J-S10017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ERIC TILL AND TILL COMMUNICATIONS,                 IN THE SUPERIOR COURT OF
INC.                                                     PENNSYLVANIA

                            Appellants

                       v.

VIP WIRELESS, INC., JACK HUSTON
A/K/A JOHN CARANFA AND EDWARD
WILLIAMS

                            Appellees                   No. 1259 EDA 2014


                  Appeal from the Order Entered March 5, 2015
              In the Court of Common Pleas of Philadelphia County
                     Civil Division at No: 03884 March 2012


BEFORE: GANTMAN, P.J., STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                                 FILED MAY 14, 2015

        Appellants, Eric Till and Till Communications, Inc. (collectively, “Till”),

appeal from the trial court’s March 5, 2015 order granting the summary

judgment motion of Appellees, VIP Wireless, Jack Huston a/k/a John Caranfa

and Edward Williams. The March 5, 2015 order rendered final an order of

September 24 2012 sustaining Appellees’ preliminary objections to several

causes of action set forth in Appellants’ second amended complaint.            We

affirm.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      Till operates retail stores selling cell phones and cellular service plans.

VIP Wireless (“VIP”) sells Sprint cell phones and cellular service plans, and it

contracts with entities such as Till to operate retail outlets for that purpose.

In October of 2005, Till and VIP entered a five-year contract whereby Till

would operate a retail outlet selling VIP’s cell phones and service plans. The

resulting retail outlet was located at 250 East Street Road, Feasterville,

Pennsylvania.      In   2008,   Sprint   and   VIP   entered   an   “Authorized

Representative Agreement” which essentially continued the practice of VIP

offering Sprint phones and services through third-party retailers such as Till.

Also in 2008, Till entered a “Subcontractor Consent Agreement” with Sprint.

Till operated the Feasterville retail outlet under the trademarks and insignia

of Sprint.

      One of Till’s responsibilities was to perform warranty work by repairing

or replacing defective phones when necessary.        Upon completion of such

work, Till sent a voucher to Sprint requesting reimbursement. Upon receipt

of a warranty voucher Sprint paid VIP and VIP in turn reimbursed Till. On

January 15, 2009, a Sprint employee sent an email to Appellee Jack Huston

(“Huston”) expressing concerns about Till’s warranty vouchers. The text of

that email reads as follows:

             VIP Wireless (Feasterville) was selected from the YTD
      Payment Report to have outbound calls made to customers.
      This ASC issued 160 vouchers from 12/30/08 and 12/31/08 for a
      total of $4,146.79. All 160 customers from these vouchers were
      called. Sixteen (16) vouchers were Compliant, 40 were Non-
      Compliant, and 104 were No Contact. Of the contacts made,

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       71% were Non-Compliant.         The contacted vouchers totaled
       $1,134.57 with the Non-Compliant vouchers comprising 84% of
       this total. Please see the attached spreadsheet for details of the
       outbound calls with the Non-Compliant vouchers bolded.

            These 40 vouchers total $1,134.57 and will be debited
       1/29/09. If there is any additional information regarding these
       Non-Compliant vouchers, please provide it to me prior to
       1/29/09.

              Thank you.

Second Amended Complaint, 7/9/12, at ¶ 15 (emphasis in original).

       An alternate version of the January 15, 2009 email is identical except

that it includes one additional sentence at the end of the first paragraph:

“We have contacted the customers again with the same result and feel that

this has been deemed as fraud.” Id. at ¶ 16. The origin of this additional

sentence is the heart of the instant dispute. Appellees claim Sprint sent VIP

both versions of the email, and that Sprint deemed Till’s conduct fraudulent.

Till alleges VIP altered Sprint’s original email to include the express

allegation of fraudulent conduct. All of Till’s causes of action arise from its

allegation that VIP altered Sprint’s email to include an express accusation of

fraud.1
____________________________________________


1
  As to the accuracy of the information in Sprint’s original email, Till alleges
as follows:

             The accuracy of the purported findings set forth in [Sprint’s
       January 15, 2009 email] is not known to the Plaintiffs and
       accordingly, Plaintiffs do not accept the statements made as
       being true.
(Footnote Continued Next Page)


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       On March 2, 2009, VIP’s counsel sent Till a letter immediately

terminating the October 2005 agreement.           The October 2005 agreement

permitted immediate termination in the event of fraud.         In the March 2,

2009 letter, VIP’s counsel quoted Sprint’s January 15, 2009 email verbatim,

and noted “VIP has been advised, by Sprint, that ‘We have contacted the

customers again with the same result and feel that this has been deemed as

fraud.’” Id. at ¶ 19.

       Till commenced this action on March 29, 2012.             Appellees filed

preliminary objections on May 11, 2012, and Till filed an amended complaint

on June 11, 2012.         Appellees filed preliminary objections to the amended

complaint on June 20, 2012, and Till filed its second amended complaint on

July 9, 2012.          Appellees once again filed preliminary objections.     On

September 24, 2012, the trial court sustained Appellees’ preliminary

objections (demurrer)2 as to Till’s causes of action for defamation, negligent

misrepresentation, intentional misrepresentation, civil conspiracy and civil

aiding and abetting.        The trial court also sustained Huston’s and Appellee

Edward Williams’ (“Williams”) preliminary objections to Till’s breach of

contract complaint.
                       _______________________
(Footnote Continued)

Second Amended Complaint, 7/9/12, at ¶ 18. Till maintains in its brief that
this email did not accuse Till of fraudulent or illegal activity. Till’s Brief at
30.
2
    Pa.R.C.P. 1028(a)(4).




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      On October 25, 2012 Appellees answered the remaining causes of

action set forth in the Second Amended Complaint (breach of contract

against VIP and intentional interference with contractual relations against all

Appellees.)    On November 1, 2013, Appellees filed a motion for summary

judgment. The trial court granted that motion on March 4, 2014. Till filed a

timely notice of appeal on April 1, 2014. Till raises seven assertions of error,

five of which correspond to the five causes of action dismissed at the

preliminary objection stage and two of which correspond to the two causes

of action on which the trial court entered summary judgment in favor of

Appellees.     We will begin with an analysis of the trial court’s entry of

summary       judgment   on   Till’s   claim   for   intentional   interference   with

contractual relations.

      Rule 1035.2 of the Pennsylvania Rules of Civil Procedure permits entry

of summary judgment when the pleadings are closed and the record evinces

“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[.]”     Pa.R.C.P. 1035.2.       We review an order granting a

summary judgment motion as follows:

             We view the record in the light most favorable to the
      nonmoving 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. Our scope of
      review of the trial court’s order granting or denying summary
      judgment is plenary, and our standard of review is clear: the

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     trial court’s order will be reversed only where it is established
     that the court committed an error of law or abused its discretion.

Young v. Prizm Asset Mgmt. Co., 100 A.3d 594, 596 (Pa. Super. 2014).

     Till asserts Appellees intentionally interfered with their present and

prospective contractual relations by altering Sprint’s January 15, 2009 email

to include an allegation of fraud.      Appellees relied on the statute of

limitations as a defense to Till’s intentional interference with contractual

relations claim. The parties agree that this tort claim is subject to the two-

year statute of limitations set forth in § 5524(7) of the judicial code.   42

Pa.C.S.A. § 5524(7).

            Generally, a statute of limitations period begins to run
     when a cause of action accrues; i.e., when an injury is inflicted
     and the corresponding right to institute a suit for damages
     arises. It is the duty of the party asserting a cause of action to
     use all reasonable diligence to properly inform him- or herself of
     the facts and circumstances upon which the right of recovery is
     based and to institute suit within the prescribed period.
     Generally, once the prescribed statutory period has expired, the
     complaining party is barred from bringing suit. However, the
     discovery rule acts as an exception to this principle, and provides
     that where the complaining party is reasonably unaware that his
     or her injury has been caused by another party’s conduct, the
     discovery rule suspends, or tolls, the running of the statute of
     limitations.

Gleason v. Borough of Moosic, 15 A.3d 479, 484 (Pa. 2011) (citations

omitted). “[T]here are few facts which diligence cannot discover, but there

must be some reason to awaken inquiry and direct diligence in the

channel in which it would be successful.   Crouse v. Cyclops Indus., 745

A.2d 606, 611 (Pa. 2000) (emphasis added).



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       As explained above, Till commenced this action March 29, 2012. Till

learned of the allegation of fraud no later than March 2, 2009, when VIP’s

counsel sent the termination letter to Till. Till alleges, however, that it first

learned VIP altered Sprint’s January 15, 2009 email within one year of the

filing of this litigation.   Second Amended Complaint, 7/9/12, at ¶ 17.       Till

allegedly learned this information via “a communication from Sprint’s

representative.” Id. Till therefore argues it was unaware the accusation of

fraud came from VIP and could not, through the exercise of diligence, have

discovered that fact until sometime after March 29, 2011.

       In granting Appellees’ summary judgment motion, the trial court relied

on allegations in Till’s federal lawsuit against Sprint, which Till filed in the

Eastern District of Pennsylvania on April 28, 2009.3 In the federal complaint

complaint, Till alleged:

             19. On or about January 15, 2009, at 1:00 p.m.,
       [Sprint’s] employee and or agent, one Penny S. Barnett, sent an
       email to David Gryzbowksi,[4] with copies to Theresa Moran and
       Linda Lewis.    Said email referred to “Subject:     Outbound
       Customer Calls – VIP Wireless (Feasterville) 2237”.[Paragraph
       19 of the federal complaint goes on to quote the text of the
       January 15, 2009 email, which we have already done.]
____________________________________________


3
    The federal complaint was docketed at No. 09-CV-175.         Appellees
attached a copy of the federal complaint as Exhibit B to their October 25,
2012 Answer and New Matter.
4
    This name is inconsistent with Till’s second amended complaint, which
alleges that Huston was the recipient of Sprint’s January 15, 2009 email.
Second Amended Complaint, 7/9/12, at ¶ 15.




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             20. In the alternative to paragraph 19 of the Complaint,
       on or about January 15, 2009 at 1:00 p.m., [Sprint’s] employee
       and/or agent, one Penny S. Barnett, sent an email to Dave
       Gryzbowski, with copies to Thresa Moran and Linda Lewis. Said
       email referred to “Subject: Outbound Customer Calls – VIP
       Wireless (Feasterville) 2237”. [Paragraph 20 of the federal
       complaint goes on to quote the altered version of the email, with
       the additional sentence at the end of the first paragraph
       concluding the vouchers were fraudulent.]

             21. It is not known by the plaintiffs whether the email
       text as set forth in paragraph 19 was authentic or whether the
       email text as set forth in paragraph 20 was authentic.
       Accordingly, plaintiff will proceed on alternative assumptions.
       The first assumption is that the e-mail[5] texts in paragraphs 19
       and 20 were both authentic. The alternative assumption is that
       the text in paragraph 20 was not authentic, but altered to
       include the italicized language[6] set forth herein.

            22. With respect to the aforesaid email(s), said email(s)
       were prepared, upon information and belief, by Sprint employees
       and designed to be ultimately distributed, inter alia, to VIP
       personnel.

             23. Upon information and belief, the email set forth in
       paragraph 19 was disseminated by [Sprint’s] employees and/or
       agents of VIP.       VIP then, through its agents and/or
       employees, altered the email to include the italicized
       language set forth in paragraph 20 without the express
       permission or knowledge of [Sprint’s] employees. In taking such
       action, VIP and its agents and employees were acting, not only
       on their own behalf, but also as the agents and/or ostensible
       agents of the instant defendants.




____________________________________________


5
  The federal complaint uses hyphenated and unhyphenated spellings of
email.
6
   The italicized language is the additional sentence deeming Till’s conduct
fraudulent.



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J-S10017-15


Till’s Federal Complaint, 4/28/09, at ¶¶ 19-23 (emphasis added).7 Based on

the bolded portion of the foregoing, the trial court rejected Till’s discovery

rule argument and concluded that the instant action, filed nearly three years

after the federal complaint against Sprint, is barred by the statute of

limitations. We agree.

       VIP terminated its contract with Till on March 2, 2009. The March 2,

2009 termination letter included the sentence accusing Till of submitting

fraudulent vouchers. Less than two months later, Till filed a federal lawsuit

against Sprint alleging, albeit in the alternative, that VIP altered Sprint’s

email to include an allegation of fraud. These circumstances do not warrant

application of the discovery rule.        As noted above, the discovery rule tolls

the statute of limitations where a party is “reasonably unaware that his or

her injury has been caused by another party’s conduct[.]”              Gleason, 15

A.3d at 484. The federal complaint evinces Till’s awareness of the possibility

that VIP caused its alleged injuries.          Rule 11 of the Federal Rules of Civil

Procedure mandates that factual contentions in federal complaints have

“evidentiary support, or if specifically so identified, will likely have

evidentiary support after a reasonable opportunity for further investigation

or discovery[.]” F.R.C.P. 11(b)(3). Thus, as of April 28, 2009, Till believed,

____________________________________________


7
   The federal district court ultimately dismissed the complaint for lack of
subject matter jurisdiction, concluding Till was bound by an arbitration
agreement.



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at a minimum, that it would likely have evidentiary support for its allegation

that VIP altered Sprint’s email.        Till expressly alleged on “information and

belief” that VIP personnel altered Sprint’s email to include the allegation of

fraud.      Till’s   Federal   Complaint,      4/28/09,   at   ¶ 23.   Under   these

circumstances, Till cannot claim it was “reasonably unaware” of VIP’s alleged

conduct as of the filing of its federal complaint, or that there was nothing to

“awaken inquiry” as to potential causes of action under the standard set

forth in Gleason and Crouse. At the very least, Till could have filed a writ

of summons and sought pre-complaint discovery.                    Pa.R.C.P. 1007(1);

4001(c); 4007.1(c); See McNeil v. Jordan, 894 A.2d 1260, 1268-69 (Pa.

2006).8

         Till nonetheless argues that summary judgment was inappropriate

because, where the discovery rule is at issue, the date of commencement of

the statute of limitations should be left to the fact finder. Till’s statement of

the law is correct, but it does not warrant relief here. “[O]nce the running of

the statute of limitations is properly tolled, only where the facts are so clear

that reasonable minds cannot differ may the commencement of the

limitations period be determined as a matter of law.” Crouse, 745 A.2d at

611 (emphasis in original).         Till misunderstands the trial court’s holding.

The trial court declined to toll the statute, holding that Till was aware of its
____________________________________________


8
   We express no opinion on whether and to what extent Till could have
obtained pre-complaint discovery.



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injury on March 2, 2009 when Till received the termination letter from VIP.

Trial Court Opinion, 9/3/14, at 3. We agree with the trial court that Till was

aware of its injury as of March 2, 2009, and that its obligation to conduct a

diligent investigation and file a timely action commenced as of that date.

Till’s allegations in the federal complaint, filed less than two months later,

strongly support the trial court’s conclusion. Since the trial court did not toll

the statute of limitations, it did not need to discern a date on which Till

reasonably should have discovered its alleged injury.                     Based on all of the

foregoing, we conclude the trial court did not commit an error of law or

abuse of discretion in entering summary judgment on this cause of action.

       Next, we consider the five causes of action dismissed at the

preliminary     objection       stage.          All      five   –    defamation,      intentional

misrepresentation, negligent misrepresentation, civil conspiracy and civil

aiding and abetting – sound in tort.                    All five arise out of VIP’s alleged

alteration of Sprint’s email.           In the defamation action, Till alleges VIP’s

alteration of Sprint’s email is the defamatory statement. Second Amended

Complaint,     7/9/12,     at    ¶ 16.          The      allegedly    altered    email     is   the

misrepresentation        at     issue      in         Till’s    intentional     and      negligent

misrepresentation claims.9 Similarly, Till alleges the altered email was the

____________________________________________


9
    In negligent and intentional misrepresentation causes of action, the
representation is actionable where it induces another to act on it. Porreco
v. Porreco, 811 A.2d 566, 570-71 (Pa. 2002); Bortz v. Noon, 729 A.2d
(Footnote Continued Next Page)


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J-S10017-15


subject of a civil conspiracy and or civil aiding and abetting among VIP,

Huston, and Williams.10

      Defamation is subject to a one-year statute of limitation. 42 Pa.C.S.A.

§ 5523(1).     The remainder are subject to the two-year limitation of

§ 5524(7). For reasons we have explained above, none of these causes of

action can survive the statute of limitations. We are cognizant that a statute

of limitations defense must be pleaded as new matter per Pa.R.C.P. 1030

and the trial court could not have relied on the statute to sustain preliminary

objections.   Nonetheless, this Court can affirm a trial court on any valid

basis, so long as the result is correct.            Wilson v. Transp. Ins. Co., 889

A.2d 563, 576 n.4 (Pa. Super. 2005). We conclude that dismissal of all of

Till’s tort-based causes of action is the correct result, inasmuch as all of

them were time-barred as of the commencement of this action.
                       _______________________
(Footnote Continued)

555, 561 (Pa. 1991). We are at a loss to understand how either cause of
action applies to these facts. Appellees’ alleged misrepresentation induced
no action on the part of Till. Till cannot sue Appellees for relying on their
own intentional/negligent misrepresentation to terminate Till’s contract.
10
    These causes of action also do not fit the facts. A civil conspiracy exists
where “two or more person agree to commit an unlawful act or to do an
otherwise lawful act by unlawful means.” Skipworth v. Lead Indus.
Ass’n, 690 A.2d 169, 174 (Pa. 1997). Till does not allege any individual
actions on the part of Huston or Williams, nor does Till provide authority for
the proposition that a company can conspire with its own employees to
terminate unlawfully the company’s contract with a third party. Till also
does not explain who among the Appellees aided the tortious conduct of the
others, as would be necessary to sustain a cause of action for civil aiding
and abetting. See Hranec Sheet Metal, Inc. v. Metallico Pittsburgh,
Inc., 107 A.3d 114, 120 (Pa. Super. 2014).



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       The final issue on appeal is whether the trial court erred granting VIP’s

motion for summary judgment on Till’s breach of contract claim. 11 Till’s brief

cites no law in support of this argument, and we could deem it waived for

that reason alone.       Pa.R.A.P. 2119(b); Dalrymple v. Kilishek, 920 A.2d

1275, 1281 (Pa. Super. 2007).           Regardless of Till’s deficient brief, we are

able to discern that this argument fails on the merits.

       A cause of action for breach of contract exists where the plaintiff can

plead and prove (1) the existence of a contract, including its essential terms,

(2) a breach of a duty imposed by the contract and (3) resultant damages.

Corestates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999).

The contract between Till and VIP and its essential terms are not in dispute.

The contract permitted VIP to terminate the contract immediately in the

event of fraudulent conduct by Till. Till does not dispute that submission of

fraudulent reimbursement vouchers would justify termination.

       VIP based its summary judgment motion on evidence supporting its

contention that the email containing the accusation of fraud came from

Sprint.   In opposing VIP’s motion, however, Till relied solely on its own

pleadings:

            Not only do the Plaintiffs state and have always contended
       that they never committed fraud but that the Plaintiffs in
____________________________________________


11
     As noted above, the trial court sustained Huston’s and Williams’
preliminary objections to the breach of contract claim.  Till has not
challenged that ruling on appeal.



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      addition have consistently alleged that the Defendants altered
      the original Sprint email so as to add, inter alia, the language
      ‘We have contacted the customers again with the same result
      and feel that this has been deemed as fraud.’ See paragraphs
      15 through 19 of the Second Amended Complaint”

Till’s Response to VIP’s Motion for Summary Judgment, 12/4/13, at ¶ 21

(emphasis added). Till’s Response repeatedly quotes from or refers to the

second amended complaint to establish the existence of a disputed issue of

material fact. Id. at ¶¶ 23, 24, 26, 31.

      Well-settled law establishes the inadequacy of Till’s response to VIP’s

summary judgment motion:

             Where the non-moving party bears the burden of proof on
      an issue, he may not merely rely on his pleadings or answers in
      order to survive summary judgment. Failure of a non-moving
      party to adduce sufficient evidence on an issue essential to his
      case and on which it bears the burden of proof…establishes the
      entitlement of the moving party to judgment as a matter of law.

Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 429 (Pa.

2001).   Since Till bore the burden of proving its breach of contract claim,

and since it adduced no evidence in support of that cause of action other

than the allegations in its complaint, the trial court properly entered

summary judgment.

      Since we have concluded that all of Till’s causes of action were

properly dismissed, we affirm the trial court’s order.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/2015




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