J.A13039/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CCI COMMUNICATIONS, INC., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
THE RICHARD F. SASSA INSURANCE :
AGENCY INC., :
: No. 2569 EDA 2013
Appellee :
Appeal from the Order July 18, 2013
In the Court of Common Pleas of Philadelphia County
Civil Division No(s).: February Term, 2010 No. 2070
BEFORE: ALLEN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 22, 2014
Appellant, CCI Communications, Inc., appeals from the order of the
Philadelphia County Court of Common Pleas granting summary judgment in
favor of Appellee, The Richard F. Sassa Insurance Agency, Inc. Another
panel of this Court previously reversed summary judgment in favor of
Appellee and remanded for further discovery. CCI Commc’ns, Inc. v. The
Richard F. Sassa Ins. Agency, Inc., 3253 EDA 2011 (unpublished
memorandum) (Pa. Super. Nov. 20, 2012). Appellant contends the trial
court erred in finding that the statute of limitations barred its claim for
*
Former Justice specially assigned to the Superior Court.
J. A13039/14
negligence against Appellee. Appellant argues the discovery rule tolled the
statute of limitations on Appellant’s claim against Appellee. We affirm.
This Court, in the prior appeal, adopting the summary of the facts as
provided by Appellant, stated:
[Appellant] is a video production company that provides
TV production services such as studio production, on-site
mobile production using trucks, and video editing utilizing
audio/visual equipment. The programming includes the
Phillies Pre-Game Show. The video equipment was
initially installed in a truck and the truck was insured for
$300,000 under [an automobile policy with the
Employer’s Fire Insurance Company (“EMPLOYERS”).]
A fire occurred at [Appellant’s] Building II on August 23,
2007 (“date of loss”) destroying the building and business
personal property located therein including certain video
equipment that formerly had been installed in the truck.
In addition [Appellant] sustained a business income loss
from destruction of the building and business personal
property. EMPLOYERS paid [Appellant] for destruction to
the building and partially paid for the business personal
property. EMPLOYERS also paid the business loss income
resulting from the destruction of Building II but partially
paid for the destruction of the video equipment but paid
nothing for the business income loss resulting from the
destruction of the video equipment. [Appellant] sued
EMPLOYERS for unpaid portion of the video equipment
loss and also for the business income loss resulting from
the destruction of the video equipment.
Kenneth Selinger [(“Selinger”)], President of Appellant
testified at his deposition that he [had] asked John
Geraldi [(“Geraldi”)], President of [Appellee] to procure
business income loss coverage on [Appellant’s] video
equipment. [Selinger] communicated to [Geraldi] the
purpose of the $300,000 in Schedule 8 of the Auto policy
was to insure any loss arising out of damage to the video
equipment in the truck including loss of income.
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At the time of the fire, the video equipment was not in
the truck but stored in [Appellant’s] Building II. As a
result, EMPLOYERS attempted to calculate [Appellant’s]
losses under Building II’s property and business income
coverages rather than the Auto Policy that contained the
$300,000 limit of insurance. Building II and another
provision of the insurance policy did not have enough
coverage to cover the video equipment damage fully and
[Appellant’s] business income loss to the video
equipment. The rest of the policy did not have any
business income coverage that would be applicable as
result of which [Appellant] was not paid for the
business income loss to the video equipment by
EMPLOYERS and only partially paid for the damage
to the video equipment.
Initially [Appellant’s] suit was to reform
EMPLOYERS’ policy to provide [that] the video
equipment and business income loss was covered
under the $300,000 in the auto policy. However,
[Appellant] had to settle its reformation claim
against EMPLOYERS for partial payment on the
video equipment loss only and nothing on the
business income loss arising from the damage to
the video equipment. This was because the
averments in [Appellant’s] complaint turned out to
be incorrect. [Appellant] had averred in its complaint
that:
16. [Appellant] communicated to [Appellant’s]
broker, [Geraldi] of [Appellee], the purpose of the
$300,0-00 in Schedule 8 was to insure any loss
arising out of damage to the equipment in the
truck including loss of income.
17. Upon belief, [Appellee] communicated the
purpose of the $300,000 coverage on the truck to
[EMPLOYERS via a separate nonparty entity].
* * *
When [Appellant] settled its claims against
EMPLOYERS that left only the sole liability claim in
EMPLOYERS’ joinder complaint against [Appellee]
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outstanding. [Appellee] filed a Motion for Summary
Judgment against [Appellant] on the grounds that the
two year statute of limitations[1] had run on [Appellant’s]
claim under the sole liability claim and [Appellant’s] claim
against [Appellee] was thus barred. The [trial] court
entered an order granting [Appellee’s] Motion for
Summary Judgment on the statute of limitations defense.
Brief of Appellant, pp. 4-7 (emphasis omitted).
CCI Commc’ns, Inc. 3253 EDA 2011 at 1-3 (emphases added). Appellant
appealed from the order granting summary judgment in favor of Appellee.
On November 20, 2012, this Court reversed and remanded for further
proceedings. See id. at 7-8.
In remanding the case sub judice for further discovery, this Court
reasoned:
. . . [Appellant] claims “there are no record facts upon
which the [trial] court could have based its conclusion that
the statute of limitations on [its] professional malpractice
claim began to run on August 23, 2007.” The basis of this
argument is the following germane factual findings
rendered by the trial court:
Here, [Appellant] knew that the insurance policy as
issued did not contain the coverage they thought
they had requested. [Appellant’s] first-party
insurance claim became knowable on August
23, 2007, the date of the fire. As to [Appellant,]
the statute of limitations against [Appellee] for
negligence in the issuance of the policy expired on
August 23, 2009. Since [Appellee] was joined on
August 27, 2010, [Appellant] had no claim for
negligence [i.e. malpractice] against [Appellee]. Any
direct claim is now barred as a matter of law.
1
The statute of limitations for a negligence claim is two years. See 42
Pa.C.S. § 5524(7).
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Trial [Ct. Op., 5/10/12, at 3] (emphasis supplied). Having
now reviewed the record, we are compelled to agree with
[Appellant] that, granting it the benefit of all doubt as the
nonmoving party, it may, at the time of the fire, have
had a good faith basis upon which to believe that it
had purchased the appropriate insurance. Thus, the
mere occurrence of an event for which insurance coverage
is sought, was not evidence that claimant was aware that
the sought after coverage was not in place. While we are
certainly mindful that the claimant’s good faith basis would
obviously be undercut by notice of the denial of coverage
from the insurer, we do not find that critical information─
specifically, the date of such notice of denial─apparent on
this record. Thus, we are compelled to agree with
[Appellant] that the factual information necessary to
evidence the triggering of the applicable statute of
limitations against [Appellee] is not contained in the
present record. Therefore, we must reverse the grant
of summary judgment and remand this case for
further proceedings.[ ]
CCI Commc’ns Inc., 3253 EDA 2011 at 7-8 (some citations omitted and
some emphases added).2
2
As the trial court stated:
It should be noted that the Superior Court implied that
“the date of the denial of coverage decision by the
Insurance Company” would be important; however, there
was no denial of coverage here. Instead,
[Appellant] argued that the loss had been adjusted
improperly under the property portion of the policy,
rather than under the auto portion of the policy
whose proceeds had not been exhausted.
[Appellant’s] Third Am. Compl. ¶ 9. Neither party has
addressed the Superior Court’s concerns over a “denial
date.” Because payment was made, but there was an
alleged problem with the type of coverage, neither party
appears to assert a “date of denial,” as being critical.
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On remand, additional discovery was taken. Selinger, Appellant’s
president, was re-deposed on March 4, 2013 and testified to the following.
Selinger’s son Steve, John Geraldi, Appellee’s president, and the adjuster for
One Beacon, Michael Hagan, assisted in adjusting the fire loss. N.T., 3/4/13,
at 7. Martin Rabinowitz worked with the adjuster, received the policies and
Appellant’s losses, and made a recommendation. Id. at 8. Geraldi assisted
in trying to determine what coverage existed for the loss. Id. One of the
components of the loss was the loss of income resulting from the
fire. Id. at 9.
Selinger further testified, inter alia, as follows:
Q: Can you give me . . . a general time frame on when
your meetings with [ ] Geraldi would have taken place?
A: They were frequent right after the fire. He was
there that day. [Geraldi] had the policy, we did not have
the policy on site. . . .
* * *
Q: You mentioned a little bit ago that you did not have the
policy for that particular coverage period at the time the
fire happened and that [Geraldi] had to provide that to
you. Correct?
A: Correct.
Q: Would that be something he did at one of your very
first meetings after the fire?
[ ] Went over what the coverages were?
Trial Ct. Op., 7/18/13, at 5 n.17 (emphasis added).
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A: Yes.
* * *
After the fire, it was the first time I saw the
complete policy. Because that is what [Hagan] from
One Beacon wanted to go through so he could
ascertain what coverages were there.
* * *
Q: And how quickly after the fire would you and [Geraldi]
and [Hagan] have gotten together and looked over the
policy?
A: I think that was within the week as well. I think in
that first meeting we were all together, I think the policy
was also part of that meeting.
Q: Can you tell me the nature of what you discussed, and
as I understand your testimony, shortly after the fire you
met with [Geraldi] and you looked at a summary of
coverages and talked about the process I assume,
adjustment process. Correct?
A: Correct.
Q: And at that point, was anything that you now know to
be a business income claim relating to the downtime for
the mobile unit discussed? This is just the first meeting
with [Geraldi] only. And it may not have been discussed
specifically, but was the concept discussed?
A: The concept was discussed, I believe, because the─that
was one of our immediate concerns.
* * *
Q: And the meeting with─we just talked about your initial
meeting with [Geraldi]. Now, at your─I think you said
there was another meeting with [Geraldi] and then
[Hagan] as well probably still within a week or so of the
fire. Correct?
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A: Correct.
Q: And at that point, you had the policy . . . . Is that
correct?
A: Correct. I mean, most of the discussions, [Geraldi] was
really helping [Hagan], you know, understand some of the
coverages and they were both searching, okay, is this
covered and they would go through and they would look at
it and so forth and so on.
Q: So that was at one of your first meetings with you,
[Geraldi] and [Hagan], that they were looking in the
policy to see what coverages were there and where
things might fall. Correct?
A: Correct.
Q: Did any other meeting like that take place over the
course of the adjusting, including [Geraldi, Hagan] and
yourself, possibly your son, were reconvening to vet out
coverages under the policy?
A: I don’t know how many times is happened, but it was
at least six to eight meetings[3] where we were all
together. . . .
* * *
Q: Do you recall [ ] Geraldi specifically telling you that the
assigned coverage limit for the truck specifically also
provided for business income protection?
A: It’s difficult to recall the specific─if you want to ask
specifically, but it certainly through all those years was
something that we definitely assumed was part of that.
Q: After the fire, you testified that Mr. Geraldi
participated in six to eight meetings with you, some
of which─at some of which you went over the policy
3
These meetings occurred in 2007. N.T. at 30.
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and discussed what you were eligible for and what
you had to do. Correct?
A: Correct.
Q: And at any point during those meetings, and I’ll ask the
same question for those meetings, did he represent to you
specifically that a business income claim would be covered
or should be covered under the auto portion of the policy?
A: I don’t know if he specifically mentioned under the auto
part of the policy, but he certainly indicated that we would
be covered for some of the interruption that we were
experiencing.
Q: I think it was your testimony previously that you
expected business income or business interruption to be
covered, but you just weren’t sure how or under what
portion of the policy it would be covered. Would that be
fair to say?
A: That would be fair to say. . . .
Q:. . . [I]n your complaint . . . it seems to indicate that its
[your] position that it should be covered under the auto
portion of the policy and that is what is written in black
and white. Correct?
A: Correct.
N.T., 3/4/13, at 12, 14, 20, 21-22, 23-24, 60-62 (emphases added).
The trial court summarized the procedural posture of this case as
follows:
On May 19, 2010, [Appellant] filed its Third Amended
Complaint against [EMPLOYERS] for breach of contract,
reformation, and bad faith.[4] [Appellant’s] complaint
4
The docket entries in the case sub judice commence on February 17, 2010,
with the filing of Appellant’s Complaint against EMPLOYERS. See Docket,
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arises out of a fire loss that occurred on its premises on
August 23, 2007.
On August 27, 2010, [EMPLOYERS] filed a joinder
complaint against additional defendant [Appellee] for a
claim of negligence.
On October 15, 2010, [Appellee] filed its answer with
new matter and cross-claim to [EMPLOYERS’] joinder
complaint.
On October 12, 2011, [Appellee] filed a motion for
summary judgment. At the time of filing, [Appellant] had
settled all claims with [EMPLOYERS] . . . .
On October 31, 2011, [the court] granted [Appellee’s]
motion for summary judgment . . . . The court reasoned:
“[Appellant’s] first-party insurance claim became
actionable on August 23, 2007, the date the fire occurred.
Since no claim was asserted against [Appellee] until
August 27, 2010, any direct claim is now barred as a
matter of law.”[5]
2/17/10, at 3. On March 11, 2010, Appellant filed its First Amended
Complaint. See id. at 4. The Second Amended Complaint was filed on April
7, 2010. See id.
5
The trial court had previously opined:
The party seeking to invoke the discovery rule bears the
burden of establishing the inability to know of the injury
despite the exercise of reasonable diligence. [Appellant]
knew of [Appellee’s] involvement in procuring the policy at
issue in this case, [Appellant] knew the coverage it asked
[Appellee] to obtain, [Appellant] knew the contents of the
policy, [Appellant] knew the reason for the denial of
coverage, and [Appellant] was represented by counsel who
could ascertain what the policy did or did not cover, within
the statute of limitations. The discovery rule does not
apply in this case.
Trial Ct. Op., 10/31/11, at 2 n.5.
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On November 29, 2011, [Appellant] appealed from the
October 31, 2011 Order to the Superior Court.
On January 15, 2013, the Superior Court reversed the
order granting summary judgment in favor of [Appellee],
and remanded the case.[6]
Trial Ct. Op., 7/18/13, at 1-2 (footnotes omitted and emphases added).
On April 11, 2013, Appellee filed the underlying motion for summary
judgment, which the trial court granted on July 18, 2013. The trial court
concluded, based upon Selinger’s testimony, that Appellant failed to “meet
its burden to demonstrate it could not, upon reasonable investigation,
ascertain [this coverage was] not present in the policy.” Id. at 7.
Appellant filed a motion for reconsideration which was denied on August 5,
2013. This timely appeal followed. Appellant was not ordered to file a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
Appellant raises the following issues for our review:
A. Under the discovery rule did the statute of limitations on
[Appellant’s] professional malpractice claim against
[Appellee] for an unpaid business interruption loss not
start to run until [Appellee] filed an answer to EMPLOYERS’
joinder complaint that revealed that [Appellee] had never
requested business interruption coverage for [Appellant]
from EMPLOYERS?
6
See CCI Commc’ns, Inc. 3253 EDA 2011. We note that this Court’s
memorandum was filed on November 20, 2012 and the record was remitted
to the trial court on January 11, 2013. Our memorandum was then entered
on the trial court’s docket on January 15, 2013.
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B. Did the lower court decide the wrong issue when it
decided when did [Appellant] know [sic] it did not have
business income coverage when the correct issue is when
did [Appellant] know that [Appellee] had not requested
business income coverage?
C. Did the lower court commit reversible error by not
allowing [Appellant] to present evidence it told [Appellee]
to procure business income coverage on its video
equipment?
D. Did the lower court commit reversible error by not
finding the six years statute of limitations for breach of
contract was applicable?
Appellant’s Brief at 5-6.
First, Appellant argues that the trial court erred in entering summary
judgment in Appellee’s favor.7 Appellant contends the discovery rule applies
in the instant case as an exception to the requirement that suit must be
brought within the statutory period. Id. at 16. We reproduce Appellant’s
argument verbatim:
In this case, [Appellant] first discovered the possible
existence of its professional malpractice claim against
[Appellee] on October 15, 2010 when [Appellee]
7
Previously, this Court reversed the order granting summary judgment in
favor of Appellee because there was insufficient “factual information
necessary to evidence the triggering of the applicable statute of limitations”
in the record. CCI Commc’ns, Inc., 3253 EDA 2011 at 7-8. Appellant had
argued the cause of action should be deemed timely filed because the
discovery rule tolled the statute of limitations. Id. at 5. This Court found
the issue waived because it was not raised in the trial court. Id. at 6. After
remand, Appellee filed a motion for summary judgment averring the claim
was time barred. Appellee’s Mot. Summ. J., 4/11/13. Appellant’s response
to the motion raised the discovery issue. See Appellant’s Resp. Mot. Summ.
J., 5/13/13, at 8.
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revealed for the first time in its Answer to EMPLOYERS’
Joinder Complaint that it had not communicated to
EMPLOYERS a request for business income coverage on
[Appellant’s] video equipment. That means that under the
Discovery Rule the statute of limitations on [Appellant’s]
professional malpractice claim against [Appellee] for
payment of the unpaid business income claim did not
begin to run until October 15, 2010 and the statute of
limitations would not have expired until October 14,
2012. Since [Appellee] was joined on August 27,
2010, such joinder was timely. The lower court
committed reversible error in deciding the Discovery Rule
began to run by the end of 2007, granting [Appellee’s]
Motion for Summary Judgment against [Appellee] and this
Court should reverse and remand this case for trial.
Id. at 16-17.8 We find no relief is due.
8
We note that in Appellant’s first appeal to this Court, Appellant asserted
that the cause of action against Appellee was timely under the discovery
rule. This Court opined:
[Appellant] first argues that its cause of action against
[Appellee] should be considered as timely filed under the
“discovery rule,” and that its discovery date should be
regarded as the deposition date (February 10, 2011) of
[Geraldi, the representative of Appellee] who testified that
the contested coverage was never requested. . . . Here,
however, Appellant acknowledges that it never asserted
this argument before the trial court.[ ] Thus, that issue has
not been preserved for this Court’s review, and must be
regarded as waived.
CCI Commc’ns, Inc., 3253 EDA 2011 at 5, 6 (emphasis added).
“[Appellant] next argues that its alleged claim against [Appellee] should
have been regarded as timely filed because the applicable statute of
limitations did not commence to run until [Appellant] had settled its original
claim against EMPlOYERS.” Id. at 6. This Court opined: “[Appellant],
however, cites no compelling authority to support this somewhat novel
position. . . . Thus, we find no basis upon which to grant relief on this
claim.” Id.
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Our standard of review governing summary judgment
motions is well settled.
[O]ur standard of review of an order granting summary
judgment requires us to determine whether the trial court
abused its discretion or committed an error of law[,] and
our scope of review is plenary. We view the record in the
light most favorable to the nonmoving party, and all
doubts as to the existence of a genuine issue of material
fact must be resolved against the moving party. Only
where there is no genuine issue as to any material fact and
it is clear that the moving party is entitled to a judgment
as a matter of law will summary judgment be entered.
Clausi v. Stuck, 74 A.3d 242, 247-48 (Pa. Super. 2013) (quotation marks
and citations omitted).
“[T]he statute of limitations begins to run as soon as
the right to institute and maintain a suit arises; lack of
knowledge, mistake or misunderstanding do not toll
the running of the statute of limitations.” The statute
of limitations requires aggrieved individuals to bring their
claims within a certain time of the injury, so that the
passage of time does not damage the defendant’s ability to
adequately defend against claims made.
Dalrymple v. Brown, 701 A.2d 164, 167 (Pa. 1997) (emphasis added). “If
a party has the means of discovery within his power but neglects to use
them, his claim will still be barred.” Burnside v. Abbott Labs., 505 A.2d
973, 988 (Pa. Super. 1985).
“The party seeking to invoke the discovery rule bears the burden of
establishing the inability to know of the injury despite the exercise of
reasonable diligence.” Id. at 167.
In Fine v. Checcio, 870 A.2d 850 (Pa. 2005), the Pennsylvania
Supreme Court opined that
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it is not relevant to the discovery rules application whether
or not the prescribed period has expired; the discovery
rule applies to toll the statute of limitations in any case
where a party neither knows nor reasonably should have
known of his injury and its cause at the time his right to
institute suit arises.
Id. at 859. In Wilson v. El-Daief, 964 A.2d 354 (Pa. 2009), the
Pennsylvania Supreme Court held that “[m]ost cases apply a reasonable-
diligence requirement, as opposed to an all-vigilance one, see, e.g., Fine,
[ ] 870 A.2d at 858, and reasonable diligence as described in Fine is the
appropriate formulation.” Id. at 363.
Instantly, the trial court opined:
In its Third Amended Complaint, [Appellant] claimed
that [EMPLOYERS] failed to fully compensate [it] for the
“business interruption” losses resulting from the loss and
damage to the video equipment. The issue here is
whether the discovery rule may have tolled the statute of
limitations for any negligence claim [Appellant] may have
against [Appellee] for failing to place the type of coverage
that [Appellant] claims it wanted.
* * *
The precise “injury” at issue here is [Appellant’s] claim
that [Appellee]: . . . negligently failed to secure loss of
income coverage for loss of use of the video equipment . .
..
Here, Selinger, [Appellant’s] president re-testified on
March 4, 2013, that he reviewed the Policy, at the latest,
within days of the fire with both [Geraldi, Appellee’s
president] and [Hagan, EMPLOYER’S adjustor].
* * *
It is undisputed that the policy, issued in July 2007,
did not contain business income coverage . . . nor had any
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of the previous policies purchased from [Appellee].
[Appellant] did not, despite three amended complaints,
ever allege a claim against [Appellee]. Instead,
[Appellant] indicated that [its] position was that the loss
should have been covered under the auto policy.
* * *
. . . Here, in fact, [Appellant’s] president reviewed the
policy within a week of the fire with representatives of both
[EMPLOYERS] and [Appellee], and again six to eight times
thereafter in the next three months. The policy has no
coverage for business lost income.
. . . [Appellant] has not explained what, despite
reasonable diligence and assistance of the multiple
professionals it consulted, should have tolled the
statute of limitations, where the policy was clearly
reviewed within days of the fire to determine what
was covered.
* * *
. . . It[’s] clear now, through additional discovery, that
[Appellant] was not affirmatively mislead . . . .
. . . [Selinger, Appellant’s] president acknowledges that
the Policy was reviewed in detail with him six to eight
times at least three months after the fire, and does not
testify that he was assured his damaged [sic] would be
covered under the auto portion of the policy.
* * *
There was extensive discussion about the issues of
coverage, and nowhere is it averred or established that
[Appellee] lied to or mislead [Appellant] to an extent
where the statute of limitations could have been tolled
beyond the end of 2007.
Trial Ct. Op. at 5, 6, 7, 8-9, 10, 11 (footnotes omitted and some emphasis
added). We agree.
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We discern no abuse of discretion or error of law by the trial court.
See Clausi, 74 A.3d at 247-48. Appellant’s lack of knowledge, mistake, or
misunderstanding will not toll the statute of limitations. See Dalrymple,
701 A.2d at 167. Appellant has not satisfied his burden to establish the
inability to learn of the injury despite exercising reasonable diligence. See
Brown, 701 A.2d at 167. Accordingly, we agree with the trial court that
Appellant’s claim is barred by the statute of limitations. See Burnside, 505
A.2d at 988.
Appellant’s brief is devoid of any citation to legal authority for issues B,
C and D. The “failure to develop an argument with citation to, and analysis
of, relevant legal authority waives that issue on review.” Harris v. Toys
“R” Us-Penn, Inc., 880 A. 2d 1270, 1279 (Pa. Super. 2005). Therefore,
issues B, C and D are waived.9 See id.
Accordingly, we affirm the order granting summary judgment in favor
of Appellee.
Order affirmed.
9
We note Appellant’s reply brief contains no citation to legal authority.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2014
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CCI Communications v. The Richard F Sassa Ins.
Combined Opinion