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Home My WebLink About2006-4135 Civil (2) KEITH A. BLESSING : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : RALPH L. FOSTER, JR. : 06-4135 CIVIL TERM IN RE: MOTION OF PLAINTIFF FOR RECONSIDERATION OF ORDER DATED NOVEMBER 26, 2007 OPINION AND ORDER OF COURT Bayley, J., December 5, 2007:-- November 26, 2007 On , an order was entered dismissing the complaint of plaintiff, Keith A. Blessing, to eject defendant, Ralph L. Foster, Jr., from a 116 acre farm at 180 Ponderosa Road, Lower Frankford Township, Cumberland County. On December 3, 2007 , plaintiff filed a motion for reconsideration. We will consider each of the allegations in the motion. Paragraph 3(a) avers: The Court was factually in error to find that the only certified writing sent by Blessing was dated June 27, 2006. Plaintiff testified that he sent two certified letters with a certified letter dated May 6, 2006, setting forth the tax reimbursement due. Exhibit 7 of Plaintiff’s admitted exhibits sets forth both return receipts. Defendant’s son admitted receipt of the letter dated May 6, 2006. As such, this Court’s finding that “. . . he cannot declare the installment sale agreement null and void and obtain possession . . . on the basis that Foster . . . did not reimburse him for the $343.02 . . .” (Opinion, pg. 7), is factually in error and denies Plaintiff a factually supported basis for a finding of default under the Agreement. The certified letter sent on May 6, 2006 set forth: As of this date (May 6, 2006) you are behind on the following payments: $1200.00 from your June, 2005 payment $1200.00 from your April, 2006 payment and $343.02 due in taxes (was due by 3/01/05). Please make past due payment of $2743.02 along with your May, 2006 payment ($1200.00) for a total due of $3943.02 by May 21, 2006. We thank you for your prompt attention in this matter. 06-4135 CIVIL TERM The letter of May 6 was simply a demand. It was not, as stated in the opinion, a “certified written notice of default.” The contents of a notice of default, which is a prerequisite under paragraph 11 of the installment sales agreement to declaring the agreement null and void if the buyer does not cure a default within fifteen days, were not met by the letter of May 6, 2006. There was no factual error. Paragraph (b) of the motion for reconsideration avers: The Court’s finding that the June 27, 2006, default notice requiring a condition for curing impossible to meet constitutes an error of law because it does not consider that Defendant failed to raise the affirmative defense of impossibility of performance. Therefore, such a defense was waived pursuant to Pa. R.C.P. 1032(a) since Pa. R.C.P. 1030 specifically states the affirmative defense of impossibility of performance “shall be pleaded in responsive pleadings under the hearing [sic] of ‘New Matter’.” Here, it was not plead. This failure was raised by Plaintiff in his Pre-Trial Statement, Trial Brief and Motion in Limine. For the Court to not consider the undeniable waiver of the defense of impossibility of performance constitutes an error of law. Pa. Rule of Civil Procedure 1030(a) provides that affirmative defenses, that include impossibility of performance, must be pleaded in New Matter. In the context of this action on a contract that would mean that the installment sales agreement was impossible to perform. It was the demand to cure the alleged default set forth in the certified letter dated June 27, 2006, that we found was impossible to perform. Plaintiff had the burden of proving that a notice of default as required by paragraph 11 of the agreement was sent by certified mail to defendant prior to being able to declare the agreement null and void. There is no requirement to plead in new matter that a demand to cure the default was impossible to perform. That demand was separate from the contract. There was no error of law. -2- 06-4135 CIVIL TERM Paragraph (c) of the motion for reconsideration avers: The Court found that even if failure to purchase the insurance was a breach, it was not a material breach based upon the factors set forth in Widmer Engineering, Inc. v. Dufalla. (Opinion, pg. 11). The Court’s finding constitutes an error of law for two reasons. First, the Court stated the breach was not material because “Foster has now obtained the $200,000 coverages on the property, thus curing the default . . .” The Court’s finding fails to consider that the coverage was not attempted to be obtained until eight months after the default was declared and eight months after suit was filed. The “likelihood to perform” factor must be viewed as of the time of the breach. It is an error of law to view the “likelihood” standard at a time other than at the time of the breach. We did consider when Foster obtained the $200,000 coverage. The opinion sets forth that when the agent at Miller Insurance did not quote Foster a premium to obtain $200,000 in insurance after she received a fax from Blessing on March 30, 2007, that stated that she was not to sell any dwelling insurance to Foster, he then obtained a $200,000 fire and casualty policy on the farm from another agency. Clearly, it was after March 30, 2007 when Foster obtained the insurance. We did not ignore this fact when we specifically concluded it was “the convoluted circumstances that resulted in Foster well after not obtaining the $200,000 coverage at settlement, and until he received the notice of default which he could not cure because of an impossible condition.” (Emphasis added.) Foster ultimately cured the alleged breach of the installment sales agreement. The likelihood that the party failing to perform will cure his failure is a factor Widmer Engineering, Inc. v. Dufalla, set forth in 837 A.2d 459 (Pa. Super. 2003), that is to be considered in determining if a breach is material. There was no error of law. Paragraph (d) of the motion for reconsideration avers: Further, the Court found that Defendant’s failure to perform “did not constitute a complete lack of good faith or fair dealing” (Opinion, pg. 12). The Court’s finding ignores the Defendant’s own testimony that he could not afford to pay any higher premium and would not pay it. This statement -3- 06-4135 CIVIL TERM was made at the time when Defendant clearly knew he had to purchase liability insurance and had received two written notices. At this point and at all times thereafter the uncontradicted testimony was that he would not pay any additional insurance premium. convoluted circumstances What we found was that “given the that resulted in Foster not obtaining the $200,000 coverage at settlement, and until well after he received the notice of default which he could not cure because of an impossible condition, his failure to perform did not constitute a complete lack of good faith and fair dealing.” (Emphasis added.) Foster’s testimony that the insurance was too expensive has to be taken in the context of the insurance agent’s testimony that she quoted him an additional premium for contents coverage and not fire and casualty coverage on the structures. That quote was on July 5, 2006, before Blessing declared the installment sales agreement null and void on July 21, 2006. We considered all of the testimony in concluding that Foster’s failure to perform did not constitute a complete lack of good faith and fair dealing. Paragraph (e) of the motion for reconsideration avers: Further, the Court’s finding that Defendant’s failure to perform “did not constitute a complete lack of good faith and fair dealing” (Opinion, pg. 12) is an error of law as to the required legal standard. Widmer The Superior Court in states that one of the factors that should be considered in determining if a breach of contract is material is “the extent to which the behavior of the party failing to perform or offer to perform comports with standards of good faith and fair dealing.” We considered Foster’s conduct on that standard and concluded that it did not constitute a complete lack of good faith and fair dealing. It was Widmer one factor among the five factors set forth in that, when considered together, satisfied us that “any breach of the agreement by Foster regarding insurance is not -4- 06-4135 CIVIL TERM material, that the minor financial loss caused to Blessing can possibly be recovered as damages, and that the non-material breach does not warrant a forfeiture under paragraph 11 of the installment sales agreement.” There was no error of law. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of December, 2007, the motion of plaintiff IS DENIED. for reconsideration of the order dated November 26, 2007, By the Court, Edgar B. Bayley, J. Archie V. Diveglia, Esquire For Keith A. Blessing William P. Douglas, Esquire For Ralph L. Foster, Jr. :sal -5- KEITH A. BLESSING : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : RALPH L. FOSTER, JR. : 06-4135 CIVIL TERM IN RE: MOTION OF PLAINTIFF FOR RECONSIDERATION OF ORDER DATED NOVEMBER 26, 2007 ORDER OF COURT AND NOW, this day of December, 2007, the motion of plaintiff IS DENIED. for reconsideration of the order dated November 26, 2007, By the Court, Edgar B. Bayley, J. Archie V. Diveglia, Esquire For Keith A. Blessing William P. Douglas, Esquire For Ralph L. Foster, Jr. :sal