Valley National Bank v. Engle Eyewear, Inc. ( 2019 )

J. A19043/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
VALLEY NATIONAL BANK : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ENGLE EYEWEAR, INC., A :
PENNSYLVANIA CORPORATION , AND :
THOMAS J. ENGLE, INDIVIDUALLY, :
:
Appellants :
:
------------------------------------------- :
:
THOMAS J. ENGLE, :
:
Appellant :
:
v. :
:
VALLEY NATIONAL BANK, : No. 1096 MDA 2017
ROBERT J. KOCHENTHAL, JR., AND :
JOHN C. PREVOZNIK :
Appeal from the Judgment Entered August 17, 2017,
in the Court of Common Pleas of Luzerne County
Civil Division at Nos. 4924 of 2011, 5855 of 2009
BEFORE: GANTMAN, P.J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: MAY 1, 2019
Engle Eyewear, Inc., and Thomas J. Engle (collectively, “appellants”)
appeal from the August 17, 2017 judgments entered by the Court of Common
Pleas of Luzerne County. After careful consideration, we affirm.
The factual and procedural history of this case is as follows: On May 11,
2005, Valley National Bank (“VNB”) entered into a loan agreement with
J. A19043/18
Engle Eyewear, Inc. (“Engle Eyewear”) in which VNB agreed to lend
Engle Eyewear $75,000.1 On October 11, 2005, VNB entered into a second
loan agreement with Engle Eyewear in which it agreed to lend Engle Eyewear
an additional $34,800.2 Both loans were backed by the United States Small
Business Administration (“SBA”). On May 11, 2006, VNB issued a notice of
default and acceleration pertaining to both loans. VNB and appellants reached
a settlement agreement on June 26, 2007.
VNB initiated the case before this court by filing a complaint with the
trial court on April 7, 2009 at 5855 of 2009, alleging that appellants breached
the June 26, 2007 settlement agreement. Mr. Engle filed a complaint with the
trial court on October 28, 2013 at 4924 of 2011,3 sounding in negligence
per se, negligence, negligent misrepresentation, conversion, concerted
tortious action, trespass, defamation, invasion of privacy, and infliction of
emotional distress against VNB and two of its employees, Robert J.
Kochenthal, Jr., and John C. Prevoznik. Specifically, Mr. Engle avers that VNB
and Messrs. Kochenthal and Prevoznik improperly disclosed his social security
number and other sensitive financial information on an exhibit attached to
1For ease of discussion, this agreement shall be referenced as the “first loan
agreement.”
2 For ease of discussion, this agreement shall be referenced as the “second
loan agreement.”
3 Mr. Engle filed a writ of summons with the trial court on April 5, 2011.
-2-
J. A19043/18
VNB’s complaint filed at 5855 of 2009. The trial court consolidated the two
cases at 5855 of 2009 on October 2, 2014.
The [trial court held] a bench trial in the consolidated
matters on May 17-18, 2016. The [trial court] issued
an Order in the consolidated matter on December 21,
2016, entering judgment in favor of [VNB and
Messrs. Kochenthal and Prevoznik] in Case Number
4924, and entering judgment in favor [of VNB] in Case
Number 5855 for a combined total of $157,696.75,
plus interest at the rate of 6.25% per annum from
May 16, 2016 to the date of entry of the judgment.
[Mr.] Engle filed a post-trial motion on January 17,
2017 seeking reconsideration of the [trial court’s]
December 21, 2016 Order. [Mr.] Engle also filed on
January 18, 2017 a Motion Nunc Pro Tunc to
consider the Post-Trial Motion timely. The [trial court]
granted [Mr.] Engle’s Motion Nunc Pro Tunc on
February 6, 2017.
Trial court opinion, 11/6/17 at 2 (footnote omitted).
On January 20, 2017, appellants filed a notice of appeal to this court.
In a per curiam order, we quashed appellants’ appeal as premature on
May 11, 2017. On June 19, 2017, the trial court denied appellants’ post-trial
motion. Appellants filed another notice of appeal to this court on July 17,
2017.4 On July 26, 2017, this court entered a per curiam order directing
4 We note that appellant filed one notice of appeal from two judgments entered
in this case by the trial court. Two separate notices of appeal should have
been filed as required by case law and the Pennsylvania Rules of Appellate
Procedure. However, until recently the practice of filing a single notice of
appeal was not subject to quashal where: (1) the issues raised as to both
final orders were substantially identical; (2) where the appellees raised no
objection; and (3) where the period in which to file an appeal had run. See
General Electric Credit Corporation v. Aetna Casualty and Surety
Company, 263 A.2d 448, 453 (Pa. 1970). Our supreme court recently
decided that this indulgence was at an end; and henceforth, as of June 1,
-3-
J. A19043/18
appellants to praecipe the trial court prothonotary to enter judgment and to
file a certified copy of the trial court docket reflecting the entry of judgment.
In response, appellants filed with this court a copy of correspondence to the
Luzerne County Prothonotary enclosing a praecipe to enter judgment.
We entered another per curiam order on August 15, 2017,
acknowledging receipt of appellants’ response to our July 26, 2017 order but
directing appellants to file certified docket entries showing entry of judgment
below with this court. In response, appellants filed the certified docket
showing that the Luzerne County Prothonotary entered judgment in favor of
VNB in the litigation originally docketed at 5855 of 2009. On August 24, 2017,
the prothonotary entered judgment in favor of VNB and Messrs. Kochenthal
and Prevoznik and against Mr. Engle in the litigation originally docketed at
4924 at 2011, upon receipt of a praecipe from appellants.
Meanwhile, on July 17, 2017, the trial court ordered appellants to file a
concise statement of errors complained of on appeal pursuant to
2018, the failure to file a separate notice of all final orders resolving issues
arising on one or more lower court dockets would result in the appeal being
quashed. Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018). We
recognize that appellants here cannot meet the first prong of the General
Electric test; however, in an abundance of caution based on the reasoning in
Walker, we will not quash this appeal, as it was filed prior to the effective
date of the Walker decision.
-4-
J. A19043/18
Pa.R.A.P. 1925(b). Appellants complied on August 18, 2017.5 The trial court
filed an opinion pursuant to Pa.R.A.P. 1925(a) on November 6, 2017.
As set forth above, appellants filed their notice of appeal before entry of
final judgment. We will treat appellants’ notice of appeal as having been taken
from the final judgments in this case. See Pa.R.A.P. 905(a); see also
American and Foreign Ins. Co. v. Jerry’s Sport Center, 948 A.2d 834,
842 n.1 (Pa.Super. 2008), affirmed, 2 A.3d 526 (Pa. 2010) (citations
omitted). Additionally, we note that we have amended the caption to reflect
that this appeal is taken from the judgment entered on August 17, 2017.
Appellants raise the following issues for our review:
I. Whether the trial court erred in the matter at
5855 of 2009 (i) by holding for VNB on the
promissory notes, dated May 11, 2005 and
October 11, 2005, because VNB failed to prove
that it was the holder of such notes, or that it
was otherwise authorized to prosecute an action
to enforce such notes, (ii) by holding that
[Mr.] Engle was personally liable on promissory
notes that he neither signed nor indorsed, and
(iii) by holding for VNB on the “First Loan
Agreement” (so called in VNB’s complaint) and
the “Second Loan Agreement” (so called in
VNB’s complaint), because VNB failed to prove
the existence of any such Loan Agreements?
II. Whether the trial court erred by holding that
VNB, [and Messrs. Kochenthal and Prevoznik]
owed no duty to [Mr.] Engle, and have no
liability for the unauthorized and improper
5 In its Rule 1925(b) order, the trial court ordered appellants to file their
concise statement within 30 days. We note that appellants timely served their
statement on August 16, 2017. Neither the trial court nor appellee notes that
appellants’ concise statement was not timely filed.
-5-
J. A19043/18
public dissemination of [Mr.] Engle’s
confidential financial information and personal
identifiers, including his social security number?
Appellant’s brief at 6.
In the first issue on appeal, appellants challenge the verdict reached by
the trial court. Specifically, appellants contend that VNB failed to prove that
it is the holder of the promissory notes executed on May 11, 2005 and
October 11, 2005, and it is, therefore, not entitled to seek enforcement. (Id.
at 13.) The trial court determined that VNB, through Mr. Kochenthal’s
testimony, established that it was entitled to enforce the promissory notes.
(Trial court opinion, 11/6/17 at 5.)
When reviewing a nonjury verdict, we are governed by the following
standard:
Our appellate role in cases arising from
nonjury trial verdicts is to determine
whether the findings of the trial court are
supported by competent evidence and
whether the trial court committed error in
any application of the law. The findings of
fact of the trial judge must be given the
same weight and effect on appeal as the
verdict of the jury. We consider the
evidence in a light most favorable to the
verdict winner. We will reverse the trial
court only if its findings of fact are not
supported by competent evidence in the
record or if its findings are premised on an
error of law. However, [where] the issue
. . . concerns a question of law, our scope
of review is plenary.
The trial court’s conclusions of law on
appeal originating from a non-jury trial
-6-
J. A19043/18
are not binding on an appellate court
because it is the appellate court’s duty to
determine if the trial court correctly
applied the law to the facts of the case.
Allegheny Energy Supply Co., LLC v. Wolf Run
Min. Co., 53 A.3d 53, 60-61 (Pa.Super. 2012)
(citation and quotation marks omitted; brackets and
ellipses in original). The trial court, as the finder of
fact, is free to believe “all, part or none of the evidence
presented.” Ruthrauff, Inc. v. Ravin, Inc., 914
A.2d 880, 888 (Pa.Super. 2006) (citation omitted).
“Issues of credibility and conflicts in evidence are for
the trial court to resolve; this Court is not permitted
to reexamine the weight and credibility determination
or substitute our judgment for that of the fact finder.”
Id. (citation and internal quotation marks omitted).
Gamesa Energy USA, LLC v. Ten Penn Center Associates, L.P., 181 A.3d
1188, 1191-1192 (Pa.Super. 2018), appeal granted, 191 A.3d 749 (Pa.
2018).
The Pennsylvania Commercial Code defines a person entitled to enforce
an instrument, in this case a promissory note, as:
(1) the holder of the instrument;
(2) a nonholder in possession of the
instrument who has the rights of a holder;
or
(3) a person not in possession of the
instrument who is entitled to enforce the
instrument pursuant to section 3309
(relating to enforcement of lost,
destroyed or stolen instrument) or
3418(d) (relating to payment or
acceptance by mistake).
A person may be a person entitled to enforce the
instrument even though the person is not the owner
-7-
J. A19043/18
of the instrument or is in wrongful possession of the
instrument.
13 Pa.C.S.A. § 3301. “Section 1201 defines a ‘holder,’ in relevant part, as
‘the person in possession of a negotiable instrument that is payable either to
the bearer or to an identified person that is the person in possession.’”
PHH Mortg. Corp. v. Powell, 100 A.3d 611, 620 (Pa.Super. 2014), quoting
13 Pa.C.S.A. § 1201(b)(21)(i).
In their brief, appellants make broad arguments that it is VNB’s practice
to sell loans backed by the SBA on the secondary market. (See appellants’
brief at 15.) Mr. Engle appears to rely on, and cites to, forms that VNB filed
with the Securities and Exchange Commission (“SEC”) describing its practice
of originating SBA loans and then selling them on the secondary market.
Whether VNB is the owner or the “person entitled to enforce” the notes at
issue in this case is of no import. Indeed, as explained by comment to
Section 3203 of the Pennsylvania Uniform Commercial Code:
The right to enforce an instrument and ownership of
the instrument are two different concepts. A thief who
steals a check payable to bearer becomes the holder
of the check and a person entitled to enforce it, but
does not become the owner of the check. . . .
Ownership rights in instruments may be determined
by principles of the law of property, independent of
Article 3, which do not depend upon whether the
instrument was transferred under Section 3-203.
Moreover, a person who has an ownership right in an
instrument might not be a person entitled to enforce
the instrument. . . . Although [a] document may be
effective to give Y a claim to ownership of the
instrument, Y is not a person entitled to enforce the
-8-
J. A19043/18
instrument until Y obtains possession of the
instrument.
PHH Mortg. Corp., 100 A.3d at 621, quoting 13 Pa.C.S.A. § 3203 Comment.
Here, the evidence of record, through Mr. Kochenthal’s testimony,
reflects that VNB was a holder of the promissory notes at issue and was
accordingly entitled to enforce them. Therefore, we find that the trial court
did not err when it determined that VNB was entitled to enforce the promissory
notes.
Mr. Engle next contends that the trial court erred when it concluded that
Mr. Engle was personally liable for the promissory notes for both loan
agreements with VNB. (Appellants’ brief at 18.) Specifically, Mr. Engle argues
that he cannot be held personally liable because he neither signed nor
endorsed the promissory notes in his individual capacity. (Id. at 19.)
“It is a basic tenet of agency law that an individual
acting as an agent for a disclosed [principal] is not
personally liable on a contract between the [principal]
and a third party unless the agent specifically agrees
to assume liability.” In re Estate of Duran, 692 A.2d
176, 179 (Pa.Super. 1997). Nevertheless, a person
acting as an agent may assume personal liability on a
corporate contract where he executes a contract in his
own name or voluntarily undertakes a personal
responsibility. B & L Asphalt Industries, Inc. v.
Fusco, 753 A.2d 264, 270 (Pa.Super. 2000).
Bennett v. A.T. Masterpiece Homes at Broadspring, LLC, 40 A.3d 145,
150 (Pa.Super. 2012).
-9-
J. A19043/18
Here, Mr. Engle admitted to signing a personal guarantee for both loan
agreements. (Notes of testimony, 5/17/16 at 136-138.) The personal
guarantee for the first loan agreement provided, in relevant part,
[Mr. Engle] unconditionally guarantees payment to
[VNB] of all amounts owing under the [promissory
note]. This Guarantee remains in effect until the
[promissory note] is paid in full. [Mr. Engle] must pay
all amounts due under the [promissory note] when
[VNB] makes written demand upon [Mr. Engle].
[VNB] is not required to seek payment from any other
source before demanding payment from [Mr. Engle].
Personal guarantee, 5/11/05. Mr. Engle signed the guarantee on May 11,
2005.
On October 11, 2005, Mr. Engle signed a personal guarantee that
provided the following:
I understand that I am responsible for the payment of
the full amount of the Obligations, even if there are
other Guarantors. You can demand payment from me
without first (a) seeking payment from the Borrower
or any other Obligor or (b) trying to collect from the
Mortgaged Property or any other collateral.
Personal guarantee, 10/11/05.
The trial court admitted into evidence a copy of the June 26, 2007
settlement agreement, which contained copies of both promissory notes and
both personal guarantees. (Notes of testimony, 5/17/16 at 44.) Therefore,
we find that the trial court did not err when it concluded that Mr. Engle is
personally liable for the repayment of both of the loans in question.
- 10 -
J. A19043/18
Mr. Engle also avers that the trial court erred because VNB failed to
produce the first and second loan agreements. (Appellants’ brief at 20.)
Specifically, Mr. Engle states that the trial court only admitted into evidence
copies of the promissory notes, rather than copies of the “elusive” loan
agreements. (Id. at 21.) Mr. Engle further argues that because
Engle Eyewear, and not Mr. Engle, was the maker of each note, the trial court
erred in its conclusion that Mr. Engle is personally liable on the loans. (Id.)
As discussed extensively above, Mr. Engle executed personal guarantees for
both loans. Accordingly, this issue is without merit.
Under his next issue on appeal, Mr. Engle avers that the trial court erred
when it held that VNB and Messrs. Kochenthal or Prevoznik owed no duty to
Mr. Engle, and were therefore not liable to him for the “unauthorized and
improper public dissemination of [Mr.] Engle’s confidential financial
information and personal identifiers, including his social security number.”
(Appellants’ brief at 22.) Specifically, Mr. Engle claims that VNB and its
employees violated the federal Gramm-Leach-Bliley Act, 15 U.S.C. § 6801et seq., as well as Pennsylvania law pertaining to the privacy of social security
numbers when VNB and its employees disclosed his social security number in
the complaint VNB filed against appellants and that the trial court erred when
it entered a verdict in favor of appellees. (Id. at 22-23, citing 74 P.S. § 201
et seq.) Additionally, Mr. Engle alleges that the trial court erred when it
entered judgment in favor of appellees on his claims of conversion of
- 11 -
J. A19043/18
intangible personal property, negligence, and negligence per se and granted
appellees’ applications for nonsuit for the intentional infliction of emotional
distress and concerted tortious conduct causes of action. Mr. Engle likewise
avers that the trial court erred when it granted Mr. Kochenthal’s application
for nonsuit on the grounds that Mr. Kochenthal was shielded from personal
liability due to his status as a corporate officer for VNB.6
Gramm-Leach-Blilely Act
When it passed the Gramm-Leach-Blilely Act, Congress, as noted by
appellant, declared its policy to be, “that each financial institution has an
affirmative and continuing obligation to respect the privacy of its customers
and to protect the security and confidentiality of those customers’ nonpublic
personal information.” 15 U.S.C. § 6801(a). Corresponding federal
regulations, however, reflect that the Gramm-Leach-Blilely Act’s protections
do not apply to business loans. Indeed, as noted by appellees:
This part applies only to nonpublic personal
information about individuals who obtain financial
products or services primarily for personal, family or
household purposes from the institutions listed below.
This part does not apply to information about
companies or about individuals who obtain
6 While the issues relating to these specific torts do not appear in appellants’
statement of questions presented, we find that they could be fairly considered
to be subsidiary questions to the second question identified in their brief. See
Pa.R.A.P. 2116(a) (“The statement [of questions presented] will be deemed
to include every subsidiary question fairly comprised therein”). Therefore, we
shall address Mr. Engle’s sub-issues on their merits.
- 12 -
J. A19043/18
financial products or services for business,
commercial, or agricultural purposes.
16 C.F.R. § 313.1(b) (emphasis added). Moreover, in this Commonwealth,
while our General Assembly has passed legislation prohibiting the public
posting or display of an individual’s social security number, such prohibitions
do not apply to “a document that originated with or is filed with, recorded
in or is maintained by any court component or part of the unified
judicial system.” 74 P.S. § 201(a)(1), (e) (emphasis added).
Here, the record reflects that Mr. Engle obtained a loan from VNB for
business purposes. The record further reflects that VNB and its employees
disclosed Mr. Engle’s social security number only when VNB filed its complaint
against appellants with the trial court. Based on the plain language of the
relevant federal regulations and state statutes, Mr. Engle’s claim that
appellees violated the Gramm-Leach-Blilely Act is without merit. We,
therefore, find that the trial court did not commit an error of law when it
entered a verdict in favor of VNB and its employees.
Conversion of Intangible Personal Property
Mr. Engle invites this court to follow the lead of Massachusetts,
New York, and other jurisdictions and recognize a common law cause of action
in conversion for the misappropriation and mishandling of intangible personal
property. (See appellants’ brief at 29-33.) We are required to decline this
invitation. Only our supreme court or the General Assembly may adopt new
- 13 -
J. A19043/18
causes of action within the Commonwealth. D’Errico v. DeFazio, 763 A.2d
424, 433-434 (Pa.Super. 2000), appeal denied, 782 A.2d 546 (Pa. 2001),
citing Taylor v. Albert Einstein Medical Center, 754 A.2d 650 (Pa. 2000).
Even if we had the authority to recognize and adopt a cause of action at
common law, we are prevented from doing so because this issue is waived on
appeal. The Pennsylvania Rules of Appellate Procedure mandate that any
issue not included in an appellant’s concise statement of issues complained of
on appeal is waived. Pa.R.A.P. 1925(b)(vii); see also In re D.Y., 34 A.3d
177, 180-181 (Pa.Super. 2011), appeal denied, 47 A.3d 848 (Pa. 2012).
Here, Mr. Engle did not include any issues pertaining to Pennsylvania’s
recognizing the cause of action of conversion of intangible personal property
at common law in his Rule 1925(b) statement. Accordingly, the issue is
waived on appeal.
Negligence and Negligence Per Se
Mr. Engle next argues that the trial court erred when it entered a verdict
in favor of VNB and against Mr. Engle on Mr. Engle’s negligence and negligence
per se claims because VNB owned him a duty to not disclose his social security
number. (See appellants’ brief at 33-36.) As discussed above, the rule
against disclosure does not apply to court filings. In order to prevail on a
negligence cause of action, a plaintiff must establish (1) a legally recognized
duty owed by the defendant; (2) a breach of that duty; (3) damages suffered
- 14 -
J. A19043/18
by the plaintiff; and (4) a causal nexus between the breach of the duty owed
and damages suffered by the plaintiff. Eckroth v. Pennsylvania Elec., Inc.,
12 A.3d 422, 427 (Pa.Super. 2010), appeal denied, 21 A.3d 678 (Pa. 2011).
Additionally, Mr. Engle brought a cause of action under negligence
per se. Our cases define negligence per se as “conduct, whether of action
or omission, which may be declared and treated as negligence without any
argument or proof as to the particular surrounding circumstances.
Pennsylvania recognizes that a violation of a statute or ordinance may serve
as the basis for negligence per se.” Mahan v. Am-Gard, Inc., 841 A.2d
1052, 1059 (Pa.Super. 2003), appeal denied, 858 A.2d 110 (Pa. 2004),
quoting Wagner v. Anzon, Inc., 684 A.2d 570, 574 (Pa.Super. 1996). In
order to prevail on a negligence per se cause of action, a plaintiff must prove
by a preponderance of the evidence that:
(1) The purpose of the statute must be, at least in
part, to protect the interest of a group of
individuals; as opposed to the public generally;
(2) The statute or regulation must clearly apply to
the conduct of the defendant;
(3) The defendant must violate the statute or
regulation;
(4) The violation of the statute or regulation must
be the proximate cause of the plaintiff’s injuries.
Ramalingam v. Keller Williams Realty Group, Inc., 121 A.3d 1034,
1042-1043 (Pa.Super. 2015), quoting Schemberg v. Smicherko, 85 A.3d
1071, 1073-1074 (Pa.Super. 2014).
- 15 -
J. A19043/18
As discussed in detail above, appellees do not owe a duty to Mr. Engle
in this case pertaining to the disclosure of his social security number.
Accordingly, his negligence claim is without merit. Further, Mr. Engle’s claim
of negligence per se must likewise fail, as Mr. Engle has failed to establish
that appellees have violated any statute, regulation, or ordinance. Therefore,
we find that the trial court did not commit an error of law when it entered
judgment in favor of appellees for Mr. Engle’s causes of action sounding in
negligence and negligence per se.
Intentional Infliction of Emotional Distress
Mr. Engle next argues that the trial court erred when it granted
appellees’ application for nonsuit pertaining to Mr. Engle’s claim of intentional
infliction of emotional distress (“IIED”). Specifically, Mr. Engle alleges that
the trial court erred by failing to consider the “actual elements” of IIED.
(Appellants’ brief at 45-46.)
Our standard of review regarding the entry of nonsuit
is well settled:
A trial court may enter a compulsory
nonsuit on any and all causes of action if,
at the close of the plaintiff’s case against
all defendants on liability, the court finds
that the plaintiff has failed to establish a
right to relief. Pa.R.C.P. No. 230.1(a),
(c); see Commonwealth v. Janssen
Pharmaceutica, Inc., [] 8 A.3d 267,
269 n.2 ([Pa.] 2010). Absent such
finding, the trial court shall deny the
application for a nonsuit. On appeal,
- 16 -
J. A19043/18
entry of a compulsory nonsuit is affirmed
only if no liability exists based on the
relevant facts and circumstances, with
appellant receiving “the benefit of every
reasonable inference and resolving all
evidentiary conflicts in [appellant’s]
favor.” Agnew v. Dupler, [] 717 A.2d
519, 523 ([Pa.] 1998). The compulsory
nonsuit is otherwise properly removed
and the matter remanded for a new trial.
Scampone v. Highland Park Care Ctr., [] 57 A.3d
582, 595-96 ([Pa.] 2012). The appellate court must
review the evidence to determine whether the trial
court abused its discretion or made an error of law.
Barnes v. Alcoa, Inc., 145 A.3d 730, 735 (Pa.Super.
2016).
Baird v. Smiley, 169 A.3d 120, 124 (Pa.Super. 2017).
In order to prevail on a cause of action of IIED, a plaintiff must establish
the following: “(1) the conduct must be extreme and outrageous; (2) it must
be intentional or reckless; (3) it must cause emotional distress; [and] (4) that
distress must be severe.” Hoy v. Angelone, 691 A.2d 476, 482 (Pa.Super.
1997), affirmed, 720 A.2d 745 (Pa. 1998), citing Hooten v. Penna. College
of Optometry, 601 F. Supp. 1151, 1155 E.D.Pa. 1984); Restatement
(Second) of Torts § 46. The Hoy court further stated:
While our courts recognize a cause of action for
intentional infliction of emotional distress, we have
allowed recovery in only very egregious cases. See
Papieves v. Kelly, [] 263 A.2d 118, ([Pa.] 1970)
(concealing child’s death and withholding body from
parents). But see D’Ambrosio v. Pennsylvania
National Mutual Casualty Insurance Co., [] 431
A.2d 966 ([Pa.] 1981) (insurance company’s alleged
bad faith failure to honor a claim does not rise to level
of extreme or outrageous conduct); Forster v.
- 17 -
J. A19043/18
Manchester, [] 189 A.2d 147 ([Pa.] 1963) (not
outrageous to follow an accident victim, conducting
surveillance to determine the extent of the injury);
Mullen v. Suchko, [] 421 A.2d 310 ([Pa.Super.]
1980) (broken promise of financial support from lover
not extreme and outrageous).
Hoy, 691 A.2d at 482-483; see also Toney v. Chester County Hosp., 961
A.2d 192, 203 (Pa.Super. 2008), affirmed, 36 A.3d 83 (Pa. 2011)
(per curiam) (“allegations of negligence and carelessness do not rise to the
level of conduct premised upon standards such as ‘atrocious’ and ‘utterly
intolerable’ behavior”).
In the case before us, we find that the trial court properly concluded
that Mr. Engle has not established that liability exists based on the relevant
facts and circumstances, even with the benefit of every reasonable inference.
Specifically, the trial court did not err when it determined that Mr. Engle did
not present sufficient evidence that appellees’ disclosure of his social security
number in a court filing was extreme or outrageous. Therefore, the trial court
did not abuse its discretion when it granted appellees’ application for a
nonsuit.
Concerted Tortious Conduct
Mr. Engle next argues that the trial court erred when it granted
appellees’ application for a nonsuit pertaining to his claim of concerted tortious
conduct.
- 18 -
J. A19043/18
Section 876 of the Restatement (Second) of Torts
addresses the tort of civil aiding and abetting, which
is also known as concerted tortious conduct:
§ 876. Persons Acting in Concert
For harm resulting to a third person from
the tortious conduct of another, one is
subject to liability if he
(a) does a tortious act in concert
with the other or pursuant to
a common design with him, or
(b) knows that the other’s
conduct constitutes a breach
of duty and gives substantial
assistance or encouragement
to the other so to conduct
himself, or
(c) gives substantial assistance
to the other in accomplishing
a tortious result and his own
conduct, separately
considered, constitutes a
breach of duty to the third
person.
***
Comment on Clause (a):
a. Parties are acting in concert
when they act in accordance
with an agreement to
cooperate in a particular line
of conduct or to accomplish a
particular result. The
agreement need not be
expressed in words and may
be implied and understood to
exist from the conduct itself.
Whenever two or more
- 19 -
J. A19043/18
persons commit tortious acts
in concert, each becomes
subject to liability for the acts
of the others, as well as for his
own acts. The theory of the
early common law was that
there was a mutual agency of
each to act for the others,
which made all liable for the
tortious acts of any one.
HRANEC Sheet Metal, Inc. v. Metalico Pittsburgh, Inc., 107 A.3d 114,
120 (Pa.Super. 2014), quoting Restatement (Second) of Torts § 876 (1977)
and comment on clause (a).
As established in detail above, Mr. Engle failed to establish that either
appellee engaged in tortious conduct. Accordingly, Mr. Engle’s claim of
concerted tortious conduct must fail, as he is not able to establish all three
elements of his claim. Therefore, we find that the trial court did not abuse its
discretion when it granted appellees’ application for a nonsuit.
Participation Theory
Next, Mr. Engle contends that the trial court erred when it granted
Mr. Kochenthal’s application for nonsuit on the grounds that Mr. Kochenthal
was shielded from personal liability due to his status as a corporate officer of
VNB. Specifically, Mr. Engle argues that Mr. Kochenthal should be held liable
for his alleged tortious conduct under the participation theory. (Appellants’
brief at 38.)
- 20 -
J. A19043/18
“The law of Pennsylvania has long recognized that personal liability can
be found against a corporate officer who actually participates in the wrongful,
injury-producing act.” Brindley v. Woodland Village Restaurant, Inc.,
652 A.2d 865, 868 (Pa.Super. 1995), quoting Amabile v. Auto Kleen Car
Wash, 376 A.2d 247, 252 (Pa.Super. 1977). As established above, this claim
must likewise fail because Mr. Engle failed to establish that Mr. Kochenthal
participated in any tortious conduct. Therefore, the trial court did not abuse
its discretion when it granted Mr. Kochenthal’s application for a nonsuit.
Cross-Examination of Richard E. Fischbein, M.D.
Finally, Mr. Engle alleges that the trial court erred when it overruled five
of Mr. Engle’s objections that were raised on cross-examination during
Richard Fischbein, M.D.’s deposition. Specifically, Mr. Engle claims that the
trial court’s decision represents reversible error that “affects both its decision
on nonsuit, as well as its merits determination.” (Appellants’ brief at 63.) We
find that Mr. Engle has waived this issue on appeal.
“The Rules of Appellate Procedure state unequivocally
that each question an appellant raises is to be
supported by discussion and analysis of pertinent
authority.” Estate of Haiko v. McGinley, 799 A.2d
155, 161 (Pa.Super. 2002); Pa.R.A.P. 2119(b).
“Appellate arguments which fail to adhere to these
rules may be considered waived, and arguments
which are not appropriately developed are waived.
Arguments not appropriately developed include those
where the party has failed to cite any authority in
support of a contention.” Lackner v. Glosser, 892
A.2d 21, 29-30 (Pa.Super. 2006) (citations omitted).
- 21 -
J. A19043/18
This Court will not act as counsel and will not develop
arguments on behalf of an appellant. Irwin Union
National Bank and Trust Company v. Famous
and Famous and ATL Ventures, 4 A.3d 1099, 1103
(Pa.Super. 2010) (citing Commonwealth v. Hardy,
918 A.2d 766, 771 (Pa.Super.2007)). Moreover, we
observe that the Commonwealth Court, our sister
appellate court, has aptly noted that “[m]ere issue
spotting without analysis or legal citation to support
an assertion precludes our appellate review of [a]
matter.” Boniella v. Commonwealth, 958 A.2d
1069, 1073 n.8 (Pa.Cmwlth. 2008) (quoting
Commonwealth v. Spontarelli, 791 A.2d 1254,
1259 n. 11 (Pa.Cmwlth. 2002)).
Coulter v. Ramsden, 94 A.3d 1080, 1088-1089 (Pa.Super. 2014), appeal
denied, 110 A.3d 998 (Pa. 2014).
Here, Mr. Engle’s brief provides little more than an identification of the
trial court decisions that form the basis of his appeal and broad conclusions
alleging that the trial court erroneously overruled Mr. Engle’s objections,
improperly received Dr. Fischbein’s testimony into evidence, and improperly
required Mr. Engle to establish elements that were not part of the causes of
action pleaded in his complaint. (See appellants’ brief at 56-63.) Mr. Engle
provides no references to any governing authority in support of his contention,
nor does he provide any substantive analysis. Accordingly, Mr. Engle has
waived this issue on appeal.
Judgments affirmed.
- 22 -
J. A19043/18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2019
- 23 -