J-S95034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LEBANON VALLEY INSURANCE CO. IN THE SUPERIOR COURT OF
A/S/O/ SIDNEY FLAXMAN PENNSYLVANIA
AND ERIC FLAXMAN
Appellant
v.
BRIAN FLAXMAN
Appellee No. 352 EDA 2016
Appeal from the Order entered January 6, 2016
In the Court of Common Pleas of Montgomery County
Civil Division at No: 2015-01589
BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.
DISSENTING MEMORANDUM BY STABILE, J.: FILED MARCH 29, 2017
I respectfully dissent. Appellant was entitled to the benefit of all
material facts set forth in its pleading and all reasonable inferences
deducible therefrom. As pled, Appellant avers a scenario whereby Appellee,
the sole shareholder of the corporate lessor, purposely removed the cover
plate over the pilot light on a hot water heater leaving the flame of the pilot
light exposed to materials he permitted to be stored in proximity to the
water heater. Under these facts, I cannot conclude at this stage of the
proceedings that Appellee did not engage in the tortious activity that is
averred to have caused harm to Appellant. I cannot agree with the Majority
that Appellee’s “failure” to replace the cover plate on the pilot light amounts
to nonfeasance, or an omission to act, not actionable under Pennsylvania’s
J-S95034-16
participation theory, as opposed to malfeasance, or the improper
performance of an act, which would be actionable. See Wicks v. Milzoco
Builders, Inc., 470 A.2d 86, 90 (Pa. 1983) (“liability attaches [to a
corporate officer] where the record establishes the individual’s participation
in the tortious activity”). Although the Majority seizes upon the complaint’s
averments that Appellee “failed” to replace the cover plate as nonfeasance, I
believe that action was an affirmative act that may constitute malfeasance.
Appellee is alleged to have removed the cover plate creating a hazard to
materials stored in proximity to the open flame of the pilot light. Under the
facts as pled, I do not believe that the Appellee is entitled to be shielded
from individual liability. As pled, Appellee’s conduct evidences personal
involvement in creating the hazard. Such allegation is sufficient, at this
time, to sustain a claim based upon Appellee’s personal participation in the
alleged tortious acts. Therefore, I would reverse the granting of the
demurrer by the trial court.
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