J-A05005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BARRY STEIN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
KENNY ROSS TOYOTA, INC. :
:
Appellee : No. 1085 WDA 2016
Appeal from the Order Entered June 27, 2016
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD 15 006504
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 09, 2017
Appellant, Barry Stein, appeals from the order entered in the
Allegheny County Court of Common Pleas, which granted summary
judgment in favor of Appellee, Kenny Ross Toyota, Inc. We affirm.
The relevant facts and procedural history of this case are as follows.
On December 1, 2010, Appellant purchased a used 2008 Toyota Camry from
Appellee for $19,909.00. During the sales transaction, Appellant provided
his car insurance card to a representative of Appellee. The insurance
information taken from the insurance card appears in the sales agreement
for the vehicle, along with an integration clause which states:
Purchaser agrees that this Order includes all of the terms
and conditions appearing on the face and reverse sides
hereof, that this Order cancels and supersedes any prior
oral or written agreement or representation and as of the
date hereof comprises the complete and exclusive
statement of the terms of the agreement relating to the
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subject matters covered hereby.
(See Sales Agreement, attached as Exhibit B to Appellee’s Motion for
Summary Judgment; R.R. at 104a). On January 23, 2011, Appellant had a
car accident in the 2008 Toyota Camry, which resulted in injuries to James
Hohman. When Appellant called his insurer, Mutual Benefit Insurance
Company, to report the accident, an insurance agent informed Appellant the
2008 Toyota Camry was not a covered vehicle under his insurance policy.
As a result, Mr. Hohman’s insurance company, Erie Insurance, paid Mr.
Hohman $50,000.00 on an uninsured motorist claim and sued Appellant.
Appellant subsequently settled the lawsuit with Erie Insurance for
$22,500.00.
On April 15, 2015, Appellant initiated a cause of action against
Appellee by writ of summons. Appellant filed a complaint on June 5, 2015,
which raised the following claims: (1) negligence; (2) negligent
misrepresentation; (3) breach of contract; and (4) violation of the Unfair
Trade Practices and Consumer Protection Law (“UTPCPL”). All of Appellant’s
claims stemmed from Appellee’s alleged promise to add the 2008 Toyota
Camry to Appellant’s existing insurance policy. On July 21, 2015, Appellee
filed preliminary objections, which resulted in the dismissal of Appellant’s
UTPCPL claim on August 27, 2015. Appellee filed an answer and new matter
to Appellant’s complaint on September 30, 2015. On October 16, 2015,
Appellant filed a reply to Appellee’s new matter.
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Appellee filed a motion for summary judgment on February 18, 2016.
Appellee’s motion claimed the court should grant summary judgment in
favor of Appellee because: (1) the integrated sales agreement did not
contain a promise that Appellee would add the 2008 Toyota Camry to
Appellant’s existing insurance policy; (2) Appellee owed Appellant no legal
duty to add the new vehicle to Appellant’s existing insurance policy; and (3)
the parol evidence rule barred the introduction of an alleged statement by
Appellee’s sales manager that he would add the 2008 Toyota Camry to
Appellant’s existing insurance policy. Appellant filed a response and a
supplemental response in opposition to Appellee’s motion for summary
judgment on June 2, 2016 and June 8, 2016, respectively. Appellee filed a
reply in support of its motion for summary judgment on June 9, 2016. On
June 27, 2016, the court granted Appellee’s motion for summary judgment
and dismissed Appellant’s remaining claims. Appellant timely filed a notice
of appeal on July 26, 2016. On August 4, 2016, the court ordered Appellant
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), and Appellant timely complied on September 1, 2016.
Appellant raises the following issues for our review:
WHETHER [APPELLANT’S] EVIDENCE IN SUPPORT OF HIS
BREACH OF CONTRACT, NEGLIGENCE AND NEGLIGENT
MISREPRESENTATION CLAIMS SURROUNDING HIS
PURCHASE OF A VEHICLE FROM [APPELLEE] AND THE
REPRESENTATIONS MADE BY [APPELLEE] RELATED TO
[APPELLEE] CONTACTING [APPELLANT’S] INSURER WAS
SUFFICIENT TO CREATE A GENUINE ISSUE OF MATERIAL
FACT SUCH THAT [APPELLEE’S] MOTION FOR SUMMARY
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JUDGMENT SHOULD HAVE BEEN DENIED?
WHETHER [APPELLANT] IS PRECLUDED FROM
INTRODUCING EVIDENCE IN SUPPORT OF HIS CLAIMS
BECAUSE OF THE PAROL EVIDENCE RULE AND THE
PURPORTED MERGER CLAUSE CONTAINED IN THE
CONTRACT BETWEEN [APPELLANT] AND [APPELLEE]?
(Appellant’s Brief at 2-3).
For purposes of disposition, we combine Appellant’s issues. Appellant
argues the court overlooked certain evidence when it granted Appellee’s
motion for summary judgment. Appellant specifically claims his deposition
testimony, the deposition testimony of Appellee’s sales manager and
salesperson, the completed insurance section on the sales agreement, and
information contained in title form, all support Appellant’s tort and contract
claims. Appellant submits his evidence establishes Appellee’s promise to
ensure the addition of the 2008 Toyota Camry to Appellant’s existing
insurance policy. Appellant also argues the integration clause contained in
the sales agreement does not bar the introduction of parol evidence to
support his claims. Appellant maintains the sales agreement does not
include a section related to the duty to obtain insurance for the vehicle, so
the parol evidence rule is inapplicable. Appellant avers the existing policy
information section of the sales agreement creates an ambiguity, which also
allows the introduction of parol evidence. Appellant concludes the court
erred when it granted Appellee’s motion for summary judgment because the
integration clause of the sales agreement precluded parol evidence, and this
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Court should reverse and remand for trial. We disagree.
Our 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. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344,
347 (Pa.Super. 2006).
Judicial discretion requires action in conformity with law on
facts and circumstances before the trial court after hearing
and consideration. Consequently, the court abuses its
discretion if, in resolving the issue for decision, it
misapplies the law or exercises its discretion in a manner
lacking reason. Similarly, the trial court abuses its
discretion if it does not follow legal procedure.
Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000)
(internal citations omitted). Our scope of review is plenary. Pappas v.
Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536
U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002). In reviewing a trial
court’s grant of summary judgment,
[W]e apply the same standard as the trial court, reviewing
all the evidence of record to determine whether there
exists a genuine issue of material fact. We view the record
in the light most favorable to the non-moving 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. All doubts as to the existence of a genuine issue
of a material fact must be resolved against the moving
party.
Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of [a] cause
of action. Summary judgment is proper if, after the
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completion of discovery relevant to the motion, including
the production of expert reports, an adverse party who will
bear the burden of proof at trial has failed to produce
evidence of facts essential to the cause of action or
defense which in a jury trial would require the issues to be
submitted to a jury. In other words, whenever there is no
genuine issue of any material fact as to a necessary
element of the cause of action or defense, which could be
established by additional discovery or expert report and
the moving party is entitled to judgment as a matter of
law, summary judgment is appropriate. Thus, a record
that supports summary judgment either (1) shows the
material facts are undisputed or (2) contains insufficient
evidence of facts to make out a prima facie cause of action
or defense.
Upon appellate review, we are not bound by the trial
court’s conclusions of law, but may reach our own
conclusions.
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)
(internal citations and quotation marks omitted).
To succeed on a case alleging negligence, a plaintiff must prove the
following four elements: (1) a duty or obligation recognized by law; (2) a
breach of that duty; (3) a causal connection between the actor’s breach of
the duty and the resulting injury; and (4) actual loss or damage suffered by
the plaintiff. Wilson v. PECO Energy Company, 61 A.3d 229, 232
(Pa.Super. 2012). “The elements of a common law claim for negligent
misrepresentation are: (1) a misrepresentation of a material fact; (2) made
under circumstances in which the misrepresenter ought to have known its
falsity; (3) with an intent to induce another to act on it; and (4) which
results in injury to a party acting in justifiable reliance on the
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misrepresentation.” Gongloff Contracting, L.L.C. v. L. Robert Kimball &
Associates, Architects and Engineers, Inc., 119 A.3d 1070, 1076
(Pa.Super. 2015). “Negligent misrepresentation differs from intentional
misrepresentation in that the misrepresentation must concern a material fact
and the speaker need not know his or her words are untrue, but must have
failed to make a reasonable investigation of the truth of these words.” Id.
“To support a claim for breach of contract, a plaintiff must allege: (1) the
existence of a contract, including its essential terms; (2) a breach of a duty
imposed by the contract; and (3) resultant damage.” Pittsburgh
Construction Company v. Griffith, 834 A.2d 572, 580 (Pa.Super. 2003),
appeal denied, 578 Pa. 701, 852 A.2d 313 (2004).
Significantly:
A plaintiff cannot survive summary judgment when mere
speculation would be required for the jury to find in
plaintiff’s favor. A jury is not permitted to find that it was
a defendant’s [actions] that caused the plaintiff’s injury
based solely upon speculation and conjecture; there must
be evidence upon which logically its conclusion must be
based. In fact, the trial court has a duty to prevent
questions from going to the jury which would require it to
reach a verdict based on conjecture, surmise, guess or
speculation. Additionally, a party is not entitled to an
inference of fact that amounts merely to a guess or
conjecture.
Krishack v. Milton Hershey School, 145 A.3d 762, 766 (Pa.Super. 2016)
(internal citation omitted). Additionally, neither the moving party nor the
non-moving party can rely on its own witness’ testimony via affidavits or
deposition, either to prevail or defeat summary judgment. DeArmitt v.
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New York Life Ins. Co., 73 A.3d 578 (Pa.Super 2013) (citing generally
Borough of Nanty-Glo v. American Surety Co. of New York, 309 Pa.
236, 163 A. 523 (1932)). Further, “a motion for summary judgment cannot
be supported or defeated by statements that include inadmissible hearsay
evidence.” Bezjak v. Diamond, 135 A.3d 623, 631 (Pa.Super. 2016),
appeal denied, 145 A.3d 722 (2016).
The Pennsylvania Supreme Court has described the parol evidence rule
as follows:
Where the parties, without any fraud or mistake, have
deliberately put their engagements in writing, the law
declares the writing to be not only the best, but the only,
evidence of their agreement. All preliminary negotiations,
conversations and verbal agreements are merged in and
superseded by the subsequent written contract…and unless
fraud, accident or mistake be averred, the writing
constitutes the agreement between the parties, and its
terms and agreements cannot be added to nor subtracted
from by parol evidence.
Therefore, for the parol evidence rule to apply, there must
be a writing that represents the entire contract between
the parties. To determine whether or not a writing is the
parties’ entire contract, the writing must be looked at and
if it appears to be a contract complete within itself,
couched in such terms as import a complete legal
obligation without any uncertainty as to the object or
extent of the [parties’] engagement, it is conclusively
presumed that [the writing represents] the whole
engagement of the parties…. An integration clause which
states that a writing is meant to represent the parties’
entire agreement is also a clear sign that the writing is
meant to be just that and thereby expresses all of the
parties’ negotiations, conversations, and agreements made
prior to its execution.
Once a writing is determined to be the parties’ entire
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contract, the parol evidence rule applies and evidence of
any previous oral or written negotiations or agreements
involving the same subject matter as the contract is
almost always inadmissible to explain or vary the terms of
the contract. One exception to this general rule is that
parol evidence may be introduced to vary a writing meant
to be the parties’ entire contract where a party avers that
a term was omitted from the contract because of fraud,
accident, or mistake. In addition, where a term in the
parties’ contract is ambiguous, parol evidence is admissible
to explain or clarify or resolve the ambiguity, irrespective
of whether the ambiguity is created by the language of the
instrument or by extrinsic or collateral circumstances.
Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 497-98, 854
A.2d 425, 436-37 (2004) (internal citations and quotation marks omitted).
Section 1318 of the Pennsylvania Motor Vehicle Code describes a
dealership’s duty to verify financial responsibility prior to the issuance of
temporary registration on a newly purchased vehicle:
§ 1318. Duties of agents
(a) Verification of financial responsibility.—An agent
of the Department of Transportation who is authorized to
issue on behalf of the department a vehicle registration
renewal or temporary registration shall be required to
verify financial responsibility prior to issuance.
(b) Proof.—Proof of financial responsibility shall be
verified by examining one of the following documents:
(1) An identification card as required by regulations
promulgated by the Insurance Department.
(2) The declaration page of an insurance policy.
(3) A certificate of financial responsibility.
(4) A valid binder of insurance by an insurance
company licensed to sell motor vehicle liability
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insurance in Pennsylvania.
(5) A legible photocopy, facsimile or printout of an
electronic transmission of a document listed in
paragraphs (1) through (4), provided the agent
receives the photocopy, facsimile or printout directly
from a licensed insurance company or licensed
insurance agency. …
75 Pa.C.S.A. § 1318(a) and (b). A dealership may not ignore the mandates
of Section 1318. Pizzonia v. Colonial Motors, Inc., 639 A.2d 1185, 1187
(Pa.Super. 1994), appeal denied, 540 Pa. 602, 655 A.2d 990 (1995). In
fact, “an agent must exercise reasonable effort to determine financial
responsibility.” Id. A dealership shall determine the applicant has the
appropriate financial responsibility for a newly purchased vehicle by
examining one of the applicant’s relevant insurance documents for a vehicle
traded in for the newly purchased vehicle or another vehicle owned by the
applicant. 67 Pa.Code § 43.5(d). Significantly, “[t]he requirement to check
one of [these] documents does not require the agent to verify the
information submitted unless the agent has reason to believe the documents
are fraudulent.” 67 Pa.Code § 43.5(d)(2)(i)(B). The Department of
Transportation requires the applicant for motor vehicle registration to
certify that he or she is financially responsible at the time of registration. 75
Pa.C.S.A. § 1786(b). Failure to comply with requirement will result in the
suspension of the applicant’s vehicle registration and operating privilege. 75
Pa.C.S.A. § 1786(d).
Instantly, on December 1, 2010, Appellant purchased a used 2008
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Toyota Camry from Appellee pursuant to a sales agreement, which contains
an integration clause. The integration clause states:
Purchaser agrees that this Order includes all of the terms
and conditions appearing on the face and reverse sides
hereof, that this Order cancels and supersedes any prior
oral or written agreement or representation and as of the
date hereof comprises the complete and exclusive
statement of the terms of the agreement relating to the
subject matters covered hereby.
(See Sales Agreement, attached as Exhibit B to Appellee’s Motion for
Summary Judgment; R.R. at 104a). Given this language, the sales
agreement encompassed the complete agreement between the parties and
superseded any prior discussions or agreements. See Yucca, supra.
Significantly, the sales agreement contained no promise by Appellee to add
the 2008 Toyota Camry to Appellant’s existing insurance policy with Mutual
Benefit Insurance Company. Instead, the sales agreement merely contained
an insurance section, which listed Appellant’s existing insurance policy with
Mutual Benefit Insurance Company. Because the insurance section did not
include any language to suggest Appellee’s assumption of Appellant’s duty to
obtain insurance for the 2008 Toyota Camry, there was no ambiguity to
allow introduction of parol evidence to support Appellant’s claim. See id.
Thus, Appellant could not rely on parol evidence in the form of the
deposition testimony of Appellee’s sales manager or salesperson, the email
sent by Appellant’s insurance agent, or the information contained in the title
form to avoid summary judgment. See id.
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Further, even if Appellant could support his claims through the
introduction of parol evidence, the deposition testimony and the email sent
by Appellant’s insurance agent do not raise a genuine issue of material fact.
Specifically, Appellant mischaracterizes the deposition testimony of
Appellee’s sales manager and salesperson when Appellant claims the
testimony admits a promise by Appellee to add the 2008 Toyota Camry to
Appellant’s existing insurance policy. In their respective depositions, both
the sales manager and the salesperson unequivocally denied any promise to
Appellant to add the 2008 Toyota Camry to Appellant’s existing insurance
policy. In fact, both agents indicated they could not have added the 2008
Toyota Camry to Appellant’s existing insurance policy without Appellant’s
active participation. Additionally, both the sales manager and salesperson
explained the insurance section was in the agreement to verify that
Appellant had an existing insurance policy. According to both the sales
manager and salesperson, this information was the only insurance
information necessary to complete the sales transaction. Likewise, Appellant
cannot rely on the email from his insurance agent because Appellant fails to
explain the email’s context or identify the email’s recipient. Further, the
email contains inadmissible hearsay made by an unidentified agent of
Appellee. See Bezjak, supra. As such, the email is nothing more than
self-serving evidence, which fails to preclude summary judgment. See
DeArmitt, supra.
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Moreover, to the extent Appellant points to the language in title
document stating Appellee verified the 2008 Toyota Camry was insured, this
information offers no support for Appellant’s claims. Appellee’s only duty
was to ensure that Appellant had an existing insurance policy. See 75
Pa.C.S.A. § 1318(a). Appellee properly verified the existence of Appellant’s
insurance policy by examining Appellant’s insurance documents for another
vehicle owned by Appellant. See 67 Pa.Code § 43.5(d). Appellee had no
obligation to contact Appellant’s insurer to verify the accuracy of the
insurance information contained in the insurance documents Appellant
provided, absent reason to believe the documents themselves were
fraudulent. See 67 Pa.Code § 43.5(d)(2)(i)(B). Significantly, as the
applicant for a temporary registration card, Appellant was solely responsible
to certify his financial responsibility at the time of registration. See 75
Pa.C.S.A. § 1786(b). Under these circumstances, the language contained in
the title form serves only to demonstrate Appellee’s fulfillment of its
obligations to examine the insurance documents for the vehicle traded in or
another vehicle owned by Appellant, to verify Appellant’s financial
responsibility. See 67 Pa.Code § 43.5(d). The title form did not and could
not establish any promise by Appellee to add the 2008 Toyota Camry to
Appellant’s existing insurance policy. Further, as the insurance contract was
between Appellant as the insured and Mutual Benefit Insurance Company as
the insurer, Appellee could not have added the 2008 Toyota Camry to
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Appellant’s insurance policy without Appellant’s active participation in the
process. Because none of Appellant’s evidence supports his contention that
Appellee “promised” to add the 2008 Toyota Camry to Appellant’s existing
insurance policy, no genuine issue of material fact exists for any of
Appellant’s claims.1 Therefore, the court properly granted Appellee’s motion
for summary judgment.2 Accordingly, we affirm.
Order affirmed.
____________________________________________
1
The record demonstrates that Appellant’s existing insurance coverage
expired on December 16, 2010, just over two weeks after Appellant
purchased the 2008 Toyota Camry. Appellant had the opportunity at that
time to confirm with Mutual Benefit Insurance Company that his insurance
policy covered the 2008 Toyota Camry. Nevertheless, Appellant failed to
confirm coverage of the 2008 Toyota Camry when he renewed his insurance
policy.
2
The record makes clear Appellant, at the latest, knew or should have
known by January 24, 2011, that the 2008 Toyota Camry was not covered
on his insurance policy, when he contacted Mutual Benefit Insurance
Company after the car accident. Appellant, however, did not institute the
current action until over four years later when he filed a writ of summons on
April 15, 2015. Significantly, by April 15, 2015, the applicable statute of
limitations for all of his tort and contract claims had expired. See 42
Pa.C.S.A. § 5524(2) (explaining negligence action is governed by two-year
statute of limitations); 42 Pa.C.S.A. § 5524(7) (explaining negligent
misrepresentation claim is tort claim governed by two-year statute of
limitations); 42 Pa.C.S.A. § 5525 (explaining statute of limitations for breach
of contract claim is four years). Thus, Appellant’s claims were arguably
barred by the relevant statutes of limitations. The Brickman Group, Ltd.
v. CGU Insurance Company, 865 A.2d 918, 928 (Pa.Super. 2004) (noting
this Court may affirm summary judgment on any basis).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2017
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