author: MINORA, J.,

text:
    Lords Capouse Properties, LLC v. D&D Realty Group.

      Brett L. Messinger & Arthur Armstrong, for plaintiff.

      E.A. Dixon Jr. & Kathryn A. Macmillan, for defendant.
    August 2, 2012
   MINORA, J.,

Presently before the court are the preliminary objections of defendants Steppacher Law Offices, LLC d/b/a Reliable Abstract Company and Steppacher Enterprises, LLC d/b/a Reliable Abstract Company to plaintiff’s complaint. The parties agreed to submit this matter on briefs, therefore, this matter is ripe for disposition.

FACTUAL BACKGROUND

Plaintiffs filed this action to quiet title in reference to a property located at 1626-1628 Vine Street in the City of Scranton. According to plaintiff’s complaint, Lords Capouse Properties, LLC (hereafter, “Lords Capouse) was established on June 24,2008, with Casey Donahue serving as its sole member. On or about July 22,2008, Ms. Donahue allegedly executed a “certificate of amendment-domestic” which was filed with the Pennsylvania Department of State and naming Jason Walsh as the new sole member of Lords Capouse. Notification of the acceptance of this amendment was issued by the department of state on September 29, 2008. Thereafter, on September 1,2010, Mr. Walsh filed a “certificate of amendment-domestic” with the department of state which indicated that Christopher Wolfington was now the sole member of Lords Capouse. It is notable that, unlike the “certificate of amendment-domestic” filed in the Donahue-Walsh transfer, there is no indication of the filing date with the state on the document itself, nor is there any documentation confirming the filing of this document or its acceptance by the Pennsylvania Department of State. See plaintiff’s second amended complaint at exhibits “B”, “C”, and “E”. Throughout the changes in membership of Lords Capouse, it maintained ownership of the Vine Street property.

On September 17, 2010 plaintiff alleges that Ms. Donahue executed and delivered to defendant, D&D Realty, a deed transferring fee simple title to the Vine Street property from Lords Capouse to D&D Realty. Plaintiff alleges that Ms. Donahue did not have authority, right, or ability to execute the deed and that said execution was done without the consent, knowledge, or authorization of Mr. Walsh, Mr. Wolfington, or Lords Capouse. Due to Ms. Donahue’s lack of authority, Plaintiff asserts that the deed is null, void, without effect and should be stricken from the records maintained by the Lackawanna County recorder of deeds. Further, plaintiff maintains that title in the property should be vested in Lords Capouse.

In addition to the action to quiet title, plaintiff’s complaint also contains a count for interference with prospective contract against D&D Realty. Plaintiff contends that D&D’s refusal to acknowledge the invalidity of the deed transfer has prevented plaintiff from entering into rental agreements with prospective tenants. Plaintiff further alleges in count III of the complaint that defendant D&D has committed conversion against plaintiff by wrongfully depriving it of the property itself, the right to use the property, and the right to receive rental payments D&D has collected for the subject property. Finally, plaintiff avers that Reliable Abstract Company, the closing agent of D&D Realty, failed to properly investigate whether the deed for sale of 1626-1628 Vine Street was executed by an individual with proper authority and failed to search the public records or take proper action as is required by common practice of a title insurance agency.

PROCEDURAL BACKGROUND

Plaintiff initiated this action by filing a complaint, originally solely against D&D Realty, on March 23,2011. defendant D&D Realty filed preliminary objections to this complaint on May 4, 2011. Plaintiff then filed an amended complaint on May 24, 2011. Defendant D&D relaty renewed its preliminary objections to the amended complaint on June 15, 2011. By order dated August 23, 2011, this court denied defendant D&D Realty’s preliminary objections, and D&D Realty filed an answer and new matter to plaintiff’s amended complaint on September 15, 2011. Plaintiff filed a reply to defendant’s new matter on October 4, 2011.

On January 27, 2012, counsel for plaintiff and D&D Realty entered into a stipulation whereby they agreed to allow plaintiff to file a second amended complaint. Plaintiff filed this complaint, which added Steppacher Law Offices LLC d/b/a Reliable Abstract Company and Steppacher Enterprises, LLC, d/b/a Reliable Abstract Company as defendants, on February 8, 2012.

On February 27, 2012, defendants Steppacher Law Offices LLC d/b/a Reliable Abstract Company and Steppacher Enterprises, LLC, d/b/a Reliable Abstract Company (hereafter, “Reliable Abstract”) filed preliminary objections to count IV of plaintiff’s complaint. Plaintiff filed an answer to defendant Reliable Abstract’s preliminary objections on March 15, 2012. Defendant Reliable Abstract and plaintiff filed briefs in support of their positions on April 20, 2012 and May 17, 2012, respectively.

LEGAL ARGUMENTS OF THE PARTIES

Reliable Abstract contends that it is entitled to the granting of preliminary objections on two grounds. First, defendant alleges that, under Pa. R.C.P. 1028(2)(3) and 1028(3), a more specific pleading is required in reference to ¶¶32 and 33 for defendant to ascertain what “duty to investigate” defendant had in this situation, alleging that there is a total absence of duty of a title agent to a third party. Defendant Reliable Abstract further avers that plaintiff’s complaint also fails to state with sufficient specificity what public records of the Pennsylvania Department of State defendant allegedly should have sought prior to the transfer. Finally, as to these paragraphs, defendant alleges that the plaintiff does not describe “what other and further action” was required.

In reference to ¶¶34 and 35, defendant alleges that more specificity is required to establish plaintiff’s standing, both in reference to how Reliable Abstract knew or should have known that Ms. Donohue did not have authority and as to how Mr. Wolfington can establish standing, since the events in question may have occurred before Mr. Wolfington became plaintiff’s sole member. Lastly, defendant alleges that further specificity is required to explain what events were foreseeable and therefore required defendant to recognize the potential harm to plaintiff.

Reliable Abstract also presented preliminary objections in the nature of demurrer to plaintiff’s complaint, alleging that plaintiff lacks standing, because no duty is owed by a title agent to a third party seller, and that defendant should be dismissed from the complaint as a matter of undisputed fact and judicial notice.

Plaintiff argues that defendant Reliable Abstract’s objections are without merit. First, plaintiff avers that more specificity is not required, since defendant is clearly able to ascertain the allegations made against it in order to create a viable defense, as is required under the rule. Second, plaintiff argues that Reliable Abstract’s reliance on Hicks v. Saboe, 521 Pa. 380, 555 A.2d 1241 (1989) for the assertion that a title insurance company does not owe a duty to a third party is misplaced. Rather, plaintiff contends that Reliable Abstract was acting not as a title insurance company, but rather as a title agent, a distinction which imposes additional duties on defendant to investigate the authority of the individual who signs the deed of transfer.

LEGAL STANDARD

Preliminary objections are governed by Pa. R.C.P. 1028, which states, in pertinent part:

Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:
(2) failure of a pleading to conform to law or rule of court...
(3) insufficient specificity in a pleading;
(4) Legal insufficiency of a pleading (demurrer);

The court in Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011) stated the standard for preliminary objections when it stated:

When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deductible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. Haun v. Community Systems, Inc., 14 A.3d 120, 123 (Pa. Super. 2011).

In analyzing a pleading under rule 1028(a)(3), the court must determine ‘’’whether the complaint is sufficiently clear to enable the defendant to prepare his defense.’” or ‘’’whether the plaintiff’s complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense.’” Rambo v. Greene, 906 A.2d 1232, 1236 (Pa.Super.2006), quoting Ammulung v. City of Chester, 302 A.2d 491, 498 n.36 (Pa. Super. 1973) (internal citations omitted).

Further, preliminary objections in the nature of a demurrer require the court to resolve the issues by only reviewing the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer. Jones v. Nationwide Property and Cas. Ins. Co., 955 A.2d 1233, 1237 (Pa. Super. 2010). Any doubt as to the legal sufficiency of the complaint should be resolved in favor of overruling the demurrer. Ira G. Steffy & Son, Inc., v. Citizens Bank of PA, 7 A.3d 278, 283 (Pa. Super. 2010).

LEGAL ANALYSIS

Defendant Reliable Abstract’s main argument under demurrer rests upon the legal conclusions stated by the court in Saboe v. Hicks, supra at 5. In that case, plaintiff appellee’s former common law husband, Nicholas Krupa, forged her signature on a deed which conveyed their familial residence, at that time still held under a tenancy by the entireties, to himself as sole owner. Id. at 1243. He subsequently sold the property to the Saboes. Id. After discovering this unauthorized conveyance, Hicks sued the Saboes, seeking rescission of the sale and reconveyance of the property. Id. Industrial Valley Title Company was later added as an additional defendant to the case. Id.

In determining whether Industrial Valley Title Company’s actions in issuing title insurance to the Saboes, not knowing of a divorce between Hicks and Krupa and accepting Krupa’s affidavit of “no marriage” to remove its preliminary objection to the title report, constituted negligence, the court stated that:

In general, the duty of a title insurance company runs only to its insured, not to third parties who are not a party to the contract....Assuming arguendo that such actions by IVT constituted negligence, it is not clear that IVT owed a duty to Mrs. Hicks. IVT’s duties in regard to the 1977 sale of the residence stem solely from its contract with the Saboes. Whether its role in the transaction is characterized as that of an insurer, an abstractor, or a conveyancer, its duties nevertheless arise from its contract with the Saboes.

Id. at 1243,

The court continued to note that the only way Hicks would be able to establish a duty between herself and the title company would be to show that she was an intended beneficiary under the contract. Id. According to the court in Guy v. Liederbach, 459 A.2d 744, 751 (Pa. 1983), an individual may qualify as a third-party beneficiary to a contract if (1) “recognition of a right to performance is appropriate to effectuate the intention of the parties” and (2) “performance will satisfy an obligation of the promissee to pay money to the beneficiary” or “the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.” The Saboe court determined that since there was no indication that the Saboes in any way intended to benefit Mrs. Hicks, there was no basis under PA law through which Mrs. Hicks could obtain relief from the title insurance company, since Mrs. Hicks could not show privity between herself and the title insurance company. Saboe, 555 A.2d at 1244.

Plaintiff’s situation in this case is quite similar to that of Mrs. Hicks in Saboe. There is no indication that D&D Realty, in their contracting with Reliable Abstract for a policy of title insurance, had any intention to benefit Lords Capouse properties in the policy. Further, there is no foreseeable way that plaintiff can show any privity between itself and D&D Realty in order to obtain the status of a third party beneficiary to the contract.

Plaintiff argues that Reliable Abstract was acting as a title agent rather than a title insurance company, and therefore the rationale of Hicks is inapplicable to this case. However, plaintiff’s brief is completely devoid of legal authority to support this aversion. In fact, there is little legal authority discussing any distinction between a title agent and a title insurance company. It appears to be a distinction without a difference. The only case on point, Himmlreich v. Adams Abstract Associates, 59 Pa. D. & C. 4th 382, 390 (Adams Cnty. C.C.P. 2002), also notes that, despite the delegated duties of a title insurance agent under 40 P.S. §910-24, “research fails to reveal any Pennsylvania statutory or case law providing further guidance with regard to the duties of a title insurance agent during closings.” The court dismisses the argument by noting that plaintiff’s failure to identify an expert or expert report that arguably demonstrates the obligation of additional duties further supports the conclusion that plaintiff’s argument lacks foundation. Id. Our pleading is also devoid of such specifics.

For these reasons, defendants Steppacher Law Offices, LLC d/b/a Reliable Abstract Company and Steppacher Enterprises, LLC d/b/a Reliable Abstract Company’s preliminary objection in the nature of demurrer must be granted.

The granting of this demurrer eliminates plaintiff’s cause of action against the moving defendants. Therefore, the need to address the motions for a more specific pleading is rendered moot.

An appropriate order is attached hereto.

ORDER

And now, August 2, 2012, it is hereby ordered that the preliminary objection in the nature of demurrer of defendants Steppacher Law Offices, LLC d/b/a Reliable Abstract Company and Steppacher Enterprises, LLC d/b/a Reliable Abstract Company to plaintiff’s complaint is hereby granted. Therefore, the need to address the motions for a more specific pleading is rendered moot.


source: Caselaw Access Project

author: BURR, J.,

license: Public Domain

text:
    Barr v. Public Storage.

      Brian Barr, Pro Se.

      Meaghann C. Porth, for defendant.
    August 8, 2012
   BURR, J.,

The plaintiff, Bryant Barr, has appealed from this court’s order granting the defendant’s, public storage, motion for summary judgment and dismissing, on grounds of untimeliness and with prejudice, the plaintiff’s complaint in this action seeking damages for breach of a self-storage rental agreement that allegedly caused water damage to the plaintiff’s personal property.

The plaintiff contended in the complaint filed with this court on January 5, 2011, pursuant to the defendant’s appeal from the decision entered in the plaintiff’s favor by the magisterial district judge who first heard the case, that unnamed owners of the defendant, public storage, located at 6330 Market Street, Upper Darby, PA, where plaintiff had stored his belongings in unit C-947, “refused to take responsibility” and should be held liable for $7,163.50 in damages and “cost” caused by flooding from a sprinkler system. (Id., Paragraphs 4-7). Appended to the complaint is a statement from the plaintiff averring the following:

“On the 24th day of December 2005,1 enter [sic] my storage unit C-947 and all my belongings were wet. I notified the main office of my findings. I was informed that the sprinkler system froze and the pipes burst. I was told to write a list of everything that was damaged or destroyed. The list consisted of a table saw, miter saw, sawzall, king size bedroom set and an oak compact disk rack. The total damages were $7,163.50 including filing cost.” (Id.).

The television and television stand that had been pleaded in justification of $628.98 subsumed within the putative “$7,000” loss asserted on the face of the magisterial district court complaint had vanished. The defendant, nevertheless, replied in its answer with new matter to the complaint that the non-party, “PS Illinois trust”, owns the storage facility and not the unknown “persons” that the plaintiff had contended. (Id., paragraph 2). The defendant listed defenses in new matter that included untimeliness pursuant to the applicable statutes of limitations, the failure to j oin necessary and proper parties, as well as the plaintiff’s intentional or negligent spoliation of the evidence said to support his damages claim, (Id., paragraphs 2, 7 and 9).

Appended as “exhibit A” to the defendant’s answer and new matter were the parties’ “rental agreement” executed on July 3, 2005, an “occupant information sheet”, and a “self-purchase addendum to lease/rental agreement” executed by the plaintiff on that same date that permitted the defendant to forward an eight dollar premium from each of the plaintiff’s regular rental payments to an insurer identified as “Arthur J. Gallagher & Co., P.O. Box 62430, Los Angeles, CA 90074-2430 Or by calling (677) 878-6730 ask for storage insurance program” for coverage in the amount of $2,000.00 (Id.). Prominent next to the line on which the plaintiff’s signature appears on this form is a boxed notice stating that “manager of this facility is not an insurance agent. Please do not address questions regarding the insurance to them. Call (677) 873-6730.” (Id.).

Plaintiff’s response to the defendant’s answer with new matter listed averments that he had filed a claim with Willis insurance services of California on December 24, 2005 when the alleged loss had occurred but that the claim was never settled and was sold to Hertz claim management with whom “an agreement could not be settled.” (Id, paragraph l). Plaintiff additionally alleged that he had provided “pictures and proof of purchase to both insurance companies” of the loss caused by the defendant’s neglect. (Id, paragraphs 3-5). Plaintiff stated that the statute of limitations on his complaint for damages had been waived by the magisterial district judge who had heard the case. (Id., paragraph 2). Regarding the certificate of insurance from the carrier, plaintiff stated that water damage to his goods had been covered, and that he had routinely paid the eight dollar per month premium on the policy with his remittance of rent for the storage unit to the defendant. (Id, paragraphs 6-8).

The plaintiff further claimed that the defendant owner “didn’t act in good faith, which cause [sic] the loss and/or damages to the personal belongings of the plaintiff.” (Id., paragraph 9). Appended as “exhibit A” to the plaintiff’s response to the defendant’s answer with new matter was a copy of the decision from the magisterial district judge, dated November 24, 2010, awarding the plaintiff $7,000.00 in damages and $163.50 in costs incurred in filing the complaint.

On May 18, 2011, the defendant filed a motion for judgment on the pleadings in which it claimed that the plaintiff’s commencement of this action on October 20, 2010 with the filing of a complaint with the Delaware County Magisterial District Court alleging damages that purportedly had occurred on December 24, 2005 clearly exceeded the four year statute of limitations for breach of contract pursuant to 42 Pa.C.S.A. § 5525. (Id., pp. 1-3). The defendant added that the plaintiff’s contentions of the defendant’s negligence being the cause of his losses clearly exceeded the applicable two year statute of limitations, 42 Pa.C.S.A. § 5524, an issue that is largely undisputed in the record. (Memorandum of law in support of the defendant’s motion for judgment on the pleadings, p. 5, fn. 1). The defendant further asserted that the plaintiff’s claims of a failure of settlement with the insurer were irrelevant to the suit against the defendant storage company. (Id, 5). The defendant alleged that plaintiff’s assumption that the magisterial district judge had “waived” the statute of limitations for breach of contract is unfounded in the record, and that the decision was the basis for the instant appeal, nonetheless. (Id., pp. 6).

The plaintiff contended in his response to the defendant’s motion for judgment on the pleadings that his having “dealt with two insurance companies when the claim was set forth...causes the claim to exceed the four year statute of limitations.” (Id., Paragraph 3). In answer to the defendant’s contention that his complaint was filed out of time, the plaintiff replied:

“Denied. Plaintiff received , the run around from two different insurances [sic] when he tried to collect on damages. The first insurance company Willis insurance services of California, Inc[.] received all the evidence from the claim and never awarded the plaintiff for his damages. Plaintiff made countless phone calls only to talk to a recording. No one ever returned plaintiff’s calls. Three years later, plaintiff’s claim was sold to Hertz claim management. Hertz claim management informed plaintiff that they had no record of his claim and plaintiff had to prove that he was currently renting a storage unit at public storage. All of evidence was lost and it took plaintiff some time to gather all the information and documents. Plaintiff submitted a new claim but no agreement could be reached.” (Id., paragraph 15).

Here again, the plaintiff neglected to mention that the purported “impasse” between himself and Hertz claim management had been reached in March of 2009, or nine months before the four year statute of limitations on his breach of contract claim had expired on December 24, 2009. Nevertheless, apparently having concluded that the plaintiff’s complaint was well-pleaded on its face and could not be dismissed as a matter of law on grounds that no recovery was possible, the honorable James F. Proud of this court denied the defendant’s motion for judgment on the pleadings.

A month prior to the December 5, 2011 compulsory arbitration hearing that had been scheduled for this case, the defendant filed an emergency motion to compel the plaintiff’s deposition and answers to Interrogatories and requests for production of documents. The plaintiff averred: “admit” in response to a statement in that motion that the plaintiff had submitted evidence only in the form of a list of his allegedly damaged possessions at the proceeding conducted by the magisterial district justice on November 23, 2010. (Defendant’s emergency motion to compel plaintiff’s deposition and responses to interrogatories and request for production of documents, paragraph 1). The plaintiff appended, as unmarked exhibits to his response to the said emergency motion, responses to the defendant’s several discovery inquiries, including the following that are considered germane to resolution of his issues on appeal:

Plaintiff’s responses to certain of the defendant’s requests for admissions:
“6. You initialed, acknowledging that you understood and agreed to the provisions of, paragraph 4 of the rental agreement titled ‘limitation of owner’s liability/ occupant’s liability.’ Plaintiff’s answer: ‘Admit.’
7. You initialed, acknowledging that you understood and agreed to the provisions of, paragraph 5 of the rental agreement titled: ‘insurance. All personal property is stored by occupant at occupant’s own risk. Insurance is occupant’s sole responsibility. Occupant understands that owner will not insure occupant’s personal property.’ Plaintiff’s answer: ‘admit. Plaintiff submitted a property damage claim to the insurance company recommended by public storage.’
16. You possess no photographs of the alleged damage to the stored items or property related to the alleged flooding incident. Plaintiff’s answer: ‘admit.’
17. You no longer possess any of the items or property which you allege were damaged as a result of the flooding incident. Plaintiff’s answer: ‘admit. All the documents were sent to both insurance companies.’” (Plaintiff’s answers to defendant’s request for admissions appended as an unmarked exhibit to plaintiff’s response to the defendant’s emergency motion to compel the plaintiff’s deposition, responses to interrogatories and request for production of documents, pp. 1-4).
Plaintiff’s responses to certain of the defendant’s first set of interrogatories:
“11. Identify any and all communications(s) you had with an agent, employee or any other representative of your insurance carrier(s) regarding the alleged flooding incident, and as to each communication state the date and time on which it was made, the person to whom it was made or the persons whom it was between, the manner in which it was made ([i.e.], in person, orally, in writing, etc.), and your alleged actions in response to the communications. Plaintiff’s answer: ‘without knowledge.’
12. Identify and explain the ‘valuable information that will prove without a reasonable doubt that [you] were wronged’.... Plaintiff’s answer: ‘The information was introduced in the response to the summary judgment.’
15. Identify all documents and state all facts supporting your contention that the amount of damage to and/or loss of the items identified in response to interrogatoiy no. 11 as a result of the alleged flooding incident was $7,163.50. Plaintiff’s answer: ‘The plaintiff provided copies of receipts to the [djefendant showing proof of purchase.’
17. Do you still possess any or all of the items identified in response to interrogatory no. 11? Plaintiff’s answer: “No. The plaintiff doesn’t possess any of the items. The plaintiff does not remember when he discarded the items. The [pjlaintiff put the damaged items in the trash.’” (Plaintiff’s answers to defendant’s first set of interrogatories appended as an unmarked exhibit to plaintiff’s response to the defendant’s emergency motion to compel the plaintiff’s deposition, responses to interrogatories and request for production of documents, pp. 2-4).
Plaintiff’s responses to the defendant’s request for production of documents:

Despite the defendant’s listing of 24 discrete requests to the plaintiff to provide documentary and photographic proof of his alleged losses with which the plaintiff expected to establish his claims against the defendant, as well as reports from potential experts, the plaintiff provided only the following in answer thereto. The latter two columns in the segment just below presumably reflect the date and place of purchase of the allegedly damaged items, absent invoices and other proofs of plaintiff’s recollection of their purchase price being appended as exhibits in support thereof:

De wait table saw $529.99 06/10/04 sears
De wait miter saw $651.48 04/09/04 hóme depot
De wait sawzall $199.00 home depot
Sony 27” Wega TV $473.99 10/30/02 best buy
Bedroom set (King) $3323.06 06/02/2002
Strawbridge’s
TV stand $154.99
CD rack $175.60
On November 23, 2011, at 12:28 the plaintiff and a third party witness spoke to Meghan C. Hayes, esquire, counsel of record for (public storage) the [djefendant. Meghan C. Hayes was given permission by public storage to offer a settlement in the amount of $1,500.00. The [djefendant offered far less than 80 percent of what the court has already awarded the plaintiff.” (Id.).

The plaintiff provided, as an unmarked exhibit in apparent support for these latter remarks, the notice of the award to him by the panel of arbitrators in the amount of $5,158.23. (Plaintiff’s answers to defendant’s first set of requests for production of documents and things appended as an unmarked exhibit to plaintiff’s response to the defendant’s emergency motion to compel the plaintiff’s deposition, responses to interrogatories and request for production of documents, pp. 1-2).

Additional unmarked exhibits appended by the plaintiff to his response to the defendant’s emergency discovery motion were (1) a copy of the “proof of loss form” noticing Hertz claim management’s offer to settle his claim for $736.80 in compensation for his alleged losses that is unsigned by the plaintiff; (2) certificates of storage insurance issued by New Hampshire Insurance Company, Willis Insurance Services of California, Inc., and Arthur J. Gallagher & Co.; (3) a letter from public storage dated January 18, 2008, introducing Willis Insurance Services of California as the new program administrator for plaintiff’s storage insurance program; and (4) a letter from Willis Insurance Services of California, Inc. dated December 1, 2008, announcing its new partnership with New Hampshire Insurance Company and stating that plaintiff’s policy limit of $2,000 and monthly premium of $8.00 remained unchanged. (Id).

Following this court’s initial dismissal of the defendant’s motion for summary judgment on grounds of mootness based upon the understanding that the parties had settled the case, the defendant refiled the motion when the plaintiff refused its offer of $1,500.00. The defendant contended that summary judgment was warranted in its favor because: (1) the plaintiff’s breach of contract claim is barred by the untolled, four year statute of limitations set forth in 42 Pa.C.S.A. § 5525; (2) the plaintiff has proffered no proof whatsoever, except self-serving assertions, to establish that the foregoing statute of limitations either had been, or should be, waived on grounds that the defendant and the insurer who failed to settle his claim before the limitations period had run are one and the same entity; (3) the plaintiff has produced no evidence whatsoever to show that any property or items belonging to him were damaged in any way, nor can he produce such evidence, including photographs, thereof because the listed items were admittedly discarded by the plaintiff; and (4) the plaintiff has produced no evidence whatsoever to establish that any of his property was damaged through the fault of the defendant, public storage. (Defendant’s motion for summary judgment, paragraphs 17-21; Defendant’s memorandum of law in support of its motion for summary judgment, pp. 4-5, 7-9).

The plaintiff submitted the following responses to the defendant’s grounds for granting summary judgment in its favor:

“17. Denied [the allegation of failure to present proof of waiver of the statute of limitations and damage to his property caused by the defendant]. The plaintiff has produced records to Hertz claim management.
18. Denied [the allegation that failure to settle his claim with the insurer has no bearing on this law suit]. The statute of limitation should have been waived due to the fact that several different insurance companies handled the plaintiff’s claim causing the delay. The first insurance company[,] Willis Insurance Services of Califomiaf,] had the plaintiff’s claim for three years before they sold it to Hertz claim management. The plaintiff contacted Hertz claim management to inquire about the status of his claim. He was informed that they had no record of his loss and that he ever rented a storage unit with public storage. The plaintiff had to re-submit a new claim and proof that he had rented a storage unit from the defendant. The plaintiff faxed proof on August 17,2008 (See exhibit A [which consisted of a fax cover sheet dated August 17, 2008, but no copies of the “proof’ of his losses that the plaintiff had referenced]) [.] The plaintiff submitted receipts and pictures of the property to both insurance companies. The claim number was 05-2008-12267. (See exhibit B [which consisted of a letter dated March 2, 2009 from Joe Parraz of Hertz claim management asking the plaintiff to sign and return a “proof of loss” [sic] in exchange for a check in the amount of $736.80 in settlement of the claim, with the proviso that, if plaintiff did not respond within 14 days thereafter, the carrier would assume that plaintiff no longer wished to pursue the claim and the file would be closed]). The type of loss stated was water damage. The temperature during the evening of December 17 through 24 was below freezing. (See exhibit C [consisting of a “weather history” for Philadelphia, PA for the month of December 2005).
19. Denied [the allegation that the plaintiff had entered into the parties’ storage rental agreement with the knowledge and understanding that the defendant, public storage, is not an insurer or insurance agent]. The defendant stated previously that they were a separate entity from the insurance company. This is not true! The plaintiff was charged $138.38 for his storage unit number C-947. The breakdown was $123.00 rental fee, $7.38 rental tax and $8.00 insurance per month. (See exhibit D [consisting of a receipt for the payment of plaintiff’s storage rent on January 8, 2009]). The plaintiff had an option to seek his own insurance or may obtain insurance by signing up for the insurance plan described in the insurance brochure made available by owner, public storage. (See exhibit E [comprising the parties’ rental agreement]).
20. Denied [the allegation that the plaintiff possesses no credible, material and persuasive evidence with which to establish that the items contended were ever placed in storage and/or were damaged in any way]. The plaintiff provided a copy of the express mail receipt addressed to Hertz claim management dated January 10, 2009. (See exhibit F [consisting of said express mail receipt dated ‘1/10/09’ and addressed to Hertz claim management and nothing else]).
21. Denied [the allegation that the plaintiff possesses no evidence that any items belonging to him were damaged by the action or inaction of the defendant, and that his suit is time barred]. The plaintiff submitted a list of all the items that were destroyed from the water.” (Plaintiff’s responses to the defendant’s motion for summary judgment, paragraphs 17-21).

The plaintiff concluded his response to the defendant’s summary judgment motion by insisting that his suit is not time barred because “[s]everal different insurance companies handled the plaintiff’s claim causing the delay. The plaintiff made countless phone calls only to talk to a recording. The plaintiff received the runaround from both companies, which lead [sic] to the formal [c]omplaint being filed in the court of common pleas of Delaware County, Pennsylvania... The defendant is taking advantage of the plaintiff because he is pro se. The defendant[‘]s defense is frivolous and without merit. Affirm the two previous decisions!” (Id. Paragraphs 23-24).

This court granted the defendant’s motion for summary judgment and dismissed the plaintiff’s complaint with prejudice. Plaintiff has submitted the following concise statement of matters complained of on appeal:

“Pro se plaintiff, Bryant Barr[‘s] grounds for an appeal are Res Judicata, judicial estoppel and equitable tolling. First, the plaintiff was awarded two judgments in the lower courts for $7,163 in [magisterial] district court and $5,158.23 in [an] arbitration hearing. (See exhibit A). [The] honorable judge James F. Proud denied the [defendant’[s] counsel’[s] motion for a judgment on the [p] leadings on July 5th, 2011 and a motion for summary judgment on October 31st, 2011 (See exhibit B). The matter cannot be raised again either in the same court or in a different court. Counsel has used the same defense never entering any new evidences [sic] or argument. Second, counsel[‘s] initial defense states that [the defendant] and the Hertz claim management are a separate entity when[,] in fact[,] that [is] not true. During the settlement conference between the two parties [,] counsel admitted that they are the same entity. (See exhibit C). Last[,] but not least, the statute of limitation[s] may be equitably tolled (extended, suspended, put on hold) when[,] under certain circumstances:
Interference: The defendant’s conduct contributed to the plaintiff’s delay in filing a suit. ([Bollinger] v. National Fire Ins. Co., [25 C[al.] 2d 399, 411(1944)].
The [s]tatute of limitations is delayed if the insurance company fails to disclose and notify the plaintiff/ claimant of the statute of limitations if he or she is not represented by an attorney at law. See: [citation missing.]
-Fraud/Misrepresentation: Case law based on estoppel where insurance company misled claimant to not file a lawsuit until after the statute of limitations had run. (Vu v. Prudential Prop. & Cas. Ins. Co., [26 Cal. 4th 1142, 1152(2001)].
Hertz claim management never notified the plaintiff to inform of his legal rights. [T]herefore[,] due to their negligence[,] the plaintiff’s appeal should be granted.” (Plaintiff’s concise statement of matters complained of on appeal, pp. 1-2).

The plaintiff’s issues are discussed under the appropriate headings below.

Waiver of All Issues

Plaintiff contended that his appeal should be won on grounds of res judicata and that the decisions of the magisterial district judge and compulsory arbitration panel in his favor should be “affirmed” by this court, (concise statement, unnumbered paragraph one). Clearly, the decisions of tribunals ranked below Pennsylvania’s State Trial Courts, especially when issued without explanation or opinion and subject to de novo review like the compulsory arbitration panel’s and the magisterial district judge’s findings in this case, are never controlling, nor binding upon any higher court in this commonwealth. See: Pennsylvania Rule of Civil Procedure 1311 (providing for a trial de novo on appeal to the Pennsylvania Court of Common Pleas from a compulsoiy arbitration panel’s decision); magisterial district judges rule 324 (providing for appeal to the Pennsylvania court of common pleas from a magisterial district judge’s decision). Plaintiff also believes that the rulings against the defendant by another judge of this court on the defendant’s motion for judgment on the pleading and previously filed motion for summary judgment must not be “overturned.” Nevertheless, a ruling that a case is well-pleaded neither decides, nor disposes of any claim on the merits, and a finding that sufficient doubt remains as to whether a case must be dismissed in fact and/or in law may be revisited following the acquisition of additional evidence through discovery to support a contention that judgment in the movant’s favor is warranted. Dietz v. Chase Home Finance, LLC, 41 A.3d 882 (Pa. Super. 2012); Porro v. Century III Associates, 846 A. 1282 (Pa. Super. 2004).

It is further noted that the plaintiff’s appellate issues must be dismissed for being waived in their entirety due to the plaintiff’s never having submitted to this court any memoranda of law setting forth any legal argument whatsoever with citations to relevant, persuasive and controlling case authorities so as to advance his position vis a vis the claims waged against the defendant. Asbury v. Mercy Fitzgerald Hosp., 13 Pa. D. &. C.5th 225 (Delaware county 2010), aff’d. 23 A.3d 1078 (Pa. Super. 2011)(Table). While citations to two case authorities were finally provided in the plaintiff’s concise statement of matters complained of on appeal, they are from another jurisdiction and are, therefore, not persuasive, controlling, nor binding upon this court. Moreover, the court was improperly deprived of the ability to read and reflect upon the plaintiff’s cited legal authorities before this appeal was taken, as well as the opportunity to review and deliberate upon the principles for which they were proffered. Pa.R.App.P. 302(a)(issues raised for the first time on appeal are deemed waived); Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974); Sayne v. Wylie 296 Pa. Super. 134, 442 A.2d 694 (Pa. Super. 1981). For these reasons alone, all of plaintiff’s issues on appeal must, perforce, be deemed waived.

There is, however, a more compelling reason for upholding the order of this court granting the defendant’s motion for summary judgment and dismissing the plaintiff’s claims with prejudice. In an opinion filed in the case of Polinsky v. Nationwide Mut. Ins. Co., 77 Pa. D. & C.4th 95, 106-107 (Armstrong county, 2005), the Honorable Kenneth G. Valesek wrote the following admonition to chide the unrepresented plaintiffs for their numerous lapses in prosecuting their claim against the defendant in that case:

“[T]he court must caution plaintiffs that[,] even though they are not represented by legal counsel, they are not entitled to a more lenient application of the rules of court simply because they chose to proceed pro se. “The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.” Jones v. Rudenstein, 401 Pa. Super. 400, 404, 585 A.2d 520, 522 (1991)(quoting Farretta v. California, 422 U.S. 806, 834 n.46, 95 S.Ct. 2525, 2540 n.46 (1975).” Id., footnote omitted).

In the case sub judice, the plaintiff has repeatedly prayed for equitable relief from the applicable four year limitations period on grounds that the successor in interest to his original carrier had responded to his claim for coverage too late for a timely filing of a complaint in this action. Nevertheless, the plaintiff’s own evidence revealed that he received a letter dated March 2, 2009 from Joe Parraz of Hertz claim management enclosing a “proof of loss form” setting for an offer to settle his claim for $736.80. (Letter from Hertz claim management dated March 2, 2009 - exhibit B appended to the plaintiff’s response to the defendant’s motion for summary judgment). Plaintiff was notified, as of that date, that he was required to sign and return Hertz claim management’s “proof of loss form” expressing the offer within fourteen days of its receipt or Hertz claim management would assume that plaintiff no longer wished to pursue the claim and the file would be closed. (Id.). It may be reasonably inferred that the plaintiff did not respond to Hertz management’s offer in March of 2009 because he deemed it unacceptable, but it is known that the complaint against the defendant was not filed with the magisterial district court until nineteen months later on October 26, 2010. Hence, the plaintiff voluntarily and unilaterally allowed the applicable four year limitations period to lapse by failing to file suit before it had expired nine months later, on December 24, 2009, and permitted an additional 10 months to pass before he filed his initial complaint in this action on October 26, 2010. Consequently, the plaintiff’s prayer for equitable estoppel was denied because the delay complained of was caused solely by the plaintiff’s own conduct.

The Doctrine of Equitable Estoppel

The plaintiff contended that the defendant must stand in the place of the within insurance carriers and be deemed liable for his losses on grounds that public storage, Willis insurance services of California and Hertz claim management are all one and the same business entity. (Concise statement, unnumbered paragraph one). It goes without saying that the plaintiff has submitted not a shred of evidence to support this claim, which seems to rest merely on the suggestion that the payment of his self-storage insurance premium in tandem with his rental payment rendered the insurers and the defendant one and the same.

In any event, the plaintiff has omitted any reference in legal argument to this court to the self-service storage facility act, 73 P.S. § 1901 et sequitur and its proviso that: “[ujnless the rental agreement specifically provides otherwise, the exclusive care, custody and control of any and all personal property stored in the leased space shall remain vested in the occupant, who shall bear all risks of loss or damage to such property not caused by any negligence of the owner.” Id, § 1914. It has been shown that, during the course of discovery, the plaintiff admitted his knowledge and understanding of the foregoing language set forth in the self-storage rental agreement, which he executed willingly and voluntarily. Additionally, plaintiff’s own conduct adduced contact with Willis insurance services of California on the same date as his discovery of the damage to his property to begin the process of securing coverage of his purported losses, as well as submission of his claim three years later to Hertz claim management. There is simply no evidence that the defendant owned, controlled or maintained a possessory interest in the insurance carriers connected with this case, or that the premiums collected from the plaintiff went into its own coffers. Hence, this contention, must be deemed both groundless for being contrary to the facts and the applicable law, as well as waived for the failure to submit appropriate legal argument in support thereof.

The plaintiff’s last contention on appeal is thatthe statute of limitations should be tolled because the defendant’s conduct had contributed to the plaintiff’s delay in filing suit pursuant to the California case authority of Bollinger v. National Fire Ins. Co., 25 Cal.2d 399, 411(1944). Unfortunately for the plaintiff, Bollinger is inapposite to this case inasmuch as the court there held that the defendant insurer’s employment of dilatory tactics during the course of the litigation justified equitable tolling of the applicable statute of limitations. Id. (Concise statement, unnumbered paragraph two). Plaintiff claimed that the insurance company had allegedly failed to honor a putative right to a reminder of the statute of limitations because he was unrepresented by an attorney, a contention for which no citation to a case authority from any jurisdiction was provided, and that Hertz claim management had purportedly misled him so as not to file a lawsuit until after the applicable statute of limitations had run, pursuant to the case authority of Vu v. Prudential Prop. & Cas. Ins. Co., 26 Cal. 4th 1142, 1152 (2001) (Concise statement, unnumbered Paragraphs Three through five).

It is clear in the record that the defendant engaged in no contact or communication of this kind with the plaintiff, and that in order for these contentions to inure to its liability, the defendant and the insurers must be deemed to be one and the same, and plaintiff has failed to provide proof that this is so. Segueing to a review of evidence of the insurers’ contacts with the plaintiff, there is likewise none demonstrating any conduct that would cause or induce the plaintiff to sit on his rights and delay filing suit due to reasonable reliance on any putative misrepresentations, none of which have, in fact, been alleged. The evidence clearly adduces that the plaintiff’s last contact with Hertz claim management was via Mr. Parraz’s letter enclosing the “proof of loss form” with an offer to settle his claim for $736.80, provided the plaintiff signed and returned that form within fourteen days from March 2, 2009. Having deemed this settlement amount to be unacceptable, the plaintiff then determined that the negotiations had met the “impasse” hereinabove described. However, instead of immediately filing this law suit, after having waited approximately three and a half years for his claim to be resolved by his insurance carrier, the plaintiff unilaterally and voluntarily allowed the applicable four year statute of limitations to expire fully nine months later, and waited another ten months to file the complaint on October 26, 2010.

Plaintiff’s allegations of receiving “the runaround” and his phone calls being answered by voicemail devices during the period when his claim went unresolved cannot and do not explain why it took him so long to file this cause of action. The court is also mystified by the plaintiff’s seemingly pathological reluctance to attempt to contact the carriers by certified mail. There is not a scintilla of evidence that anyone behaved in the manner contended by the plaintiff so as to justify the employment of the doctrine of equitable estoppel in his favor. Finally, even if the defendant arguably could be deemed to be one and the same business entity as the plaintiff’s self-storage insurance providers, this complaint would be dismissed with prejudice and alacrity for being untimely filed on these facts as well.

Conclusion

“Equitable estoppel is a doctrine that prevents one from doing an act differently than the manner in which another was induced by word or deed to expect.” Prime Medica Associates v. Valley Forge Ins. Co., 970 A.2d 1149, 1157 (Pa. Super. 2009)(citation omitted). “A doctrine sounding in equity, equitable estoppel recognizes that an informal promise implied by one’s words, deeds or representations which leads another to rely justifiably thereon to his own injury or detriment may be enforced in equity.” Id. The Prime Medica Associates court elaborated further on the doctrine’s applicability in the courts of this commonwealth on facts bearing a similarity to those in this case:

“The party asserting estoppel bears the burden of establishing estoppel by clear, precise and unequivocal evidence. Farmers Trust Co. v. Bomberger, 362 Pa. Super. 92, 523 A.2d 790 (1987). “[Mjere silence or inaction is not a ground for estoppel unless there is a duty to speak or act.” Id. at 793 (quoting Brown v. Haight, 435 Pa. 12, 19, 255 A.2d 508, 512 (1969).
The insured must establish a factual basis to assert the defense of waiver or estoppel...Lardas v. Underwriters Ins. Co., 426 Pa. 47, 231 A.2d 740 (1967)(holding no waiver or estoppel where insurer did not mislead insured about possibility of settlement or persuade insured to refrain from commencing suit); Kramer v. State Farm Fire and Cas. Ins. Co., 412 Pa. Super. 227, 603 A.2d 192 (1992)(holding insurer’s assertions regarding its refusal to pay under insurance policy was not fraudulent communication or form of duress which forced insured to forbear bringing suit); World of Tires [, Inc. v. American Insurance Co., 360 Pa. Super. 514, 520 A.2d 1388 (1987)] (holding insurer’s offer of settlement did not indicate waiver of suit limitations clause);.... Petraglia [v. American Motorists Ins. Co., 284 Pa. Super. 1, 424 A.2d 1360 (1981), affirmed by 498 Pa. 32, 444 A.2d 653 (1982)](holding insured failed to present factual basis for waiver or estoppel despite silence of insurer as to suit limitation). . . .The insured must present evidence establishing “reasonable grounds for believing that the time limit would be extended” or that the insurer would not strictly enforce the suit limitation provision. Petraglia, supra (quoting McMeekin v. Prudential Ins. Co. of America, 348 Pa. 568, 572, 36 A.2d 430, 432 (1944).
Insured failed to show any actions by insurer which induced insured to conclude insurer would waive the limitations period. See World of Tires, supra.
Furthermore,... [t]he record does not indicate insurer misled insured about the possibility of settlement or induced insured in any manner to refrain from commencing suit. See Lardas, supra; Kramer, supra. The mere declaration that insurer was investigating the claim is insufficient to prove insured was induced to forbear from commencing suit. See World of Tires, supra; Lardas, supra. . . . Insurer gave no formal or informal promise implied by its words, deeds or representations which led insured to justifiable reliance or forbearance to its own injury or detriment (citation omitted). Thus, we conclude insured’s failure to commence suit within the policy limitations period barred its claim against insurer.” Prime Medica Associates v. Valley Forge Ins. Co., supra. 970 A.2d at 1157-1158 (Pa. Super. 2009).

Pennsylvania Rule of Civil Procedure 1035.2 allows for summary judgment to be granted whenever (1) there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, or (2) the adverse party who will bear the burden of proof at the trial has failed to produce evidence of facts essential to the cause of action. Pa.R.C.P. 1035.2; Billman v. Saylor, 761 A.2d 1208, 1210 (Pa. Super. 2000). Once the moving parly establishes the absence of a genuine issue of material fact, the burden shifts to the non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury can return a verdict in his favor. Jones v. Septa, 772 A.2d 435, 438 (Pa. 2001); Ertel v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa. 1996). “Allowing non-moving parties to avoid summary judgmentwhere they have no evidence to support such an issue on which they bear the burden of proof runs contrary to the spirit of Rule 1035.” Ertel v. Patriot-News Co., supra, 674 A.2d at 1042. Even considering that the plaintiff would doubtless be unable to meet his burden of establishing the element of damages in this case, he has failed even to meet the threshold requirement of assuring that this cause of action was not time-barred.

For all of the foregoing reasons, the order granting summary judgment to the defendant and dismissing the plaintiff’s complaint with prejudice must not be disturbed.

      . The plaintiff’s initial complaint that was filed in the magisterial district court on October 26, 2010, listed the following items “for damages”: three saws said to be valued collectively at $1378.47, a television and television stand allegedly valued at $628.98, a CD rack purportedly valued at $175.60, a bedroom set contended to be worth $3323.06 and a filing cost of $189.44, all totaling $5695.55. (Id., exhibit A - defendant’s motion for summary judgment). The magisterial district judge instead awarded the plaintiff the sum of’$7,000.00” that had appeared as an overall damages estimate on the face of the complaint with no elaboration as to the bases justifying the additional $1,404.45 awarded in his judgment dated November 24, 2010. (Id., exhibits A and B - defendant’s motion for summary judgment). The magisterial district judge additionally awarded the plaintiff the sum of $163.50 in costs instead of the $189.44 that had been pleaded in the complaint. (Id.). A panel of three arbitrators, with one dissenting, subsequently awarded the plaintiff the total sum of $5,158.23, after which the defendant filed the de novo appeal therefrom that was assigned for disposition by this court.

      . The plaintiff’s difficulties in specifying and establishing the value of his losses did not end there. Plaintiff’s application for insurance coverage from the listed carrier requested a liability limit of $2,000.00, an amount well below the total amount of damages claimed for his losses in the legal tribunals of this jurisdiction. (Exhibit F - defendant’s motion for summary judgment). Moreover, Hertz claim management’s valuation of the plaintiff’s loss amounted to only $836.80, a sum that included the policy’s $100 deductible for “actual loss and damage”, based upon evidence that the plaintiff no longer possesses and admittedly threw into the trash. (“Proof of loss” form - exhibit I - defendant’s motion for summary judgment). This proof of loss form is undated, but the plaintiff contended that the claim that was later forwarded by Willis Insurance services of california to Hertz claim management was initiated on December 24,2005, the date upon which he allegedly discovered the water damage in the storage unit at the defendant facility. (Plaintiff’s response to the defendant’s answer with new matter, paragraph 1). Neither Willis insurances services of California, nor Hertz claim management, has ever been made a party to this action, nor have affidavits from any of their employees who reviewed plaintiff’s evidence of damage to his property been submitted for review by this court.

      . This is not an accurate statement based upon the plaintiff’s own evidence. To reference his claim number when the matter was forwarded to Hertz claim management as “05-2008-12267”, plaintiff appended as exhibit C to his response to averments set forth in paragraph 18 the defendant’s motion for summary judgment that this action is time-barred, a letter dated March 2, 2009 from Joe Parraz of Hertz claim management. In that letter, Mr. Parraz said that he had arrived at a $736,80 valuation of the plaintiff’s loss, minus the policy’s $100 deductible, and that, if he did not receive the signed “proof of loss” form approving that settlement amount back from the plaintiff in fourteen days, “we will assume you no longer wish to pursue the claim and our file will be closed.” (Letter from Joe Parraz of March 2, 2009 - appended as exhibit B to plaintiff’s response to the defendant’s motion for summary judgment; proof of loss” form appended as exhibit I to the defendant’s motion for summary judgment). Plaintiff has submitted no affidavit from Mr. Parraz elaborating on the circumstances surrounding or following the sending of this correspondence to the plaintiff. Moreover, the plaintiff has never effectively explained why he waited not only nine additional months until the statute of limitations on his breach of contract claim had expired on December 24,2009, but an additional ten months afterward to file his magisterial district justice complaint on October 26, 2010.

      . It is here noted that the defendant has erroneously cited in its various motions and memoranda to law section 5525 of the Pennsylvania judicial code that provides for a four year statute of limitations for breach of contract actions as emanating from Title 13, which encompasses Pennsylvania’s uniform commercial code provisions. The defendant has similarly cited to 13 Pa.C.S.A. 2725 setting forth the UCC’s four year limitations period for actions on contracts for the sale of goods and services, despite there having been no UCC claims either raised or litigated in the cause of action. (Defendant’s reply brief in support of its motion for summary judgment, p. 4).

      . The statement in this letter informing the plaintiff of the need to respond to Hertz claim management’s offer of settlement within 14 days of its receipt in March of 2009, fully nine months before the four year statute of limitations for bringing the within action for breach of contract had expired on December 24, 2009, puts to rest any assertion by the plaintiff that he had received no disposition of his claim from his insurance carrier in time to file this action before it became time barred, Indeed, the “runaround” plaintiff contends he received, as well as the inability to contact his respective carriers by telephone (at least), still left him months on end to file his complaint against the defendant with plenty of time left over. Nevertheless, the plaintiff waited an inexplicable additional ten months thereafter to initiate this cause of action against the defendant on October 26,2010.


author: NANOVIC, J.,

text:
    Commonwealth v. Sponheimer.

      Jean A. Engler, for plaintiff.

      Kent D. Watkins, for defendant.
    July 24, 2012
   NANOVIC, J.,

The defendant, Kermit R. Sponheimer, has appealed from the judgment of sentence imposed on May 14, 2012, raising one issue: whether the sentence is excessive and unduly harsh because it runs consecutively to a sentence previously imposed on an unrelated case. This opinion is filed in accordance with Pa.R.A.P. 1925 (a).

PROCEDURAL AND FACTUAL BACKGROUND

On March 5, 2012, defendant pled guilty to criminal attempt to commit the crime of contraband, a felony of the second degree. 18 Pa.C.S.A. §§ 901 (a), 5123 (a.2). The offense involved defendant’s attempt to have his son supply defendant with suboxone, a schedule III narcotic, while defendant was an inmate in the Carbon County correctional facility. The plea agreement recommended a sentence of two to five years with the remaining charges to be dismissed. The agreement was silent on whether the sentence would be concurrent or consecutive to any existing sentence defendant was serving.

Plaintiff’s plea was taken on the first day defendant’s case was scheduled for jury trial. Upon receipt of defendant’s plea, a pre-sentence investigation was ordered. Sentencing was scheduled for May 14,2012. At the time of sentencing, the pre-sentence investigation report previously ordered was made part of the record. The report recommended a sentence of not less than twenty-four months nor more than sixty months in a state correctional facility. The recommendation further indicated that defendant was entitled to no credit.

Atthetime ofthe offense, defendant was fifty-eightyears old. He was sixty at the time of sentencing. Defendant had a significant criminal history spanning twenty-seven years, between 1983 and 2010, with fourteen recorded offenses. Defendant’s prior record score was five. The standard guideline range was twenty-four to thirty months.

Defendant’s prior criminal history was significant for drug use and for crimes to support his habit. Defendant admitted he preyed on the love and vulnerability of his son to entice him, as well as defendant’s wife, to arrange to smuggle Suboxone into the prison for defendant’s use.

The sentence imposed ran consecutive to a sentence defendant was then serving in the county prison for retail theft, a felony of the third degree, with the max-date being September 30,2012. (Pre-sentence investigation report, p. 5).

As stated at sentencing, the reasons for the sentence included defendant’s serious addiction problem which he had failed to address; the nature and circumstances of defendant’s conduct which showed a disregard for the community; the perceived risk that defendant would commit further criminal acts based upon his previous history; and consistency of the sentence with the plea agreement. The court further noted defendant’s long and extensive criminal history and condemned defendant for preying on his son and involving his son in his criminal activities.

OnMay24,2012, defendant filed apost-sentence motion seeking to have his sentence modified to ran concurrent to the sentence defendant was serving for retail theft. This motion was denied by order dated May 31, 2012.

Defendant’s notice of appeal was filed on June 4,2012. Subsequently, on June 27, 2012, defendant filed a timely concise statement in response to our Pa.R.A.P. 1925 order of June 5, 2012.

DISCUSSION

The issue defendant raises is a challenge to the discretionary aspects of his sentence. Commonwealth v. Marts, 889 A.2d 608 (Pa.Super. 2005) (holding that a challenge to the trial court’s imposition of consecutive sentences is a challenge to the discretionary aspects of the sentence); see also Commonwealth v. Dalberto, 648 A.2d 16, 21 (Pa.Super. 1994) (explaining that where a plea agreement exists which is silent as to a discretionary aspect of sentencing, an appeal which addresses the court’s exercise of discretion on such matters is not barred by the plea agreement), appeal denied, 540 Pa. 594, 655 A.2d 983 (Pa. 1995). Such challenges, as a condition to appellate review, require a defendant to set forth pursuant to Pa.R. A.P. 2119 (f) a substantial question that the sentence imposed was not appropriate under the sentencing code. Marts, 889 A.2d at 612 (Pa. Super. 2005). When the claim involves excessiveness of the sentence, a prima facie showing of a substantial question requires the defendant to “sufficiently articulate[] the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the sentencing code or a particular norm underlying the sentencing process.” Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002) (plurality).

Specifically, when the claim challenges the length of imprisonment predicated on the imposition of consecutive sentences, the Superior Court noted:

Recently, this court examined whether a claim that an appellant’s sentence was manifestly excessive based on the imposition of consecutive sentences presents a substantial question. Specifically, in Gonzalez-Dejusus, this court held the following:
Generally speaking, the court’s exercise of discretion in imposing consecutive as opposed to concurrent sentences is not viewed as raising a substantial question that would allow the granting of allowance of appeal. Commonwealth v. Marts, 889 A.2d 608 (Pa.Super.2005). However, the case of Commonwealth v. Dodge (“Dodge I”), 859 A.2d 771 (Pa.Super.2004) [(Stevens, J., dissent)], vacated and remanded on other grounds, 594 Pa. 345, 935 A.2d 1290 (2007), finds an aggregate sentence manifestly excessive and that a substantial question was presented where there were numerous standard range sentences ordered to be served consecutively. Dodge I offered this holding despite the existence of prior cases finding that an assertion of error grounded upon the imposition of consecutive versus concurrent sentences did not raise a substantial question. Discussing the matter, Marts indicates:
To the extent that he complains that his sentence on two of the four robberies were imposed consecutively rather than concurrently, [the appellant] fails to raise a substantial question. Long standing precedent of this court recognizes that 42 Pa.C.S.A. section 9721 affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed atthe same time orto sentences already imposed. Commonwealth v. Graham, 541 Pa. 173, 184, 661 A.2d 1367, 1373 (1995).... Any challenge to the exercise of this discretion ordinarily does not raise a substantial question. Commonwealth v. Johnson, 873 A.2d 704, 709 n. 2 (Pa.Super.2005); see also Commonwealth v. Hoag, 445 Pa. Super. 455, 665 A.2d 1212, 1214 (Pa.Super.1995) (explaining that a defendant is not entitled to a “volume discount” for his or her crimes).
The recent decisions of a panel of this court in Commonwealth v. Dodge, 859 A.2d 771 (Pa.Super.2004), does not alter our conclusion. In fact, the panel in Dodge noted the limitations of its holding. See id. at 782 n. 13 (explaining that its decision ‘is not to be read a [sic] rule that a challenge to the consecutive nature of a standard range sentence always raises a substantial question or constitutes an abuse of discretion. We all are cognizant that sentencing can encompass a wide variation of factual scenarios. Thus, we make clear again that these issues must be examined and determined on a case-by-case basis.’). In Dodge, the court imposed consecutive, standard range sentences on all thirty-seven counts of theft-related offenses for an aggregate sentence of 58 1/2 to 124 years of imprisonment.

Marts, 889 A.2d at 612-613 (Pa. Super. 2005). Thus, in our view, the key to resolving the preliminary substantial question inquiry is whether the decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in the case.5

FN5.....We note that Dodge I was decided prior to the supreme court’s decision in Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007). Of course, in Walls, our supreme court reiterated that the ability of this court to vacate a sentence is predicated upon a sentence being outside of the guidelines. Given Walls, it would appear reasonable to consider whether the Dodge approach to reviewing and vacating aggregate sentences that may have been viewed as manifestly excessive, although comprised of standard range sentences, had continuing viability. However, Dodge was remanded back to this court for reconsideration in light of Walls. Upon reconsideration, the original panel still found the sentence unreasonable and vacated the sentence previously imposed. Commonwealth v. Dodge (“Dodge II"), 957 A.2d 1198 (Pa.Super.2008). Thus, as of this date, we view the “excessive aggregate sentence” argument as cognizable upon appellate review.

Commonwealth v. Mastromarino, 2 A.3d 581, 586-87 (Pa.Super. 2010) (emphasis added) (footnote in original), appeal denied, 14 A.3d 825 (Pa. 2011).

As to the merits of defendant’s appeal:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. To constitute an abuse of discretion, the sentence imposed must either exceed the statutory limits or be manifestly excessive. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super. 2005) (quoting Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa.Super. 2003)).

In determining whether a sentence is manifestly excessive, the appellate court must give great weight to the sentencing court’s discretion, as he or she is in the best position to measure factors such as the nature of the crime, the defendant’s character, and the defendant’s display of remorse, defiance, or indifference.

Id. Moreover,

[wjhere pre-sentence reports exist, we shall continue to presume that the sentencing judge was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors. A pre-sentence report constitutes the record and speaks for itself.... Having been fully informed by the pre-sentence report, the sentencing court’s discretion should not be disturbed.

Commonwealth v. Devers, 519 Pa. 88, 100, 546 A.2d 12, 18 (1988).

The sentence imposed here is clearly not illegal; for a felony of the second degree a defendant may be imprisoned for a period not to exceed ten years. 18 Pa.C.S.A. § 1103 (2). Further, the sentence was at the low end of the standard sentencing guideline range of twenty-four to thirty months and consistent with the plea agreement, which recommended a period of imprisonment on the offense pled of two to five years.

At the time of sentencing, the court was clear that the sentence was to run consecutive to any other sentence defendant was then serving. (N.T. 5/14/12, pp. 4, 6-7). The consequence of this sentence was understood and clearly intended by the court. Id. The court further clearly stated on the record the reasons for the sentence, including defendant’s implicating his son in committing this crime. (N.T. 5/14/12, pp. 4-6).

The sentence imposed was within the guideline range, notwithstanding being consecutive to defendant’s previous sentence for retail theft, the effect being to further circumscribe appellate review: sentences within the standard range must be evaluated under the “clearly unreasonable” standard set out in 42 Pa.C.S.A. § 9781 (c) (2), as opposed to the standard of reasonableness applicable to sentences which lie outside of the sentencing guidelines. Commonwealth v. Coulverson, 34 A.3d 135, 146 (Pa.Super. 2011). Yet, defendant has presented no arguments that the sentence imposed violated any specific provisions of the sentencing code; nor has defendant specified any particular deviation from the fundamental norms underlying the sentencing process. See Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa.Super. 2006) (“42 Pa.C.S. section 9721 affords the sentencing court discretion to impose its sentence concurrently or consecutively.... Any challenge to the exercise of this discretion ordinarily does not raise a substantial question.”); see also Commonwealth v. Bromley, 862 A.2d 598 (Pa.Super. 2004) (defendant did not raise substantial question by merely asserting sentence was excessive when he failed to reference any section of sentencing code potentially violated by sentence).

Because defendant had already served twenty months of the six to twenty-four month sentence he was then serving for retail theft at the time of the sentence imposed in this case, the difference between running the sentences concurrent to one another, as requested by defendant, or consecutive, as was done, is four months on defendant’s overall sentence. This additional four months is neither grossly disparate to defendant’s conduct nor patently unreasonable. Consequently, we conclude that both under the law and the facts, defendant has not demonstrated that the sentence imposed was unreasonable or manifestly excessive.

CONCLUSION

Defendant has not raised, much less proven, a substantial question that the aggregate sentence imposed violates either a specific provision of the sentencing scheme set forth in the sentencing code or was inappropriate or contrary to a fundamental norm underlying the sentencing process. In addition, the sentence imposed was appropriately commensurate with the criminal conduct at issue in this case. Accordingly, we respectfully request the court affirm our decision and deny defendant’s appeal.

      . Pa.R.A.P. (f) provides:
      Discretionary aspects of sentence. An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.
      Before reaching the merits of a discretionary sentencing issue on appeal, the appellate court conducts a four-part analysis to determine:
      (1) whether appellant filed a timely notice of appeal, Pa.R.A.P. 902, 903;
      (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, Pa.R.Crim.P. 720;
      (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119 (1); and
      (4) whether there is a substantial question that the sentence appealed from is not appropriate under the sentencing code.

        Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa.Super. 2010), appeal denied, 609 Pa. 685, 14 A.3d 825 (2011). The statement of the reasons relied upon for allowance of the appeal under rule 2119 (f) “focus [es] on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits.” Commonwealth v. Reynolds, 835 A.2d 720, 733 (Pa.Super. 2003) (quoting Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super. 2000)).


text:
    Creighton v. Krummell.
   This matter comes before the court on defendants Richard and Celine Krummell’s preliminary objections to plaintiffs’ second amended complaint. Plaintiffs initiated this action with the filing of a complaint on June 27, 2007, alleging breach of contract and unjust enrichment. Defendants filed an answer with new matter and counterclaim on December 12,2007. After a two year delay in litigation, on January 11,2010, the parties stipulated that plaintiffs would be allowed to file an amended complaint, which they did the same day. Defendants filed preliminary objections to the amended complaint on March 22, 2012, which were rendered moot by plaintiffs’ filing of a second amended complaint on April 11, 2012. Defendants filed preliminary objections to the second amended complaint on April 30, 2012. Defendants filed a brief in support of their position on May 18, 2012. Plaintiffs filed a brief in opposition on May 25,2012. Oral argument was heard on June 4, 2012. We are now prepared to decide this matter.

DISCUSSION

Pursuant to Pa.R.C.P. § 1028(a), preliminary objections may be filed by any party to any pleading on several grounds, including:

(2) Failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter;
(3) Insufficient specificity in a pleading;
(4) Legal insufficiency of a pleading (demurrer).

Pa. R.C.P. 1028(a)(2), (3), (4). In ruling on preliminary objections, we recognize that the court must accept as true “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom....” Wurth by Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cmwlth.1990). The court need not accept as true, however, “conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Myers v. Ridge, 712 A.2d 791, 794 (Pa. Cmwlth. 1998).

When ruling on a preliminary objection that would dismiss the action, we are mindful to sustain the objection only in the cases which are clear and free from doubt. King v. Detroit Tool Co., 682 A.2d 313, 314 (Pa. Super. 1996). In determining whether the factual averments of a complaint are sufficient to state a cause of action, all doubts must be resolved in favor of the sufficiency of the complaint. Slaybaugh v. Newman, 479 A.2d 517, 519 (Pa. Super., 1984). A demurrer will be sustained only where the complaint demonstrates with certainty that under the facts averred within, the law will not permit a recovery. Id.; see also Cianfrani v. Commonwealth, State Employees’ Retirement Bd., 505 Pa. 294, 296, 479 A.2d 468, 469 (1984). If any theory of law will support the claim raised by the complaint, dismissal is improper. Slaybaugh, supra; Cianfrani, supra. Alternatively, a motion to strike a pleading may be granted when lack of conformity to a law or a rule of court occurs. Pa.R.C.P. § 1028(a)(2).

The relevant facts of this case, as alleged in the second amended complaint, are as follows. Plaintiffs and defendants entered into an agreement for sale of real property on or about January 16, 2005. As part of that agreement, defendants were to place $5,000 in escrow until construction work was completed on the property. Defendants never placed this $5,000 in escrow. At closing on June 29,2005, the parties entered into a verbal agreement in which plaintiffs waived the necessity of defendants placing money in escrow, and in turn, defendant Richard Krummell promised to complete repairs on the property, including:

a. Painting an apartment in the white house;
b. Painting the exterior of the white house;
c. Fixing the vinyl siding above the garage doors;
d. Installing a tile floor in the brown house.

Since plaintiffs waived the necessity of putting the money in escrow, the work in question was essentially prepaid for by plaintiffs. However, defendants never completed the work outlined above, breaching their contract with plaintiffs. Thus, plaintiffs allege they have suffered a loss in the amount of $5,000.

Further, plaintiffs allege that defendants installed an insufficient and malfunctioning septic system in the apartment house located on the property. They allege that the system was installed without a permit and was not built according to applicable building codes. Plaintiffs allege that defendants knew that the system was inadequate and defective, yet failed to disclose this on the real estate sellers disclosure form, in violation of statute. Defendants represented on the disclosure form that they were not aware of any leaks, backups or any other problems relating to the sewage system. Plaintiffs allege that this was a material misrepresentation which they justifiably relied on when purchasing the property, and thus they are entitled to the $19,650 it cost to have a new septic system installed.

Finally, plaintiffs allege that when defendants moved out of the apartment they left a piano behind. However, they told plaintiffs that the piano would not be there long as friends were coming to help them move it. Plaintiffs allege that the piano was stored on plaintiffs’ property for over a year. They allege that defendants appreciated the benefit of not paying for storage for the piano and claim that they are entitled to reasonable value for storage fees relating to the piano. In total, plaintiffs bring three counts against defendants: breach of contract, violation of the unfair trade practices and consumer protection law (UTPCPL), and unjust enrichment.

In the matter now before the court, defendants raise two preliminary objections in the nature of motions for legal insufficiency of a pleading (demurrer), one as to plaintiffs’ claim under the unfair trade practices and consumer protection law, and one as to plaintiffs’ claim for unjust enrichment. First, defendants allege that the UTPCPL applies only to real estate purchased primarily for personal, family or household purposes. Defendants allege that plaintiffs purchased the property in question as an investment, have never resided at the property, and indeed continue to use the property as a rental. Next, defendants allege that plaintiffs’ unjust enrichment claim is not permitted, as claims for unjust enrichment sound in tort, and tort recovery is not permitted in a breach of contract claim. We will address the issues raised by defendants in turn.

I. Unfair Trade Practices and Consumer Protection Law

Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, 73 Pa.C.S.A. § 201-9.2(a), provides that:

Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of method, act or purpose declared unlawful by section 3 of this act, may bring a private action to recover actual damages or one hundred dollars ($100.00), whichever is greater.

Thus, to recover under this section, a claimant must (1) have suffered ascertainable damages, (2) be a person, and (3) have made the purchase primarily for personal, family, or household purposes. Valley Forge Towers South Condominium v. Ron-ike Foam Insulators, Inc., 574 A.2d 641 (Pa. Super. 1990). The Superior Court has determined that when someone purchases a property as an investment rather than to live in, that purchase is for business purposes and the UTPCPL does not apply. Growall v. Maietta, 931 A.2d 667 (Pa. Super. 2008); Lal v. Ameriquest Mortgage Co., 858 A.2d 119 (Pa. Super.2004). Thus, if one purchases a property intending to make money by leasing apartments to tenants, the purchase is not primarily for personal, family or household purposes and recovery under the UTPCPL is not proper. Growall, 931 A.2d at 676 (Pa. Super. 2007).

In the instant case, there is no dispute that plaintiff’s do not live on the property, have never lived on the property, and derive income from leasing portions of the property to tenants. Based on these facts alone, we find that the property was purchased for investment, not personal, family, or household purposes. Plaintiffs argue that while a portion of the property is rented out for investment purposes, the remaining portion could be used for personal purposes by plaintiffs. They suggest that the court divide the property into two parts, an investment portion and a personal, portion, and then develop a ratio that would allow plaintiffs to recover under the UTPCPL only on the portion that pertains to plaintiffs’ personal use. However, the problem with this scenario is that plaintiffs are not using any portion of the property for personal purposes. There is no evidence that plaintiffs have ever lived on the property, currently live on the property, intend to live on the property in the future, or have utilized the property in any other way which would constitute personal, family, or household purposes. Thus, the portion of the property that pertains to plaintiffs’ personal use is zero. We are not inclined to deal in hypothetical. Potentially, plaintiffs could use the entire property for personal purposes, but the fact of the matter is that they are not. Accordingly, the UTPCPL is not applicable and defendants’ motion for legal insufficiency of a pleading is sustained.

II. Unjust Enrichment

A cause of action for unjust enrichment may arise only when a transaction between the parties — not otherwise governed by an express contract — confers a benefit on the defendant to the plaintiff’s detriment without any corresponding exchange of value. Villoresi v. Femminella, 856 A.2d 78, 84 (Pa. Super. 2004); Temple Univ. Hosp. v. Healthcare Mgmt., 832 A.2d 501, 507 (Pa.Super. 2003). In that event, the law may imply a contract, requiring the defendant to pay to the plaintiff the value of the benefit conferred. Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa.Super. 1999). Where an express contract already exists to define the parameters of the parties’ respective duties, the parties may avail themselves of contract remedies and an equitable remedy for unjust enrichment cannot be deemed to exist. Id; Villoresi, 856 A.2d at 84 (Pa. Super. 2004).

In the instant case, plaintiffs admit that they entered into an agreement with defendants in which they agreed to waive the necessity of defendants depositing $5,000 into escrow, and in turn defendants agreed to complete construction work on the property. Further, plaintiffs concede in their brief that the underlying claim for the piano storage also sounds in contract, not tort. Thus, according to plaintiffs’ own pleadings, an express contract exists between plaintiffs and defendants in which both parties agreed to the exchange of something of value. Consequently, the transaction cannot be deemed a benefit conferred on defendants without a corresponding exchange of value, as defendants agreed to perform $5,000 worth of construction work as consideration for plaintiffs waiving the necessity of placing the money in escrow. The failure of defendants to complete their end of the bargain does not render the exchange of value itself unjust, as plaintiffs may still avail themselves of a contract remedy. However, the existence of the express contract confines plaintiffs to a contract remedy and precludes a claim of quasi-contract: Villoresi, 856 A.2d at 84 (Pa. Super. 2004). Defendants’ motion for legal insufficiency of a pleading is sustained.

Accordingly, we enter the following order.

ORDER

Andnow, July 6,2012, upon consideration of defendants ’ preliminary objections in the nature of a motion for legal insufficiency of a pleading, Plaintiffs’ response thereto, the pleadings of record, and oral argument heard in this matter on June 4, 2012, it is ordered as follows:

(1) Defendants’ preliminary objection in the nature of a motion for legal insufficiency of a pleading as to plaintiffs’ claim under the unfair trade practices and consumer protection act is sustained. Plaintiffs’ claim is dismissed with prejudice.

(2) Defendants’ preliminary objection in the nature of a motion for legal insufficiency of a pleading as to plaintiffs’ claim for unjust enrichment regarding the construction work and the storage fees for the piano is sustained. Plaintiffs’ claim is dismissed with prejudice.