J-A07038-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 KAREN BROWN                              :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 RITE AID CORPORATION                     :   No. 1340 MDA 2019

               Appeal from the Order Entered July 11, 2019
   In the Court of Common Pleas of Lackawanna County Civil Division at
                           No(s): 2017-3965


BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                          FILED JULY 01, 2020

      Karen Brown (“Brown”) appeals from the order entered in this breach of

contract action granting the summary judgment motion filed by Rite Aid

Corporation (“Rite Aid”). We conclude that Brown commenced this action after

the statute of limitations expired and therefore affirm the order.

      Franklin Brown (“Franklin”) worked at Rite Aid for many years, as

counsel and vice chairman. Brown is his wife. In October 1996, Franklin,

Brown, and Rite Aid executed a deferred compensation agreement based on

Franklin’s employment with Rite Aid. The agreement provided, in part, that

after Franklin’s retirement, Rite Aid would pay a retirement allowance to

Brown, which would continue “until the later of the following dates: (a) the

date of the death of [Brown]; (b) two hundred forty (240) months after the

Retirement Date.” Brown’s Mot. for Partial Summ. J., filed Dec. 13, 2018, at

Ex. 1, Deferred Compensation Agreement, at 3. It also provided that Rite Aid
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would maintain life insurance on Franklin for the rest of his life, with a death

benefit of no less than $1,500,000. Id. at 9. The deferred compensation

agreement provided that the payments could be forfeited:

            (5)     Forfeiture     Under      Certain     Circumstances.
            Notwithstanding the foregoing, Corporation shall have no
            further obligation to make Retirement Allowance payments
            to Brown if either of the following shall occur:

               (a) Employee is discharged by Corporation for good
               cause (as hereinafter defined) by order of the Board
               of Directors, or it is found by the Board of Directors
               that Employee has committed an act which would
               have resulted in his discharge for good cause had it
               been brought to the attention of the Board of
               Directors. As used herein, “good cause” shall mean
               and be limited to Employee’s conviction of a felony
               involving his personal dishonesty materially injurious
               to Corporation.

Id. at 8.

      Franklin retired in 2000, and Rite Aid started to make payments under

the deferred compensation agreement. In June 2002, a federal grand jury

indicted Franklin on numerous felony charges related to his role as chief

counsel of Rite Aid. In October 2003, Franklin was convicted of ten counts,

including, among other convictions, conspiracy to defraud Rite Aid, filing false

Security Exchange Commission forms and other documents, obstruction of

justice, and witness tampering.

      In June 2002, Rite Aid sent notice to Franklin that it would cease the

payments due under the deferred compensation agreement, and did in fact

cease the payments. It also instituted an action in Cumberland County against

Franklin alleging various causes of action, including a breach of contract action

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seeking damages under the deferred compensation agreement (“Cumberland

County action”). It further sought a declaratory judgment declaring that Rite

Aid had no obligation to Franklin under the deferred compensation agreement.

In March 2010, the court granted partial summary judgment on the breach of

contract claim, concluding the criminal action would have given the Board

good cause to discharge Franklin and that he therefore forfeited any right to

compensation under the agreement. However in 2015 or 2016, Franklin filed

in federal court a motion to enforce a bar to litigation based on a settlement

agreement previously entered into between the parties in federal court. The

federal court enjoined Rite Aid from proceeding with its affirmative claims,

including the breach of contract claim under the deferred compensation

agreement.

      In the Cumberland County action, Franklin asserted a counterclaim

asserting that Rite Aid breached a Restated Certification of Corporation, which

required Rite Aid to advance to Brown the expenses he incurred in connection

with civil and criminal proceedings. The counterclaim sought a declaration that

Rite Aid breached the Restated Certificate and ordering Rite Aid to advance

the expenses he incurred in connection with the criminal and civil proceedings.

In August 2016, Franklin voluntarily discontinued the counterclaim.

      Therefore, in 2017, the declaratory judgment claim was the sole

remaining claim in the Cumberland County action.

      Franklin filed a motion to dismiss the declaratory judgment count for

lack of subject matter jurisdiction. In July 2017, the court granted the motion,

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finding that Brown was an indispensable party to the declaratory judgment

action and that “[a]ssuming . . . the existence of an actual controversy

between the parties when this action was filed almost 15 years ago, it is clear

that the statute of limitations for the purpose of joining Karen Brown has

expired.” Rite Aid’s Mot. for Summ. J., filed Jan. 10, 2019, Ex. S, Trial Ct. Op.,

filed July 13, 2017, at 4.

       That same month, July 2017, Brown filed this instant complaint

asserting two breach of contract claims against Rite Aid based on the deferred

compensation agreement.1 Rite Aid filed a motion for summary judgment and

Brown filed a motion for partial summary judgment.

       The trial court summarized the summary judgment motions as follows:

          In her motion for partial summary judgment, Mrs. Brown
          asks this court to find as a matter of law, Rite Aid breached
          the agreement. Specifically, Mrs. Brown asserts:

              Rite Aid may not resort to the forfeiture provision of
              the    1996    amended    and    restated    deferred
              compensation agreement because Rite Aid materially
              breached the agreement on June 26, 2002 long before
              Franklin C. Brown was convicted of anything.

          (Plaintiff Brown’s Memorandum of Law In Opposition to
          Defendant Rite Aid’s Cross-Motion for Summary Judgment
          at pg. 12).

          Rite Aid raises four separate grounds in its cross-motion for
          summary judgment. They are:

              1. Any benefits payable            under   the Deferred
              Compensation  Agreement            were    forfeited by

____________________________________________


1 At least one lawyer who represented Franklin in the Cumberland County
action also represents Brown in this action.

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            [Franklin’s] criminal convictions and by his material
            breach of that agreement.

            2. [Brown’s] claims are time barred[.]

            3. [Brown’s] claims are barred by the doctrine of
            judicial estoppel.

            4. [Brown’s] claims are barred by the doctrine of
            collateral estoppel.

         (Defendant Rite Aid Corporation’s Memorandum in Support
         of its Cross-Motion for Summary Judgment and in
         Opposition to Plaintiffs Motion for Partial Summary
         Judgment at pgs. 13-22).

Trial Court Opinion (“1925(a) Op.”), filed July 11, 2019, at 2-3.

      The court heard argument. It then granted Rite Aid’s motion and denied

Brown’s motion. Brown filed a notice of appeal.

      Brown raises the following issues on appeal:

         1. Whether the trial court committed an error of law or
         abused its discretion by considering a void 2010 ruling from
         Cumberland County instead of striking the ruling from the
         record as demanded by Plaintiff’s motion to strike
         (R.02559a-02564a.) which the trial court did not address or
         rule upon.

         2. Whether the trial court committed an error of law or
         abused its discretion when it modified the plain meaning of
         the contract between the parties by ignoring essential
         language in the contract, effectively writing the essential
         language out of the agreement to have it comport with the
         trial court’s asserted interpretation.

         3. Whether the trial court committed an error of law or
         abused its discretion when it refused to acknowledge
         material facts in dispute, that is, whether any of Franklin
         Brown’s felony convictions coming more than a year after
         Rite Aid’s material breach and refusal to continue payments
         under the contract involved Brown’s “personal dishonesty
         materially injurious to [Rite Aid] Corporation.”



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         4. Whether the trial court committed an error of law or
         abused its discretion by finding repudiation proper where
         the doctrine’s application is based entirely upon
         communications to Franklin Brown’s attorneys, and none of
         the communications were made to the sole Plaintiff and sole
         obligee under the contract, Karen Brown.

         5. Whether the trial court committed an error of law or
         abused its discretion by finding that Pennsylvania’s saving
         statute, 42 Pa. C.S.A. § 5535(a)(1), did not apply.

         6. Whether the trial court committed an error of law or
         abused its discretion by finding the doctrine of collateral
         estoppel precluded Karen Brown from arguing Franklin
         Brown’s convictions neither involved his “personal
         dishonesty” nor were “materially injurious” to Rite Aid within
         the meaning of “good cause” under Paragraph 5(a) of the
         contract.

         7. Whether the trial court committed an error of law or
         abused its discretion by finding “as a matter of law, the [Rite
         Aid] board did not violate the contract” when it stopped
         making payments under the ARD contract in June 2002. July
         11, 2019 Opinion and Order at Pg. 6.

Brown’s Br. at 8-10.

      We first will address Brown’s claims that the court erred in granting

summary judgment because it erred in finding that (1) Rite Aid repudiated the

contract in 2002, and therefore the statute of limitations barred the claims,

and (2) the Savings Clause did not apply. Resolution of these claims disposes

of the case.

      “[S]ummary judgment is only appropriate in cases where there are no

genuine issues of material fact and the moving party is entitled to judgment

as a matter of law.” Nicolaou v. Martin, 195 A.3d 880, 891 (Pa. 2018) (citing

Pa.R.C.P. 1035.2(1)). “When considering a motion for summary judgment,

the trial court must take all facts of record and reasonable inferences

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therefrom in a light most favorable to the non-moving party and must resolve

all doubts as to the existence of a genuine issue of material fact against the

moving party.” Id. We reverse a grant of summary judgment if there has been

an error of law or an abuse of discretion. Id. at 892. Because the question of

whether there is a genuine issue of material fact is a question of law, our

standard of review is de novo and our scope of review is plenary. Id.

      The statute of limitations for a claim of breach of contract is four years.

See 42 Pa.C.S.A. § 5525(a). The limitation period is “computed from the time

the cause of action accrued.” Fine v. Checcio, 870 A.2d 850, 857 (Pa. 2005).

“[A] cause of action accrues when the plaintiff could have first maintained the

action to a successful conclusion.” Id. Where a claim accrues due to

“anticipatory repudiation or breach,” the breaching party must have expressed

“an absolute and unequivocal refusal to perform or a distinct and positive

statement of an inability to do so.” Andrews v. Cross Atlantic Capital

Partners, Inc., 158 A.3d 123, 130 (Pa.Super. 2017) (en banc) (quoting

Harrison v. Cabot Oil & Gas Corp., 110 A.3d 178, 184 (Pa. 2015)).

      Pennsylvania’s Savings Clause provides that, where an action was

dismissed without prejudice, a party may commence an action within one year

of the dismissal:

         (a) Termination of prior matter.--

         (1) If a civil action or proceeding is timely commenced and
         is terminated, a party, or his successor in interest, may,
         notwithstanding any other provision of this subchapter,
         commence a new action or proceeding upon the same cause
         of action within one year after the termination and any other

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         party may interpose any defense or claim which might have
         been interposed in the original action or proceeding.

42 Pa.C.S.A. § 5535(a)(1).

      Brown maintains that she, not Franklin, is the sole beneficiary of the

contract payments and the court therefore erred in relying on correspondence

between Rite Aid and Franklin and on the lawsuit filed by Rite Aid naming

Franklin as a defendant to find Rite Aid repudiated the contract. Brown’s Br.

at 35-36. She notes that “[n]one of the correspondence relied upon by the

trial court to find repudiation was directed to . . . Brown.” Id. at 36. She

argues that anticipatory repudiation or breach requires “an absolute and

unequivocal refusal to perform or a distinct and positive statement of an

inability to do so.” Id. (quoting Andrews, 158 A.3d at 130). She concludes

that Rite Aid never repudiated the contract because it never made a statement

to her that it would not make payments. Brown asserts that because Rite Aid

never repudiated, and because the contract was an installment contract, her

breach of contract action is timely because with each missed payment, a

separate cause of action accrued.

      Brown further argues that if Rite Aid did repudiate the contact in 2002,

the Savings Clause applies because she is Franklin’s successor in interest, and

in the prior action Franklin denied a paragraph in Rite Aid’s complaint by

asserting he was entitled to the benefits of the deferred compensation

agreement and he filed a counterclaim seeking costs.




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      The trial court found that Rite Aid successfully and unequivocally

repudiated the deferred compensation agreement in 2002. 1925(a) Op. at 6.

We agree.

      In 2002, Rite Aid sent a letter to Franklin stating that it would cease

payments under the contract, payments that were to be made to Brown. Rite

Aid also filed a lawsuit, naming Franklin as a defendant. Although it did not

correspond with Brown, Brown continued to be married to Franklin, and makes

no claim that she did not know about the letter and lawsuit. Further, Brown

stopped receiving the payments pursuant to the contract in 2002, and had not

received such payments for 15 years when she initiated the breach of contract

lawsuit. Brown knew that she stopped receiving payments under the contract

and that Rite Aid had no intention of making any future payments. Under the

facts of this case, Brown’s lawsuit, filed 15 years after the payments ceased,

is untimely.

      Further, Brown’s claim that the Savings Clause applies to her causes of

action lacks merit. She was not a named defendant in the prior action. In fact,

the declaratory judgment claim was dismissed because she had not been

joined and the court found her to be an indispensable party. Therefore, Brown

did not allege any claim against Rite Aid. Further, Franklin’s counterclaim in

the prior action asserted Rite Aid breached a separate contract. It did not claim

a breach of the deferred compensation agreement. Therefore, even if Brown

could use Franklin’s counterclaim in support of her Savings Clause claim, it




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would not apply, as Franklin’s counterclaim did not assert Rite Aid breached

the deferred compensation agreement.

     Order affirmed.

Judge Dubow joins the Memorandum

Judge Olson concurs in the result.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/01/2020




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