Dixon v. Nw. Mut.

• Citation: 146 A.3d 780,2016 PA Super 186
• Decision Date: 25 August 2016
• Docket Number: No. 1154 WDA 2015,1154 WDA 2015
• Parties: Julu Dixon, as Trustee for the Trust Containing Northwestern Life Insurance Policy 15-519-623, Appellant v. Northwestern Mutual, A Mutual Life Insurance Company and Peter Leone, Jr., A Senior Agent of Northwestern Mutual, Appellees
• Court: Superior Court of Pennsylvania

146 A.3d 780

2016 PA Super 186

Julu Dixon, as Trustee for the Trust Containing Northwestern Life Insurance Policy 15-519-623, Appellant

v.Northwestern Mutual, A Mutual Life Insurance Company and Peter Leone, Jr., A Senior Agent of Northwestern Mutual, Appellees

No. 1154 WDA 2015

Superior Court of Pennsylvania.

Argued June 21, 2016

FILED AUGUST 25, 2016

Ralph N. Feldman, Pittsburgh, for appellant.

James A. McGovern, Pittsburgh, for Leone, appellee.

Henry M. Sneath, Pittsburgh, for Northwestern Mutual, appellee.

BEFORE: FORD ELLIOTT, P.J.E., OLSON and STRASSBURGER,^* JJ.

OPINION BY OLSON, J.:

Julu Dixon (“Dixon”), as trustee for the trust containing a Northwestern Life Insurance policy, appeals from the December 19, 2013 order¹ sustaining preliminary objections filed by Peter Leone, Jr. (“Leone”) and sustaining in part preliminary objections filed by Northwestern Mutual (“Northwestern”). After careful consideration, we affirm in part, vacate in part, and remand for further proceedings consistent with this Opinion.

The trial court summarized the relevant factual background as follows:

In November 2000, [Michael and Louise Malakoff [ (collectively “the Malakoffs”) ] entered into a written insurance contract with Northwestern. [A trust was named beneficiary of the policy and Dixon] was named as trustee. ...

Under the contract, premium payments were to be made annually beginning on November 20, 2000. The policy provided for a [$4,000,000.00] second to die benefit. It had an annual premium of $72,164[.00].

In discussions prior to the Malakoffs' purchase of the policy and in discussions after its purchase, [Leone, an insurance agent for Northwestern,] agreed to meet annually with the Malakoffs in order that the annual premiums could be adjusted at the end of each policy year so that the policy would reach its vanishing premium^[2]by 2012.

In 2003, Louise Malakoff wrote a letter to [Leone] stating that she was endorsing a check in the amount of $81,164[.00] (rather than the stated annual premium of $72,164[.00] ) in order to remain current on the [12]–year schedule of premiums.

In November 2004, [Leone] sent a letter advising the Malakoffs that a payment of $84,164[.00] would keep [them] on track for their [12]-year schedule.

In December 2005, [Leone] advised the Malakoffs that [a] payment of $90,164 [.00] was required to remain current on the [12]-year schedule. The Malakoffs continued to make an annual payment of $90,164[.00] through November 2012.

Between December 2005 and October 2009, the Malakoffs had no contact with [Leone]. In October 2009, the Malakoffs contacted [Leone] and were informed that payments of $217,617[.00] in 2010, 2011, and 2012 would be required in order for the policy to be fully paid in year [12] of the policy. Alternatively, they could make a lump sum payment of $550,000[.00].

Through a January 7, 2010 letter, Northwestern advised the Malakoffs that they would have a fully paid policy in 2012 if they made additional annual payments of $90,164[.00] through 2012 and took a reduced death benefit of $2,243,384[.00].

Trial Court Opinion, 12/19/2013, at 1-2.

On January 4, 2013, Dixon filed the instant action against Northwestern and Leone. Dixon's complaint raised claims of breach of fiduciary duty, breach of contract, bad faith insurance, and violating the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. § 201–1 et seq.

, against both Northwestern and Leone. In March 2013, Northwestern and Leone filed preliminary objections in the nature of a demurrer. On December 19, 2013, the trial court sustained the preliminary objections as to all counts, except Dixon's breach of contract claim against Northwestern. On July 13, 2015, Dixon voluntarily discontinued the breach of contract claim against Northwestern. This timely appeal followed.³

Dixon presents three issues for our review:

1. Did the [trial] court err when it held that neither Northwestern nor [ ] Leone violated their fiduciary duties to perform under their written commitments?

2. Did the [trial] court err when it held that neither Northwestern nor [ ] Leone violated the [UTPCPL]?

3. Did the [trial] court err when it failed to follow recent appellate case law under the UTPCPL regulating insurance?

Dixon's Brief at 2.⁴

When reviewing an order sustaining preliminary objections, our standard of review is de novo and our scope of review is plenary. Huss v. Weaver , 134 A.3d 449, 453 (Pa.Super.2016)

(citation omitted). “On an appeal from an order sustaining preliminary objections, we accept as true all well-pleaded material facts set forth in the [plaintiff's] complaint and all reasonable inferences which may be drawn from those facts.” Estate of Gentry v. Diamond Rock Hill Realty, LLC , 111 A.3d 194, 198 (Pa.Super.2015) (internal alteration and citation omitted). “Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief.” Feingold v. Hendrzak , 15 A.3d 937, 941 (Pa.Super.2011) (citation omitted).

In her first issue, Dixon argues that Northwestern and Leone owed a fiduciary duty to the Malakoffs. Prior to addressing the merits of this claim, we must address Northwestern's assertion that Dixon waived this issue. SeeMadrid v. Alpine Mountain Corp. , 24 A.3d 380, 382 (Pa.Super.2011)

, appeal denied , 615 Pa. 768, 40 A.3d 1237 (2012) (citation omitted). Northwestern argues that Dixon waived the issue by failing to argue before the trial court in response to the preliminary objections that claims alleging a breach of fiduciary duty can co-exist as a matter of law with claims asserting breach of contract. This argument is without merit. Although under Pennsylvania Rule of Appellate Procedure 302(a)

issues not raised below are waived, our Supreme Court has held that “[t]here is no requirement in the Rules of Civil Procedure that the non-moving party respond to a preliminary objection, nor must that party defend claims asserted in the complaint. Failure to respond does not sustain the moving party's objections by default, nor does it waive or abandon the claim.” Uniontown Newspapers, Inc. v. Roberts , 576 Pa. 231, 839 A.2d 185, 190 (2003). Instead, as long as a plaintiff asserts in a complaint a cause of action, the plaintiff may assert any legal basis on appeal why sustaining preliminary objections in the nature of a demurrer was improper. SeeCardenas v. Schober , 783 A.2d 317, 325 (Pa.Super.2001), appeal withdrawn , 51 MAP 2002 (Pa. Sep. 23, 2002). In this case, Dixon pled a breach of fiduciary duty claim against both Leone and Northwestern. Accordingly, she did not waive her breach of fiduciary duty claim by failing to argue before the trial court that such a claim can proceed, as a matter of law, with a claim alleging breach of contract.

Second, Northwestern argues that Dixon waived her breach of fiduciary duty claim because she failed to identify in her appellate brief the place in the record that she preserved the issue. See Pa.R.A.P. 2101

, 2117(c), 2119(e). In her brief, however, Dixon set forth the allegations in her complaint that she avers supported her claim for breach of fiduciary duty. As noted above, the complaint itself is sufficient to preserve an issue challenging an order sustaining preliminary objections in the nature of a demurrer. Accordingly, we conclude that Dixon's failure to provide a separate briefing statement setting forth the location where she preserved her claim does not hinder our review of the claim, and we decline to find this issue waived under Rules 2101, 2117(c), and 2119(e). SeeKrauss v. Trane U.S. Inc. , 104 A.3d 556, 584 (Pa.Super.2014) (Waiver is appropriate when “deficiencies in a brief hinder our ability to conduct meaningful appellate review[.]”).

Third, Northwestern contends that Dixon waived her breach of fiduciary duty claim by not identifying this issue in the statement of issues to be raised on appeal in the docketing statement filed with this Court. To our knowledge, no reported case in this Commonwealth has considered whether failure to identify an issue in a docketing statement waives that issue.⁵ As this argument requires us to interpret a rule of appellate procedure, we employ the same principles used to interpret statutes. See Pa.R.A.P. 107

.

When interpreting a rule of appellate procedure, our goal is to ascertain the intent of the Court that promulgated the rule.⁶ SeeCommonwealth v. Baker , 547 Pa. 214, 690 A.2d 164, 167 (1997)

. “[T]he best indication of said intent is the plain language of a rule.” Commonwealth v. Williams , 125 A.3d 425, 428 (Pa.Super.2015) (internal alterations and citation omitted). When the plain language of a rule is ambiguous, we may consider, inter alia , the object to be attained when ascertaining this Court's intent. See 1 Pa.C.S.A. § 1921(c)(4)

.

We begin with a review of the plain language of Pennsylvania Rule of Appellate Procedure 3517

, which provides that:

Whenever a notice of appeal to the Superior Court is filed, the Prothonotary shall send a docketing statement form which shall be completed and returned within ten [ ] days in order that the Court shall be able to more efficiently and expeditiously administer the scheduling of argument and submission of cases on appeal. Failure to file a docketing statement may result in dismissal of the appeal.

Pa.R.A.P. 3517

. The current form in civil actions asks appellants to list, inter alia , “[i]ssues to be raised on appeal[.]” Administrative Office of Pennsylvania Courts Form 3020, at 2. In this case, the only issue raised by Dixon in her docketing statement filed with this Court was whether “the [trial] court err[ed] when it held that neither Northwestern nor [ ] Leone violated the [UTPCPL]?” Dixon's Docketing Statement, 8/10/15, at 2. Northwestern argues that Dixon's failure to list the breach of fiduciary duty claim in this section of the docketing...