Judges Opinions Public Notices, — June 9, 2021 8:41 — 0 Comments

Public Notices, June 9, 2021

Volume 58, No. 45

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

FICTITIOUS NAME

NOTICE OF ACTION IN MORTGAGE FORECLOSURE

 

TABLE OF CONTENTS

Elite Excavating Services, Inc., v. Hess Auctioneers, LLC, Glenn Moyer t/a Glenn’s Auto Services, Interstate Fleets, Inc.

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF BETTY JOANN CHARLES, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

John N. Charles, Executor

 

Ryan M. Burroughs, Esquire

Gibbel Kraybill & Hess LLP

P.O. Box 5349

Lancaster, PA 17606

 

ESTATE OF MARY ELLEN WERNER, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Patricia Cole, Administratrix

205 Circle Drive

Palmyra, PA 17078

 

Joseph M. Farrell, Esquire

201/203 South Railroad Street

P.O. Box 113

Palmyra, PA 17078

 

ESTATE OF PAULINE R. POST, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Fulton Bank, N.A., Executor

 

Charles A. Ritchie, Jr., Esquire

Feather and Feather, P.C.

22 West Main Street

Annville, PA 17003

ATTORNEY

 

ESTATE OF ELIZABETH R. HERR, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Theresa M. Klinger, Executrix

416 Spruce Street

West Reading, PA 19611

 

Timothy T. Engler, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF NANCY A. STRICKLER, late of Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Cinthia A. Snyder, Administratrix

9 E. Main St.

Newmanstown, PA 17073

 

Timothy T. Engler, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF ERIC B. FREY, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Kevin M. Richards, Administrator

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

SECOND PUBLICATION

 

ESTATE OF PAUL ROBERT SECHRIST, late of Bethel Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Ruth A. Halbleib, Personal Representative, Administrator

 

Megan C. Huff, Esquire

Nestico Druby, P.C.

1135 Chocolate Avenue, Suite 300

Hershey, PA 17033

 

ESTATE OF LINDA L. ROHLAND, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Marc Andrew Rohland, Executor

 

Charles A. Ritchie, Jr., Esquire

Feather and Feather, P.C.

22 West Main Street

Annville, PA 17003

 

ESTATE OF ANNABEL C. WILSON, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Sharon L. Wilson, Executrix

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF ROBERT L. DONMOYER, SR., late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Deborah A. Weiant, Executrix

825 Lovers Lane,

Lebanon, PA 17046

 

Paul W. Kilgore, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA 17042

 

ESTATE OF DENNIS A. BOLTZ, SR., late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Connie L. Boltz, Administratrix

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF ANTHONY R. BOTT A/K/A ANTHONY RIVES BOTT, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Cynthia C. Bott, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF LOIS M. EISENHOWER, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Brett T. Eisenhower, Executor

594 Woodlawn Drive,

Lebanon, PA 17042

 

Frederick S. Long, Esquire

Long Brightbill

315 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF GLADYS P. O’CONNOR A/K/A GLADYS PORTER O’CONNOR, late of South Annville Township, Lebanon County, Pennsylvania, deceased February 18, 2021. Letters Testamentary have been granted to the undersigned Executor.

 

Thomas A. O’Connor, Executor

 

Edward P. Seeber, Esquire

JSDC Law Offices

Suite C-400

555 Gettysburg Pike

Mechanicsburg, PA 17055

(717) 533-3280

 

THIRD PUBLICATION

 

ESTATE OF GARY L TRAUTMAN, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Wendy E. Dorsey, Administratrix

11 Weaverland Dr.

Fredericksburg, PA 17026

 

Michael S. Bechtold, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF JEAN WOLFORD WAGNER A/K/A JEAN W. WAGNER, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Larry E. Wagner, Executor

1241 Julianne Dr.

Hummelstown, PA 17036

 

Jason J. Schibinger, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF MARILYN J. BROOKS, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Lori M. Henry, Executrix

2598 Old Philadelphia Pike

Bird in Hand, PA 170505

 

Jason J. Schibinger, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF KENNETH SCHLEGEL A/K/A KENNETH M. SCHLEGEL, late of 110 Brown Ave., P.O. Box 42, Mount Gretna, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Stinson Stroup, Administrator

 

John E. Feather, Jr., Esquire

Feather and Feather, P.C.

22 West Main Street

Annville, PA 17003

ATTORNEY

 

ESTATE OF MARY M. HITZ, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Gregory A. Hitz, Executor

1666 Heilmandale Road

Lebanon, PA 17046

 

Patrick M. Reb, Esquire

547 South 10th Street

Lebanon, PA 17042

 

ESTATE OF I. THOMAS KLINE, A/K/A IRVIN THOMAS KLINE, late of Annville Township, Lebanon County, PA, deceased. Letters testamentary have been granted to the undersigned Executors.

 

Gregory T. Kline, Executor

830 East Walnut Street

Annville, PA 17003

 

Kirsten K. Van Demark, Executor

3377 Picket Fence Lane

Myrtle Beach, SC 29579

 

Thomas S. Long, Esquire

Long Brightbill

315 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF VIVIAN P. GERHART, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Michael H. Gerhart, Executor

 

  1. Anthony Kilkusie, Esquire

117A West Main Street

Ephrata, PA 17522

 

ESTATE OF SUSAN C. EVANS, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Kevin M. Brown

143 Vanderbilt Drive

Pittsburgh, PA 15243

 

Timothy T. Engler, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF EMMA L. SCHROFF, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix and Executor.

 

Helen M. Fuhrman, Co-Executrix

1526 Lafayette Street

Lebanon, PA 17042

 

Alfred D. Schroff, Co-Executor

1441 Haney Drive

Harrisburg, PA 17109

 

Edward Coyle, Esquire

Buzgon Davis Law Offices

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF MARVIN D. HARLAN, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Liana Harlan-Rodriguez, Executrix

407 W. Chestnut Street

Cleona, Pa 17042

 

Paul W. Kilgore, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA 17042

Attorney

 

ESTATE OF ARTHUR KLING, JR., late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Sandra K. Neidlinger, Executrix

2588 Long Ln.

Lebanon, PA 17046

 

Paul W. Kilgore, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA 17042

Attorney

 

ESTATE OF JOANN V. RAGER, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

 

Dawn E. Schauer, Executor

3714 Buffalo Road

New Windsor, MD 21776

 

Eric R. Rager, Executor

38 Harbourton Woodsville Road

Pennington, NJ 08543

 

Paul W. Kilgore, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA 17042

Attorney

 

ESTATE OF ANGELA C. FUNK, late of Mount Gretna Borough, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Robert J. Funk, Administrator

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF LOIS B. PATTERSON A/K/A LOIS M. PATTERSON, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased 4/1/21. Letters Testamentary have been granted to the undersigned Executrices.

 

Cheryl A. Patterson, Executrix

1815 Anna St.

New Cumberland, PA 17070

 

Coleen P. Greecher, Executrix

90 Fetrow Ln.

New Cumberland, PA 17070

 

Brian J. Murren, Esquire

Tucker Arensberg, P.C.

2 Lemoyne Dr., Ste. 200

Lemoyne, PA 17043

 

ESTATE OF LEE A. WHITE, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Randall L. Getz, Executor

1011 Beech Street

Palmyra, PA 17078

 

John D. Enck, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA 17042

Attorney

 

 

FICTITIOUS NAME

 

Notice is hereby given that an Application for Registration of Fictitious Name was filed in the Department of State of the Commonwealth of Pennsylvania on March 08, 2021 for CJT Handmades & Collectibles at 1415 Todd Ct. Annville, PA 17003. The name and address of each individual interested in the business is Carol Town at 1415 Todd Ct. Annville, PA 17003. This was filed in accordance with 54 PaC.S. 311.417

 

Penncorp Servicegroup, Inc.

600 North Second Street

Harrisburg, PA 17101

(717) 234-2300 Ext. 4

 

 

NOTICE OF ACTION IN MORTGAGE FORECLOSURE

 

IN THE COURT OF COMMON PLEAS

Lebanon COUNTY

CIVIL ACTION – LAW

ACTION OF MORTGAGE FORECLOSURE

Term No. 2020-00100

NOTICE OF ACTION IN MORTGAGE FORECLOSURE

PNC BANK, NATIONAL ASSOCIATION, SUCCESSOR BY MERGER TO NATIONAL CITY BANK, SUCCESSOR BY MERGER TO COMMONWEALTH UNITED MORTGAGE, A DIVISION OF NATIONAL CITY BANK OF INDIANA

Plaintiff

vs.

The Unknown Heirs of Anthony LaFlame Deceased, RAEANN N. LAFLAME Solely in Her Capacity as Heir of Anthony LaFlame Deceased, PAULA R. LAFLAME Solely in Her Capacity as Heir of Anthony LaFlame Deceased, A. SCOTT LAFLAME AKA ANDREW S. LAFLAME Solely in His Capacity as Heir of Anthony LaFlame Deceased & ANTHONY LAFLAME, JR. Solely in His Capacity as Heir of Anthony LaFlame Deceased

Mortgagor and Real Owner

Defendant

 

The Unknown Heirs of Anthony LaFlame Deceased, RAEANN N. LAFLAME Solely in Her Capacity as Heir of Anthony LaFlame Deceased, PAULA R. LAFLAME Solely in Her Capacity as Heir of Anthony LaFlame Deceased, A. SCOTT LAFLAME AKA ANDREW S. LAFLAME Solely in His Capacity as Heir of Anthony LaFlame Deceased  MORTAGOR AND REAL OWNER, DEFENDANT whose last known address is 126 North Center Street Cleona, PA 17042.

THIS FIRM IS A DEBT COLLECTOR AND WE ARE ATTEMPTING TO COLLECT A DEBT OWED TO OUR CLIENT.  ANY INFORMATION OBTAINED FROM YOU WILL BE USED FOR THE PURPOSE OF COLLECTING THE DEBT.

You are hereby notified that Plaintiff PNC BANK, NATIONAL ASSOCIATION, SUCCESSOR BY MERGER TO NATIONAL CITY BANK, SUCCESSOR BY MERGER TO COMMONWEALTH UNITED MORTGAGE, A DIVISION OF NATIONAL CITY BANK OF INDIANA, has filed a Mortgage Foreclosure Complaint endorsed with a notice to defend against you in the Court of Common Pleas of Lebanon County, Pennsylvania, docketed to No. 2020-00100 wherein Plaintiff seeks to foreclose on the mortgage secured on your property located, 126 North Center Street Cleona, PA 17042 whereupon your property will be sold by the Sheriff of Lebanon.

 

N O T I C E

You have been sued in court.  If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after the Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you.  You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claim in the Complaint of for any other claim or relief requested by the Plaintiff.  You may lose money or property or other rights important to you.

YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE.  IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.  THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.

IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.

 

MID-PENN LEGAL SERVICES

513 Chestnut Street, Suite 1

Lebanon, PA 17042

717-274-2834

 

Michael T. McKeever

Attorney for Plaintiff

KML Law Group, P.C., PC

Suite 5000, BNY Independence Center

701 Market Street

Philadelphia, PA  19106-1532

215-627-1322

 

 

 

JUDGES OPINION

 

Elite Excavating Services, Inc., v. Hess Auctioneers, LLC, Glenn Moyer t/a Glenn’s Auto Services, Interstate Fleets, Inc.

 

Civil Action-Law-Preliminary Objections-Sale of Automobile-Auctioneer-Vehicle Inspection-Breach of Contract-Fraudulent Misrepresentation-Unfair Trade Practices Consumer Protection Law Violations-Third Party Beneficiary

 

Plaintiff filed a Complaint against Defendants on the basis of Breach of Contract, Fraudulent Misrepresentation and a violation of the Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201.1 et seq., after purchasing a used dump truck owned by Defendant Interstate Fleets, Inc., (“Owner”) at an auction operated by Defendant Hess Auctioneers, LLC (“Auctioneer”).  Plaintiff alleges that a representative of Auctioneer warranted that the truck recently had passed an inspection performed by Defendant Glenn Moyer t/a Glenn’s Auto Services (“Glenn’s Auto Services”) and was free from defects.  Plaintiff alleges that a safety check performed upon the truck found that the vehicle had severe mechanical failures rendering it unsafe to operate without substantial repairs.  Glenn’s Auto Services has filed Preliminary Objections to Plaintiff’s Complaint.

 

  1. Preliminary objections should be sustained only in cases that are clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish a right to relief.

 

  1. In ruling upon preliminary objections, the court must consider as true all well pleaded material facts set forth in the complaint and all reasonable inferences that may be drawn from those facts.

 

  1. The elements in a cause of action in breach of contact are the existence of a contract, including its essential terms, a breach of a duty imposed by the contract and resultant damages.

 

  1. A contract is created where there is mutual assent to the terms of the contract by the parties who have the capacity to contract.

 

  1. In order for a third party beneficiary to have standing to recover under a contract, both parties must express an intention that the third party is a beneficiary to whom the promisor’s obligation runs in the contact itself.

 

  1. The Complaint fails to establish that a contract was formed between Plaintiff and Glenn’s Auto Services where Glenn’s Auto Services was not mentioned in the writing attached to the contract between Plaintiff, Owner and Auctioneer, the writing imposed no duty upon Glenn’s Auto Services and there is no indication that Plaintiff and Glenn’s Auto Services discussed any essential contract terms.

 

  1. The Complaint fails to establish that Plaintiff was an intended beneficiary of the contract in which Owner contracted with Glenn’s Auto Services for inspection of the truck where there is no indication at the time of the inspection that Glenn’s Auto Services was aware that Owner intended to sell the truck and subjecting a vehicle to inspection does not create the intent to benefit a third party prospective buyer.

 

  1. To establish fraudulent or intentional misrepresentation, a party must establish a representation that is material to the transaction at hand that was made falsely, with knowledge of its falsity or recklessness as to whether it is true with the intent of misleading another into relying upon it, justifiable reliance upon the misrepresentation and resultant damages.

 

  1. When awarding treble damages under the Unfair Trade Practices and Consumer Protection law, the court must focus upon the presence of intentional, reckless or wrongful conduct.

 

  1. In light of fact that the Complaint does not contain sufficient information to determine any representations about the vehicle inspection or to establish that Glenn’s Auto Services engaged in intentional, reckless or wrongful conduct, Plaintiff is afforded leave to amend its Complaint to allege the representations made and the nature of the conduct.

 

L.C.C.C.P. No. 2020-00218, Opinion by Charles T. Jones, Jr., Judge, June 29, 2020.

 

 

 

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL DIVISION

 

ELITE EXCAVATING                               :

SERVICES, INC.,                                       :

Plaintiffs,                                                    :

:

  1. : Docket No.: 2020-00218

:

HESS AUCTIONEERS, LLC,                     :

GLENN MOYER t/a GLENN’S                  :

AUTO SERVICES, INTERSTATE             :

FLEETS, INC.,                                           :

Defendants.                                                 :

 

ORDER OF COURT

 

AND NOW, to wit, this 29th day of June, 2020, after careful consideration of the record, Defendant’s Preliminary Objections are hereby OVERRULED. Plaintiff is hereby granted leave to file an amended complaint within sixty (60) days of this Order.

 

BY THE COURT:

————————_, J.

CHARLES T. JONES, JR.

 

cc:     Heather A. Eggert, Esquire

John W. Purcell, Jr., Esquire

Hess Auctioneers, LLC // 1451 River Road, Marietta, PA 17547

Interstate Fleets, Inc. // 696 Bethlehem Pike, Colmar, PA 18915

 

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL DIVISION

 

ELITE EXCAVATING                               :

SERVICES, INC.,                                       :

Plaintiffs,                                                    :

:

  1. : Docket No.: 2020-00218

:

HESS AUCTIONEERS, LLC,                     :

GLENN MOYER t/a GLENN’S                  :

AUTO SERVICES, INTERSTATE             :

FLEETS, INC.,                                           :

Defendants.                                                 :

 

APPEARANCES:

 

John W. Purcell, Jr., Esquire For Plaintiffs

 

Heather Eggert, Esquire For Defendant Glenn Moyer

 

OPINION BY JONES, JR., J.:

Before the Court are Defendant’s Preliminary Objections.

 

FACTUAL HISTORY

This action was initiated by the filing of a Complaint on January 23, 2020. In the Complaint, Plaintiff alleges that on June 24, 2019, it purchased a used and recently inspected 1999 Kenworth W900 Tri Axle Aluminum Dump Truck (hereinafter “vehicle”) for the price of $31,030.00. The vehicle was bought at auction from Hess Auctioneers, LLC (hereinafter Auctioneer”). At the time of the sale, a sales representative of Auctioneer made oral and written warranties to Plaintiff that the vehicle had recently passed inspection, was free from defects in material and workmanship, and was in drivable condition. The inspection was performed by Glenn’s Auto Services (hereinafter “Defendant”) on behalf of the previous owner Interstate Fleets, Inc. (hereinafter “Owner”).

On or about July 3, 2019, after purchasing the vehicle, Plaintiff had a safety check performed on the vehicle by Young’s Truck Repair. The safety check found that the vehicle had severe mechanical failures rendering it unsafe for driving and unsuitable for the purposes of the vehicle without substantial repairs. Repairs in the amount of $9,009.00 were performed on the vehicle by Young’s Truck Repair.

After paying for the repairs, Plaintiff contacted Defendant, Owner, and

Auctioneer on multiple occasions to attempt to be reimbursed for its significant costs incurred in repairing the vehicle. Plaintiff was not reimbursed by any party for the cost of the repair on the vehicle. Plaintiff then filed the Complaint in this matter against Defendant, Owner, and Auctioneer alleging: (1) Breach of Contract; (2) Fraudulent Misrepresentation; and (3) Violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. Plaintiff is also requesting Treble Damages and Attorney Fees.

On February 14, 2020, Defendant filed Preliminary Objections to Plaintiff’s

Complaint disputing the validity of Plaintiff’s claims. Both parties have filed briefs

on the issues and the matter is now ripe for disposition.

 

STANDARD OF REVIEW

Preliminary objections should be sustained only in cases that are clear and free from doubt. Baker v. Brennan, 213 A.2d 362, 365 (Pa. Super. 1965). The test for preliminary objections is whether it is clear and free from doubt from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his right to relief. Firing v. Kephart, 353 A.2d 833, 835 (Pa. Super 1976). To determine whether preliminary objections have been properly sustained, the court must consider as true all of the well-pleaded material facts set forth in the complaint and all reasonable inferences that may be drawn from those facts. Feingold v. Bell of Penn., 383 A.2d 791, 792 (Pa. Super. 1977). If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections. Perelman v. Perelman, 125 A.3d 1259, 1263 (Pa. Super. 2015).

 

DISCUSSION

Defendant has four Preliminary Objections to Plaintiff’s Complaint. The Court will combine the analysis regarding the final two objections for treble damages and attorney fees.

 

  1. Preliminary Objection in the Nature of a Demurrer/Motion to Strike

Plaintiff’s Claim for Breach of Contract

 

Defendant argues there was no contract between Plaintiff and Defendant.

Defendant alleges that at the time the vehicle was purchased, Plaintiff, Auctioneer,

and Owner entered into a written contract for the purchase of the vehicle. Defendant claims this written contract, which is attached to the Complaint, does not make any mention of Defendant nor does it impose any duty on Defendant. Defendant also argues that even if Plaintiff did have an agreement with Auctioneer and Owner, Defendant was never aware of any such agreement and never assented to any terms of an agreement. As there is no contract between Plaintiff and Defendant, Defendant argues Plaintiff has failed to set forth a valid cause of action for breach of contract against Defendant.

Plaintiff argues it is irrelevant whether or not Defendant was aware of an

agreement entered into by Plaintiff and Auctioneer or Owner. Instead, Plaintiff states that Defendant is a reasonably foreseen third-party intended beneficiary of the inspection agreement entered into between Defendant and Owner. Plaintiff claims the intent of the vehicle safety inspection was to assure Owner and any prospective buyer that the vehicle was suitable for use as a commercial vehicle. Therefore, Plaintiff argues it has a proper claim for breach of contract against Defendant.

A cause of action for breach of contract must establish “(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999). While not every term of a contract must be stated in complete detail, every element must be specifically pleaded. Id.

Ultimately, a contract is created where there is mutual assent to the terms of a contract by the parties with the capacity to contract. Firetree, Ltd. v. Department of General Services, 920 A.2d 906, 911 (Pa Cmwlth. Ct. 2007). “If the parties agree upon essential terms and intend them to be binding, ‘a contract is formed even though they intend to adopt a formal document with additional terms at a later date.” Johnston v. Johnston, 499 A.2d 1074, 1076 (Pa. Super. 1985) (quoting Courier Times, Inc. v. United Feature Syndicate, Inc., 445 A.2d 1288, 1295 (Pa. Super. 1982). The intent of the parties is a question of fact which must be determined by the factfinder. Johnston, 499 A.2d at 1076.

In this case, the Complaint does not show a contract was formed between Plaintiff and Defendant. When the vehicle was purchased, it does not appear that Defendant was involved in the formation of the contract. Paragraph five of the Complaint alleges that on June 24, 2019, “Auctioneer entered into a written contract, on behalf of Owner with Plaintiff under the terms of which Auctioneer agreed to sell to Plaintiff a used 1999 Kenworth W900 Tri Axle Aluminum Dump Truck… a copy of which is attached to Plaintiff’s Complaint as Exhibit ‘A.’” Defendant is not mentioned in Exhibit A and a duty is not imposed on him by this agreement between Plaintiff, Auctioneer, and Owner. In addition, there is no information Plaintiff and Defendant ever discussed any essential terms of a contract, a fundamental requirement to contract formation.

While Plaintiff argues a contract was created because Plaintiff is a reasonably foreseen third-party intended beneficiary, the facts listed in the Complaint do not indicate a beneficiary relationship was formed. In order for a third-party beneficiary to have standing to recover on a contract, “both parties (promisor and promise) must express an intention that the third party be a beneficiary to whom the promisor’s obligation runs in the contract itself.” Guy v. Liederbach, 459 A.2d 744, 750 (Pa. 1983). The two-part test for determining beneficiaries requires that “(1) the recognition of the beneficiary’s right must be ‘appropriate to effectuate the intention of the parties,’ and (2) the performance must ‘satisfy an obligation of the promise to pay money to the beneficiary’ or ‘the circumstances indicate that the promise intends to give the beneficiary the benefit of the promised performance.” Estate of Agnew v. Ross, 152 A.3d 247, 253 (Pa. 2017).

Nothing in the Complaint indicates that Plaintiff was the intended beneficiary when the Owner of the vehicle contracted with Defendant for the inspection of the vehicle. There is no indication that Defendant was aware at the time of the inspection that Owner intended to sell the vehicle, let alone specifically to Plaintiff. While Owner may have had the intention to sell the vehicle at the time of the inspection, both parties must express an intent that a third party be the beneficiary. As such, the current Complaint does not meet the requirements for third-party beneficiary.

In addition, simply having a vehicle inspected does not create the intent to benefit a third party prospective buyer. Under Pennsylvania law, a safety inspection is required to ensure that vehicles operate safely, which can prevent vehicle failure on the highways and crashes that may result in injuries or death.

 

1 Dept. of Transportation, Vehicle Equipment and Inspection Regulations, PUB 45 (11-17) (2017)

https://www.dmv.pa.gov/VEHICLE-SERVICES/Inspection-Information/Safety-Inspection-Program

There is no indication from the Department of Transportation that the purpose behind requiring inspections is to assure prospective buyers that a vehicle is suitable.

  1. Preliminary Objection in the Nature of a Demurrer/Motion to Strike

Plaintiff’s Claim for Breach of the Pennsylvania Unfair Trade Practices

and Consumer Protection Law

 

Defendant argues Plaintiff does not allege anywhere in its Complaint that Plaintiff ever had any communications with Defendant prior to the purchase of the vehicle. Therefore, Defendant could not have made any representation or omissions to Plaintiff which induced Plaintiff to purchase the vehicle. As Defendant never had any communications with Plaintiff prior to the purchase of the vehicle and because he was not aware of Plaintiff’s involvement with the vehicle until Plaintiff called threatening litigation, Defendant argues he could not have engaged in anything constituting “unfair methods of competition and unfair or deceptive acts or practices.” As such, Defendant argues Plaintiff has failed to set forth a valid cause of action against Defendant for violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law.

Plaintiff argues Defendant did engage in fraudulent misrepresentations and

numerous statutory violations by knowingly and recklessly certifying that the

vehicle had passed a safety inspection and was therefore safe to drive when it clearly was not. Plaintiff states these misrepresentations apply not only to the Owner, but also to Plaintiff as the intended third-party beneficiary. Plaintiff claims they justifiably relied upon these misrepresentations and suffered damages by purchasing the vehicle under the assumption that it had recently passed inspection.

Under Pennsylvania law, to establish fraudulent or intentional misrepresentation, a party must prove: (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. Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999); Restatement (Second) of Torts § 525 (1977). “The tort of intentional non-disclosure has the same elements as intentional misrepresentation “except in the case of intentional non-disclosure, the party intentionally conceals a material fact rather than making an affirmative misrepresentation.” Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994) (quoting Restatement (Second) of Torts § 525 (1977)).

Under the Unfair Trade Practices and Consumer’s Protection Law (hereinafter “UTP”), unfair or deceptive acts or practices are defined as:

(ii) Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services.

(vii) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another;

(x) Advertising goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;

(xiv) Failing to comply with the terms of any written guarantee or warranty

given to the buyer at, prior to or after a contract for the purchase of goods or services is made;

(xvi) Making repairs, improvements or replacements on tangible, real or personal property, of a nature or quality inferior to or below the standard of that agreed to in writing;

73 P.S. §§201-2(4)(ii)-(xvi).

In this case, there is not enough information at this time to determine what

representations, if any, were made about the vehicle inspection. The only mention

of the inspection within the Complaint is that Auctioneer indicated to Plaintiff that

the vehicle had recently passed inspection. As more information is needed to determine what misrepresentations or omissions were made regarding the vehicle

inspection, Plaintiff shall be allowed an opportunity to amend the Complaint. If Defendant determines there is insufficient information to support these claims after

the amendment is filed, Defendant may again file preliminary objections.

  1. Preliminary Objection in the Nature of a Motion to Strike Plaintiff’s

Request for Treble Damages and Attorney Fees

Defendant argues Plaintiff’s factual allegations against Defendant, even if

accepted as true, do not rise to the level necessary to establish treble damages. In

addition, Defendant argues Plaintiff has not established that Defendant engaged in

any unfair or deceptive business practices. As such, Defendant requests that

Plaintiff’s claim for damages and attorney fees be stricken from the Complaint.

Plaintiff argues treble damages are appropriate because of Defendant’s outrageously wrongful conduct. Plaintiff states Defendant misrepresented the

condition of the vehicle knowing that the vehicle was clearly in no condition to pass inspection. As the purpose of the Unfair Trade Practices Law is to protect an unwary consumer from such unfair practices like Defendant’s, Plaintiff argues treble damages are appropriate.

When awarding treble damages under the UTP, courts should focus on the

presence of intentional or reckless, wrongful conduct. 73 P.S. § 201-9.2; Schwartz

  1. Rockey, 932 A.2d 885, 898 (Pa. 2007). “The court may, in its discretion award up to three times the actual damages sustained” when there is a finding of outrageous and egregious conduct as would be required to support an award of punitive damages under common law. Restate (Second) of Torts § 908(2)(1977); Schwartz, 932 A.2d at 890.

When awarding attorney fees under the UTP, the court may award to plaintiff costs and reasonable attorney fees. 73 P.S. § 201-9.2(a). In order to recover damages, a plaintiff must establish “an ascertainable loss as a result of the defendant’s prohibited action.” Boehm v. Riversource Life Ins. Co., 117 A.3d 308, 336 (Pa. Super. 2015) (quoting Weinberg v. Sun Co., Inc., 777 A.2d 442, 446 (Pa. 2001)). A court should consider that “the fee-shifting statutory provisions of the UTPCPL is designed to promote its purpose of punishing and deterring unfair and deceptive business practices…” 74 P.S. § 201-1 et seq; Boehm, 117 A.3d at 336.

As discussed above, there is insufficient information at this time to determine if

any outrageous or egregious conduct or any unfair or deceptive business practices

were performed by Defendant. The only mention of the inspection within the

Complaint is that Auctioneer indicated to Plaintiff that the vehicle had recently

passed inspection. As more information is needed to determine whether treble

damages or attorney fees are appropriate, Plaintiff shall be allowed an opportunity

to amend the Complaint. If Defendant determines there is insufficient information

to support these claims after the amendment is filed, Defendant may again file

preliminary objections.

 

CONCLUSION

For the reasons mentioned above, Defendant’s Preliminary Objections are overruled. Plaintiff shall be allowed an opportunity to amend the Complaint to address the issues discussed above.

About the author

Ben has written 982 articles for Lebanon County Legal Journal

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