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HomeMy WebLinkAbout98-5485 civil termJERRY GILBERT AND IN THE COURT OF COMMON PLEAS OF LYNNEA GILBERT, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS FORBES CHEVROLET, INC., DEFENDANT 98-5485 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND HESS, J. ORDER OF COURT AND NOW, this JS-~"- day of May, 2000, the motion of defendant for summary judgment, IS GRANTED. Edgar B. Bayley, J. Danielle Beauvais, Esquire For Plaintiffs William Costopoulos, Esquire For Defendant :saa JERRY GILBERT AND IN THE COURT OF COMMON PLEAS OF LYNNEA GILBERT, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. FORBES CHEVROLET, INC., DEFENDANT 98-5485 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND HESS, J. OPINION AND ORDER OF COURT Bayley, J., May '1, 2000:-- Plaintiffs, Jerry and Lynnea Gilbert, filed a complaint against defendant, Forbes Chevrolet, Inc., in which they averred, inter alia: (1) They purchased a 1998 Chevrolet S-10 pickup from defendant's automobile dealership. (2) They entered into an early lease termination with the lessor of their 1995 Honda Accord.' (3) That $674.76 of a General Motors Cash Back Incentive was used to pay off financing of their Honda Accord with American Honda Finance. (4) On May 13, 1998, they "[t]urned over possession of the subject 1995 Honda Accord to Defendant to be returned to American Honda Finance .... " The lessor was not defendant or General Motors. 98-5485 CIVIL TERM (5) On May 14, 1998, defendant paid the $674.76 balance due by plaintiffs to American Honda Finance for the early lease termination. (6) The Honda Accord was stolen from the lot of defendant's dealership. (7) That defendant's conduct constituted unfair and deceptive acts or practices as defined in the Unfair Trade Practices and Consumer Protection Act, 73 P.S. Section 201-2(4), as follows: (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; (xiv). Failure to comply with the terms of any written guarantee or warranty given to the buyer at, prior to, [sic] or after a contract for the purchase of goods or services is made; (xv). Knowingly misrepresenting that services, replacements or repairs are needed if they are not needed; (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; (xvii) (xxi). Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding? (8) That "Defendant, failed to live up to its end of the bailment and as a result, plaintiffs have suffered great damage and injuries." In count I of their complaint alleging violations of the Unfair Trade Practices and Consumer Protection Act, plaintiffs seek "[c]ompensatory damages, treble damages, attorney fees, cost of suit, and any further relief as the Court may deem just and proper." In a count II titled "Common Law Bailment," plaintiffs seek damages "[i]n an 2 This is subsection (xxi) of Section 201-2(4). Plaintiffs have not included the conduct described in subsection (xvii). -2- 98-5485 CIVIL TERM amount not in excess of Fifty Thousand Dollars ($50,000.00), together with all collateral charges, attorney fees and cost of suit.''3 Defendant filed an answer to plaintiffs' complaint averring that its agreement with plaintiffs was that plaintiffs would leave the Honda on defendant's premises so that American Honda could retrieve the vehicle. In new matter, defendant averred (1) that its employee contacted American Honda to inform them that the Honda was available for pick up, (2) American Honda sent a representative of Crawford & Company, which appraises automobiles, to its dealership who examined and took pictures of plaintiffs' vehicle, and (3) the Crawford & Company representative told defendant that someone would pick up the car. Plaintiffs answered the new matter denying any knowledge of such events. Plaintiffs have produced evidence that while their Honda Accord was on the lot of defendant's automobile dealership pending its return to the lessor it was stolen sometime between May 23 and May 26, 1998. The car was later recovered and was a total loss. Plaintiffs' insurance carrier paid the claim in full in the amount of $9,815.40 for the car, and $1,500 for storage, for a total of $11,315.40. In a deposition, plaintiff Jerry Gilbert testified that (1) when he picked up the 1998 Chevrolet S-10 pickup truck that he and his wife purchased from defendant, that defendant, as a "courtesy," agreed 3 This pleading violates Pennsylvania Rule of Civil Procedure 1021(b) that provides that "Any pleading demanding relief for unliquidated damages shall not claim any specific sum." -3- 98-5485 CIVIL TERM with respect to the Honda to "take it up" to the lessor on their early lease termination, (2) no money was exchanged for this courtesy, and (3) nothing was said about how long the Honda was going to be on defendant's lot. Gilbert also testified that he and his wife suffered no financial losses as a result of having left their Honda with defendant on May 13, 1998. Defendant moved for summary judgment which is ready for disposition. ~1n Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for deciding a motion for summary judgment under Pa. Rules of Civil Procedure 1035.1-1035.5: [w]e must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304 (1992). In order to withstand a motion for summary judgment, a non-moving party 'must adduce sufficient evidence on an issue essential to his case and on which he beam the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.' Ertel v. Patriot-News Co., 544 Pa. 93, 101-102,674 A.2d 1038, 1042 (1996). Finally, we must stress that summary judgment will be granted only in those cases which are free and clear from doubt. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). (Emphasis added.) Plaintiffs aver in an answer to defendant's motion for summary judgment that their count titled "Common Law Bailment" is based on a subrogation claim of their insurance carrier. We learn from plaintiffs' brief that they actually seek $11,315.40 on this count, which is the amount their insurance carrier paid on their claim, not an -4- 98-5485 CIVIL TERM amount in excess of $50,000 as improperly pleaded in their complaint. In Ferrick Excavating and Grading Company v. Senger Trucking Company, 506 Pa. 181 (1984), the Supreme Court of Pennsylvania stated: The law of bailments is well established, both as to the general nature of bailments and as to the duty of care owed in different types of bailment. As early as 1875 this Court stated that as to gratuitous bailments: [t]he law.., has been settled since the decision of Coggs v. Bemard, 2 Ld.Raym. 909, in the year 1703. 'Where a man takes goods into his custody to keep for the use of the bailor,' it was said by Holdt, C.J., in that case, 'he is not answerable if they are stole without any fault in him, neither will a common neglect make him chargeable, but he must be guilty of some gross neglect.' The principles which govern the relations between bailors and bailees are succinctly stated in Story on Bailments, sect. 23. 'When the bailment is for the sole benefit of the bailor, the law requires only slight diligence on the part of the bailee, and of course makes him answerable only for gross neglect. When the bailment is for the sole benefit of the bailee, the law requires great diligence on the part of the bailee, and makes him responsible for slight neglect. When the bailment is reciprocally beneficial to both parties, the law requires ordinary diligence on the part of the bailee, and makes him responsible for ordinary neglect.' In Thompkins v. Saltmarsh, 14 S. & R. 275, Duncan, J., in delivering the opinion of the court, said: 'Where one undertakes to perform a gratuitous act, from which he is to receive no benefit, and the benefit is to accrue solely to the bailor, the bailee is liable only for gross negligence .... It is that omission of care which even the most inattentive and thoughtless men take of their own concerns .... The bailee without reward is not bound to ordinary diligence, is not responsible for that care which every attentive and diligent person takes of his own goods, but only for that care which the most inattentive take.' The Supreme Court stated in Ferrick that different standards of care apply to various bailments, because "The common sense of the matter is that a person who holds another's goods as a favor should not be held liable for damages to those goods unless -5- 98-5485 CIVIL TERM he has behaved in some reckless fashion .... " In the case sub judice, plaintiffs did not trade-in their Honda Accord when they purchased the 1998 Chevrolet S-10 pickup from defendant. A bailment is "It]he delivery of personalty for some particular purpose.., upon a contract, express or implied that.. · it shall be... dealt with according to his directions .... "Wright v. Sterling Land Company, Inc., 157 Pa. Super. 625 (1945). When Jerry Gilbert, in his deposition, acknowledged that defendant took possession of the Honda as a courtesy, without an exchange of money, that was an admission that it was a bailment for the sole benefit of plaintiffs. The disputed fact as to whether plaintiffs left their Honda with defendant for defendant to return it to the lessor, or if the lessor was to come to defendant's dealership to pick up the Honda, does not change the nature of the bailment. Plaintiffs have produced no evidence that when the Honda was stolen from the lot of defendant's dealership that it was as a result of gross neglect on the part of defendant, which is the duty that must be breached by a bailee before there can be recovery of damages under a bailment for the sole benefit of the bailors.4 The failure of plaintiffs, the nonmoving party, to adduce such evidence establishes that there are no genuine relevant issues of material fact and that defendant is entitled to summary judgment on plaintiffs' count titled "Common Law Bailment." 4 There is not even any evidence that defendant did not exercise ordinary diligence in the care of the bailed property which, if it had not, would constitute ordinary neglect which is the duty that must be breached by a bailee before there can be recovery of damages under a bailment that is beneficial to both parties. -6- 98-5485 CIVIL TERM Plaintiffs have not even suggested in their brief that there is any evidence that could be submitted to a jury supporting their claim that there was a violation by defendant of the Unfair Trade Practices and Consumer Protection Act, and there is absolutely none. Accordingly, defendant is entitled to summary judgment on plaintiffs' claim under that Act. ORDER OF COURT AND NOW, this ~.S~--- day of May, 2000, the motion of defendant for summary judgment, IS GRANTED. Danielle Beauvais, Esquire Edgar B. B'ayl (~e~'~ For Plaintiffs William Costopoulos, Esquire For Defendant :saa -7-