Monday, September 16, 2024

contracts - breach - fraud - gist of action doctrine

Kotarja v. Aberra – Pa.Superior – 4-16-24 – non-precedential ***

https://www.pacourts.us/assets/opinions/Superior/out/J-A03021-23m%20-%20106072503281132164.pdf?cb=1

 

 

Breach of contract

Three elements are necessary to plead properly a cause of action for breach of contract: (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages. Additionally, it is axiomatic that a contract may be manifest orally, in writing, or as an inference from the acts and conduct of the parties. 

Burlington Coat Factory of Pennsylvania, LLC v. Grace Const. Mgmt. Co., LLC, 126 A.3d 1010, 1018 (Pa. Super. 2015) (internal citation, indentation, and brackets omitted). This Court has also provided: 

 

A written contract which is not for the sale of goods may be modified orally, even when the written contract provides that modifications may only be made in writing. An agreement that prohibits non-written modification may be modified by subsequent oral agreement if the parties’ conduct clearly shows the intent to waive the requirement that the amendments be made in writing. An oral contract modifying a prior written contract, however, must be proved by clear, precise and convincing evidence. 

Somerset Cmty. Hosp. v. Allan B. Mitchell & Associates, Inc., 685 A.2d 141, 146 (Pa. Super. 1996) (internal citations omitted). 

 

 

Fraudulent misrepresentation

In order to prove fraud[,] the following elements must be shown: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. 

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[I]n real estate transactions, fraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose. Fraud is a generic term used to describe anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture. 

Milliken v. Jacono, 60 A.3d 133, 140 (Pa. Super. 2012) (en banc) (internal citations and indentation omitted). Under “common law fraud[,] a seller of real estate is only liable for failing to reveal objective material defects.” Id. at 141. 

 

Gist of the action doctrine

Generally, the gist of the action doctrine is “designed to maintain the conceptual distinction between breach of contract claims and tort claims . . .[and] precludes plaintiffs from re-casting ordinary breach of contract claims into a tort claim.” Mirizio v. Joseph, 4 A.3d 1073, 1079 (Pa. Super. 2010). As our Supreme Court held, following its thorough analysis, in Bruno v. Erie Ins. Co., the “nature of the duty alleged” is the “critical determinative factor in determining whether the claim is truly one in tort or for breach of contract.” 106 A.3d 48, 111-12 (Pa. 2014). Contractual duty is based in terms created between the contracting parties and involves “a specific promise to do something that a party would not ordinarily have been obligated to do but for the existence of the contract.” Id. at 112. A duty based in tort, however, involves an individual’s broader social responsibility to others and exists regardless of the contract between the parties. See id. The factual allegations averred are of “paramount importance” in the analysis and determination; and, crucially, “the mere existence of a contract between two parties does not, ipso facto, classify a claim . . . for injury or loss suffered as the result of actions by the other party in performing the contract as one for breach of contract.” Id. at 112-114. A claim is predicated in tort where the contract “is regarded merely as the vehicle, or mechanism, which established the relationship between the parties.” Id. at 114. Further: 

In real estate transactions, fraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose. Fraud is a generic term used Kotarja v. Aberra – Pa.Superior – 4-16-24 – non-precedential ***

https://www.pacourts.us/assets/opinions/Superior/out/J-A03021-23m%20-%20106072503281132164.pdf?cb=1

 

 

Breach of contract

Three elements are necessary to plead properly a cause of action for breach of contract: (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages. Additionally, it is axiomatic that a contract may be manifest orally, in writing, or as an inference from the acts and conduct of the parties. 

Burlington Coat Factory of Pennsylvania, LLC v. Grace Const. Mgmt. Co., LLC, 126 A.3d 1010, 1018 (Pa. Super. 2015) (internal citation, indentation, and brackets omitted). This Court has also provided: 

 

A written contract which is not for the sale of goods may be modified orally, even when the written contract provides that modifications may only be made in writing. An agreement that prohibits non-written modification may be modified by subsequent oral agreement if the parties’ conduct clearly shows the intent to waive the requirement that the amendments be made in writing. An oral contract modifying a prior written contract, however, must be proved by clear, precise and convincing evidence. 

Somerset Cmty. Hosp. v. Allan B. Mitchell & Associates, Inc., 685 A.2d 141, 146 (Pa. Super. 1996) (internal citations omitted). 

 

 

Fraudulent misrepresentation

In order to prove fraud[,] the following elements must be shown: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. 

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[I]n real estate transactions, fraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose. Fraud is a generic term used to describe anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture. 

Milliken v. Jacono, 60 A.3d 133, 140 (Pa. Super. 2012) (en banc) (internal citations and indentation omitted). Under “common law fraud[,] a seller of real estate is only liable for failing to reveal objective material defects.” Id. at 141. 

 

Gist of the action doctrine

Generally, the gist of the action doctrine is “designed to maintain the conceptual distinction between breach of contract claims and tort claims . . .[and] precludes plaintiffs from re-casting ordinary breach of contract claims into a tort claim.” Mirizio v. Joseph, 4 A.3d 1073, 1079 (Pa. Super. 2010). As our Supreme Court held, following its thorough analysis, in Bruno v. Erie Ins. Co., the “nature of the duty alleged” is the “critical determinative factor in determining whether the claim is truly one in tort or for breach of contract.” 106 A.3d 48, 111-12 (Pa. 2014). Contractual duty is based in terms created between the contracting parties and involves “a specific promise to do something that a party would not ordinarily have been obligated to do but for the existence of the contract.” Id. at 112. A duty based in tort, however, involves an individual’s broader social responsibility to others and exists regardless of the contract between the parties. See id. The factual allegations averred are of “paramount importance” in the analysis and determination; and, crucially, “the mere existence of a contract between two parties does not, ipso facto, classify a claim . . . for injury or loss suffered as the result of actions by the other party in performing the contract as one for breach of contract.” Id. at 112-114. A claim is predicated in tort where the contract “is regarded merely as the vehicle, or mechanism, which established the relationship between the parties.” Id. at 114. Further: 

In real estate transactions, fraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose. Fraud is a generic term used to describe anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or 

gesture.  Youndt v. First Nat’l Bank of Port Allegany, 868 A.2d 539, 545 (Pa. Super. 2005). 

 

Where misrepresentations induce a party to enter into a contract, this Court has held that the gist of the action is in tort, and the contract is collateral. See Mirizio, 4 A.3d at 1087; Knight, 81 A.3d at 951; Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 719 (Pa. Super. 2005). As 


 

Superior Court – citing non-precedential opinions

https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/210/chapter65/s65.37.html&d=reduce

B.  Non-precedential decisions filed after May 1, 2019, may be cited for their persuasive value, pursuant to Pa.R.A.P. 126(b). 

 

 

 

Thursday, August 29, 2024

MDJ judgments - certiorari - timely filing of proof of service of appellee and MDJ

Thinkgrow Partners v. Parks – Pa. Super. – 8-26-24 – non-precedential ***

https://www.pacourts.us/assets/opinions/Superior/out/J-A09043-24m%20-%20106049081278758898.pdf?cb=1

 

Appellant filed writ of certiorari from MDJ decision giving appellee, property owner and judgment for possession in alleged landlord-tenant case. Appellant claimed that he was not a tenant but rather a purchases under a lease-purchase agreement, which is not subject to LT law and over which MDJ does not have jurisdiction.

 

It is undisputed that appellant timely served counsel for the property owner. Appellant also timely served MDJ using a form – apparently issued and approved by AOPC – which contained “only a section for proof of service” on the MDJ but with “no corresponding section for proof of service on the opposing party.” So appellant didn’t filed proof of service on owner’s counsel until after her case was dismissed for failure to comply with MDJ Rule 1011(c), which required proof of service within 5 days of service.

 

Superior Court affirmed the trial court’s dismissal of the certiorari action for failure to comply with MDJ Rule 1011 C, noting that it was a “particularly harsh” result, expecially given that locak of dispute that the owner’s counsel had been timely served.  Both courts also noted that a different result might have occurred if this were an appeal rather than certiorari. The Rules for appeals, MDJ Rule 1006, allow a court to reinstate an appeal, where there was an untimely proof of service, “upon good cause shown.” 

 

Both courts relied on the mandatory language of MDJ Rule 1011 © (certiorari “shall....be stricken”) with no saving language as with appeals, thus negating any discretion.

 

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***  Superior Court – citing non-precedential decisions

https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/210/chapter65/s65.37.html&d=reduce

B.  Non-precedential decisions filed after May 1, 2019, may be cited for their persuasive value, pursuant to Pa.R.A.P. 126(b). 

 

 

 

 

 

 

 

 

 

Wednesday, August 28, 2024

mailbox rule


 

Angels of Care v. DHS – Cmwlth. Court – 8-28-24 – reported, precedential


https://www.pacourts.us/assets/opinions/Commonwealth/out/390CD23_8-28-24.pdf?cb=1

 

Pursuant to what has commonly been termed the “mailbox rule,” where there is evidence that an agency mailed a notice to a provider’s last known address that is not returned as undeliverable, that evidence ordinarily will be sufficient to permit a factfinder to find that the notice was, in fact, received the party to whom it was addressed. Douglas v. Unemployment Compensation Board of Review, 151 A.3d 1188, 1191 (Pa. Cmwlth. 2016); Gaskins v. Unemployment Compensation Board of Review, 429 A.2d 138, 140 (Pa. Cmwlth. 1981). “[W]hen a letter has been written and signed in the usual course of business and placed in the regular place of mailing, evidence of the custom of the establishment as to the mailing of such letters is receivable as evidence that it was duly mailed.” Pinnacle Health Hospitals v. Unemployment Compensation Board of Review, 210 A.3d 1127, 1132 (Pa. Cmwlth. 2019) (citation and quotation omitted). When such evidence is present, it will give rise to a presumption that the recipient of the notice received it. Douglas, 151 A.3d at 1191. To defeat the presumption, the recipient must come forward with evidence showing that the notice was not, in fact, received. Id; Pinnacle Health Hospitals, 210 A.3d at 1133. It is well settled that merely denying receipt of an agency determination is not sufficient to defeat the presumption. Id. at 1132; J.A. v. Department of Public Welfare, 873 A.2d 782, 786 (Pa. Cmwlth. 2005). 

 

Thursday, August 15, 2024

evidence - authentication - screen shots of texts and emails

Walker v. Walker – Pa. Superior – 8-9-24 – reported, precedential

https://www.pacourts.us/assets/opinions/Superior/out/J-A09010-24o%20-%20106031657276969196.pdf?cb=1

 

In PFA contempt proceeding, court held that victim’s  testimony sufficiently authenticated screen shots of defendant’s texts and emails, which supported a finding of contempt, citing Pa. R. E. 901 (b)(11)(B).

 

 

 

Wednesday, August 14, 2024

default judgment - opening - citing meritorious preliminary objection

Lin v. Bernard – Pa. Super. – 8-12-24 – non-precedential***

 

https://www.pacourts.us/assets/opinions/Superior/out/J-A07028-23m%20-%20106033356277194969.pdf?cb=1

 

Pursuant to Pa. R.C.P. 237.3, a court “must grant a petition to open a default judgment where the petitioner attaches one or more preliminary objections.” In this contract case, the plaintiff didn’t plead whether the contract was oral or written, and if written, failed to attached the writing.

 

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*** Superior Court – citing non-precedential decisions

https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/210/chapter65/s65.37.html&d=reduce

B.  Non-precedential decisions filed after May 1, 2019, may be cited for their persuasive value, pursuant to Pa.R.A.P. 126(b). 

 

 

 

Home Improvement Consumer Protection Act - oral notice of cancellation is effective

Commonwealth v. Gillece Services - Cmwlth. Court - 7-3-24 - reported case

https://www.pacourts.us/assets/opinions/Commonwealth/out/861CD23(2)_7-3-24.pdf?cb=1

 

In a case of  first impression, the court held that a home improvement contractor must honor an oral  cancellation request from a customer. The written notice requirement under the UTP/Consumer Protection Law, 73 P.S. sec. 201-1 et seq.,  does not apply to the Home Improvement Consumer Protection Act, 73 P.S. sec. 517.1, et seq.

Tuesday, May 14, 2024

civil procedure - delay - dismissal - actual prejudice

Osborne v. Boscov’s Inc. – Pa. Super. – 5.14.24 – unreported***

https://www.pacourts.us/assets/opinions/Superior/out/J-S03017-24m%20-%20105935293265951864.pdf?cb=1

 

Held: Trial court erred in dismissing a complaint, sua sponte, for lack of activity, without holding a hearing to determine if the defendant had suffered prejudice by the delay.

 

It is well settled that a court may invoke its inherent power to dismiss a case for lack of activity on the docket. See Penn Piping, Inc. v. Insurance Co. of North America, 603 A.2d 1006, 1008 (Pa. 1992), abrogated in part by Jacobs v. Halloran, 710 A.2d 1098, 1102 (Pa. 1998); see also Pa.R.J.A. 1901(a) (stating that “[w]here a matter has been inactive for an unreasonable period of time, the tribunal, on its own motion, shall enter an appropriate order terminating the matter”).


As this Court has explained, the decision to dismiss a case “rests within the discretion of the trial court and will not be disturbed on appeal unless there is proof of a manifest abuse of that discretion.” Mudd v. Nosker Lumber, Inc., 662 A.2d
660, 662 (Pa. Super. 1995) (citation omitted).

 

A trial court may dismiss a case for inactivity under the following
circumstances: 

 

(1) a party has shown lack of due diligence by failing to proceed with reasonable promptitude, 

 

(2) there is no compelling reason for the delay, and 

 

(3) the delay has caused actual prejudice to the adverse party. See Jacobs, 710 A.2d at 1103. 

 

Our Supreme Court has explained that prejudice is “any substantial diminution of a party’s ability to properly present its case at trial.” 

 

This determination is to be made by the trial court, whose decision will not be disturbed absent an abuse of
discretion. Id.

 

Although the trial court had the authority to terminate the case for inactivity, see Penn Piping, 603 A.2d at 1008, the trial court erred in doing so without determining whether “the delay . . . cause[d] actual prejudice to the defendant.” Shope, 710 A.2d at 1108.

 

In its opinion, the trial court found that Appellees were presumed to have suffered prejudice because the delay exceeded five years. . . ..  However, our Supreme Court has expressly rejected the presumption of prejudice as “inconsistent with the well-established notion that the adversary must suffer harm before a case is dismissed for lack of
prosecution.” See Jacobs, 710 A.2d at 1102 (abrogating in part Penn Piping). Further, there is nothing in the record to reflect that Appellees suffered prejudice as a result of the delay in this case 

 

Accordingly, we are constrained to reverse the order terminating this action and remand for further proceedings.
On remand, 
Osborne v. Boscov’s Inc. – Pa. Super. – 5.14.24 – unreported***

https://www.pacourts.us/assets/opinions/Superior/out/J-S03017-24m%20-%20105935293265951864.pdf?cb=1

 

Held: Trial court erred in dismissing a complaint, sua sponte, for lack of activity, without holding a hearing to determine if the defendant had suffered prejudice by the delay.

 

It is well settled that a court may invoke its inherent power to dismiss a case for lack of activity on the docket. See Penn Piping, Inc. v. Insurance Co. of North America, 603 A.2d 1006, 1008 (Pa. 1992), abrogated in part by Jacobs v. Halloran, 710 A.2d 1098, 1102 (Pa. 1998); see also Pa.R.J.A. 1901(a) (stating that “[w]here a matter has been inactive for an unreasonable period of time, the tribunal, on its own motion, shall enter an appropriate order terminating the matter”).


As this Court has explained, the decision to dismiss a case “rests within the discretion of the trial court and will not be disturbed on appeal unless there is proof of a manifest abuse of that discretion.” Mudd v. Nosker Lumber, Inc., 662 A.2d
660, 662 (Pa. Super. 1995) (citation omitted).

 

A trial court may dismiss a case for inactivity under the following
circumstances: 

 

(1) a party has shown lack of due diligence by failing to proceed with reasonable promptitude, 

 

(2) there is no compelling reason for the delay, and 

 

(3) the delay has caused actual prejudice to the adverse party. See Jacobs, 710 A.2d at 1103. 

 

Our Supreme Court has explained that prejudice is “any substantial diminution of a party’s ability to properly present its case at trial.” 

 

This determination is to be made by the trial court, whose decision will not be disturbed absent an abuse of
discretion. Id.

 

Although the trial court had the authority to terminate the case for inactivity, see Penn Piping, 603 A.2d at 1008, the trial court erred in doing so without determining whether “the delay . . . cause[d] actual prejudice to the defendant.” Shope, 710 A.2d at 1108.

 

In its opinion, the trial court found that Appellees were presumed to have suffered prejudice because the delay exceeded five years. . . ..  However, our Supreme Court has expressly rejected the presumption of prejudice as “inconsistent with the well-established notion that the adversary must suffer harm before a case is dismissed for lack of
prosecution.” See Jacobs, 710 A.2d at 1102 (abrogating in part Penn Piping). Further, there is nothing in the record to reflect that Appellees suffered prejudice as a result of the delay in this case 

 

Accordingly, we are constrained to reverse the order terminating this action and remand for further proceedings.
On remand, the trial court shall conduct a hearing to address the remainder of the three-part test, i.e., whether Appellees suffered actual prejudice due to the delay in activity. See Jacobs, 710 A.2d at 1103; Shope,
710 A.2d at 1108.

 

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Superior Court – unreported  opinions can be cited for persuasive value

https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/210/chapter65/s65.37.html&d=reduce

B.  Non-precedential decisions filed after May 1, 2019, may be cited for their persuasive value, pursuant to Pa.R.A.P. 126(b).