Sunday, March 23, 2008

contracts- duty of good faith & fair dealing - no separate cause of action

Morgan Truck Body v. Integrated Logistics Solutions - ED Pa. - March 20, 2008

Although the UCC, 13 Pa. C.S. 1203, and common law, as reflected in the Restatement of Contracts, sec. 205, impose a duty of good faith and fair dealing in the performance of a contract, Creeger Brick & Building Supply Inc. v. Mid-State Bank & Trust Co., 560 A.2d 151, 153 (Pa. Super. 1989), "Pennsylvania does not recognize this theory as an independent cause of action."

federal courts - interlocutory appeals

Photomedex, Inc. v. St. Paul Fire & Marine Ins. Co. - ED Pa. - March, 2008

Federal courts have discretion to certify an issue for immediate appeal under 28 U.S.C. § 1292(b), when the court issues a non-final order and certifies that
a) the order involves a controlling question of law
b) as to which there is substantial ground for difference of opinion,
c) and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.

The court must certify that all three factors are met. Even then, the district court should exercise its discretion to certify only in exceptional cases. The Third Circuit has held that the certification procedure is not mandatory; permission to appeal is wholly within the discretion of the courts, even if the § 1292(b)] criteria are present.

In this case, the defendant failed to show a “substantial ground for difference of opinion” under the second element. A substantial ground for difference of opinion “refers to the legal standard applied in the decision for which certification is sought and whether other courts have substantially differed in applying that standard.”

contracts - implied-in fact

Morgan Truck Body v. Integrated Logistics Solutions - ED Pa. - March 20, 2008

Under Pennsylvania law, “an implied-in-fact contract is a true contract arising from mutual agreement and intent to promise, but where the agreement and promise have not been verbally expressed. The agreement is inferred from the conduct of the parties."

"Contracts are often spoken of as express or implied. The distinction involves, however, no difference in legal effect, but lies merely in the mode of manifesting assent. Just as assent may be manifested by words or other conduct, sometimes including silence, so intention to make a promise may be manifested in language or by implication from other circumstances, including course of dealing or usage of trade or course of performance. Restatement (Second) of Contracts § 4 cmt. a; see also Rissi v. Cappella, 918 A.2d 131, 140 (Pa. Super. 2007)

"When parties continue to conduct business following the expiration of their written agreement, the law may recognize their relationship as an 'implied-in-fact' contract."