J-S60004-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAY FULKROAD & SONS, INC.                       IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

GARY LEITZEL AND JEFFREY A. ERNICO,
EXECUTORS OF THE ESTATE OF
PHILLIP C. APPLE, DECEASED

                         Appellee                    No. 668 MDA 2014


               Appeal from the Order Entered March 21, 2014
              In the Court of Common Pleas of Snyder County
                    Civil Division at No(s): CV-266-2013


BEFORE: OTT, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                              FILED MARCH 31, 2015

      Jay Fulkroad & Sons, Inc. (“Fulkroad”) appeals from the order entered

on March 21, 2014, in the Court of Common Pleas of Snyder County,

granting the motion for judgment on the pleadings filed by Gary Leitzel and

Jeffrey A. Ernico, Executors of the Estate of Phillip C. Apple, deceased (“the

Executors”), with prejudice, and entering judgment in favor of the Executors

and against Fulkroad.    Fulkroad contends the trial court erred in granting

judgment on the pleadings by first, failing to find Fulkroad’s complaint stated

a cause of action for conversion, and second, by finding the Dead Man’s Act,

42 Pa.C.S. § 5930, would preclude any testimony to support Fulkroad’s

claim. Thirdly, Fulkroad argues the trial court erred in granting judgment on

the pleadings, if and to the extent its decision was based upon the parol
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evidence rule. For the following reasons, we reverse and remand for further

proceedings.

      The trial court summarized the facts underlying this appeal as follows:

      Plaintiff Jay Fulkroad & Sons, Inc. has brought this tort action
      sounding in conversion to recover the value of 120 loads of
      asphalt materials allegedly retained by Decedent Phillip C. Apple
      [“Decedent”] without [Fulkroad’s] permission or consent.
      [Fulkroad] alleges that it had entered into an agreement
      whereby Decedent permitted [Fulkroad] to store vehicles and
      deposit asphalt materials on Decedent’s property located in Mt.
      Pleasant Mills, Snyder County. In exchange for Decedent’s
      permission to store its vehicles and deposit materials on
      Decedent’s property, [Fulkroad] allegedly permitted Decedent to
      take three or four loads of asphalt material. [Fulkroad] alleges
      that without its permission or consent, Decedent took and used
      an additional 120 loads of asphalt materials at a cost of $200 per
      load. [Fulkroad] avers that on December 31, 2010, it sent
      Decedent an invoice in the amount of $25,440.00 which
      represents the cost of the asphalt material plus sales tax.
      [Decedent died on February 19, 2011.] [Fulkroad] avers it
      demanded payment from Decedent and the executors of the
      Decedent’s estate – Defendants herein – and that both Decedent
      and Defendants have failed and refused to pay the amount
      previously referenced. Therefore, [Fulkroad] demands the entry
      of judgment in its favor and against Defendants in the amount of
      $25,440.00.

Trial Court Opinion, 3/21/2014, at 1–2.

      Here, Fulkroad attached to the Complaint as Exhibit “A”, a written

agreement, titled “Waste Agreement.”       The Waste Agreement, dated May

13, 2010, and signed by the parties, states, in its entirety:

      I give permission to Jay Fulkroad & Sons, Inc. to dump waste
      material on my property. We Jay Fulkroad & Sons, Inc. will level
      the waste area to the owner’s satisfaction.




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Waste Agreement, 5/13/2010. Fulkroad also attached to the Complaint as

Exhibit “B”, the invoice, dated December 31, 2010, for $25,440.00, Fulkroad

had sent to Phillip P. Apple (“Decedent”).            Thereafter, in response to the

Executor’s Answer with New Matter, Fulkroad filed a Reply with New Matter,

averring that its claim arose out of Decedent’s taking of asphalt materials for

his own benefit, and not the Waste Agreement. See Fulkroad’s Reply With

New Matter, 8/8/2013, at ¶14.1

       On February 4, 2014, the Executors filed a motion for judgment on the

pleadings, averring that Fulkroad’s claims regarding an oral agreement were

barred as parol evidence, and that Fulkroad was not a competent witness,

based upon the Dead Man’s Act.                 Fulkroad, on March 5, 2014, filed an

Answer with New Matter to the motion, “[d]en[ying] that [Fulkroad] alleged

that [the Executors] owe[d $25,440.00] because Decedent breached a May

13, 2010 Waste Agreement.” Fulkroad’s Answer to Defendants’ Motion for
____________________________________________


1
  Specifically, Paragraph 14 of Fulkroad’s Reply With New Matter, filed in
response to the Executor’s Answer With New Matter reads:

       Admitted that the Decedent was the owner of the property
       subject to the Waste Agreement attached to [Fulkroad’s]
       Complaint as Exhibit A. Admitted that Decedent had an actual
       interest in said Waste Agreement. Denied that said Waste
       Agreement is at issue. At issue is the taking by Decedent of
       [Fulkroad’s] asphalt materials, without [Fulkroad’s] permission
       or consent.




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Judgment on the Pleadings, at ¶1. Fulkroad’s Answer further averred that

“[Fulkroad] alleged in the Complaint that [the Executors] owe[d] said

amount because Decedent converted certain personal property of [Fulkroad]

to Decedent’s own use.” Id.

       The Executors, on March 20, 2014, filed a Reply to New Matter and a

Reply Brief regarding its motion for judgment on the pleadings. In the reply

brief, the Executors maintained the “gist-of-the-action” doctrine barred

Fulkroad’s tort claim of conversion. On March 21, 2014, the Court granted

the Executor’s motion for judgment on the pleadings with prejudice, and this

appeal followed.2

       At the outset, we set forth our scope and standard of review:

       A motion for judgment on the pleadings is similar to a demurrer.
       It may be entered when there are no disputed issues of fact and
       the moving party is entitled to judgment as a matter of law.

       Appellate review of an order granting a motion for judgment on
       the pleadings is plenary. The appellate court will apply the same
       standard employed by the trial court. A trial court must confine
       its consideration to the pleadings and relevant documents. The
       court must accept as true all well pleaded statements of fact,
       admissions, and any documents properly attached to the
       pleadings presented by the party against whom the motion is
       filed, considering only those facts which were specifically
       admitted.

       We will affirm the grant of such a motion only when the moving


____________________________________________


2
  Fulkroad timely complied with the order of the trial court to file a concise
statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).



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      party’s right to succeed is certain and the case is so free from
      doubt that the trial would clearly be a fruitless exercise.

Southwestern Energy Prod. Co., v. Forest Res., LLC, 83 A.3d 177, 185

(Pa. Super. 2013) (citation omitted), appeal denied, 96 A.3d 1029 (Pa.

2014).

      Fulkroad first claims the trial court erred in granting judgment on the

pleadings where the well-pleaded statement of facts in Fulkroad’s complaint,

disputed by the Executors, set forth a cause of action for conversion. The

Executors assert the trial court correctly granted judgment on the pleadings,

contending that Fulkroad’s complaint was based upon a breach of contract,

specifically, the Waste Agreement, and therefore Fulkroad’s conversion claim

is barred by the “gist of the action” doctrine.

      The gist of the action doctrine forecloses tort claims:

      1) arising solely from the contractual relationship between the
      parties; 2) when the alleged duties breached were grounded in
      the contract itself; 3) where any liability stems from the
      contract; and 4) when the tort claim essentially duplicates the
      breach of contract claim or where the success of the tort claim is
      dependent on the success of the breach of contract claim.

Hart v. Arnold, 884 A.2d 316, 340 (Pa. Super. 2005) (citation omitted).

Recently, this Court stated:

      The gist of the action doctrine bars a plaintiff from re-casting
      ordinary breach of contract claims into tort claims. As this Court
      previously explained:

          Although they derive from a common origin, distinct
          differences between civil actions for tort and contract
          breach have developed at common law. Tort actions lie
          for breaches of duties imposed by law as a matter of

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         social policy, while contract actions lie only for breaches
         of duties imposed by mutual consensus agreements
         between particular individuals.... To permit a promisee to
         sue his promisor in tort for breaches of contract inter se
         would erode the usual rules of contractual recovery and
         inject confusion into our well-settled forms of actions.

      This doctrine does not preclude an action in tort simply because
      it resulted from a breach of a contract. To be construed as in
      tort, however, the wrong ascribed to defendant must be the gist
      of the action, the contract being collateral.

Knight v. Springfield Hyundai, 81 A.3d 940, 950 (Pa. Super. 2013)

(quotations and citations omitted).

      Even more recently, in Bruno v. Erie Ins. Co., 106 A.3d 48 (Pa.

2014), the Pennsylvania Supreme Court explained:

      If the facts of a particular claim establish that the duty breached
      is one created by the parties by the terms of their contract —
      i.e., a specific promise to do something that a party would not
      ordinarily have been obligated to do but for the existence of the
      contract — then the claim is to be viewed as one for breach of
      contract. If, however, the facts establish that the claim involves
      the defendant’s violation of a broader social duty owed to all
      individuals, which is imposed by the law of torts and, hence,
      exists regardless of the contract, then it must be regarded as a
      tort.


Id. at 68 (citations omitted).

      Here, we note the trial court was fully apprised of the Executor’s

position that the gist of the action doctrine barred Fulkroad’s conversion

claim when deciding the motion for judgment on the pleadings. Furthermore,

the trial court, in its opinion, recognized that Fulkroad’s cause of action was

for conversion.   However, the trial court, while granting the Executor’s


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motion for judgment on the pleadings, did not discuss the gist of the action

doctrine as grounds for its decision.

        Given that the gist of the action doctrine was raised by the Executors,

and, if applicable, would support the trial court’s grant of judgment on the

pleadings, we will discuss the doctrine.

        As set forth above, Fulkroad alleged it entered into an agreement with

Decedent to store vehicles and deposit asphalt on Decedent’s property. In

connection with this allegation, Fulkroad attached to the Complaint as

Exhibit “A”, the “Waste Agreement.”               Fulkroad further alleged that in

consideration for allowing Fulkroad to store vehicles and deposit asphalt

Decedent could have three or four loads of asphalt material, that Decedent

without    permission   took    an     additional    120    loads    of   asphalt   worth

$25,440.00, and that Decedent and the Executors had refused to pay the

$25,440.00 invoiced amount. See Fulkroad’s Complaint, 6/13/2013, at ¶¶

6–11.

        These   allegations,   while    setting     forth   the     parties’   contractual

relationship, do not describe Decedent’s failure to perform a duty owed by

Decedent under either the written Waste Agreement, or the oral agreement

alleged in the Complaint.         Rather, Fulkroad’s allegations describe the

Decedent’s wrongful taking of materials that were located on his property

due to the parties’ contractual relationship.               The duty not to convert

property is not created by contract but by “a broader social duty owed to all


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individuals, which is imposed by the law of torts.”             Bruno, supra.

Accordingly, based on our review, we conclude the gist of the action doctrine

does not bar Fulkroad’s conversion action.

     We next address the parol evidence rule, which states that, “absent

fraud, accident, or mistake, parol evidence of a prior or contemporaneous

oral agreement is not admissible to alter, vary, modify, or contradict terms

of a contract which has been reduced to an integrated written instrument.”

Kehr Packages v. Fidelity Bank N.A., 710 A.2d 1169, 1173 (Pa. Super.

1998). The applicability and effect of the parol evidence rule are properly

considered in the context of a motion for summary judgment, and, similarly,

a motion for judgment on the pleadings.      See Coal Operators Casualty

Co. v. Charles T. Easterby & Co., 269 A.2d 671, 672–673 (Pa. 1970).

     The trial court, in evaluating Fulkroad’s claim, opined:

     The essence of the Complaint herein is that [Fulkroad] and
     Decedent allegedly agreed that Decedent would take a certain
     amount of asphalt materials and Decedent removed an excessive
     amount of materials not contemplated by the oral agreement
     between [Fulkroad] and Decedent. [The Executors] aver—and
     we agree—that the document attached to the Complaint does
     not speak to any agreement regarding the removal of asphalt
     materials by Decedent in any amount. [The Executors] aver that
     the only proof of an agreement with Decedent to remove asphalt
     materials would consist of parol evidence with [Fulkroad’s]
     representative testifying to the terms of such an agreement
     when [the Executors] lack the present ability to refute such
     allegations and anticipated testimony. [The Executors] invoke
     the application of the Dead Man’s Statute asserting that
     [Fulkroad] is incompetent to proffer evidence concerning the
     existence and terms of such an agreement where the only
     individual who may refute the same is Decedent.


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                                    ****

     As we have previously observed, the documents attached to the
     Complaint do not speak to the existence of any agreement
     between [Fulkroad] and the Decedent regarding the removal of
     asphalt materials. Exhibit “A” states that [Fulkroad] had
     Decedent’s permission to dump waste material on Decedent’s
     property and that [Fulkroad] promised it would level the waste
     area to owner’s [Decedent’s] satisfaction. Exhibit “B” is
     [Fulkroad’s] invoice dated December 31, 2010 directed to
     Decedent. These documents do not substantiate [Fulkroad’s]
     allegations that it and Decedent agreed that Decedent could
     remove a specified amount of asphalt material and that
     Decedent removed material in excess of an agreed amount. Thus
     it follows that the only proof of such an arrangement/agreement
     would consist of [Fulkroad’s] oral testimony regarding the
     understanding between [Fulkroad] and Decedent — testimony
     which can only be confirmed or refuted by Decedent. The facts
     herein present the exact scenario which the Statute seeks to
     prevent. Clearly, the Dead Man’s Statute would preclude any
     testimony to support [Fulkroad’s] claim.

Trial Court Opinion, 3/21/2014, at 4, 6 (emphasis added).

     It appears from this discussion, wherein the trial court mentions parol

evidence but once, that the trial court’s decision was grounded not on the

parol evidence rule, but rather on the Dead Man’s Act.         Moreover, as

discussed above, Fulkroad’s claim is for conversion. Therefore, given that

the parol evidence rule pertains to written agreements, and that Fulkroad is

not relying on the Waste Agreement in making its claim, we conclude the

parol evidence rule has no bearing in this case, and cannot justify the grant

of judgment on the pleadings.




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      Finally, we address Fulkroad’s claim that the trial court erred in

granting judgment on the pleadings based upon the Dead Man’s Act.            The

Dead Man’s Act provides in pertinent part:

      [I]n any civil action or proceeding, where any party to a thing or
      contract in action is dead, ... and his right thereto or therein has
      passed, either by his own act or by the act of the law, to a party
      on the record who represents his interest in the subject in
      controversy, neither any surviving or remaining party to such
      thing or contract, nor any other person whose interest shall be
      adverse to the said right of such deceased ...party, shall be a
      competent witness to any matter occurring before the death of
      said party. …

42 Pa.C.S. § 5930.

      This court has held that “[t]he rationale behind the Dead Man’s Act is

that the law should not permit the surviving party to testify since he could lie

and attempt to testify favorably to himself and adversely to the deceased

party, knowing the other party is incapable of contradicting the fallacious

testimony.” Zigmantanis v. Zigmantanis, 797 A.2d 990, 995 (Pa. Super.

2002) (quoting Punxsutawney Mun. Airport Authority v. Lellock, 745

A.2d 666, 670 (Pa. Super. 2000)). “The theory is that because the

decedent’s representative is unable to present evidence regarding the

transaction, the other party to the transaction should be similarly restricted.”

Visscher v. O’Brien, 418 A.2d 454, 458 (Pa. Super. 1980). “The rule is

inapplicable, however, when the witness does not have an interest in the

outcome of the proceeding, for in that case, the witness would have no

reason to misrepresent his dealing with the decedent.” Id.




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      As such, the disqualification of testimony under the Dead Man’s Act

only applies to two classes of witnesses; surviving parties to a transaction

and any other person whose interest is adverse to the estate. In re

Hendrickson’s Estate, 130 A.2d 143, 146 (Pa. 1957). If a witness is not a

surviving party and has no adverse interest, he is competent to testify. See

Visscher v. O’Brien, supra (finding real estate broker/appraiser and

surviving party’s employee were both competent to testify as to their

dealings with decedent regarding an oral contract for broker’s commission

allegedly made between surviving party and decedent on the sale of a parcel

of decedent’s land); Estate of Grossman, 406 A.2d 726 (Pa. 1979) (Dead

Man’s Act did not prohibit the testimony of decedent’s daughter’s husband

regarding alleged oral contract daughter had with decedent to leave her one-

half of his estate).

      At this stage, since Fulkroad has not yet identified any witnesses, we

find that the court’s decision to apply the Dead Man’s Act was premature. It

is clear that the Dead Man’s Act would not prohibit Fulkroad from going

forward with the presentation of evidence through the testimony of

independent witnesses who have no right or interest which is adverse to the

deceased. Therefore, we conclude the trial court erred in relying on the Dead

Man’s Act to grant the Executor’s motion for judgment on the pleadings.




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     Accordingly, based on the foregoing, we reverse the order granting

judgment on the pleadings with prejudice, and entering judgment in favor of

the Executors and against Fulkroad.

     Order reversed. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/31/2015




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