J-S95034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LEBANON VALLEY INSURANCE CO.                    IN THE SUPERIOR COURT OF
A/S/O/ SIDNEY FLAXMAN                                 PENNSYLVANIA
AND ERIC FLAXMAN

                         Appellant

                    v.

BRIAN FLAXMAN

                         Appellee                    No. 352 EDA 2016


              Appeal from the Order entered January 6, 2016
           In the Court of Common Pleas of Montgomery County
                     Civil Division at No: 2015-01589


BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.

DISSENTING MEMORANDUM BY STABILE, J.:               FILED MARCH 29, 2017

      I respectfully dissent.   Appellant was entitled to the benefit of all

material facts set forth in its pleading and all reasonable inferences

deducible therefrom. As pled, Appellant avers a scenario whereby Appellee,

the sole shareholder of the corporate lessor, purposely removed the cover

plate over the pilot light on a hot water heater leaving the flame of the pilot

light exposed to materials he permitted to be stored in proximity to the

water heater. Under these facts, I cannot conclude at this stage of the

proceedings that Appellee did not engage in the tortious activity that is

averred to have caused harm to Appellant. I cannot agree with the Majority

that Appellee’s “failure” to replace the cover plate on the pilot light amounts

to nonfeasance, or an omission to act, not actionable under Pennsylvania’s
J-S95034-16



participation   theory,   as   opposed   to   malfeasance,   or   the   improper

performance of an act, which would be actionable. See Wicks v. Milzoco

Builders, Inc., 470 A.2d 86, 90 (Pa. 1983) (“liability attaches [to a

corporate officer] where the record establishes the individual’s participation

in the tortious activity”). Although the Majority seizes upon the complaint’s

averments that Appellee “failed” to replace the cover plate as nonfeasance, I

believe that action was an affirmative act that may constitute malfeasance.

Appellee is alleged to have removed the cover plate creating a hazard to

materials stored in proximity to the open flame of the pilot light. Under the

facts as pled, I do not believe that the Appellee is entitled to be shielded

from individual liability. As pled, Appellee’s conduct evidences personal

involvement in creating the hazard.      Such allegation is sufficient, at this

time, to sustain a claim based upon Appellee’s personal participation in the

alleged tortious acts.     Therefore, I would reverse the granting of the

demurrer by the trial court.




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