Ke, Zhaojin v. Allstate Fire & Casualty ( 2021 )

J-A21038-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ZHAOJIN DAVID KE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ALLSTATE FIRE & CASUALTY : No. 1165 EDA 2020
INSURANCE COMPANY, JOHN :
WELCH, AND STEVEN SCHIMPF :
Appeal from the Order Entered February 25, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 170300393
BEFORE: KUNSELMAN, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 5, 2021
Appellant Zhaojin David Ke appeals pro se from the Order entered in the
Court of Common Pleas of Philadelphia County on February 25, 2020, denying
his motion for summary judgment and granting the motion for summary
judgment of appellees Allstate Fire & Casualty Ins. Co. and John Welch and
Steven Schimpf, Allstate’s insurance adjustors (collectively “Allstate”).
Following a careful review, we quash this appeal.
The trial court, the Honorable Judge Shelley Robins New, set forth the
facts and procedural history herein as follows:
On July 3, 2010, Allstate issued to [Appellant] and his then-
wife an automobile insurance policy providing comprehensive and
collision coverage on their cars.2 On June 4, 2016, six years later,
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* Former Justice specially assigned to the Superior Court.
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Allstate served on [Appellant] a notice of non-renewal, citing
[Appellant’s] claims history as justification for its decision. On
March 8, 2017, [Appellant] initiated this lawsuit, alleging that his
policy nonrenewal gives rise to various claims: Breach of Contract;
Fraudulent Nondisclosure and Representation; Statutory Bad Faith
42 Pa. Stat. and Cons. Stat. Ann. § 8371 (West); Violation of
Pennsylvania Unfair Trade Practices and Consumer Protection Law
(UTPCPL), 73 PS 201-2(4)(iv); and Violation of Pa UTPCPL, 201-
2(4)(xiv) and (201-2(4)(xxi). He filed a third amended complaint
on January 3, 2019.3
On January 21, 2020, both [Appellant] and Allstate filed the
summary judgment motions that are the subject of this appeal.
On February 27, 2020, the [c]ourt denied [Appellant’s] motion
and granted Allstate's, dismissing all of [Appellant’s] claims
against [Allstate].
Allstate's stated reasons for its non-renewal was a history
of three claims that [Appellant] made over the term of the policy.
Allstate paid to [Appellant] $19,268 in collision benefits on a claim
arising from an accident [Appellant’s] wife had on December 7,
2013 (2013 Claim). In July of 2014, Allstate paid [Appellant]
$2,140, less a $500 deductible on a claim reported as a
comprehensive claim, but that an adjuster determined was a
collision (2014 Claim). Finally, [Appellant] filed an accident claim
in 2015; Allstate paid $2,706.86, less deductible; an adjuster
determined that the accident involved a collision (2015 Claim). On
the three claims aggregated, Allstate paid over $20,000 on
[Appellant’s] behalf. Notice of Nonrenewal; Dft Exh 6; Plf. Exh. 69
[Appellant] accepted Allstate's payments on all his claims of
damage to his vehicles. He paid collision deductibles on all three
claims. [Appellant] regularly paid all the premiums he was billed.
__
2 Policy No. 928824522.
3 Ke previously filed a complaint with the Pennsylvania
Department of lnsurance. It was rejected as untimely.
Adjudication and Order, In Re: Appeal of Zhaojin David Ke, File
No. 16-116-19198993 (PID Order), Dft. Exh. 8. Ke did not avail
himself of his right to appeal that determination.
Trial Court Opinion, filed 4/21/21, at 2-3.
In his appellate brief, Appellant presents the following Statement of the
Questions Involved:
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1.Does Judge Robins represent systemic racism that leads to her
deliberate bias and retaliation?
2. Has [A]ppellant provided sufficient prima facie evidence,
documented by appellees themselves, to prove that they
fabricated documents?
3. Has Judge Robins failed to follow the summary judgment
standard to obligate this reviewing Court to vacate her summary
judgment?
4. Does Judge Robins seriously abuse her discretion by assuming
the role of an appellate judge to overrule prior three judges
including a federal judge?
5. If [A]ppellant’s Complaint have [sic] survived five motions to
dismiss, including a motion for judgement on the pleadings, does
that demonstrate that he established a prima facie case as far
back as four years ago?
6. Because of her palpable bias based on racial animus, should
Judge Robins be recused from the instant case?
7. Did Judge Robins abusively deny [A]ppellant’s discovery rights
to prevent him from developing an adequate record?
8. Did Judge Robins abusively deny [A]ppellant’s motion for
sanctions that was based on [Allstate’s] refusal to implement her
own order?
Brief for Appellant at 3-4 (footnotes omitted).
We review the trial court’s grant of summary of judgment mindful of our
scope and standards of review:
[O]ur scope of review is plenary, and our standard of review is the
same as that applied by the trial court. Our Supreme Court has
stated the applicable standard of review as follows: [A]n appellate
court may reverse the entry of a summary judgment only where
it finds that the lower court erred in concluding that the matter
presented no genuine issue as to any material fact and that it is
clear that the moving party was entitled to a judgment as a matter
of law. In making this assessment, we view the record in the light
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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. As our inquiry involves solely questions
of law, our review is de novo.
Reinoso v. Heritage Warminster SPE, LLC, 108 A.3d 80, 84 (Pa.Super.
2015) (en banc) (additional citations omitted) (brackets in original). With
respect to the denial of summary judgment, “[w]e review the trial court's
denial of summary judgment for an abuse of discretion or error of law.”
Ramsay v. Pierre, 822 A.2d 85, 90 (Pa.Super. 2003); see also Bezjak v.
Diamond, 135 A.3d 623, 627 (Pa.Super. 2016).
The bulk of the issues Appellant presents on appeal essentially allege that
due to its discrimination against him on the basis of his race, the trial court
abused its discretion in granting Allstate’s motion for summary judgment.
Throughout his fifty-three-page brief, Appellant points to instances he asserts
illustrate his claims that an unbiased trial court would not have rendered
decisions the way in which the court did herein. For instance, he references
certain interrogatories of his which the trial court denied, while it granted
Allstate’s, Brief for Appellant at 18-20; the disproportionate amount of time
he and Allstate were given to present oral argument, id. at 20-22; and the
discriminatory treatment that led to the disparate rulings on the party’s
summary Judgment motions, id. at 22-25.
Appellant further alleges Allstate “secretly” fabricated documents
pertaining to his 2014 and 2015 claims, and another in 2016 to “negate all
the previously fabricated documents” yet the trial court was motivated to turn
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a blind eye to such evidence and to arbitrarily and capriciously state that
“[A]ppellant had ‘adduced’ no evidence regarding the fabrication.” Id. at 27-
28. Appellant reasons that even without tangible evidence, which he posits
he presented, his well-pled facts must be taken as true. Id. at 28.
Furthermore, Appellant maintains the trial court refused to follow the
appropriate standard in granting Allstate’s summary judgment motion when
it ignored the “thousands of pages of the motions,” and, instead, acted as a
defense attorney and factfinder. Id. at 28-33.
Appellant also posits that the trial court usurped the role of three other
jurists, one of whom sits in federal court, who had ruled on previous
preliminary objections and motions for judgment on the pleadings in reaching
their decisions. Appellant reasons that Allstate’s summary judgment motion
was decided in its favor, although “no new relevant evidence was added to tip
the scale in their favor” due to the trial court’s racial animus toward him.
Appellant states this is a blatant violation of the law of the case doctrine and
reasons that because his Second and Third Amended Complaints have
survived five previous motions to dismiss, he has legally established a prima
facie case. Id. at 34-44.
Finally, Appellant lists and briefly argues what he refers to as “Other
Ancillary Issues on Appeal” as follows:
1. Given her palpable bias based on racial animus, Judge
Robins should be disqualified from the instant case[.]
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2. Judge Robins abusively denied Appellant’s discovery
rights to prevent him from developing an adequate record to
prosecute his fraud case[.]
3. Judge Robins seriously abused her discretion by denying
Appellant’s motion for sanctions under Rule 4019 that was based
on Appellees’ refusal to implement her own order[.]
Brief for Appellant at 49-53 (bold print and unnecessary capitalization
omitted).
In accordance with the nonrenewal provision of Appellant’s automobile
insurance policy, Allstate did not renew the policy in 2016 because of the
number of claims Appellant had filed. Allstate notified Appellant of this
decision by mailing the notice of nonrenewal to the address on the policy.
After unsuccessful attempts to persuade Allstate to reverse its decision,
Appellant filed an untimely complaint with the Pennsylvania Insurance
Department pursuant to what is commonly known as Act 68 which governs
the resolution of auto insurance disputes.1 It was determined that Appellant
had failed to establish any facts to justify a reversal of the nonrenewal
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1 Act 68 is contained within Article XX of The Insurance Company Law of 1921,
Act of May 17, 1921, P.L. 682, as amended, added by the Act of June 17,
1998, P.L. 464, 40 P.S. §§ 991.2001-.2013. Act 68 establishes a regulatory
scheme in Pennsylvania that prohibits insurance companies from cancelling,
refusing to write, and refusing to renew automobile insurance policies for
certain discriminatory reasons. See Section 2003 of Act 68, 40 P.S. §
991.2003.
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decision, and Appellant did not appeal that decision to the Commonwealth
Court as Act 68 permits.
Instead, Appellant commenced the instant action in the Philadelphia
Court of Common Pleas on March 8, 2017. On April 13, 2017, Allstate filed
preliminary objections, and Appellant filed his First Amended Complaint on
May 3, 2017. Allstate removed the Amended Complaint to the Eastern District
of Pennsylvania, and Appellant’s Motion to Remand filed on June 12, 2017,
was denied on December 12, 2017.
In his Second Amended Complaint filed on December 19, 2017,
Appellant added as defendants Allstate adjusters Steven Schimpf and John
Welch in their individual capacities. Several motions to dismiss followed and
resulted in the matter being remanded. The Honorable Mitchell S. Goldberg
of the United States District Court for the Eastern District of Pennsylvania
found Appellant had pled claims against insurance adjusters Schimpf and
Welch that had been determined to be “at least colorable under Pennsylvania
law” in other matters. See Order 8/24/18, at 4. However, the court
“decline[d] to delve further into the merits of a state-law claim between
nondiverse parties.” Finding there was no longer complete diversity among
the parties, the court remanded the matter to the Court of Common Pleas of
Philadelphia County. Id. at 4-5.
On October 18, 2018, Allstate filed its Preliminary Objections to
Appellant’s Second Amended Complaint, and Appellant filed his Third
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Amended Complaint thereafter on January 3, 2019, wherein he asserted nine
counts as follows: Count I- Breach of contract; Count II- Fraudulent
nondisclosure and misrepresentation; Count III- Statutory bad faith; Counts
IV -VI- Violations of Pennsylvania’s Unfair Trade Practices and Consumer
Protection Law (UTPCPL); Count VII- Negligence Count; VIII-Gross
negligence; and Count IX- Recklessness. Allstate and Messers. Welch and
Schimpf filed Preliminary Objections on January 23, 2019, and the trial court
sustained them with regard to the Gross Negligence and Recklessness counts
and overruled them in as to all other counts on March 6, 2019, and March 11,
2019, respectively. Allstate filed their Answer and New Matter to the Third
Amended Compliant on April 1, 2019.
Messers. Welch and Schimpf filed a Motion for Judgment on the
Pleadings on October 2, 2019, and the trial court denied the Motion in a one-
line Order on October 31, 2019. Several months of discovery ensued during
which time Appellant filed three motions to compel. Allstate complied with
the trial court’s orders regarding the same, although Appellant continued to
request additional, and sometimes nonexistent, documents and information
from Allstate. Allstate also filed a motion to compel on November 8, 2019,
wherein it requested responses to interrogatories and certain documents; the
trial court granted this motion.
On December 8, 2019, Appellant filed his “Motion to Disqualify” wherein
he initially raised the allegations he presents on appeal that the trial court
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subjected him to discriminatory treatment based upon his race when it
granted Allstate’s motion to compel but denied Appellant’s first motion to
compel in part and his final two in their entirety. The trial court denied this
motion, and cross-motions for summary judgment followed.
In its appellate brief, Allstate argues, inter alia, that Appellant’s failure
to provide a sworn verification for his Third Amendment Complaint as is
required by Pa.R.Civ.P. 1024, an omission which he admitted and refused to
cure during his deposition, renders his pleading “mere narration [that]
amounts to nothing.” See Brief for Appellees at 56-57 (citing Atl. Credit &
Fin., Inc. v. Giuliana, 829 A.2d 340, 344 (Pa.Super. 2003). Our review of
the record reveals that Appellant signed his Third Amended Complaint as a
pro se individual, but the Complaint does not contain the necessary, signed
verification statement as is required by the Pennsylvania Rules of Civil
Procedure.
When considering an individual’s pro se representation in an
unpublished memorandum decision in Bisher v. Lehigh Valley Health
Network, Inc., 237 A.3d 1091 (Pa.Super. 2020) (unpublished
memorandum), appeal granted, 251 A.3d 779 (Pa. 2021), this Court recently
stated:
Pennsylvania Rule of Civil Procedure 1024(a) states, in
pertinent part, as follows:
Rule 1024. Verification
(a) Every pleading containing an averment of fact not appearing
of record in the action or containing a denial of fact shall state that
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the averment or denial is true upon the signer's personal
knowledge or information and belief and shall be verified....
....
(c) The verification shall be made by one or more of the
parties filing the pleading ....
Pa.R.Civ.P. 1024(a) & (c) (emphasis added). The term “ ‘verified,’
when used in reference to a written statement of fact by the
signer, means supported by oath or affirmation or made subject
to the penalties of 18 Pa.C.S.[A.] § 4904 relating to unsworn
falsification to authorities.” Pa.R.Civ.P. 76. Courts are willing to
liberally construe materials filed by a pro se individual. However,
“pro se status confers no special benefit upon the [individual]. To
the contrary, any person choosing to represent himself [or herself]
in a legal proceeding must, to a reasonable extent, assume that
his [or her] lack of expertise and legal training will be his [or her]
undoing.” Norman, 208 A.3d at 1118-1119 (citation omitted).
A complaint is a legal nullity, void ab initio, when the
complaint is not signed by the pro se plaintiff and fails to include
the essential verification statement signed by the plaintiff. See
Atl. Credit and Finance, Inc. v. Giuliana, 829 A.2d 340, 344
(Pa. Super. 2003) (citation omitted) (holding, the verification
requirement is essential to the pleading “because without it a
pleading is mere narration, and amounts to nothing”); see also
Monroe Contract Corp. v. Harrison Square, Inc., 405 A.2d
954, 958 (Pa. Super. 1979) (holding, non-compliance with
verification requirement will not be condoned); Rupel v.
Bluestein, 421 A.2d 406, 414 (Pa. Super. 1980) (stating, to hold
unexplained and unexcused non-compliance with verification
requirement as unimportant would only encourage non-
compliance by others, and laxity on part of trial courts).
Bisher v. Lehigh Valley Health Network, Inc., 237 A.3d 1091, at *6-7
(Pa.Super. 2020), appeal granted, 251 A.3d 779 (Pa. 2021).2
____________________________________________
2 While Bisher is not controlling because it is a non-published memorandum,
it nevertheless provides persuasive authority to this Court as it was filed after
May 1, 2019. See Pa.R.A.P. 126(b) (providing that unpublished non-
(Footnote Continued Next Page)
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The Bisher court quashed the appeal, finding the trial court had been
without jurisdiction over the matter as it pertained to Brenton Bisher and Carla
Bisher acting as pro se individuals, where the complaint had not been
accompanied by the “necessary and essential verification statement signed by
both of the pro se individuals.” Id at. *7.
Applying the same analysis herein, we find Appellant’s pro se Third
Amended Complaint, which he acknowledges lacks the necessary verification
statement, was nothing more than a narration of events and a legal nullity,
void ab initio. Id. Appellant has not attempted to verify his pleading, though
given an opportunity to do so at his deposition. While he admits in his brief
that he “forgot to attach a verification,” he contends the absence of a
verification is “harmless error.” Brief for Appellant at 30 n. 18. As such, the
trial court lacked jurisdiction over the claims raised therein, and this Court is
constrained to quash the appeal. Bisher, supra.
Alternatively, even if Appellant’s Third Amended Complaint had
contained a properly verified statement, thus giving the trial court jurisdiction
over the claims set forth therein, the record demonstrates that the trial court
did not abuse its discretion or commit an error of law in granting summary
judgment. Following our review of the record, which includes over one
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precedential memorandum decisions of the Superior Court filed after May 1,
2019, may be cited for their persuasive value).
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thousand pages of documents produced by Appellees during discovery, we
would find no merit to Appellant’s assertions.
Initially, we would hold Appellant’s fourth and fifth issues lack merit.
Appellant maintains the trial court usurped its role in granting Allstate’s motion
for summary judgment because in doing so it overruled other jurists who had
allowed the matter to proceed. Critically, each of the previous jurists who had
made rulings in this case did so at earlier stages of the proceedings, and none
engaged in fact finding or reached the merits of the claims Appellant presented
in his complaint.
Indeed, despite Appellant’s repeated assertions that previous courts had
“undoubtedly” determined he had established a “prima facie case,” see Brief
for Appellant at 8, those courts did not possess the record evidence obtained
during discovery that the trial court herein examined when they disposed of
previous motions.
In K.H. ex rel. H.S. v. Kumar, 122 A.3d 1080 (Pa.Super. 2015) this
Court stated the law is clear that the law of the case doctrine and the
coordinate jurisdiction rule do not bar a judge from granting summary
judgment on a legal issue as to which preliminary objections were previously
denied. In doing so we reasoned:
[The coordinate jurisdiction rule] is not intended to preclude
granting summary judgment following denial of preliminary
objections. “The failure to present a cause of action upon which
relief can be granted may be raised at any time. A motion for
summary judgment is based not only upon the averments of the
pleadings but may also consider discovery depositions, answers
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to interrogatories, admissions and affidavits.” Austin J.
Richards, Inc. v. McClafferty, 371 Pa.Super. 269, 538 A.2d 11,
14–15 n. 1 (1988). We can discern no reason for prohibiting the
consideration and granting of a summary judgment if the record
as it then stands warrants such action. Cf. DiAndrea v. Reliance
S. & L. Ass'n, 310 Pa.Super. 537, 456 A.2d 1066, 1069 (1983).
This is particularly true when the preliminary objections were
denied without an opinion. Farber v. Engle, 106 Pa.Cmwlth. 173,
525 A.2d 864 (1987).
Id., at 1091 (citing Salerno v. Philadelphia Newspapers, Inc., 546 A.2d
1168, 1170 (Pa.Super. 1988)). See also Silvagni v. Shorr, 113 A.3d 810,
816 (Pa.Super. 2015) (finding denial of attorney and firm's preliminary
objections did not bar granting of summary judgment in their favor).
Moreover, to the extent Appellant posits the decisions of a federal trial
court enjoy greater authority than that of a Pennsylvania state trial court, or
are binding on this Court, he is mistaken. See Commonwealth v.
Dunnavant, 63 A.3d 1252, 1255 n. 2 (Pa.Super. 2013) (stating “[i]n the
absence of a ruling on a particular question by the United States Supreme
Court, the decision of a federal intermediate appellate panel, much less that
of a federal district court, is not binding on Pennsylvania courts. Pennsylvania
courts are not bound by the decisions of inferior federal courts where the case
specifically concerns Pennsylvania law. While decisions of the lower federal
courts have a persuasive authority, they are not binding on Pennsylvania
courts even where they concern federal questions.” )(citations omitted)).
In his first, sixth, seventh, and eighth issues, Appellant sets forth
various allegations of the trial court’s racial animus toward him that he deems
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led to its decision to rule in Appellees’ favor more frequently than it did his on
pretrial motions and ultimately grant Appellees’ summary judgment motion
and deny Appellant’s. However, Appellant presents nothing aside from his
own self-serving statements in support of these allegations.
Indeed, our review of the record reveals the Honorable Shelley Robins
New treated Appellant and counsel for Allstate with the same judicial decorum
and clearly stated on the record that Appellant “is to be credited with vigorous
advocacy on his own behalf.” Trial Court Opinion, filed 4/20/21, at 10.
Appellant received responses to each interrogatory and the various documents
he requested during discovery, yet he blames racial motivation as the reason
for the trial court’s inability to order Allstate to produce additional documents
which simply do not exist.
Appellant’s issues two and three pertain to what he deems to be his
“entire case” which is “built on [A]ppellees’ fabrication of documents.”
Appellant posits that “once the fabrication is established, all of his claims
become valid.” Brief for Appellant at 46. Appellant insists “[h]is case is a
fraud case,” although he asserts the trial court viewed it as a contract matter.3
Id. at 12.
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3 In fact, Appellant brought breach of contract claims in his Third Amended
Complaint. Notwithstanding, he effectively has waived any challenge to the
trial court’s granting of summary judgment on his breach of contract
arguments as he abandoned and failed to develop them in his brief. As the
Pennsylvania Supreme Court has explained:
(Footnote Continued Next Page)
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To the contrary, the trial court examined every count of Appellant’s
complaint and found a basis for granting summary judgment for each. See
Trial Court Opinion, filed 4/21/21, at 3-10. For example, the trial court found
the breach of contract claim against Messrs. Welch and Schimpf could not
stand because there was no record evidence that either stood in privity of
contract with Appellant. Id. at 9.
With regard to the fraud allegations, the trial court stated the following:
By his own admission, [Appellant] contends that “fabricated”
documents regarding his 2014 and 2015 claim are the lynchpin of
his claims in his counts for breach of contract and statutory bad
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[O]ur rules of appellate procedure are explicit that the
argument contained within a brief must contain “such discussion
and citation of authorities as are deemed pertinent.” Pa.R.A.P.
2119(a).
“[W]here an appellate brief fails to provide any discussion
of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim
is waived. It is not the obligation of [an appellate court ...] to
formulate [a]ppellant's arguments for him.” Commonwealth v.
Johnson, ... 985 A.2d 915, 924 ([Pa.] 2009) (internal citations
omitted).
Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014).
Moreover, Appellant specifically abandoned any claim that Allstate
treated his 2013 claim fraudulently:
Here [Appellant] is skipping the 2013 claim that has nothing
to do with him as his divorce was pending and that is irrelevant to
his fraud case. Based on discovery, his ex-wife leased her vehicle
and bought her own insurance. Because he knew nothing about
that claim and was in no position to argue about it, he only wants
to discuss the documents [Allstate] “secretly” fabricated for the
2014 and 2015 claims.
Brief for Appellant at 25.
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faith. This lynchpin is the reason [Appellant] fails in meeting his
prima facie burden on either the contract or fraud claims because
the argument that [Allstate] “fabricated documents” is
unsupported by any evidence. [Appellant] relies solely on his own
self-serving assumption that an inference of fabrication can be
drawn from the documents he attaches to his motion. He
references absolutely no corroborative evidence in the form of
deposition testimony, documentary exhibits, or affidavits to
support his claim that the documents on which he relies show that
the defendants engaged in forgery, deception, or
unreasonableness. He cites no independent evidence that the
[Appellants’] decision were [sic] animated by any improper
motive. The most that can be deduced from the evidence is that
[Appellant] submitted claims for comprehensive coverage but
that, after their investigations, the adjusters disagreed. This was
[Allstate’s] prerogative. See policy language reserving [Allstate’s]
right to nonrenew the Policy[.]
___
8 Specifically, [Appellant] claims that the nonrenewal decision
was: “purely predicated on fraud by (1) falsely and intentionally
putting his ex-wife’s collision clam[sic] on his driving record,
conceded (Exhibit 56), by (2) fraudulently changing his 2014
comprehensive claim into “hit and run” or “left-T bone” or “insured
hit a fixed object.” (Exhibits 1-9, 12-14) to turn it into a collision
claim, and by (3) changing his 2015 comprehensive claim into
‘INSD struck parked [vehicle] claimant’ of ‘Insured hit fixed
object,’ (Exhibits 16-21), another collision claim despite the fact
that [Allstate] [does] not have a shred of evidence to support
that.” [Appellant’s] Memorandum of Law In Support of His Motion
for Summary Judgment ([Appellant’s] Memo), at 13-14.
Trial Court Opinion, filed 4/21/21, at 5-6.
The elements of common law fraud include:
(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.
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Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882, 889 (1994) (footnote
omitted). In other words, “a plaintiff must show that he justifiably
relied on the defendant's wrongful conduct or representation and
that he suffered harm as a result of that reliance.” Yocca v.
Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 854 A.2d 425,
438 (2004) (citations omitted).
Richards v. Ameriprise Fin., Inc., 152 A.3d 1027, 1035 (Pa.Super. 2016).
The documents to which Appellant refers reveal that although his 2014
claim with Allstate initially had been reported as a “comprehensive” claim, it
was later characterized as a “collision” claim. While these designations are
different, without more, the change in the characterization of the claim falls
far short of establishing a prima facie case of fraud. See Richards, supra.
The same is true of the documents relating to Appellant’s 2015 claim.
In his Appellate brief, Appellant discusses a document from Allstate’s claim
history report regarding that claim as follows:
Schimpf fabricated the document calling it “insured hit a
parked vehicle.: (R. 294a.) He never investigated and never
produced any evidence of the vehicle [Appellant] allegedly had hit.
However, in a document dated September 12, 2016 Allstate
confesses that [Allstate] deliberately fabricated “Insured hit a
parked vehicle.” The clerk confessor wrote:
[The insured] is changing loss facts from hit [fixed] object
but we set up as hit parked car. Will leave it like that for now.
(R. 290a).
Brief for Appellant at 26-27.
However, when read in its entirety, the notations in the report reveal it
was inconsistencies in Appellant’s explanation for the 2015 claim that led to
the modifications therein:
Earr Concern.
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Concern insured disputing loss facts
it was reported hit a fence in the fnol…
then he was disputing it stating he a car hit him the [sic] he said
his car was vandalized.
So, he is changing loss facts from hit fixed object but we set up
as hit parked car. Will leave like that for now. I called insured
and l/m on v/m to call back but at this time he is listed at fault for
claim.”
Claim History Report, entry dated 9/12/16.
Rather than support Appellant’s allegations of fraud due to Allstate’s
fabrication of documents, the Claim History Report chronicles the different
reasons Appellant provided for making the 2015 claim and the decisions made
with regard to how that claim should best be characterized as a result. In
fact, an earlier entry dated September 7, 2016, indicates that Appellant was
“very irate about his claim being messed up,” prompting the person with
whom he spoke to “put a task in to reassign the claim so we can get him
better taken care of.”
Appellant urges that his pleadings alone are sufficient to defeat
Allstate’s motion for summary judgment. He erroneously contends that:
it is well established that even without any tangible evidence, in
summary judgment, all well alleged facts by the nonmoving party
are taken as true. . . . Therefore, if [A]ppellant’s well alleged facts
in the complaint create an issue of material fact, then summary
judgment should not be granted to [Allstate]. In the instant case,
because [A]ppellant’s Third Amended Complaint is accompanied
by prima facie evidence, documents created by [Allstate]
themselves, his alleged facts should only further strengthen his
claims under Kerns v. Methodist Hosp.”
Brief for Appellant at 28
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Appellant references and quotes Kerns v. Methodist Hosp., 574 A.2d
1068, 1069 (Pa.Super. 1990) wherein this Court stated, in part:
motion for summary judgment may properly be granted only if
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact, and that the
moving party is entitled to a judgment as a matter of law.
Brief for Appellant at 28. Significantly, Appellant omits the remainder of this
Court’s analysis from his discussion:
In passing on a motion for summary judgment, the court must
examine the record in the light most favorable to the non-moving
party. [However], it is clear that to survive a motion for
summary judgment, the non-moving party may not rely
merely upon the allegations of the contested pleadings, but
must set forth specific facts by way of affidavit, or in some
other way as provided by the rule, demonstrating that a
genuine issue exists.
Id. (citation omitted) (emphasis added).
Thus, even if Appellant’s mere allegations were somehow sufficient to
overcome Allstate’s motion for summary judgment, which they are not, as we
discussed supra, Appellant has failed to provide a sworn verification for his
Third Amended Complaint. Under Bisher, supra, this omission results in
quashal of his appeal.
Appeal quashed.
Judge Kunselman joins the memorandum.
Judge Nichols concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/5/2021
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