J-A05005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BARRY STEIN                               :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                   Appellant              :
                                          :
             v.                           :
                                          :
KENNY ROSS TOYOTA, INC.                   :
                                          :
                   Appellee               :        No. 1085 WDA 2016

                 Appeal from the Order Entered June 27, 2016
              In the Court of Common Pleas of Allegheny County
                    Civil Division at No(s): GD 15 006504


BEFORE:     GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED AUGUST 09, 2017

      Appellant, Barry Stein, appeals from the order entered in the

Allegheny County Court of Common Pleas, which granted summary

judgment in favor of Appellee, Kenny Ross Toyota, Inc. We affirm.

      The relevant facts and procedural history of this case are as follows.

On December 1, 2010, Appellant purchased a used 2008 Toyota Camry from

Appellee for $19,909.00.      During the sales transaction, Appellant provided

his car insurance card to a representative of Appellee.           The insurance

information taken from the insurance card appears in the sales agreement

for the vehicle, along with an integration clause which states:

          Purchaser agrees that this Order includes all of the terms
          and conditions appearing on the face and reverse sides
          hereof, that this Order cancels and supersedes any prior
          oral or written agreement or representation and as of the
          date hereof comprises the complete and exclusive
          statement of the terms of the agreement relating to the
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          subject matters covered hereby.

(See Sales Agreement, attached as Exhibit B to Appellee’s Motion for

Summary Judgment; R.R. at 104a). On January 23, 2011, Appellant had a

car accident in the 2008 Toyota Camry, which resulted in injuries to James

Hohman.      When Appellant called his insurer, Mutual Benefit Insurance

Company, to report the accident, an insurance agent informed Appellant the

2008 Toyota Camry was not a covered vehicle under his insurance policy.

As a result, Mr. Hohman’s insurance company, Erie Insurance, paid Mr.

Hohman $50,000.00 on an uninsured motorist claim and sued Appellant.

Appellant   subsequently    settled   the     lawsuit    with   Erie   Insurance   for

$22,500.00.

        On April 15, 2015, Appellant initiated a cause of action against

Appellee by writ of summons. Appellant filed a complaint on June 5, 2015,

which    raised   the   following   claims:     (1)     negligence;    (2)   negligent

misrepresentation; (3) breach of contract; and (4) violation of the Unfair

Trade Practices and Consumer Protection Law (“UTPCPL”). All of Appellant’s

claims stemmed from Appellee’s alleged promise to add the 2008 Toyota

Camry to Appellant’s existing insurance policy. On July 21, 2015, Appellee

filed preliminary objections, which resulted in the dismissal of Appellant’s

UTPCPL claim on August 27, 2015. Appellee filed an answer and new matter

to Appellant’s complaint on September 30, 2015.              On October 16, 2015,

Appellant filed a reply to Appellee’s new matter.


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     Appellee filed a motion for summary judgment on February 18, 2016.

Appellee’s motion claimed the court should grant summary judgment in

favor of Appellee because: (1) the integrated sales agreement did not

contain a promise that Appellee would add the 2008 Toyota Camry to

Appellant’s existing insurance policy; (2) Appellee owed Appellant no legal

duty to add the new vehicle to Appellant’s existing insurance policy; and (3)

the parol evidence rule barred the introduction of an alleged statement by

Appellee’s sales manager that he would add the 2008 Toyota Camry to

Appellant’s existing insurance policy.    Appellant filed a response and a

supplemental response in opposition to Appellee’s motion for summary

judgment on June 2, 2016 and June 8, 2016, respectively. Appellee filed a

reply in support of its motion for summary judgment on June 9, 2016. On

June 27, 2016, the court granted Appellee’s motion for summary judgment

and dismissed Appellant’s remaining claims. Appellant timely filed a notice

of appeal on July 26, 2016. On August 4, 2016, the court ordered Appellant

to file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), and Appellant timely complied on September 1, 2016.

     Appellant raises the following issues for our review:

        WHETHER [APPELLANT’S] EVIDENCE IN SUPPORT OF HIS
        BREACH OF CONTRACT, NEGLIGENCE AND NEGLIGENT
        MISREPRESENTATION    CLAIMS   SURROUNDING    HIS
        PURCHASE OF A VEHICLE FROM [APPELLEE] AND THE
        REPRESENTATIONS MADE BY [APPELLEE] RELATED TO
        [APPELLEE] CONTACTING [APPELLANT’S] INSURER WAS
        SUFFICIENT TO CREATE A GENUINE ISSUE OF MATERIAL
        FACT SUCH THAT [APPELLEE’S] MOTION FOR SUMMARY

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          JUDGMENT SHOULD HAVE BEEN DENIED?

          WHETHER    [APPELLANT]   IS   PRECLUDED      FROM
          INTRODUCING EVIDENCE IN SUPPORT OF HIS CLAIMS
          BECAUSE OF THE PAROL EVIDENCE RULE AND THE
          PURPORTED MERGER CLAUSE CONTAINED IN THE
          CONTRACT BETWEEN [APPELLANT] AND [APPELLEE]?

(Appellant’s Brief at 2-3).

      For purposes of disposition, we combine Appellant’s issues. Appellant

argues the court overlooked certain evidence when it granted Appellee’s

motion for summary judgment. Appellant specifically claims his deposition

testimony, the deposition testimony of Appellee’s sales manager and

salesperson, the completed insurance section on the sales agreement, and

information contained in title form, all support Appellant’s tort and contract

claims.   Appellant submits his evidence establishes Appellee’s promise to

ensure the addition of the 2008 Toyota Camry to Appellant’s existing

insurance policy. Appellant also argues the integration clause contained in

the sales agreement does not bar the introduction of parol evidence to

support his claims.     Appellant maintains the sales agreement does not

include a section related to the duty to obtain insurance for the vehicle, so

the parol evidence rule is inapplicable.   Appellant avers the existing policy

information section of the sales agreement creates an ambiguity, which also

allows the introduction of parol evidence.     Appellant concludes the court

erred when it granted Appellee’s motion for summary judgment because the

integration clause of the sales agreement precluded parol evidence, and this


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Court should reverse and remand for trial. We disagree.

      Our standard of review of an order granting summary judgment

requires us to determine whether the trial court abused its discretion or

committed an error of law. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344,

347 (Pa.Super. 2006).

         Judicial discretion requires action in conformity with law on
         facts and circumstances before the trial court after hearing
         and consideration. Consequently, the court abuses its
         discretion if, in resolving the issue for decision, it
         misapplies the law or exercises its discretion in a manner
         lacking reason.       Similarly, the trial court abuses its
         discretion if it does not follow legal procedure.

Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000)

(internal citations omitted).   Our scope of review is plenary.    Pappas v.

Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536

U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002).         In reviewing a trial

court’s grant of summary judgment,

         [W]e apply the same standard as the trial court, reviewing
         all the evidence of record to determine whether there
         exists a genuine issue of material fact. We 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.
         Only where there is no genuine issue as to any material
         fact and it is clear that the moving party is entitled to a
         judgment as a matter of law will summary judgment be
         entered. All doubts as to the existence of a genuine issue
         of a material fact must be resolved against the moving
         party.

         Motions for summary judgment necessarily and directly
         implicate the plaintiff’s proof of the elements of [a] cause
         of action.   Summary judgment is proper if, after the


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          completion of discovery relevant to the motion, including
          the production of expert reports, an adverse party who will
          bear the burden of proof at trial has failed to produce
          evidence of facts essential to the cause of action or
          defense which in a jury trial would require the issues to be
          submitted to a jury. In other words, whenever there is no
          genuine issue of any material fact as to a necessary
          element of the cause of action or defense, which could be
          established by additional discovery or expert report and
          the moving party is entitled to judgment as a matter of
          law, summary judgment is appropriate. Thus, a record
          that supports summary judgment either (1) shows the
          material facts are undisputed or (2) contains insufficient
          evidence of facts to make out a prima facie cause of action
          or defense.

          Upon appellate review, we are not bound by the trial
          court’s conclusions of law, but may reach our own
          conclusions.

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)

(internal citations and quotation marks omitted).

      To succeed on a case alleging negligence, a plaintiff must prove the

following four elements: (1) a duty or obligation recognized by law; (2) a

breach of that duty; (3) a causal connection between the actor’s breach of

the duty and the resulting injury; and (4) actual loss or damage suffered by

the plaintiff.    Wilson v. PECO Energy Company, 61 A.3d 229, 232

(Pa.Super. 2012).       “The elements of a common law claim for negligent

misrepresentation are: (1) a misrepresentation of a material fact; (2) made

under circumstances in which the misrepresenter ought to have known its

falsity; (3) with an intent to induce another to act on it; and (4) which

results   in   injury   to   a   party   acting   in   justifiable   reliance   on   the


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misrepresentation.” Gongloff Contracting, L.L.C. v. L. Robert Kimball &

Associates, Architects and Engineers, Inc., 119 A.3d 1070, 1076

(Pa.Super. 2015).      “Negligent misrepresentation differs from intentional

misrepresentation in that the misrepresentation must concern a material fact

and the speaker need not know his or her words are untrue, but must have

failed to make a reasonable investigation of the truth of these words.” Id.

“To support a claim for breach of contract, a plaintiff must allege: (1) the

existence of a contract, including its essential terms; (2) a breach of a duty

imposed by the contract; and (3) resultant damage.”                 Pittsburgh

Construction Company v. Griffith, 834 A.2d 572, 580 (Pa.Super. 2003),

appeal denied, 578 Pa. 701, 852 A.2d 313 (2004).

      Significantly:

         A plaintiff cannot survive summary judgment when mere
         speculation would be required for the jury to find in
         plaintiff’s favor. A jury is not permitted to find that it was
         a defendant’s [actions] that caused the plaintiff’s injury
         based solely upon speculation and conjecture; there must
         be evidence upon which logically its conclusion must be
         based. In fact, the trial court has a duty to prevent
         questions from going to the jury which would require it to
         reach a verdict based on conjecture, surmise, guess or
         speculation. Additionally, a party is not entitled to an
         inference of fact that amounts merely to a guess or
         conjecture.

Krishack v. Milton Hershey School, 145 A.3d 762, 766 (Pa.Super. 2016)

(internal citation omitted).   Additionally, neither the moving party nor the

non-moving party can rely on its own witness’ testimony via affidavits or

deposition, either to prevail or defeat summary judgment.         DeArmitt v.

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New York Life Ins. Co., 73 A.3d 578 (Pa.Super 2013) (citing generally

Borough of Nanty-Glo v. American Surety Co. of New York, 309 Pa.

236, 163 A. 523 (1932)). Further, “a motion for summary judgment cannot

be supported or defeated by statements that include inadmissible hearsay

evidence.”    Bezjak v. Diamond, 135 A.3d 623, 631 (Pa.Super. 2016),

appeal denied, 145 A.3d 722 (2016).

      The Pennsylvania Supreme Court has described the parol evidence rule

as follows:

         Where the parties, without any fraud or mistake, have
         deliberately put their engagements in writing, the law
         declares the writing to be not only the best, but the only,
         evidence of their agreement. All preliminary negotiations,
         conversations and verbal agreements are merged in and
         superseded by the subsequent written contract…and unless
         fraud, accident or mistake be averred, the writing
         constitutes the agreement between the parties, and its
         terms and agreements cannot be added to nor subtracted
         from by parol evidence.

         Therefore, for the parol evidence rule to apply, there must
         be a writing that represents the entire contract between
         the parties. To determine whether or not a writing is the
         parties’ entire contract, the writing must be looked at and
         if it appears to be a contract complete within itself,
         couched in such terms as import a complete legal
         obligation without any uncertainty as to the object or
         extent of the [parties’] engagement, it is conclusively
         presumed that [the writing represents] the whole
         engagement of the parties…. An integration clause which
         states that a writing is meant to represent the parties’
         entire agreement is also a clear sign that the writing is
         meant to be just that and thereby expresses all of the
         parties’ negotiations, conversations, and agreements made
         prior to its execution.

         Once a writing is determined to be the parties’ entire

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        contract, the parol evidence rule applies and evidence of
        any previous oral or written negotiations or agreements
        involving the same subject matter as the contract is
        almost always inadmissible to explain or vary the terms of
        the contract. One exception to this general rule is that
        parol evidence may be introduced to vary a writing meant
        to be the parties’ entire contract where a party avers that
        a term was omitted from the contract because of fraud,
        accident, or mistake. In addition, where a term in the
        parties’ contract is ambiguous, parol evidence is admissible
        to explain or clarify or resolve the ambiguity, irrespective
        of whether the ambiguity is created by the language of the
        instrument or by extrinsic or collateral circumstances.

Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 497-98, 854

A.2d 425, 436-37 (2004) (internal citations and quotation marks omitted).

     Section 1318 of the Pennsylvania Motor Vehicle Code describes a

dealership’s duty to verify financial responsibility prior to the issuance of

temporary registration on a newly purchased vehicle:

        § 1318. Duties of agents

        (a) Verification of financial responsibility.—An agent
        of the Department of Transportation who is authorized to
        issue on behalf of the department a vehicle registration
        renewal or temporary registration shall be required to
        verify financial responsibility prior to issuance.

        (b) Proof.—Proof of financial responsibility shall be
        verified by examining one of the following documents:

           (1) An identification card as required by regulations
           promulgated by the Insurance Department.

           (2) The declaration page of an insurance policy.

           (3) A certificate of financial responsibility.

           (4) A valid binder of insurance by an insurance
           company licensed to sell motor vehicle liability

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            insurance in Pennsylvania.

            (5) A legible photocopy, facsimile or printout of an
            electronic transmission of a document listed in
            paragraphs (1) through (4), provided the agent
            receives the photocopy, facsimile or printout directly
            from a licensed insurance company or licensed
            insurance agency. …

75 Pa.C.S.A. § 1318(a) and (b). A dealership may not ignore the mandates

of Section 1318. Pizzonia v. Colonial Motors, Inc., 639 A.2d 1185, 1187

(Pa.Super. 1994), appeal denied, 540 Pa. 602, 655 A.2d 990 (1995).            In

fact, “an agent must exercise reasonable effort to determine financial

responsibility.”   Id.   A dealership shall determine the applicant has the

appropriate financial responsibility for a newly purchased vehicle by

examining one of the applicant’s relevant insurance documents for a vehicle

traded in for the newly purchased vehicle or another vehicle owned by the

applicant. 67 Pa.Code § 43.5(d). Significantly, “[t]he requirement to check

one of [these] documents does not require the agent to verify the

information submitted unless the agent has reason to believe the documents

are fraudulent.”     67 Pa.Code § 43.5(d)(2)(i)(B).        The Department of

Transportation requires the applicant for motor vehicle registration to

certify that he or she is financially responsible at the time of registration. 75

Pa.C.S.A. § 1786(b). Failure to comply with requirement will result in the

suspension of the applicant’s vehicle registration and operating privilege. 75

Pa.C.S.A. § 1786(d).

      Instantly, on December 1, 2010, Appellant purchased a used 2008

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Toyota Camry from Appellee pursuant to a sales agreement, which contains

an integration clause. The integration clause states:

         Purchaser agrees that this Order includes all of the terms
         and conditions appearing on the face and reverse sides
         hereof, that this Order cancels and supersedes any prior
         oral or written agreement or representation and as of the
         date hereof comprises the complete and exclusive
         statement of the terms of the agreement relating to the
         subject matters covered hereby.

(See Sales Agreement, attached as Exhibit B to Appellee’s Motion for

Summary Judgment; R.R. at 104a).             Given this language, the sales

agreement encompassed the complete agreement between the parties and

superseded any prior discussions or agreements.         See Yucca, supra.

Significantly, the sales agreement contained no promise by Appellee to add

the 2008 Toyota Camry to Appellant’s existing insurance policy with Mutual

Benefit Insurance Company. Instead, the sales agreement merely contained

an insurance section, which listed Appellant’s existing insurance policy with

Mutual Benefit Insurance Company. Because the insurance section did not

include any language to suggest Appellee’s assumption of Appellant’s duty to

obtain insurance for the 2008 Toyota Camry, there was no ambiguity to

allow introduction of parol evidence to support Appellant’s claim.    See id.

Thus, Appellant could not rely on parol evidence in the form of the

deposition testimony of Appellee’s sales manager or salesperson, the email

sent by Appellant’s insurance agent, or the information contained in the title

form to avoid summary judgment. See id.


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      Further, even if Appellant could support his claims through the

introduction of parol evidence, the deposition testimony and the email sent

by Appellant’s insurance agent do not raise a genuine issue of material fact.

Specifically,   Appellant   mischaracterizes     the   deposition    testimony    of

Appellee’s sales manager and salesperson when Appellant claims the

testimony admits a promise by Appellee to add the 2008 Toyota Camry to

Appellant’s existing insurance policy.      In their respective depositions, both

the sales manager and the salesperson unequivocally denied any promise to

Appellant to add the 2008 Toyota Camry to Appellant’s existing insurance

policy. In fact, both agents indicated they could not have added the 2008

Toyota Camry to Appellant’s existing insurance policy without Appellant’s

active participation.   Additionally, both the sales manager and salesperson

explained the insurance section was in the agreement to verify that

Appellant had an existing insurance policy.         According to both the sales

manager     and   salesperson,   this    information   was   the    only   insurance

information necessary to complete the sales transaction. Likewise, Appellant

cannot rely on the email from his insurance agent because Appellant fails to

explain the email’s context or identify the email’s recipient.         Further, the

email contains inadmissible hearsay made by an unidentified agent of

Appellee.   See Bezjak, supra.          As such, the email is nothing more than

self-serving evidence, which fails to preclude summary judgment.                 See

DeArmitt, supra.


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      Moreover, to the extent Appellant points to the language in title

document stating Appellee verified the 2008 Toyota Camry was insured, this

information offers no support for Appellant’s claims.       Appellee’s only duty

was to ensure that Appellant had an existing insurance policy.            See 75

Pa.C.S.A. § 1318(a). Appellee properly verified the existence of Appellant’s

insurance policy by examining Appellant’s insurance documents for another

vehicle owned by Appellant. See 67 Pa.Code § 43.5(d). Appellee had no

obligation to contact Appellant’s insurer to verify the accuracy of the

insurance information contained in the insurance documents Appellant

provided, absent reason to believe the documents themselves were

fraudulent.   See 67 Pa.Code § 43.5(d)(2)(i)(B).            Significantly, as the

applicant for a temporary registration card, Appellant was solely responsible

to certify his financial responsibility at the time of registration.      See 75

Pa.C.S.A. § 1786(b). Under these circumstances, the language contained in

the title form serves only to demonstrate Appellee’s fulfillment of its

obligations to examine the insurance documents for the vehicle traded in or

another   vehicle   owned   by   Appellant,   to   verify   Appellant’s   financial

responsibility. See 67 Pa.Code § 43.5(d). The title form did not and could

not establish any promise by Appellee to add the 2008 Toyota Camry to

Appellant’s existing insurance policy. Further, as the insurance contract was

between Appellant as the insured and Mutual Benefit Insurance Company as

the insurer, Appellee could not have added the 2008 Toyota Camry to


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Appellant’s insurance policy without Appellant’s active participation in the

process. Because none of Appellant’s evidence supports his contention that

Appellee “promised” to add the 2008 Toyota Camry to Appellant’s existing

insurance policy, no genuine issue of material fact exists for any of

Appellant’s claims.1 Therefore, the court properly granted Appellee’s motion

for summary judgment.2 Accordingly, we affirm.

       Order affirmed.




____________________________________________


1
   The record demonstrates that Appellant’s existing insurance coverage
expired on December 16, 2010, just over two weeks after Appellant
purchased the 2008 Toyota Camry. Appellant had the opportunity at that
time to confirm with Mutual Benefit Insurance Company that his insurance
policy covered the 2008 Toyota Camry. Nevertheless, Appellant failed to
confirm coverage of the 2008 Toyota Camry when he renewed his insurance
policy.
2
   The record makes clear Appellant, at the latest, knew or should have
known by January 24, 2011, that the 2008 Toyota Camry was not covered
on his insurance policy, when he contacted Mutual Benefit Insurance
Company after the car accident. Appellant, however, did not institute the
current action until over four years later when he filed a writ of summons on
April 15, 2015. Significantly, by April 15, 2015, the applicable statute of
limitations for all of his tort and contract claims had expired. See 42
Pa.C.S.A. § 5524(2) (explaining negligence action is governed by two-year
statute of limitations); 42 Pa.C.S.A. § 5524(7) (explaining negligent
misrepresentation claim is tort claim governed by two-year statute of
limitations); 42 Pa.C.S.A. § 5525 (explaining statute of limitations for breach
of contract claim is four years). Thus, Appellant’s claims were arguably
barred by the relevant statutes of limitations. The Brickman Group, Ltd.
v. CGU Insurance Company, 865 A.2d 918, 928 (Pa.Super. 2004) (noting
this Court may affirm summary judgment on any basis).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2017




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