Lois Halterman, and Trustee of the Living Revocable Trust of Lois Halterman (hereafter “plaintiff’) filed a Brief Contra Motion for Judgment on the Pleadings. In the motion, defendant argues that plaintiff’s cause of action for bad faith, under both Pennsylvania common law and pursuant to 42Pa.C.S.A. § 8371, cannot proceed because the subject of the instant suit is the payment of an annuity rather than an insurance policy. Defendant asserts that Pennsylvania law does not support a cause of action for bad faith either under the common law or pursuant to § 8371 where, as in this case, the complaint does not concern an insurance policy. Defendants contend that the annuity contract in question does not equate to an insurance policy. Thus, according to defendant, the plaintiff’s cause of action must fail both on the common law and statutory bad faith claims raised in the complaint.

The annuity contract in question was issued on April 27, 2005. The annuity was issued to the Lois Halterman Revocable Living Trust as the owner, and Ronald Halterman as the annuitant. The premium payment for the annuity was $87,242.00, and was assigned the contract number LAR0073648.

On August 5, 2011, Lois Halterman passed away in Monroe County, Pennsylvania. Plaintiff attempted to contact the defendant following the death in order to receive the proceeds from the annuity contract. Following numerous contacts, plaintiff provided defendant with the confirmation in her capacity as trustee of the Living Revocable Trust of Lois Halterman on October 24, 2012. Following this confirmation, defendant issued payment of the annuity funds to the trust on October 31, 2012. The payment of the annuity reflected a surrender charge of $10,261.50.

Plaintiff attempted to contact defendant on November 16, 2012 and December 19, 2012 regarding the surrender charge on the payment of the annuity. According to plaintiff, no response was had from defendant on either occasion. Consequently, as a result, plaintiff initiated this suit against defendant on March 7, 2013. Defendant filed an Answer and New Matter on April 22, 2013. Plaintiff filed a Reply to defendant’s New Matter on May 21,2013. The instant Motion for Judgment on the Pleadings was filed on March 20, 2014. The Amended Brief in support was filed by defendant on March 31, 2014. Plaintiff filed the Brief Contra Motion for Judgment on the Pleadings on May 1, 2014. Oral arguments were held on May 5, 2014. Defendant subsequently filed a Reply Brief in further support of its Motion for Judgment on the Pleadings on May 16, 2014. The pleadings are now closed and we are ready to dispose of defendant’s motion.

DISCUSSION

Motions for judgment on the pleadings are governed by the Pennsylvania Rules of Civil Procedure. Rule 1034 states:

(a) After the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings.
(b) The court shall enter such judgment or order as shall be proper on the pleadings.

In ruling on a motion for judgment on the pleadings, the court must consider all of the pleadings and responsive pleadings filed by the moving and non-moving parties, including the complaint, answer, new matter, and reply to new matter. Herman v. Stern, 213 A.2d 594 (Pa. 1965). The underlying purpose of a motion for judgment on the pleadings is to allow the court to conduct an overall examination of the legal sufficiency of the pleadings in order to determine if judgment should be entered prior to trial. Bensalem Township School Dist. v. Commonwealth, 544 A.2d 1318 (Pa. 1988). The standard of review in such a motion is identical to that of a demurrer. Id. A demurrer may be sustained only if it is clear on the face of the pleading that the law will not provide or permit the recovery sought. Morgan v. McPhail, 672 A.2d 1359 (Pa. Super. 1996). If there is any doubt, it should be resolved by overruling the demurrer. Mellon Bank N.A. v. Fabinyi, 650 A.2d 895 (Pa. Super. 1994).

Defendant’s argument in the motion for judgment on the pleadings focuses on the nature of the agreement in question, and whether the cause of action alleged by plaintiff is viable. Plaintiff’s complaint includes both a statutory and common law claim of bad faith against the defendant. In response, defendant’s argument is two-fold. First, that there is no recognized common law cause of action for bad faith in the Commonwealth of Pennsylvania. And second, that the statutorily created cause of action for bad faith, codified under 42 Pa. C.S.A. § 8371, is inapplicable to the case at bar because the ‘Bad Faith’ statute covers actions arising under an insurance policy, and this action concerns an annuity contract.

In support of the argument that Pennsylvania does not recognize a common law cause of action for bad faith, defendant draws this court’s attention to a 2004 Pennsylvania Superior Court case which states that “under Pennsylvania law, all bad faith claims derive from statute.” The Brickman Group, LTD v. CGU Insurance Co., 865 A.2d 918, 926 (Pa. Super. 2004) (citing Terletsky v. Prudential Prop. & Cas. Ins. Co., 649 A.2d 680, 688 (Pa. Super. 1994)). Taking this into consideration, defendant argues that, because Pennsylvania does not recognize a bad faith cause of action arising from the common law, plaintiff’s claim that defendant is liable under the common law must fail.

Secondarily, defendant asserts that plaintiff has no claim for statutory bad faith because her claim is based on the payment of an annuity, not an insurance policy. In support of this argument defendant points to the plain language of the statute which specifies that it is applicable only in actions “arising under an insurance policy.” 42 Pa. C.S.A. § 8371. Defendant relies upon a United States District Court for the Eastern District of Pennsylvania opinion to advance the position that an annuity contract is not analogous to an insurance policy. Defendant directs this court to Prusky v. Allstate Insurance Co., 2010 WL 3859787 (E.D. Pa. 2010), which finds that “while annuities contracts are regulated by the Pennsylvania Insurance Commission, they are not insurance policies.” Id. at *4. The court in Prusky goes on to find that the “narrow tort provision of § 8371 extends only to the insured and does not make bad faith claims available to annuitants.” Id. Defendant further provides this court with other federal court decisions which, in applying Pennsylvania law, distinguish between insurance policies and annuity contracts. Defendant summarizes by stating that despite plaintiffs allegation of a “claim” under the annuity contained in the complaint, the annuity is not an insurance policy and there can be no statutory bad faith claim for the denial of the timely payment.

Finally, defendant argues that even if Pennsylvania law does provide a statutory cause of action for bad faith on an annuity contract, plaintiff’s claim in the instant matter must fail because plaintiff has not suffered any damages. Specifically, defendant argues that it made payment under the annuity contract to the plaintiff. Defendant asserts that plaintiff has even made this admission in paragraph 28 of the complaint. In that paragraph, plaintiff alleges that “On or about October 31, 2012, Defendant American National Insurance Company sent a check to the Estate of Lois Halterman.” Defendant avers that the payment was made at the request of the trustee, on behalf of the trust as owner of the annuity. Defendant also claims that trustee expressly acknowledged that penalties may apply under the annuity contract, which clearly sets forth the basis for the surrender charges at issue.

In response, plaintiff argues that Pennsylvania courts have recognized a common law contractual duty of good faith which is separate and apart from the statutorily imposed duty of good faith set forth in § 8371. Specifically, plaintiff cites the Pennsylvania Supreme Court case Ash v. Continental Insurance Co., 932 A.2d 877 (Pa. 2007). In that case, the court ultimately found that “an action under § 8371 is distinct from the common law cause of action for breach of the contractual duty of good faith.” Id. at 884. Taking this holding into consideration, plaintiff argues that § 8371 does not supplant the common law cause of action arising out of the requirements to deal in good faith, but rather § 8371 provides a basis to award additional damages beyond those available at common law.

Along with the position that § 8371 does not supplant a common law action- arising out of bad faith, plaintiff argues that they have established a cause of action arising under Pennsylvania statutory law for bad faith. To this end, plaintiff criticizes defendant’s use of federal case law which finds that an annuity contract is not an insurance policy for purposes of a § 8371 cause of action. Specifically, plaintiff argues that the reliance placed by defendant on Prusky v. Allstate Life Insurance Company, 2010 WL 3859787 (E.D. Pa. 2010) is misguided in that this court cannot consider such an opinion as precedential. Plaintiff argues that such an unreported memorandum opinion issued by a federal district court falls under the instruction of Pennsylvania Superior Court’s Internal Operating Procedures Rule 444b, which states that such an opinion cannot be “relied upon or cited by a court or a party in any other action or proceeding.” PL’s Br. Contra Mot. for J. on the Pleadings p. 10. Plaintiff continues to argue that because defendant cannot cite a precedential Pennsylvania case to support its position that § 8371 does not apply to annuities, the instant motion should be denied.

Furthermore, plaintiff attacks defendant’s reliance on the Prusky case by arguing that the definitions of an insurance policy and an annuities contract are substantially similar in nature to allow the cause of action under § 8371 to continue. Plaintiff cites to Wikipedia and Investopedia websites in setting forth definitions for insurance policies and annuities contracts. In doing so, plaintiff concludes that the simple definitions set forth on those web pages clearly establish that an annuity is an insurance contract or an insurance policy.

Finally, regarding damages, plaintiff argues that it has alleged in the complaint that substantial losses, including money withheld and economic losses, were suffered due to defendant’s conduct. Further, plaintiff has asserted that it is entitled to attorney’s fees and punitive damages due to the conduct by the defendant. Therefore, taking these well-plead facts as true, plaintiff contends that it has established that damages have resulted because of bad faith actions of the defendant.

In considering the arguments set forth by the parties as summarized above, we agree in part with both the defendant and the plaintiff. For the following reasons, we find the defendant is not entitled to judgment on the pleadings.

We begin by addressing the statutory cause of action alleged in plaintiff’s Complaint arising under § 8371 in title 42 of Pennsylvania consolidated statutes. In the instant case, plaintiffs cause of action revolves around the payment of an annuity, which was issued to the Lois Halterman Revocable Living Trust by the defendant. As stated above, § 8371 applies to “an action arising under an insurance policy.” Therefore, we must make a determination as to whether the annuity issued in this case falls under the guise of an “insurance policy” as specifically referenced in § 8371.

We have searched for guidance in this matter, but are limited to cases that lack precedential authority. We also note the definitions provided in Black’s Law Dictionary as follows:

Annuity. A right to receive fixed, periodic payments either for life or for a term of years. A fixed sum payable to a person at specified intervals for a specific, period of time or for life. Payments represent a partial return of capital and return (interest) on the capital investment. (Emphasis added)
Insurance. A contract whereby, for a stipulated consideration, one party undertakes to compensate the other for loss on a specific subject by specified periods...A contract whereby one undertakes to indemnify another against loss, damage, or liability arising from an unknown or contingent event and is applicable only to some contingency or act to occur in the future.
Annuity Insurance. An insurance contract calling for periodic payments to the insured or annuitant for a stated period or for life.

Black’s Law Dictionary, Sixth Edition.

These definitions contemplate an annuity and an insurance policy (i.e. for liability, death, etc.) being different. Although both are issued by insurance companies, and are based upon contracts, an annuity provides a definite, specific and automatic obligation to pay an annuitant or beneficiary. An insurance policy is only paid to the insured or beneficiary upon a limited set of circumstances. An annuity is an investment that pays back principal and a stated amount of interest. An insurance policy pays out in limited circumstances with limitations on amounts, depending upon the policy. There are contingencies in an insurance policy that do not exist in an annuity. These definitions give us some guidance in determining that annuities are not insurance policies, as contemplated by §8371.

We further find that an insurance policy and an annuity contract are separate and distinct from one another, for reasons we find similar to the analysis of the federal district court’s memorandum opinion in Prusky as cited by the defendant. We agree with the holding of that court, that “while annuity contracts are regulated by the Pennsylvania Insurance Commission, they are not insurance policies.” Prusky, 2010 WL 3859787 (E.D. Pa. 2010) at *4. We are aware of the lack of precedential Pennsylvania case law which specifically make reference to any differentiation between insurance policies and annuity contracts. The federal district court in Prusky discussed and applied Pennsylvania law with regard to an insurance company bad faith claim alleged by an insured. Although we are not bound by the opinion set forth in Prusky, we adopt the reasoning set forth therein, as we believe the court provides an adequate basis for the conclusion which the court ultimately reached. We further agree with and adopt the federal district court’s conclusion that the “narrow tort provisions of § 8371 extends only to the insured and does not make bad faith claims available to annuitants.” Id.

Therefore we grant, in part, defendant’s motion for judgment on the pleadings with respect to the cause of action alleged in plaintiffs complaint at paragraph 33 based upon Pennsylvania Statutory law, 42 Pa. C.S.A. § 8371. The allegations raised in plaintiffs complaint with respect to 42 Pa.C.S.A. §8371 are dismissed.

Plaintiff’s complaint further raises a cause of action for bad faith under Pennsylvania common law. To this end, we must make the determination of whether a bad faith action based on Pennsylvania common law exists in light of the statutorily created bad faith action under § 8371. In making this determination, we agree with the position advanced by plaintiff and find that plaintiff has the ability to plead and prove a common law cause of action for bad faith.

We base this conclusion on the 2007 Pennsylvania Supreme Court opinion in Ash v. Continental Ins. Co., 932 A.2d 877 (Pa. 2007), which is relied upon by plaintiff in its brief contra to defendant’s motion for judgment on the pleadings. In Ash, the court went through a thorough and persuasive discussion of the interplay between § 8371 and Pennsylvania’s bad faith law as expressed through the common law. The court echoes its findings made in Toy v. Metropolitan Life Ins. Co., and states that § 8371 “applies only in limited circumstance — i.e., where the insured has filed ‘an action arising under an insurance policy’ against his insurer — and it only permits a narrow class of plaintiffs to pursue the bad faith claim against a narrow class of defendants.” Ash, 932 A.2d at 882.

The court further engages in a discussion concerning the distinction between the common law contractual duty of good faith and the duty of good faith imposed by § 8371. The Court cites.its 2001 opinion in The Birth Center v. St. Paul Companies, Inc., 787 A.2d 376 (Pa. 2001). There, the court stated that § 8371 “does not prohibit the award of compensatory damages where they are otherwise available; it merely provides a basis to award additional damages beyond those already available.” Ash, 932 A.2d at 884 (citing The Birth Center, 787 A.2d at 379). The court concluded that “while the insurer ‘may not recover compensatory damages based on § 8371, that section does not alter [the insured’s] common law contract rights.”’ Id. Therefore, the court in Ash held that “an action under § 8371 is distinct from the common law cause of action for breach of the contractual duty of good faith.” Id.

In arguing against the position set forth by plaintiff, defendant would have this court believe that, in order to properly allege a bad faith action based on Pennsylvania common law, plaintiff need also plead and establish a cause of action for breach of contract. Defendant further argues, that plaintiff cannot sustain this action under § 8371 because this is an annuity, and not an insurance policy; and then defendant argues there is no common law remedy because § 8371 codified the common law. Also, defendant argues that the court’s opinion in Ash shows that bad faith insurance claims in Pennsylvania are based in statute, not the common law. Defendant asserts that plaintiff’s reliance on Ash does not save its common law bad faith claim which must fail on the pleadings because such claims are statutorily created tort actions.

While we agree the court’s opinion in Ash does recognize that § 8371 creates an action in tort for bad faith when dealing with insurance policies, we do not agree with the defendant’s interpretation of Ash — namely that § 8371 precludes a common law bad faith action based in contract law. As cited above, Ash clearly and unequivocally held that “an action under § 8371 is distinct from the common law cause of action for breach of the contractual duty of good faith.” Id. Therefore, although we find that Plaintiff cannot sustain its cause of action based upon claims raised under § 8371, we find that plaintiff has the opportunity to plead and prove a cause of action based on the bad faith doctrine established under Pennsylvania common law. We do not find, as defendant has argued, that a common law bad faith action requires a companion cause of action for breach of contract. We also recognize that § 8371 codified a common law remedy as to an insurance policy, but not as to an annuity contract. The defendant cannot argue that § 8371 only applies to insurance policies, and then argue that annuity contracts are subject to a codification of remedies even though the remedy does not apply. The common law remedy of bad faith in annuity contracts still appears to be an available remedy. Furthermore, at this stage of the pleadings, we make no determination as to whether plaintiff has set forth sufficient facts to sustain its bad faith action based on Pennsylvania common law. Such a determination is proper following the formal discovery process.

In conclusion, for the reasons stated above, we find that judgment on the pleadings may be granted in part and denied in part. We find it clear on the face of the pleadings in this matter that plaintiff cannot sustain the cause of action for bad faith premised under § 8371 of title 42 of Pennsylvania Consolidated Statutes, and that defendant is entitled to the requested relief in that respect. We further find it clear on the face of the pleadings that plaintiff may be able to sustain the cause of action for bad faith premised under Pennsylvania common law, and that defendant is not entitled to the requested relief in that respect. As such, judgment on the pleadings is granted in part and denied in part, and we enter the following order.

ORDER

And now, this 1 Oth day of June, 2014, upon consideration of defendant’s motion for judgment on the pleadings, we grant the motion with respect to the allegations raised in the complaint based upon 42 Pa. C.S.A. § 8371, and we deny the motion with respect to the allegations raised in the complaint based under Pennsylvania common law principles of bad faith. This action shall proceed only on the basis of the bad faith principles as set forth through Pennsylvania common law as asserted in the complaint.

      . The court in Terletsky recognized that “there is no common law remedy in Pennsylvania for bad faith on the part of insurers.” Terletsky 649 A.2d at 688. In making this determination, the court cited the Pennsylvania Supreme Court case of D’Ambrosio v. Pennsylvania Nat. Mut. Cas. Ins. Co., 431 A.2d 966 (Pa. 1981). In D‘Ambrosio, the court determined that “although the seriousness of ‘bad faith’ conduct by insurance carriers cannot go unrecognized, our Legislature has already made dramatic, sweeping efforts to curb the bad faith conduct” through the Unfair Insurance Practices Act (UIPA), and further stated that it was “for the Legislature to announce and implement the Commonwealth’s public policy governing the regulation of insurance carriers.” D’Ambrosio, 431 A.2d at 969-970. The court therefore refused to recognize a common law cause of action for bad faith against insurance carriers outside of the confines of the UIPA.
      In response to the decision in D 'Ambrosio, the general assembly enacted the present-day bad faith statute, codified at 42 Pa. C.S.A. § 8371. Furthermore, the term ‘bad faith’ used in § 8371, as interpreted by the Pennsylvania Supreme Court, concerns the “duty of good faith and fair dealing in the parties’ contract and the manner by which an insurer discharged its obligations of defense and indemnification in the third-party claim context or its obligation to pay for a loss in the first party claim context.” Toy v. Metropolitan Life Ins. Co., 928 A.2d 186, 199 (Pa. 2007).

      . In finding that annuity contracts are not insurance policies, the court in Prusky relied upon the following cases: In re Custom Coals Laurel, 258 B.R. 597, 601-02 (W.D. Pa. Bankr. 2001) (finding “Annuities are not insurance policies and providing differences between annuities and insurance policies); NationsBank of North Carolina, N.A. v. Variable Annuity Life Ins., 513 U.S. 251, 255, 115 S.Ct. 810, 130 L.Ed.2d 740 (1995) (deferring to state comptroller’s conclusion that national banks have authority to broker annuities because “annuities do not rank as insurance” and are more like investments); Smith v. John Hancock Ins. Co., No. 06-3876,2008 U.S. Dist. LEXIS 66912, *15-16 (E.D. Pa. Sep. 02, 2008) (declining to extend “reasonable expectations” doctrine to annuity contracts because “it is well established under Pennsylvania law that annuity contracts and insurance contracts are distinct animals).

      . In discussing the differentiation between annuity contracts and insurance policies, the Prusky court stated that §8371 “applies only in limited circumstances ... and it only permits a narrow class of plaintiffs to pursue the bad faith claim against a narrow class of defendants.” Prusky, at *4 (quoting Ash v. Continental Ins. Co., 932 A.2d 877, 882 (Pa. 2007)).


author: NANOVIC, P.J.,

text:
    Nalesnik v. United National Insurance Co.

      C.P. of Carbon County,
    No. 12-1671

      Abraham P. Kassis, for plaintiff.

      Evelyn Rodriguez Devine, for defendant.
    June 18, 2014
   NANOVIC, P.J.,

Frequently, when a dispute arises between an insured and an insurer over whether a policy for liability insurance provides coverage for a particular event, a declaratory judgment action is filed by either the insured or the insurer to resolve this issue. In this case, a suit requesting declaratory and injunctive relief as to the terms of coverage under a liability policy has been filed against the insurer by the injured party. Whether the injured party is entitled to bring this claim is the issue in this case.

FACTUAL AND PROCEDURAL BACKGROUND

On January 2, 2008, Shawn Nalesnik (“plaintiff’) fell from a ladder and injured himself while doing renovation work on property owned by defendant Blue Label Properties, LLC (“insured”) located at 347 North Second Street, Lehighton, Carbon County, Pennsylvania. At the time, Blue Label had in full force and effect with defendant United National Insurance Company (“Insurer”) a commercial lines policy containing commercial general liability coverage which provided, inter alia, liability coverage with respect to bodily injury caused by an accident occurring at the insured’s property.

On November 9,2009, plaintiff commenced a personal injury suit against the Insured for the injuries he sustained. When notified of this claim, the insurer refused to provide insured with a defense claiming coverage was excluded under the independent contractors endorsement to the policy. This endorsement provides:

This endorsement modifies insurance provided under the following:
Commercial general liability coverage part
This insurance does not apply and we have no duty to defend or investigate any claim, “suit” or demand alleging “bodily injury,” including psychological injury “personal injury,” “advertising injury,” “property damage” or medical payments arising from operations performed for “you” or on “your” behalf, by any volunteer, independent contractor or sub-contractor of “yours.”
“Volunteer” is defined as a person that is working for “you” of his own free will, is not being paid as a contractor and has no legal interest in the property or services provided.

The insured has not challenged this decision by the insurer. Instead, on July 31, 2012, plaintiff commenced the present suit against the insurer in which the insured has been joined as an indispensable party. In this suit, plaintiff seeks a declaratory judgment finding that the insurer is obligated to provide its insured a defense to plaintiff’s personal injury suit and that if plaintiff obtains a judgment against the Insured in that suit, the insurer is obligated under the policy to pay the judgment amount, subject however to the policy limits of $1,000,000.00.

As plaintiff is neither a named insured nor an insured by definition under the policy between the insured and the Insurer, the insurer has filed a demurrer to plaintiff’s suit against it claiming plaintiff has no standing to present this claim.

DISCUSSION

In In re: Hickson, our Supreme Court stated:

[A]s a general policy ... “[a] party seeking judicial resolution of a controversy in this Commonwealth must, as a prerequisite, establish that he has standing to maintain the action....” Our Commonwealth’s standing doctrine is not a senseless restriction on the utilization of judicial resources; rather, it is a prudential, judicially-created tool meant to winnow out those matters in which the litigants have no direct interest in pursuing the matter. Such a requirement is critical because only when “parties have sufficient interest in a matter [is it] ensured that there is a legitimate controversy before the court.”

821 A.2d 1238, 1243 (Pa. 2003)(citations and footnote omitted).

“Standing requires that the person bringing a cause of action be adversely affected by the matter in order to assure that the person is the appropriate party to bring the matter to judicial resolution.” Koresko v. Farley, 844 A.2d 607, 616 (Pa.Cmwlth. 2004)(citation and quotation marks omitted). A plaintiff has standing if he can show that he has a substantial, direct and immediate interest in the outcome of the litigation. In re Hickson, 821 A.2d at 1243. A “substantial” interest is an interest in the outcome of the litigation which surpasses the common interest of all citizens in procuring obedience to the law. Id. A “direct” interest requires that the matter complained of caused harm to the party’s interest. Id. An “immediate” interest concerns the nature of the causal connection between the action complained of and the injury such that the connection is not too remote. Id.; see also Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 282-85 (Pa. 1975). These requirements apply equally to a matter under the declaratory judgments act, 42 Pa.C.S.A. §§ 7531-7541. Stilp v. Commonwealth, 910 A.2d 775, 782 (Pa. Cmwlth. 2006).

Plaintiff contends that the Insurer is required by the terms of its insurance policy with the Insured to defend the insured and to pay any judgment which may result from plaintiff’s personal injury suit against the insured. Hence, plaintiff claims the insurer has breached the terms of the policy.

In general, the duty of an insurance company runs only to its insured, not to third parties who are not a party to the contract. Hicks v. Saboe, 555 A.2d 1241, 1243 (Pa. 1989). Plaintiff is admittedly nqt a party to the policy in issue. See plaintiff’s amended complaint, paragraph 5. Consequently, in order for plaintiff to establish that he is aggrieved by breach of the insurance policy and entitled to have its terms enforced, he must show a legal duty owed to him as a third party beneficiary of the policy. Fizz v. Kurtz, Dowd & Nuss, Inc., 519 A.2d 1037, 1039 (Pa. Super. 1987).

In 1950, the Pennsylvania Supreme Court held in Spires v. Hanover Fire Insurance Co., 70 A.2d 828, 830-31 (Pa. 1950) (plurality opinion) that “in order for a third party beneficiary to have standing to recover on a contract, both contracting parties must have expressed an intention that the third party be a beneficiary, and that intention must have affirmatively appeared in the contract itself.” Scarpitti v. Weborg, 609 A.2d 147, 149 (Pa. 1992). Here, plaintiff is not a named insured or an insured by definition in the policy. Nor is plaintiff at any point in the policy expressly identified as a third-party beneficiary.

In Scarpitti, the Supreme Court carved out an exception to Spires by adopting Restatement (Second) of Contracts § 302 (1979) as a guide for the analysis of third-party beneficiary claims. Scarpitti, 609 A.2d at 149. This section provides:

Intended and incidental beneficiaries
(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either
(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or
(b) circumstances indicate that the promise intends to give the beneficiary the benefit of the promised performance.
(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.

Restatement (Second) of Contracts § 302 (1979).

Under the restatement, an intended third-party beneficiary need not be expressly identified and recognized as such in the contract. Rather, a party is an intended third-party beneficiary if: (1) recognition of the beneficiary’s right to performance is “appropriate to effectuate the intention of the parties,” and (2) either (a) the party is a creditor beneficiary because performance under the contract “satisfies] an obligation of the promisee to pay money to the beneficiary” or (b) the party is a donee beneficiary because “the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.” Guy v. Liederbach, 459 A.2d 744, 751 (Pa. 1983). The restatement exception to Spires, however, is only applicable where “the circumstances are so compelling that recognition of the beneficiary’s right is appropriate to effectuate the intention of the parties, and the performance satisfies an obligation of the promisee to pay money to the beneficiary or the circumstances indicate that the promise intends to give the beneficiary the benefit of the promised performance.” Scarpitti, 609 A.2d at 150-51; see also Burks v. Federal Ins. Co., 883 A.2d 1086, 1088 (Pa. Super. 2005)(noting that even when the contract does not expressly state that the third-party is intended to be a beneficiary, in order to be a third-party beneficiary to a contract under the restatement test, it is still necessary to show that both parties to the contract so intended, and that such intent was within the parties’ contemplation at the time the contract was formed).

Plaintiff is not a third-party beneficiary under the restatement. First, plaintiff is neither a creditor nor a donee beneficiary. At the time the contract was entered into, the insured owed no money to the plaintiff and the insurer did not obligate itself to make any payment to the plaintiff for an existing debt. Further, there is no evidence to suggest that the insured intended to confer on the plaintiff the benefit of its bargain. To the contrary, such insurance was obtained exclusively for the benefit of the insured to protect itself against claims by third parties. Fizz, 519 A.2d at 1039-40. These circumstances clearly evidence that the intended beneficiary of the insurer’s performance was the Insured, not plaintiff, and that no rights under the policy were intended to be conferred on plaintiff. In addition, not only is the insured’s liability to plaintiff speculative at this time, in the event plaintiff succeeds on his claim, it is equally speculative whether recovery will be from the insured personally, or its insurer.

CONCLUSION

In general, an injured party has no standing to compel the insurer of a general liability insurance policy to provide insurance coverage to the named insured in the policy. This is so because the duty of an insurer runs only to its insured. An injured party who is not a contracting party to the liability policy is ordinarily not intended by the parties to be a third-party beneficiary and thus has no cause of action against the insurer under a contractual third-party beneficiary theory. Instead, the insurance protection provided by the policy is intended to primarily benefit the insured against claims by third parties. Consequently, the insurer’s preliminary objection to plaintiff’s amended complaint in the nature of a demurrer will be granted.

      . In evaluating a preliminary objection in the nature of a demurrer, our inquiry goes only to determining the legal sufficiency of the complaint, and we may only decide whether sufficient facts have been pleaded which would permit recovery if ultimately proven. Fizz v. Kurtz, Dowd & Nuss. Inc., 519 A.2d 1037, 1038 (Pa. Super. 1987). In order to sustain this objection, we must be able to state with certainty that upon the facts averred, the law will not permit recovery by the plaintiff. Id. (citation and quotation marks omitted).

      . In Scarpitti v. Weborg, the Supreme Court stated:
      The first part of the test sets forth a standing requirement which leaves discretion with the court to determine whether recognition of third party beneficiary status would be appropriate. The second part defines the two types of claimants who may be intended as third party beneficiaries.
      609 A.2d 147, 150 (Pa. 1992).

      . Plaintiff’s legal status vis-á-vis the insured is unclear. Plaintiff alleges in its amended complaint that prior to January 2, 2008, plaintiff was retained by the Insured to perform electrical work as an independent contractor. (Amended complaint, paragraph 13). Nevertheless, plaintiff contends the “independent contractor” exclusion in the Insured’s liability policy is inapplicable because he was not performing the work for which he had been engaged as an independent contractor when he was injured, but was performing other work, which work and its manner of performance, was controlled by the Insured. (Amended complaint, paragraph 14). However, even if the plaintiff’s status is that of a common law “employee” or “subcontractor,” rather than an independent contractor, coverage for employer liability is likewise specifically excluded from the policy.
      In the event plaintiff is successful in his claim against the Insured, plaintiff would clearly have a right to seek recovery from the Insured. The insured may in turn have a right under the policy to have this amount paid by the insurer, however, plaintiff is owed no legal duty by the insurer as a third-party beneficiary to the policy.

      . Plaintiff may have standing in the future to enforce this contract under the Pennsylvania Insurance Insolvency Act, 40 Pa.C.S.A. § 117. This statute provides for a direct cause of action against the insurer of a defendant but only when a judgment has been entered against that defendant and the plaintiff is unable to execute that judgment because the defendant is bankrupt or insolvent. See Kollar v. Miller, 176 F.3d 175, 181 (3d Cir. 1999)(stating basis for cause of action under the Pennsylvania Insurance Insolvency Act).


text:
    Ramos v. Jones

      C.P. of Northampton County,
    No. C-48-CV-2012-2141

      Michael A. Snover, for plaintiff.

      Jill M. Moffitt, for defendant.
    June 18, 2014
   BARATTA, J.,

ORDER OF COURT

And now, this 18th day of June, 2014, upon consideration of the defendants, Michael Jones and Barbara Jones’s, motion for partial summary judgment, and the plaintiff, Melanie Ramos’s, response thereto, it is hereby ordered that said motion is granted, and the plaintiff is precluded from asserting and recovering any and all non-economic damages due to her selection of the limited tort option.

It is further ordered that any and all claims for non-economic damages are dismissed with prejudice.

STATEMENT OF REASONS

Facts and Procedural History

On March 2, 2012, the plaintiff, Melanie Ramos, filed a praecipe for writ of summons. On March 27, 2012, the defendants, Michael Jones and Barbara Jones, filed a praecipe for rule to file complaint.

On April 9, 2012, the plaintiff filed her complaint, in which she avers that on March 21, 2010, a motor vehicle accident occurred between defendant Michael Jones and the plaintiff at the intersection of Union Boulevard and Airport Road. Defendant Michael Jones was allegedly negligently driving a vehicle with the permission of defendant Barbara Jones. The plaintiff avers in her complaint that she suffered “severe, serious and disabling” injuries, directly and proximately caused by the defendants’ negligence. Specifically, she complains of sprains and strains of her neck and back, as well as injuries to her discs, shoulders, head and right knee. She also asserts that she suffers mental damages that were directly and proximately caused by this motor vehicle accident: PTSD, depression, fear, anxiety, and/or other mental and psychic injuries. The plaintiff also complains of economic injuries, including lost wages, the incurrence of large bills due to treatment, and out-of-pocket expenses. Finally, the plaintiff complains that, as a result of the accident, she is unable to pursue her usual occupation.

On April 25, 2012, the defendants filed an answer and new matter. In their answer, the defendants aver that defendant Michael Jones had defendant Donna Jones’s permission to use the vehicle, but he did not use the vehicle to run an errand for her or under her direction. In their new matter, the defendants chiefly contend that the plaintiff’s claim for any non-economic losses is barred pursuant to the Motor Vehicle Financial Responsibility Act (the “MVRL”), 75 Pa.C.S.A. § 1701, et seq., because the plaintiff selected the limited tort option when applying for the insurance policy in effect at the time of the accident. See answer with new matter at ¶¶ 25-27. Additionally, the defendants contest causation. Id. at ¶ 28. Other affirmative and equitable defenses are also raised in the new matter.

On May 9, 2012, the plaintiff filed her response, asserting that the averments in the defendants’ new matter amounted to conclusions of law. Id. at ¶¶ 29-33. The parties engaged in discovery, which included obtaining medical records and conducting depositions.

The defendants filed a motion for partial summary judgment on February 21, 2014, arguing that they are entitled to judgment as a matter of law because the plaintiff selected the limited tort option in her insurance policy and did not sustain an injury which constitutes a serious impairment of a body function. As such, they argue, she is not entitled to non-economic damages. The defendants filed a memorandum of law supporting their motion on the same date.

On March 24, 2014, the plaintiff filed an answer and brief in opposition, in which she argued that this determination is one for the jury because reasonable minds could differ. On April 29, 2014, the defendants filed a reply to plaintiff’s brief in opposition to motion for partial summary judgment. On May 1, 2014, the plaintiff filed reply to defendants’ submission at oral argument.

This matter was placed on the April 25,2014, argument list and argument was heard.

Legal Standard

Pennsylvania Rule of Civil Procedure 1035.2 states:

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
(1) 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, or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to the jury.

Pa.R.C.P. 1035.2..

Further, under Pa.R.C.P. 1035.3(a), the nonmoving party may not rest upon mere allegations or denials of the pleadings but must file a response within thirty (30) days after service of the motion. In other words, the nonmoving party has a clear and affirmative duty to respond to a motion for summary judgment. Harber Phila. Ctr. City Office Ltd. v. LPCI Ltd. P’ship, 764 A.2d 1100, 1104 (Pa. Super. 2000). Also, Pa.R.C.P. 1035.3(d) specifically provides that “[sjummary judgment may be entered against a party who does not respond.” Ld.

Summary judgment may be granted only in the clearest of cases where the record shows that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pa. State Ethics Comm’n, 723 A.2d 174, 176 (Pa. 1999) (citing Marks v. Tasman, 589 A.2d 205 (Pa. 1991)). Summary judgment is only appropriate in the clearest of cases, because an order favorable to the moving party will prematurely end an action. Scopel v. Donegal Mut. Ins. Co., 698 A.2d 602, 605 (Pa. Super. 1997) (citations omitted). The moving party has the burden of proving the non-existence of any genuine issue of material fact. O’Rourke v. Pa. Dep’t of Corr., 730 A.2d 1039, 1041 (Pa. Commw. Ct. 1999) (citing Kee v. Turnpike Comm’n, 722 A.2d 1123 (Pa. Commw. Ct. 1998)). “Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof... establishes the entitlement of the moving party to judgment as a matter of law.” Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 429 (Pa. 2001) (quoting Young v. PennDOT, 744 A.2d 1276, 1277 (Pa. 2000)) (omission in original) (internal quotation marks omitted). The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Ertel v. Patriot-News Co., 674 A.2d 1038, 1041 (Pa. 1996) (citation omitted).

Under the Nanty-Glo Rule, summary judgment may not be granted where the moving party relies exclusively on oral testimony, either through testimonial affidavits or deposition testimony to establish the absence of a genuine issue of material fact. Nanty-Glo Borough v. American Surety Co., 163 A. 523, 524 (Pa. 1932); see also Penn Center House, Inc. v. Hoffman, 553 A.2d 900, 903 (Pa. 1989); White v. Owens Corning Fiberglas, Corp., 668 A.2d 136, 142 (Pa.Super. 1995); Garcia v. Savage, 586 A.2d 1375, 1377-78 (Pa. Super. 1991); O’Rourke, 730 A.2d at 1041 (citing Kaplan v. Se. Pa. Transp. Auth., 688 A.2d 736 (Pa. Commw. Ct. 1997)).

Discussion

Under Section 1705 of the Motor Vehicle Financial Responsibility Law (“MVFRL”), an insured motorist may elect a “limited tort” option in exchange for lower insurance rates. 75 Pa.C.S.A. § 1705; see also Washington v. Baxter, 719 A.2d 733, 737-38 (Pa. 1998). Under this limited tort option, an insured driver who is injured by another driver may “seek recovery for all medical and other out-of-pocket expenses, but not for pain and suffering or for other non-monetary damages unless the injuries suffered fall within the definition of ‘serious injury’ as set forth in the policy.” 75 Pa.C.S.A. § 1705(a). While the insured who elects the limited tort alternative remains eligible to pursue a cause of action for economic loss, “[ujnless the injury sustained is a serious injury, each person who is bound by the limited tort option shall be precluded from an action for any non-economic loss ....” 75 Pa.C.S.A. § 1705(d). Further, the MVFRL defines “serious injury” as “[a] personal injury resulting in death, serious impairment of a body function or permanent serious disfigurement.” 75 Pa.C.S.A. § 1702.

Initially, we note that in Washington v. Baxter, supra, our Supreme Court established the standard by which trial courts are to determine whether a plaintiff has suffered a “serious injury” by which the plaintiff is permitted to recover non-economic damages despite her selection of the “limited tort option” under the MVFRL. Our Supreme Court determined, after a review of case law and the legislative history of the MVFRL, that: “the traditional summary judgment standard [is] to be followed and... the threshold determination [is] not to be made routinely by a trial court judge in [these] matters ... but rather [is] to be left to a jury unless reasonable minds could not differ on the issue of whether a serious injury has been sustained.” Washington, 719 A.2d at 740. Moreover, all inferences must be resolved in favor of the non-moving party. Id. Thus, “the ultimate determination should be made by the jury in all but the clearest of cases.” McGee v. Muldowney, 750 A.2d 912, 914 (Pa. Super. 2000).

The Washington Court adopted the following definition of “serious impairment of a bodily function” as stated by the Michigan Supreme Court: Washington, 719 A.2d at 740 (quoting DiFranco v. Pickard, 398 N.W.2d 896, 901 (Mich. 1986)) (omission in original). Further, our Supreme Court emphasized that “[t]he question to be answered is not whether appellant has adduced sufficient evidence to show that appellant suffered any injury; rather, the question is whether appellant has shown that he suffered a serious injury such that a body function has been seriously impaired.” Id. at 741 (emphasis in original); see also McGee, 750 A.2d at 914.

The ‘serious impairment of a bodily function’ threshold contains two inquiries:
a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident?
b) Was the impairment of the body function serious? The focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function. Generally medical testimony will be needed to establish the existence, extent, and permanency of the impairment .... In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious.

We look to first at what body function, if any, was injured as a result of the motor vehicle accident of March 21, 2010. Here, the plaintiff complains of neck and shoulder pain, which she contends resulted solely from the motor vehicle accident. See complaint ¶ 10.

Second, we consider whether the impairment of the body function is serious. The record reveals the following with regard to the impairment:

(1) The plaintiff was examined in the emergency room of Sacred Heart Hospital following the motor vehicle accident of March 21, 2010, and discharged with soft tissue injuries and painful tenderness in the right knee. No abnormalities or tenderness in the back or neck was noted. With regard to the severity of the symptoms, the physician documentation states: “[a]t their worst the symptoms were mild, in the emergency department the symptoms are unchanged.”
(2) The plaintiff was examined at Airport Road EmergiCenter on March 30, 2010, nine days later, and was diagnosed with right knee pain and a musculoskeletal strain. An x-ray of her cervical spine was performed and the cervical spine was found to be within the normal limits. A CT scan of the brain revealed no abnormalities.
(3) On April 13, 2010, and May 4, 2010, the plaintiff was seen by Dr. Joseph Grassi, M.D., of Orthopedic Associates of the Greater Lehigh Valley, P.A. His clinical impressions included ongoing cervicalgia (neck pain) whiplash-type syndrome in the upper back and neck, right knee contusion, and myofasciitis (inflammation of a muscle and its fascia), lower back sprain/strain.
(4) On June 29, 2010, the plaintiff was seen by Dr. Grassi for a follow-up appointment, three months after the accident. Dr. Grassi noted some continuing upper, mid and lower back pain, but found no radiation of symptoms. Further, he found: “Regarding the cervical adenopathy, she’s been instructed many times to get this checked by her family physician and/or a general surgeon as this is not part of the cervical injury related to her MVA.” (emphasis added) Dr. Grassi advised the plaintiff to use a rolling backpack to take weight off of her shoulders and back. He stated that she could continue with her academics, and noted that she was not currently working.
(5) On June 17, 2010, the plaintiff went to Dr. Grassi for another follow-up appointment. Dr. Grassi noted a reduction in pain levels and that the plaintiff was “active, moving about today.” He also found some tightness in her muscles. His clinical impressions included a continuation, but improvement, of whiplash-type syndrome, and myofasciitis (inflammation) of the cervical, thoracic and lumbar spine. Dr. Grassi stated: “I will see her back in three weeks’ time, hopefully moving her along so that we can release her for her work. She continues with her college activities.”
(6) On September 28,2010, Dr. Grassi saw the plaintiff again due to some recurring back and neck pain. He again noted some soft tissue tightness and discomfort. Dr. Grassi stated: “She is working on trying to get her insurance re-established so she can get back to physical therapy. If this is necessary, we can reorder it but at this time I do not see her as needing a long-term formal physical therapy program.”
(7) The plaintiff went to Lehigh Valley Hospital — Muhlenberg on January 10, 2011, complaining of severe neck pain. A neck exam revealed mild soft tissue tenderness in the right and left neck. No restrictions were imposed as to the plaintiff’s activities.
(8) The plaintiff went to Pennsylvania Pain Specialists, P.C., on March 4,2011. The report describes tenderness and cervicalgia (neck pain). Pain medicine was prescribed.
(9) The plaintiff sought emergency medical attention at Pinnacle Health Community Campus on June 13, 2011, complaining of neck and shoulder pain. An examination of the neck revealed: “Trachea midline, no meningeal signs, no jugular venous distention, no cervical adenopathy, no contusions, no ecchymosis, Tenderness entire spine from Cl to Tl. No step off[,] no discrete midline tendemess[,] pain is greater in the left trapezius and right trapezius.” The diagnosis was “MVC chronic neck pain.”
(10) The plaintiff sought medical attention at Pinnacle Health on August 29, 2011, for other health issues. There is no mention of neck or back pain in the medical report.
(11) The plaintiff sprained her ankle while at work, for which she received treatment on December 31, 2012. There was no mention of neck or back pain in the medical reports.
(12) On September 17, 2013, the plaintiff went to Dr. David Weiss, D.O., for an orthopedic Independent Medical Evaluation. Dr. Weiss diagnosed the patient with chronic post-traumatic cervical and lumbosacral strain and sprain; post-traumatic cervical facet joint syndrome; cervical radiculitis; lumbar radiculitis; and chronic post-traumatic cervical and lumbar myofascial pain syndrome.

We next look at the length of the injury. Following the accident, the plaintiff requested and received a note from her employer which granted her a leave of absence in which to recover from her accident until April 23, 2010. See motion for partial summary judgment, exhibit “Q” — letter from Dottie Kurpat, Director of Brookmont/Blough Healthcare Centers, to the plaintiff (April 6, 2010). The plaintiff did not return to her job, citing her degree of physical pain, that her position could only be held open for a certain amount of time, and that her employer did not offer light duty for a certified nursing assistant (CNA) position. See deposition testimony of Melany Ramos (“N.T.”), 23-25. The plaintiff asserts that her tasks and duties for her new/current employment do not match those required of a CNA, the job she had prior to the motor vehicle collision, due to her neck and back pain. See id.

While there has been a gap in the plaintiff’s employment history, however, she testified during her deposition that she did not seek to secure employment until she moved to Harrisburg after she was evicted from her residence. Id. The plaintiff also notes that she had difficulty obtaining a job because it took her awhile to obtain another vehicle. See id. at 26:9-10. She did not obtain documentation from a medical provider to excuse her from work until a later date. Id. at 24. Likewise, she did not contact her former employer to request light duty, nor did she file for disability. See id. at 29. During the time period in which the plaintiff was out of work, she was able to continue with her education by taking a class on campus and a class online. See id.

With regard to treatment, the plaintiff sought emergency medical attention immediately after the accident, in which her injuries were described as minor. See motion for partial summary judgment, exhibit “E.” The plaintiff went to an orthopedic specialist, Dr. Grassi, and to a few physical therapy treatments. See id. at exhibit “M.” Apparently, the plaintiff could not continue with certain treatments due to her financial circumstances, but sought emergency medical attention as necessary. See deposition N.T. at 25. As noted above, however, Dr. Grassi found on July 29, 2010, that her cervical adenopathy, which contributed to her pain levels, was not caused by the motor vehicle accident, but rather from her failure to seek treatment from a family doctor or a general surgeon. See motion for partial summary judgment, exhibit “K.”

Finally, we examine any other relevant considerations regarding the impact of the injury on the plaintiff’s performance of her job functions and engagement in personal activities. The plaitniff is able to continue with her education and with work, but she has difficulty sitting at times and uses a rolling backpack, according to Dr. Grassi’s instructions. See id. Dr. Grassi gave these instructions, however, after noting that the cervical adenopathy experienced by the plaintiff did not result from the motor vehicle accident. See id.

The plaintiff alleges that she has difficulty sleeping and requires her children’s help to do laundry. See deposition N.T. at 67:20-25, 10:6-10. She indicates that this injury has had a negative impact on her relationships with her children, as they cannot participate in physical activities that they once enjoyed together, but admits that she can still watch them play sports and spend meaningful time with them. See id. at 68:22-25, 69:1-21. The plaintiff also alleges that this accident has impacted her mental state by worsening her depression, which she already suffered from prior to the accident after she had her daughter. See id. at 67:1-16. All of these restrictions are self-imposed, as her physicians did not impose any limitations on her activities.

In terms of her employment, the plaintiff is currently hired as a personal care assistant and a connections club associate at Country Meadows, where she works approximately thirty hours per week. See deposition N.T. at 14:20-24; 16:22. Her job responsibilities include helping to take care of the residents, participating in activities with them, and assisting residents in getting dressed.” Id. at 15:3-6. She also had helped to “develop and implement cognitive support programs or activities for residents with varied stages of dementia and Alzheimer’s,” a group of patients with whom the plaintiff enjoys working. Id. at 15:12-14. Further, the plaintiff has fully participated in farthering her education, obtaining a degree in business administration for Northampton Community College, a bachelor’s degree from Central Penn for Health Care Administration in 2013, and attending classes at Eastern University in Harrisburg for Health Care Administration, expecting her degree in 2014. See id. at 10:15-24,11:3-13, 11:15-22.

In Washington, the Supreme Court of Pennsylvania found that the plaintiff had not sustained a serious injury. Washington, 719 A.2d at 741. In that case, the plaintiff had been diagnosed by the emergency room physician with mild injuries and was discharged after a few hours. Id. He missed a few shifts at his jobs, where he was required to do most of his work on his feet. Id. The court found that the treatment for his injuries was not extensive. Id. Further, the arthritis in his right foot “seem[ed] to have had little or no impact on [the plaintiff’s] performance of his job functions and engagement in personal activities.” Id. As a result, the Washington court found the impairment resulting from the injury to be de minimis. Id.

Similarly, the plaintiff in the instant case has shown that she has suffered injury, which based upon the medical records generated between the date of the accident and Dr. Gxassi’s note of June 29, 2010, we would describe to be in the nature of soft tissue injuries to her back and neck. Plaintiff has failed to show that “these injuries resulted in such substantial interference with any bodily function as to permit a conclusion that the injuries have resulted in a serious impact on [her] life for an extended period of time.” McGee, 750 A.2d at 915. We note that after the accident, she was discharged from the hospital on the same day with mild injuries. Further, she has failed to present objective medical evidence that any pain that she has experienced during this time period resulted from the motor vehicle accident. In fact, her treating physician, Dr. Grassi, determined that the cervical adenopathy did not result from the motor vehicle accident. Dr. Grassi noted that: “Regarding the cervical adenopathy, she’s been instructed many times to get this checked by her family physician and/or a general surgeon as this is not part of the cervical injury related to her MVA.” See id.; see also motion for partial summary judgment, exhibit “K.” It is apparent that complaints about neck pain existed long before the accident. In addition, the treatment for the plaintiff’s pain and symptoms has not been extensive or consistent, but sporadic.

While the plaintiff chooses to attribute her neck and back pain to the motor vehicle accident, there is no support in the medical records for her claim. Further, the record establishes that the pain does not interfere with her life, other than the claim that the pain makes it difficult to participate in sports with her children. Again, we note that plaintiff’s complaints of occasional stiffness and pain does not prevent her from working, attending school, viewing her children’s athletic events, or engaging in her everyday routine. The evidence, when viewed in the light most favorable to the plaintiff, shows soft tissue injuries from the accident, but the impairment from that injury is clearly de minimis in this case. Reasonable minds could not differ here as to the absence of a serious impairment of a body function.

Therefore, we grant the defendants’ motion for partial summary judgment.