text:
    Housing and Redevelopment Insurance Exchange v. Lackawanna County

      C.P. of Lackawanna County,
    No. 08 CV 961

      Frank Ruggerio and Todd A. Johns, for Housing & Redevelopment Ins. Exchange & FOXCO Ins. Management Services.

      Joseph O’Brien and James J. O’Connor, for Lackawanna County.

      Robert A. Cecchini, for Dominic Verrastro.

      Michael R Perry, for Joseph Durkin.
    April 20, 2015
   MINORA, J.,

The court has before it the County of Lackawanna’s motion for post trial relief along with its supplementary brief and reply brief. This motion is opposed by H.A.R.I.E. in their answer, supporting brief and sur reply brief as well as opposed by defendant Verrastro by answer and brief. Judgment in favor of defendant Verrastro has been entered by separate order of this court dated April 14, 2015.

The court entertained extensive argument by able and well prepared counsel on March 26, 2015. Previously on November 6, 2014, the court wrote an extensive forty-four (44) page decision and order following trial without jury pursuant to Pa. R.C.P. 1038. That decision contained twenty-six (26) undisputed stipulations of fact.

Additionally, it also contained the court’s one hundred and nine (109) findings of fact and conclusions of law. The entire November 6, 2014 decision and order is incorporated herein by reference and will not be restated here.

POST TRIAL RELIEF ISSUES

The two issues raised by the County of Lackawanna in their post trial motions are stated as follows:

1. The court erred in concluding that Durkin had authority to cancel the H.A.R.I.E. policy and, therefore, the court should amend its findings and conclude that the H.A.R.I.E. policy covering the amphitheater was in full force and effect at the time when the loss occurred on February 14-15, 2007.

The County of Lackawanna (hereinafter “county”) in their supporting brief characterizes this as the “paramount issue in this case.” See county’s brief in “support of its motion for post trial relief.” p. 4. The county goes on to articulate general principles of agency law that apply to this case and this issue.

In support of their position, they cite “... a considerable body of legal authority as to the authority of an agent to cancel an insurance policy on behalf of a principal.” Id. at 4. Unfortunately, the county only cites to secondary sources such as Appleman on Insurance Law (2d.Ed. Lexis 1999); Corpus Juris Secundum (CJS); and American Jurisprudence (2d. ed. Thompson Reuters 2013). They also cite to case law from other jurisdictions.

The county candidly admits, “While not extensive the Pennsylvania case law on the issue of cancellation also provides that an agent or broker who secures a policy of insurance has no general authority to cancel a policy unless specifically authorized to do so.” Id. at 5.

The first case that county cites in support of their position is Jones v. Dubuque Fire & Marine Ins. Co., 317 Pa. 144, 17 A. 208 (1934). In this 1934 case, there was an action based on a policy of insurance for a loss sustained by fire resulting in judgment for the insured.

The issues on appeal resulted from the trial court’s refusal to receive an offer of evidence. There was an admission that the Dubuque insurance policy was still in possession of the insured. This is a clear distinction from our case wherein the policy was surrendered by Durkin to H.A.R.I.E. prior to the occurrence of the loss. This distinction matters because surrender of a policy from an insured to an insurer is tantamount to a request for cancellation. See paragraphs 25-43, pages 18-23 of this court’s November 16, 2014 opinion.

An additional distinction is that in Jones, supra, there were two owners to the insured property at the time of the loss and one of the owners (Bessie Jones) did not consent to the cancellation and substitution of another insurance company’s policy. Jones, 17 A. at 208-209. Our supreme court ruled, ‘Where property is owned jointly, and so insured, one owner cannot cancel the policy of insurance and substitute another therefore without that consent of the coinsured.” Jones, Ibid. There was no such issue in this case. The offer to cancel in Jones did not attempt to show the consent of both owners.

In this context of a retained policy without the consent of both owners the court stated, “An agent who secures a policy of insurance has no general authority to cancel the policy and substitute another therefore, unless specifically authorized to do so. Jones. Ibid.

The statement quoted does not deal with our facts of a previously surrendered policy and no dispute of authority for cancellation among co-owners before the loss occurred. Therefore, the court rules that the 1934 case cited is not applicable herein.

The county’s next case cited is Hendricks v. Continental Ins. Co. of City of New York, 121 Pa. Super. 390, 183 A. 363 (1936). This 1936 case is clearly not applicable to the facts in our case and the citation of it as such is quite disturbing to this court and counsel’s obligation of candor to the tribunal.

In our case, the county, the insured through its agent Durkin, surrendered the policy to H.A.R.I.E. and initiated the cancellation of the policy erroneously thinking that the Toyota Pavilion was also sold when Montage Mountain was sold to Sno Mountain.

In Hendricks, supra., at 393, 364, the superior court quite clearly stated in its recitation of the facts, “On March 13, 1934 the defendant company mailed to the plaintiff from its Philadelphia office, written notice of cancellation of the policies.” Hendricks, 183 A. 393-394. emphasis added. All parties and this court are aware of the state of the law that different standards apply when an insurance policy is cancelled at the initiation or instance of the insurance company (H.A.R.I.E. herein) then when cancelled at the insured’s initiation or instance (County herein): See court’s November 6, 2014 opinion at pages 27-31, paragraph 62-72. See also Coppola v. Insurance Placement of Pennsylvania, 386 Pa. Super. 413, 415, 563 A.2d 134 (1986); Scott v. Southwestern Mutual Life Association, 436 Pa. Super 242, 642 A.2d 587, 590 (1994).

Although not binding on this court, we also reviewed county’s citation to H.R. Woolridge Co. v. Smith, 5 Pa. D.&C.3d 230 (1978), a case out of Clearfield County. This case involved a dispute between the plaintiff, an insurance agency and the defendant an insured. Significantly, no insurance company was involved in this dispute, so it is factually distinct from our case.

The case revolved around an insured not reimbursing his agent who advanced premium payments on the insured’s behalf. The two types of insurance involved were workman’s compensation and auto coverage.

The court in Woolridge, supra, states that the plaintiff H.R. Woolridge Co. as an insurance broker, “is considered by law to be an agent for the insured.” Woolridge, 5 Pa. D.&C. at 234. The court goes on to state, “courts tend to give a broker broad authority in acting to meet a client’s needs.” Woolridge, Ibid.

However, in Woolridge, the court states, “...while a broker’s authority to purchase insurance is broad, his authority to cancel is quite narrow.” Id. at 235. The stated rationale for such narrow restriction on an agent (not a company) cancelling an insurance policy without explicit authority exists because, “the trend seems to thwart any possibility that an individual maybe stripped of insurance coverage against his will” Id.

Well as noted above, the possibility that the county can be stripped of coverage against their will is non-existent when the county initiates cancellation of coverage and does so at its own instance and initiative. Anticipating the county’s retort that such a stripping of coverage actually occurred relative to the Toyota Pavilion, we would reply that such occurred due to the county’s agent’s error and not due to lack of notice or “against their will.” Ignorance of an error cannot be equated with an affirmative act against will.

Qualitatively, there is another distinction in the types of insurance coverage involved. Workman’s compensation and automobile coverage are required by law. “Such coverage is required by law, and therefore special care is taken in instances where insurance is required to protect an individual from unjustly losing his right to do business.” Woolridge. Ibid. Furthermore,

“Given the requirement of the statutes and the trend of the case law, plaintiff, as the insurance broker charged with caring defendant’s insurance needs, would have subjected himself to a possibility of greater lawsuit had he failed to provide coverage.”

Id. at 236.

Similarly, in our case, and as noted in our previous opinion of November 6, 2014, once Durkin erroneously believed that all county land was sold to Sno Mountain, he believed that the comity no longer had an insurable interest after alienation of its realty ownership. If Durkin failed to cancel insurance coverage under his erroneous belief of a total sale, Durkin could also have subjected himself to the possibility of lawsuit for his non-cancellation of a policy without an insurable interest. See paragraph 107 and 108 at page 42 of the court’s November 6,2014 opinion herein.

So despite the Woolridge case representing non-binding precedent from Clearfield County, we determine that under analysis its factual distinctions make it unpersuasive to this court.

Finally, hidden among case law “from other jurisdictions” on pages five (5) and six (6) of county’s brief in support of its post trial motion, we find the case of Densmore v. Hartford Acc. & Indem. Co., 221 F.Supp. 652 (1963). This is a case out of the United States District Court for the Western District of Pennsylvania, thus having some connection to our Commonwealth. In reality, the case deals with the New York State Financial Responsibility Law and the Vehicle and Traffic Law of New York state.

In Densmore, the United States District Court for the Western District of Pennsylvania had to decide an automobile liability insurance coverage dispute under the Financial Responsibility Law of the State of New York.

The court was faced with an automobile liability insurance policy which had been secured through an agent in the state of New York. The court determined that the purpose of the agency was limited solely to the issuance of the policy. Therefore, court concluded that the efforts of the agent to cancel the policy must fail.

County cites this case for the proposition that, “the legal thesis that an agency to issue the policy gives the right to cancel must fail.” First of all, this is only a partial quote. In Densmore v. Hartford Acc. & Indem. Co., 221 F.Supp. 652, 654 (1963) the full sentence reads as follows: “The contention that the efforts of the agent to cancel the policy constitutes a cancellation on the legal thesis that the agency to issue the policy gives a right to cancel must fail. The law is settled that an agent who is secured for a specific purpose is not an agent for any other purpose. Restatement (Second), Agency §106 (1958).”

The factual premise for the court’s conclusion was:

“Since the agent had no communication in any way whatsoever with the insured after the policy was issued and the premium was paid in full, the authority of the agent was terminated once the policy was issued. I therefore must conclude that the insured agent had no authority to cancel the policy.”

Ibid.

These facts could not be less applicable to our case. In our case, Durkin managed this book of insurance on behalf of the county for multiple years. Durkin was performing other tasks besides simply securing coverage. As an example, Durkin secured statements of value as to assets and handled the premium adjustments upon termination of the policies.

Additionally, Durkin was in communication with county’s transaction attorney James Tressler as well as in repeated communication with county’s insurance coordinator Dominic Verrastro. It was this joint communication which erroneously determined that the policies should be cancelled because they thought a total sale had taken place at Montage. This is what was communicated to H.A.R.I.E.

Our facts are not seriously comparable to the facts in Densmore. Durkin did not initially have a limited agency and Durkin did not have a subsequent absence of further tasks and communication as was the case in Densmore. For these reasons, we are unpersuaded by the agency based case law cited by county.

We are further unpersuaded by county’s reference to the Pennsylvania County Code and the Pennsylvania Sunshine Act. As was noted in our initial opinion, there has never been an issue that this sale of Montage Mountain was authorized at a public meeting. We believe inherent in that authorization is the authority to perform all related tasks necessary to concluding the authorized sale.

As indicated in our opinion of November 6, 2014, the court sat as the finder of fact in this case and came to the findings of fact and conclusions of law noted therein.

Nothing in the revisited factual arguments raised later in county’s brief has caused the court to reverse its earlier determinations regarding its findings relative to Durkin’s agency.

Accordingly, the county’s allegations of error by the court in our conclusion that Durkin had the authority to cancel the H.A.I.R.E. policy are rejected, dismissed and denied and we stand by our earlier conclusions as noted in the original November 6, 2014 opinion.

2. Issue two states that the court should conclude that the H. A.R.I.E. policy should be determined to be in effect as of the date of loss because H. A.R.I.E. did not follow the cancellation procedures set forth in the policy.

The allegation is that the trial court has rewritten the insurance policy in a manner not intended by the parties to the prejudice of the county trumping the express provisions of the contract.

If this characterization is so, the court has not rewritten the contract, the cases and the statutes governing this situation have so done.

County begrudgingly now seems to concede that different rules apply when an insured like county, commences or initiates cancellation of an insurance policy verses when the insurer insurance company like H.A.R.I.E. starts the cancellation process. The court did not rewrite the policy in this regard, the cases and the statutes did.

As was stated in Scott v. Southwestern Mut. Fire Ass’n, 436 Pa. Super. 242, 647 A.2d 587 (1994):

“When read together the decisions in Amfeld, Jones. Scheel, Coppola and Blasy, form the following legal standard. As noted above, an insurance policy may be cancelled or terminated by any party to the contact, if such cancellation is provided for in terms of the policy. Strict compliance with the policy’s cancellation provisions can be waived however, when an insured’s objective intent to cancel is precise and clear.

Thus in Scott the court has summarized a line of case that delineate an insureds ability to cancel an insurance policy without strict compliance with a policy’s cancellation provisions.

From a statutory standpoint 40 P.S. §3402 entitled “grounds for cancellation” deals with midterm cancellation of a commercial property and casualty policy such as we have herein. The statutes prohibit midterm cancellations but for eight exceptions.

Exception number 40 P.S. §3402(6) states that one of the valid exceptions to the ban on midterm cancellations is if, “The insured has requested cancellation.” See paragraph 62 of November 6, 2014 opinion.

As is obvious, the statutes and the case law rewrite the policy herein and not this court.

Further, as appears in paragraph 65 of the November 6, 2014 opinion 40 P.S. § 3403(a)(3)(iii) when an insured cancels a policy written notice of cancellation is not required:

“(iii) The policy was cancelled by the named insured, in which case written notice of cancellation shall not be required and coverage shall be terminated on the date requested by the insured.” Emphasis added.

Judge Johnson tells us the rationale for the above scheme in Coppola, supra., at 418, 136, wherein he states, “When the insured cancels, however, the legislature imposes no notice requirements;... The insured who cancels a policy obviously knows that he no longer has a policy. There is no need for a safeguard to guarantee that he receive affirmative evidence of this.”

The treatment of the issue of an insured’s (like county) initiating, starting or commencing cancellation of an insurance policy as treated in Scott, supra., Coppola, supra., is not only binding precedent on this court but is also legally and logically persuasive and appealing. For that reason, the court stands by its original decision in its November 6,2014 opinion. An appropriate order follows.

ORDER

And now to wit, this 20th day April, 2015, the County of Lackawanna’s motion for post trial relief is denied and dismissed in its entirety and the court reaffirms its opinion of November 6, 2014.

Further, this order shall act as a final order in the case for purposes of appeal.

Finally, this opinion and the court’s previous November 6, 2014 opinion shall operate as the court’s opinion in support of order for purposes of Pa. R.A.P. 1925.

It is so ordered.


source: Caselaw Access Project

author: BELTRAMI, J.,

license: Public Domain

text:
    Duarte v. Duarte

      C.P. of Northampton County,
    No. C-48-CV-2013-6689

      Richard L. Orloski, for plaintiffs.

      James J. Dodd and Paraskevoula Mamounas, for defendant.
    April 22, 2015
   BELTRAMI, J.,

ORDER OF COURT

And now, this 22nd day of April, 2015, “plaintiffs’ motion for partial summary judgment on liability only,” filed on January 20, 2015, is hereby denied.

STATEMENT OF REASONS

On December 9, 2013, plaintiffs, who are husband and wife, filed a complaint against defendant alleging negligence in Count One and loss of consortium in Count Two. In their complaint, plaintiffs allege that on September 25, 2012, plaintiff Mark Duarte (“plaintiff’) was helping his father, defendant Victor Duarte (“defendant”), “move a very heavy cast iron radiator up a flight of stairs.” (Compl. ¶ 3; Answer ¶ 3.) Defendant was pushing the radiator, while plaintiff was pulling it up the stairs. (See Compl. ¶ 4; Answer ¶ 4.) The complaint alleges that when they reached the last step, defendant pushed “too hard” and that the radiator fell on plaintiff, causing him to suffer severe injuries to his foot. (Compl. ¶¶5, 9.)

On April 3, 2014, defendant filed an answer with new matter. On April 7, 2014, plaintiffs filed a reply to defendant’s new matter.

On January 20,2015, plaintiffs filed the instant motion for partial summary judgment. On February 13, 2015, defendant filed an answer to plaintiffs’ motion. Briefs have been filed, and oral argument was heard on February 24,2015.

Pennsylvania Rule of Civil Procedure 1035.2 establishes the standard of review for a motion for summary judgment as follows:

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.

Pa.R.C.P. No. 1035.2. Summary judgment may only be granted when the record clearly shows that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010). The moving party bears the burden of proving that no genuine issue of material fact exists. Barnish v. KWI Bldg. Co., 916 A.2d 642, 645 (Pa. Super. 2007). In deciding a motion for summary judgment, the record must be viewed in the light most favorable to the non-moving party, and any doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Ario v. Ingram Micro, Inc., 965 A.2d 1194,1200 (Pa. 2009). Even where the facts are agreed upon, summary judgment cannot be entered if the facts can support conflicting inferences. Washington v. Baxter, 719 A.2d 733, 740 n.10 (Pa. 1998).

The party opposing a motion for summary judgment may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty days after service of the motion identifying

(1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion.

Pa.R.C.P. No. 1035.3(a)(1). In deciding a motion for summary judgment, the “record” available for the court’s examination includes the pleadings, discovery materials, affidavits, and expert reports. Pa.R.C.P. No. 1035.1.

In this case, plaintiffs argue that, based upon defendant’s deposition testimony, the facts are undisputed and that defendant’s testimony establishes, as a matter of law, that he was negligent. More specifically, plaintiffs direct the court to the following testimony of defendant:

Q. In the process of moving this radiator up on September 25th, 2012, was there an accident?
A. Yes.
Q. Okay. And what happened in the accident?
A. Well, I was pushing step by step. When we got to the last step, I pushed a little bit too hard to get the radiator up to the macadam, at that, the level ground.
Q. Okay.
A. And that’s when [plaintiff] fell back and the radiator fell on his foot.
Q. Okay. When you say you pushed the radiator too hard, did the, did the radiator get pushed over on top of him?
MS. MAMOUNAS: Object to the form. You can answer.
A. Well, I was pushing upward on the radiator. It just happened. I just...
BY MR. ORLOSKI:
Q. Okay. Were you pushing it up and in [plaintiff]’s direction?
A. Yes.
Q. Okay. And tell us what happened to [plaintiff]’s body when this occurred?
A. Oh, he was, he laid, he was laying down, he fell on his back.
Q. Okay.
A. And the radiator fell on his foot and leg, you know, part of the leg and foot.
Q. Okay. I want to go back to the time on the steps as this accident was happening. Is there anything that [plaintiff] did to cause the radiator to fall onto his foot?
A. No.
Q. Okay. Is it true that the only reason the radiator fell onto his foot is because you accidentally pushed it too hard?
MS. MAMOUNAS: Objection to the form.
A. Yes.

(Def.’s Dep. 22:1-23:4, 40:20-41:5, Oct. 7, 2014.)

Plaintiffs argue that defendant has admitted that he is solely responsible for the accident because he pushed the radiator too hard. Therefore, plaintiffs argue, they are entitled to partial summary judgment on the issue of liability and that the trial should be limited to the issue of damages.

“Negligence is established by proving the following four elements: ‘(1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual damages.’ Estate of Swift by Swift v. Northeastern Hosp., 456 Pa.Super. 330, 690 A.2d 719, 722 (1997).” Grossman v. Barke, 868 A.2d 561, 566 (Pa. Super. 2005).

Negligence is the absence of ordinary care that a reasonably prudent person would exercise in the same or similar circumstances. The mere occurrence of an accident does not establish negligent conduct. Rather, the plaintiff has the burden of establishing, by a preponderance of the evidence, that the defendant engaged in conduct that deviated from the general standard of care expected under the circumstances, and that this deviation proximately caused actual harm.

Martin v. Evans, 711 A.2d 458,461 (Pa. 1998).

The existence of a duty of care owed by defendant to plaintiff is not at issue in this case, and it is undisputed that plaintiff sustained an injury. If it is determined that defendant breached his duty of care to plaintiff, causation would not be at issue, although comparative negligence might preclude defendant’s liability for damages. See 42 Pa.C.S.A. § 7102(a) (providing that when claimant’s comparative negligence exceeds negligence of tortfeasor, claimant is barred from recovery). Rather, the issue in this case is the sufficiency of plaintiffs’ evidence to establish that there is no genuine issue of material fact regarding whether defendant breached his duty of care to plaintiff. Thus, plaintiffs’ motion can only be granted if the facts to be determined from defendant’s deposition testimony are so clear that reasonable minds cannot differ in concluding that defendant deviated from the care a reasonably prudent person would exercise in the same circumstances and that defendant was, therefore, negligent. See Rauch v. Mike-May er, 783 A.2d 815, 821 (Pa. Super. 2011) (“[OJnly when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment”).

As noted above, the mere happening of an accident does not constitute negligence. As also noted above, even where the facts are undisputed, the court cannot grant summary judgment if those facts can support conflicting inferences. Finally, as the court has also noted, the record must be viewed in the light most favorable to defendant. Viewing defendant’s testimony in this regard, there are material issues of fact as to what inferences are to be drawn and what conclusions are to be reached from his statement that he “pushed a little bit too hard.” (Def.’s Dep. 22:6-7, Oct. 7, 2014.) In other words, reasonable minds can differ as to whether defendant acted in a manner which fell below the standard of care for the circumstances or whether this was merely the happening of an accident. Accordingly, plaintiffs are not entitled to partial summary judgment.


author: GRAY, J.,

text:
    Horn v. Richardson

      C.P. of Lycoming County,
    No. 14-02765
    April 23, 2015
   GRAY, J.,

OPINION and VERDICT

And now, this 23rd day of April, 2015, after a non-jury trial held on April 17, 2015, the court enters verdict in favor of plaintiffs and against defendant Brian Richardson.

Findings of Fact

1. A tract of land in Mifflin Township, Lycoming County, identified as Tax Parcel No. 31-346-127Z is deeded to the Estate of Ellery B. Horn and the Estate of Richard D. Horn by deed dated August 23,2011, recorded at Record Book 8100, Page 135. See Exhibit P-l.

2. Plaintiffs are the Estate of Ellery B. Horn and a beneficiary of the Estate of Ellery B. Horn.

3. Although Richard C. Horn died on August 9, 2004, the Estate of Richard D. Horn has not been opened, and does not have an executor or personal representative.

4. Plaintiffs are not in possession of the tract of land at issue.

5. Brian Richardson has lived on the tract of land since about 2008.

6. Mr. Richardson does not pay any funds to live there.

7. Mr. Richardson’s testimony was not credible.

8. Mr. Richardson did not provide any credible evidence that Mr. Richardson had permission from any owner of the tract for Mr. Richardson to live there.

9. Mr. Richardson did not produce or introduce into evidence any documents that purport to provide him with any interest in the tract of land.

10. Although Mr. Richardson did not produce or introduce any document at trial, he referenced a document, that he attached to his answer, that he believes purports to give him a lifetime lease agreement to the tract at issue.

11. Since that document was not introduced as evidence, the court finds that it cannot consider that document. Even if the document could be considered, the court finds it has an illegible signature above Mr. Richardson’s signature which is remarkably similar to Mr. Richardson’s and that it appears to be fraudulent.

12. The court finds that plaintiff’s exhibit labeled P-2 is the last will and testament of Mary E. Horn exactly as it appears in microfilm in the Register and Recorder office of Lycoming County.

13. Mr. Richardson’s testimony that he has a lifetime lease to the property without cost to him is not credible.

14. The court finds that Mr. Richardson did not have permission from Jonathan C. Horn, or any beneficiary of Richard C. Horn, to reside on the tract.

Conclusions of Law

1. Plaintiffs are out of possession of the tract of land at issue.

2. Defendant is in possession of the tract of land at issue.

3. Plaintiffs have a right to immediate possession of the tract of land at issue.

4. The last will and testament of Mary E. Horn devised her real estate, including the tract at issue, to her sons Ellery B. Horn and the estate of Richard D. Horn.

Discussion

“Ejectment is an action filed by a plaintiff who does not possess the land but has the right to possess it, against a defendant who has actual possession.” Wells Fargo Bank, N.A. v. Long, 2007 PA Super 254, 934 A.2d 76, 78 (Pa. Super. 2007), citing Soffer v. Beech, 487 Pa. 255, 266 (1979). “The purpose of an ejectment action as opposed to quiet title is not to determine the relative and respective rights of all potential title holders, but rather the immediate rights between plaintiff and defendant involved in that particular litigation.” Siskos v. Britz, 567 Pa. 689, 699,790 A.2d 1000, 1006 (2002). “[T]he right to possession is the central element of the action — not the claim of ouster.” Wells Fargo Bank, supra, citing, Dice v. Reese, 342 Pa. 379, 384-86, 21 A.2d 89, 92-93 (1941); Irwin v. Hoffman, 319 Pa. 8, 16-17, 179 A. 41, 45 (1935).

In the present case, it is undisputed that plaintiffs are not in possession and Mr. Richardson is in possession of the tract of land where Mr. Richardson has been living since about 2008. Plaintiffs have met their burden of establishing that — as cotenants of the tract — they are entitled to immediate possession. See, e.g. In re Estate of Quick, 588 Pa. 485 (Pa. 2006)(“A tenancy in common is an estate in which there is unity of possession but separate and distinct titles”)(emphasis added), citing, In re Sale of Property of Dalessio, 657 A.2d 1386, 1387 n.l (Pa. Cmwlth. 1995). Plaintiffs have also met the burden of establishing that Mr. Richardson has no right to possession of the property. Plaintiffs did not give permission to Mr. Richardson to possess the property, nor did plaintiffs consent to his possession as a cotenant.

In making this conclusion, the court rejects the contentions made by Mr. Richardson. First, Mr. Richardson contended that his grandmother, Mrs. Horn, provided in her true last will and testament that anyone who cared for his grandmother in her last days had a lifetime lease for the property. The court found that no such provision exists in Mrs. Horn’s will. There is a provision in the will that provides that the residuary estate be “divided equally among those of my children who care for me during my last days.” However, the residuary estate did not include the specific bequest of the real estate, which included the tract at issue. The real estate was bequeathed to her sons, Ellery B. Horn and Richard C. Horn.

The court also rejected Mr. Richardson’s second contention, which was that Jonathan Horn, son of Richard C. Horn, gave Mr. Richardson a lifetime lease for the property. The court found and concluded that Mr. Richardson did not have permission to possess the tract at issue. Johnathan Horn was not present at the proceedings and was not called to testify on Mr. Richardson’s behalf. The adverse inference is that Jonathon Horn’s testimony would not have supported Mr. Richardson’s contention and instead would have suggested that Jonathan Horn did not grant Mr. Richardson permission. There is no evidence that Jonathan Horn had authority to grant Mr. Richardson permission to reside at the property, even if he had done so. There was no evidence that Mr. Richardson paid any funds or provided any consideration for such a purported agreement. There was no evidence that Mr. Richardson reasonably and justifiably relied upon such a purported promise.

For the foregoing reasons, the court concludes that Mr. Richardson has no right to possess the property or to continue to reside there. Accordingly, the court enters the following order and verdict.

ORDER AND VERDICT

And now, this 23rd day of April, 2015, after a non-jury trial, it is ordered and directed as follows.

1. Verdict is entered in favor of plaintiffs and against defendant Brian Richardson.
2. Defendant Brian Richardson shall vacate the premises at 2378 State Route 287, Jersey Shore, Pennsylvania within the next thirty 30 days, i.e., on or before May 23,2015.
3. If defendant Brian Richardson does not vacate the property on or before May 20, 2015, the Sheriff is authorized to use such force as may be necessary to enter upon the property by the breaking in of any door or otherwise, and to eject Brian Richardson from the property.
4. Costs of this action are awarded to plaintiffs from the defendant.
5. This order and decree shall be enforced as needed by the Lycoming County Sheriff’s Department.

      . As Mr. Richardson contended that the P-2 was fraudulent, the court reviewed the microfilm of the official document in the register and recorder’s office.


text:
    Kahler v. Alpha Packaging

      C.P. of Northampton County,
    No. C-48-CV-2014-8229

      Donald P. Russo, for plaintiff.

      Jeffrey S. Stewart and John S. Buckley, III, for defendant.
    April 24, 2015
   BELTRAMI, J.,

Northampton

This matter is before the court on defendant’s motion for judgment on the pleadings, filed on January 14, 2015. Briefs have been filed, and oral argument was heard on February 24,2015. The matter is ready for disposition.

Plaintiff commenced this action on August 29, 2014, by filing a complaint which alleges the following undisputed facts. Plaintiff worked for defendant for approximately three years. (Compl. ¶ 3; Answer ¶ 3.) On June 2, 2014, plaintiff resigned from his position after providing defendant with notice of his resignation on May 19, 2014. (Compl. ¶¶5-6; Answer ¶¶5-6.) While plaintiff was employed with defendant, defendant maintained a vacation policy. (Compl. ¶ 8; Answer ¶ 8.) Paragraph eight of plaintiff’s complaint states that a copy of the policy is attached to the complaint as Exhibit “A,” but there is nothing attached to the complaint filed with the clerk of court. The policy is attached to the copy of the complaint attached to defendant’s motion for judgment on the pleadings. (Mot. for J. on the Pleadings Ex. A.)

According to the policy, “[djuring an employee’s second and future calendar years of employment, the employee will receive two (2) weeks of vacation (84 or 80 hours) on January 1st upon working a minimum of 1900 hours in the preceding year.” (Id. at 1.) The policy states that the “established vacation year is the calendar year, January 1 through December 31 each year” and that “[ejmployees may not carry unused vacation into the next calendar year[,]” meaning that any vacation time received on January 1 must be used by December 31 of that year. (Id. at 1-2.) As plaintiff was in his third year of employment at the time of his resignation, he was entitled to receive two weeks of vacation (84 or 80 hours) on January 1, 2014, to be used by December 31, 2014. (Id.) Plaintiff was compensated for eighty-four hours of vacation during 2014. (New matter ¶¶ 28-31; reply to new matter ¶¶ 28-31.)

In his complaint, which contains a single count pursuant to the Wage Payment and Collection Law, 43 P.S. §§ 260.1-260.45, plaintiff claims that he is entitled to unpaid vacation time. At oral argument, plaintiff clarified that he has not been paid for vacation time earned in 2014.

Defendant’s vacation policy states that employees “receive vacation time based [on] length of service and the number of hours worked in the preceding year.” (Mot. for J. on the Pleadings Ex. A at 1 (emphasis added)). The policy also states that “[e]mployees who resign and provide the company with two weeks’ notice will be paid for any earned and unused vacation for that calendar year.” (Id. at 2 (emphasis added)). By way of an illustrative hypothetical, defendant’s policy operates as follows.

If Employee works 1,900 hours in Year A, Employee earns vacation time, which does not become available for use by Employee until January 1, Year B. If Employee resigns during Year B and complies with the provision of the policy regarding resignation, Employee is entitled to compensation for any vacation hours which became available for use on January 1, Year B, that Employee has not yet used or been compensated for. Even assuming, for the sake of argument, that Employee worked sufficient (1,900) hours from January 1, Year B, to June 2, Year B, to earn additional vacation time, such vacation time would not become available to Employee until January 1, Year C. Thus, Employee would not be entitled to compensation for that vacation time if he resigned in Year B because employees who resign in a given year are only “paid for any earned and unused vacation for that calendar year.” (Id.)

Applying this hypothetical to plaintiff’s claim reveals that plaintiff has been compensated for all of the vacation time he was entitled to at the time of his resignation on June 2, 2014. Accordingly, no genuine issue of material fact remains, and defendant is entitled to judgment as a matter of law.

WHEREFORE, the court enters the following:

ORDER OF COURT

And now, this 24th day of April, 2015, the “motion of defendant, Alpha Packaging, for judgment on the pleadings,” filed on January 14, 2015, is hereby granted. Judgment is hereby entered in favor of defendant and against plaintiff on plaintiff’s complaint.

      . According to the court’s calculation, plaintiff could not have worked 1,900 hours from January 1, 2014, to June 2,2014, which is 153 days or approximately twenty-two weeks, requiring him to have worked approximately eighty-six hours per week.

      . In his brief, plaintiff argues that the pleadings provide some basis for finding that an implied-in-fact contract existed between plaintiff and defendant such that the parties had an arrangement regarding vacation compensation different in some respect from the standard arrangement spelled out in defendant’s policy. For this to be the case, the pleadings would have to show some conduct on the part of defendant indicating to plaintiff that he would be treated differently than the policy contemplates. Such facts are absent from the pleadings. Instead, when “plaintiff made a demand for his accrued but unpaid vacation time,” the authority on which he based his demand was the “company policy” itself, not any contrary representations of defendant. (Compl. ¶ 10; Answer ¶ 10.)


author: MCINERNEY, J.,

text:
    SVNE Pharma, Inc. v. N.E. Philadelphia Pharmacy, Inc.

      Daniel S. Bernheim, III, Matthew R. Skolnik and Felix S. Yelin, for plaintiff.

      Alan L. Frank, for defendants.
    April 24, 2015
   MCINERNEY, J.,

This action arises from plaintiff SVNE Pharma, Inc.’s (“SVNE”) purchase of a pharmacy from defendant Northeast Philadelphia Pharmacy Inc. (“NEPP”) and its owner defendant Inna Sandler (“Sandler”). SVNE, owned by Pumachandra Roa Akkineni and Ramaswamy Ram Gummadi, operates pharmacies in the greater Philadelphia area. Defendant Sandler is the former president and sole owner of NEPP, a pharmacy which filled prescription medications and sold over-the-counter drugs and other front-of-house merchandise. NEPP issued coupons to its customers. The coupons were issued in several forms through the course of NEPP ⅛ ownership history and were redeemed by NEPP’s customers at designated local establishments. The cashiers at each of the local establishments knew the coupon’s value was $1.00. After collecting the coupons from customers, local merchants would then present the coupons to NEPP for their redemption.

In January or February 2011, Howard Brooker, a representative of SVNE met with Sandler, to discuss the sale of NEPP to SVNE. Brooker visited the pharmacy on at least three occasions, once during regular business hours. On each occasion, Brooker was given a tour of the pharmacy as well as explanations as to how the business was conducted.

On September 1, 2011, NEPP and SVNE executed an asset purchase agreement in which NEPP transferred its assets to SVNE for $2,000,000. This sale price was based on the stated revenues of the pharmacy. Included in the asset purchase agreement were warrants and representations issued by NEPP to SVNE. Particularly, § 3.14 of the asset purchase agreement, “compliance with law”, provides as follows:

“Seller [NEPP] complied in all material respects with all state and federal laws pertaining to the business and operation of the pharmacy. Sellers have complied with all third provider contracts and agreements. Sellers have complied in all material aspects with all existing laws, rules, regulations, ordinances, orders, judgments and decrees now or hereafter applicable to the assets, or the sale or transfer of the assets, including without limitation the transfer of controlled substances.”

Additionally, the asset purchase agreement confirms that the representations and warranties made by NEPP are true and not misleading in any material respect and assures the buyer that neither the agreement or any exhibit “omits to state a material fact necessary in order to make the statements herein or therein, in light of the circumstances under which they were made, not materially misleading.”

On September 16, 2011, SVNE took over the operations of the pharmacy with Brooker serving as pharmacist and manager. On September 19, 2011, Brooker began maintaining a coupon log to keep track of the reimbursement checks issued to the local businesses for the redeemed coupons. The coupon log contains forty entries from September 19, 2011 through and including February 2, 2012. At some point, SVNE began to question the legality of the coupon program. SVNE never received a legal opinion regarding the legality of the coupon program. SVNE did discuss its concerns about the coupon program with Sandler who informed SVNE that terminating the program would be disastrous. Additionally, SVNE alleges to have discovered during its operations that NEPP routinely waived customer co-pays for their prescriptions and issued a dollar coupon for each prescription filled by said customers. SVNE stopped reimbursing the local merchants for the redemption of NEPP coupons by March 5, 2012. Defendant Sandler offered to purchase the pharmacy from SVNE on two occasions, offering $700,000 and $500,000 respectively. SVNE refused. As a result of the cessation of the programs, SVNE alleges the average weekly prescriptions decreased from more than 3,500 per week prior to February 18,2012 to less than 1, 500 per week after March 17, 2012. SVNE also alleges that the $10 million in gross revenue upon which the $2 million purchase price was based dwindled to $4.25 million in 2012 as the number of prescriptions declined from 123, 185 per year to 38,737 per year.

On August 23,2013, SVNE instituted the instant action for fraud (Count I), equitable fraud/rescission (Count II) and breach of contract (Count III). Defendants filed their first amended answer and new matter on June 4, 2014. Presently before the court is SVNE’s partial motion for summary judgment to Count I (breach of contract) and defendants’ motion for summary judgment to all of plaintiff’s claims alleged in the complaint.

DISCUSSION

I. The fraud claim is barred by the gist of the action doctrine.

In Count I of the complaint, SVNE purports to state a claim for fraudulent inducement. Specifically, SVNE alleges that defendants failed to disclose the illegal coupon program and illegal billing procedures it employed while it owned and operated the pharmacy and prior to the sale of the pharmacy. For the reasons discussed below, SVNE’s fraud claim is barred by the gist of the action doctrine.

The Pennsylvania Supreme Court recently decided Bruno v. Erie Insurance Co., in which, for the first time, it opined on the standard to be used in applying the gist of the action doctrine. The Supreme Court found the duty-based demarcation first recognized by our courts over a century and a half ago to be sound and reaffirmed its applicability as the touchstone standard for ascertaining the true gist or gravamen of a claim by a plaintiff in a civil complaint. In this regard, Bruno reaffirms that the substance of the claim is of paramount importance, and, thus, the mere labeling by the plaintiff of a claim as being in tort is not controlling. For instance, if the facts of a particular claim establish that the duty breached is one created by the contract terms, such as a specific promise to do something that a party would not ordinarily have been obligated to do but for the existence of the contract, then the claim is to be viewed as one for breach of contract. If, however, the facts establish that the claim involves the defendant’s violation of a broader social duty owed to all individuals, imposed by the law of torts and exists regardless of the contract, then it must be regarded as a tort.

Applying the forgoing to the facts at hand, it is clear SVNE’s fraud claim is not collateral to the asset purchase agreement. Defendants’ duties to disclose the coupon program and the billing procedures derive from the contract between SVNE and defendants. The asset purchase agreement required NEPP to make representations and warranties concerning the lawfulness and propriety of the operation of the pharmacy and confirmed and represented that defendants complied with all applicable state and federal laws. As alleged by SVNE, defendants breached this warranty provision by failing to disclose the coupon program and the procedures. The duty to make such disclosure arises solely from the asset purchase agreement; hence the gist of the action is contract, not fraud. As such, the claim for fraud is barred by the gist of the action doctrine and Count I is dismissed.

II. Plaintiff’s equitable fraud/rescission claim is dismissed since plaintiff failed to act promptly in seeking rescission.

Count II of SVNE’s complaint purports to state a claim for equitable fraud/rescission. SVNE alleges defendants’ failure to disclose the coupon program and billing procedures that artificially inflated NEPP’s revenues and profits “constitutes an equitable fraud that renders the agreement a voidable contract, upon which SVNE is entitled to seek the remedy of rescission.” Defendants argue that they are entitled to summary judgment on the equitable fraud/rescission claim because SVNE waived any claim for equitable rescission by failing to act promptly. Prompt action is a prerequisite to the remedy of rescission. The Pennsylvania Supreme Court explained as follows:

When a party discovers facts which warrant rescission of his contract, it is his duty to act promptly, and, in case he elects to rescind, to notify the other party without delay, or within a reasonable time. If possible, the rescission should be made while the parties can still be restored to their original positions. Failure to rescind within a reasonable time is evidence, and may be conclusive evidence, of an election to affirm the contract.

In the case sub judice, SVNE failed to promptly seek rescission. SVNE assumed the operation of the pharmacy on September 16, 2011. Although the issue of when SVNE became aware of the coupon program and billing procedures is disputed, it is clear from the record that SVNE knew the coupon program existed soon after the closing when it created a coupon log to keep track of reimbursement checks. Based on the forgoing, one could infer that SVNE became aware of the coupon program, eighteen days after the closing and three days after it assumed operation of the pharmacy. SVNE questioned Sandler about the program, continued to use the program even though it allegedly questioned the illegality of same and subsequently terminated the program on March 2012. At no time from September 19,2011, the date the first entry in the coupon log was made, and March 2012, the date the program was terminated, was rescission requested by SVNE. On August 2013, upon the filing of the complaint, SVNE made its first request for rescission, approximately two years from the date it first discovered the existence of the program. Based on the forgoing, the court finds there is no record evidence that SVNE acted promptly in seeking rescission. As such defendants’ motion for summary judgment is granted as to Count II.

III. The breach of contract claim fails since plaintiff failed to establish a breach.

Defendants additionally move for summary judgment as to the breach of contract count. To sustain a claim for breach of contract, a plaintiff must prove: (1) the existence of a contract, including its essential terms; (2) a breach of a duty imposed by the contract; and (3) resultant damages. The plaintiff must show a causal connection between the breach and the claimed loss. A party is entitled to recover damages it suffered, provided the damages were such that would naturally and ordinarily result from the breach. SVNE’s claim for breach of contract fails since there is no evidence of a breach.

The basis of SVNE’s breach of contract claim is that the coupon program and billing procedures were illegal and therefore the representations and warranties made by NEPP in the asset purchase agreement regarding “full compliance of all applicable law and regulations” were breached. SVNE terminated the programs and suffered revenue and prescription losses. SVNE attributes the decline in pharmacy revenue to the cessation of the illegal programs. Although the cessation of the programs appears to have caused the decline in pharmacy revenue, there is no evidence that the programs were illegal at the time SVNE ceased offering same or that the programs illegality caused the decline in the pharmacy revenues. Since there is no evidence of illegality, a breach of the asset purchase agreement representation and warranties provision has not occurred. The undisputed facts of record demonstrate that the cause for SVNE’s revenue loss was SVNE’s own business decision to voluntarily terminate the coupon program and change the pharmacies programs without a determination of illegality. Since no determination of illegality exists at this time, there can be no breach of contract and no resultant losses. Based on the foregoing, the claim for breach of contract is dismissed.

CONCLUSION

Based on the forgoing, plaintiff’s partial motion for summary judgment is denied and defendants’ motion for summary judgment is granted. Plaintiff’s complaint is dismissed in its entirety.

ORDER

And now, this 24th day of April, 2015, upon consideration of plaintiff’s partial motion for summary judgment, defendants’ motion for summary judgment, the respective responses in opposition and after oral argument, it hereby is ordered as follows:

1. Plaintiff’s partial motion for summary judgment is denied.

2. Defendants’ motion for summary judgment is granted and plaintiff’s complaint is dismissed in its entirety.

      . A disputed question of fact exists as to whether Sandler discussed and disclosed the coupon program and collection of co-pays to Brooker prior to the sale of the pharmacy. Resolution of this dispute is not necessary for purposes of deciding said motions. The court views the facts in the light most favorable to SVNE and therefore assumes for purposes of these motions that defendants failed to disclose the existence of the coupon program and collection of co pay procedures.

      . Defendants’ response to plaintiffs motion for summary judgment-Exhibit “L” — asset purchase agreement.

      . Defendants’ response to plaintiffs motion for summary judgment-Exhibit “I”- coupon log.

      . No opinion regarding the coupon program’s legality exists. The legality of the program is currently under investigation with the office of inspector general. See plaintiff’s reply in further support of motion for summary judgment -Exhibit “4”-Office of inspector general letter dated January 7, 2015.

      . Hereinafter referred to as “billing procedures”.

      . Plaintiff’s response to defendants’ motion for summary judgment -Exhibit “4”- proposed repurchase letter of intent.

      . 106 A.3d48 (Pa. 2014).

      . Bruno, 106 A.3d at 68.

        . Id.

      . Schwartz v. Rockey, 593 Pa. 536, 932 A.2d 885, 894 (Pa. 2007) (citing Fichera v. Gording, 424 Pa. 404, 227 A.2d 642, 643-44 (Pa. 1967)).

        . Fichera v. Gording, 424 Pa. 404, 227 A.2d 642, 643-44 (Pa. 1967).

      . SVNE appears to rely upon Sandler’s offers to repurchase the pharmacy as evidence of rescission. However, Sandler’s offers to repurchase the pharmacy do not constitute a request for rescission but rather is a request to repurchase, albeit at a discounted price.

      . CoreStates Bank, Nat'l Assn. v. Cutillo, 723 A.2d 1053 (Pa. Super. 1999).

      . Exton Drive-In, Inc. v. Home Indemnity Co., 436 Pa. 480, 261 A.2d 319 (1969); Logan v. Mirror Printing Co. of Altoona, Pa., 410 Pa. Super. 446, 600 A.2d 225 (1991).

      . Ferrer v. Trustees of Univ. of Pa., 573 Pa. 310, 825 A.2d 591 (2002).

      . SVNE’s partial motion for summary judgment on the breach of contract claim is not based upon disclosure of the programs but is based on “the fact that the program is unlawful and the representations and warranties in the contract were false.” See SVNE’s partial motion for summary judgment pg. 9 in 9. See also §3.14.

      . The question of attorney fees and punitive damages are moot.