Neal v. Bavarian Motors, Inc.

• Decision Date: 02 September 2005
• Citation: 882 A.2d 1022
• Parties: Jennifer NEAL v. BAVARIAN MOTORS, INC., Aded Benaleou and Ashir Benaleou, MFN Financial Corporation, Mercury Finance Company, LLC, & Consumer Portfolio Services Appeal of MFN Financial Corporation, Mercury Finance Company, LLC & Consumer Portfolio Services. Jennifer Neal v. Bavarian Motors, Inc., and MFN Financial Corporation, Mercury Finance Company, LLC, & Consumer Portfolio Services Appeal of: Bavarian Motors, Inc.
• Court: Pennsylvania Superior Court

882 A.2d 1022

Jennifer NEAL v. BAVARIAN MOTORS, INC., Aded Benaleou and Ashir Benaleou, MFN Financial Corporation, Mercury Finance Company, LLC, & Consumer Portfolio Services

Appeal of MFN Financial Corporation, Mercury Finance Company, LLC & Consumer Portfolio Services.

Jennifer Neal v. Bavarian Motors, Inc., and MFN Financial Corporation, Mercury Finance Company, LLC, & Consumer Portfolio Services

Appeal of: Bavarian Motors, Inc.

Superior Court of Pennsylvania.

Argued March 16, 2005.

Filed September 2, 2005.

Reid R. Coppock, Exton, for MFN, Mercury & Consumer Portfolio.

Cary L. Flitter, Narberth, for Neal.

Andrew G. Gay, Philadelphia, for Bavarian Motors, Inc. and Benaleou.

Before: TODD, KELLY, JJ., and McEWEN, P.J.E.

McEWEN, P.J.E.:

¶ 1 These consolidated appeals have been brought from the judgment that was entered in favor of Jennifer Neal (plaintiff below), in her action against appellants that was founded upon the sale to her of a stolen car under the guise of a legitimate business transaction. Appellants at Appeal No. 2438 EDA 2004 are MFN Financial Corporation, Mercury Finance Company, LLC, and Consumer Portfolio Services (hereinafter referred to as "Mercury"). Appellant at Appeal No. 2439 EDA 2004 is Bavarian Motors, Inc. (hereinafter referred to as "Bavarian Motors"). We affirm in part and reverse in part.

¶ 2 The distinguished Judge Mary D. Colins, who presided over the jury trial in this case, has provided this Court with the following summary of the facts and procedural history of this matter:

In January 2001, Bavarian Motors sold a vehicle to plaintiff that it either knew or should have known was stolen. The car was financed through Mercury, a third party lender. Plaintiff made timely payments but never received permanent registration or title from the defendants [appellants]. In September 2002, plaintiff was contacted by the Pennsylvania State Police and informed that the car that she had purchased from Bavarian Motors was a stolen vehicle. The police subsequently impounded the vehicle.

Plaintiff Jennifer Neal filed suit on October 18, 2002, against [appellants] with the following claims: breach of contract, violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL") (73 P.S. § 201 — 9.2(a)); breach of warranty of title (13 Pa.C.S. § 2312(a)); fraud, misrepresentation and violation of the Pennsylvania Motor Vehicle Sales Finance Act.

The case was tried before a jury and resulted in a verdict for plaintiff on May 13, 2004. The jury awarded plaintiff total damages in the amount of $31,000. The jury found Bavarian Motors liable to plaintiff for $1[7],000.00 and Mercury liable to plaintiff for $14,000.00. Bavarian Motors was found liable on six counts: breach of contract, violations of UTPCPL, breach of warranty [under Pa.C.S. § 2312(a)], fraud, misrepresentation and violation of the PA Motor Vehicle Sales Finance Act. [Mercury was found liable on four counts: breach of contract, violations of the UTPCPL, breach of warranty under Pa.C.S. § 2312(a), and violation of the PA Motor Vehicle Sales Finance Act.] The jury made special findings that attributed $2,854.66 of Bavarian Motor's total liability of $17,000 to violations of the UTPCPL and $1,000 of Mercury's total liability of $14,000 to violations of the UTPCPL.

On May 24, 2004, the plaintiff filed a motion to mold the verdict to list all parties' names in the final verdict. In addition, plaintiff filed a motion for treble damages, attorney fees and costs pursuant to the provision of the UTPCPL. Defendants filed a motion for remittitur of damages on June 14, 2004. [The trial court] granted plaintiff's motion to mold the verdict to list all parties' names as to the Mercury defendants, but denied plaintiff's motion as to the Bavarian Motors defendants [which excluded the personal liability of the individuals employed by Bavarian Motors]. [The trial court] ordered that the verdict be remitted to $17,869.48 to conform to the evidence. Additionally, [the trial court] added the following sums to the jury's verdict pursuant to UTPCPL: damages in the amount of $1,000, . . . were trebled to $3,000.00; (2) damages in the amount of $2,854.66. . . were trebled to $8,563.98; (3) plaintiff's counsel fees, in the amount of $42,599.50 were granted; and (4) costs in the amount of $4,500.00 were granted. Thus the post-verdict award for the plaintiff totaled $70,678.30 [sic].

Slip Opinion, September 28, 2004, at pp. 1-3. Judgment was thereafter entered, and these appeals followed.

¶ 3 In the appeal at No. 2438 EDA 2004, Mercury sets out the following questions for our review:

Whether the trial court abused its discretion or committed and error of law in its calculation of damages and imposition of joint and several liability?

Whether the trial court abused its discretion by failing to fully remit damages?

Whether the trial court abused its discretion or committed an error of law in its award of attorney fees, costs and treble damages under the Unfair Trade Practices and Consumer Protection Law (UTPCPL)?

In the appeal at No. 2439 EDA 2004, the questions raised by Bavarian Motors are as follows:

Whether the trial court abused its discretion by failing to fully remit damages?

Whether the trial court abused its discretion or committed an error of law in its award of attorney fees and costs under the Unfair Trade Practices and Consumer Protection Law (UTPCPL)?

Given the identical procedural history of these two appeals, and the commonality of two of the questions raised by the respective appellants, we have elected to consolidate these appeals for purposes of disposition.¹

¶ 4 Mercury first claims that the trial judge erred in molding the verdict to impose joint and several liability upon it and Bavarian Motors. The basis for imposing joint and several liability is recited in the Restatement (Second) of Torts as follows:

(1) Damages for harm are to be apportioned among two or more causes where

(a) there are distinct harms, or

(b) there is a reasonable basis for determining the contribution of each cause to a single harm.

(2) Damages for any other harm cannot be apportioned among two or more causes.

Restatement (Second) of Torts § 433A.

If the tortious conduct of each of two or more persons is a legal cause of harm that cannot be apportioned, each is subject to liability for the entire harm, irrespective of whether their conduct is concurring or consecutive.

Restatement (Second) of Torts § 879. These concise statements of the law have been adopted into the jurisprudence of Pennsylvania,² and the law governing the assessment of liability between or among multiple tortfeasors was well summarized by our former colleague, the eminent Justice Thomas G. Saylor, when he wrote:

"Whether liability for harm to a plaintiff is capable of apportionment is a question of law for the court, not a question of fact for the jury." Harka v. Nabati, 337 Pa.Super. 617, 622, 487 A.2d 432, 434 (1985), quoting Voyles v. Corwin, 295 Pa.Super. 126, 441 A.2d 381 (1982)

. In determining whether the harm to a plaintiff is capable of apportionment, that is, whether the defendants are separate or joint tortfeasors, courts consider several factors:

the identity of a cause of action against each of two or more defendants; the existence of a common, or like duty; whether the same evidence will support an action against each; the single, indivisible nature of the injury to the plaintiffs; identity of the facts as to time, place or result; whether the injury is direct and immediate, rather than consequential; responsibility of the defendants for the same injuria as distinguished from the same damnum.

Voyles v. Corwin, 295 Pa.Super. at 130-131, 441 A.2d at 383 (1982) and Harka v. Nabati, 337 Pa.Super. at 622, 487 A.2d at 434 (1985), both citing Prosser, Law of Torts, § 46 n. 2 (4th Ed. 1971).

"If two or more causes combine to produce a single harm which is incapable of being divided on any logical, reasonable, or practical basis, and each cause is a substantial factor in bringing about the harm, an arbitrary apportionment should not be made." Capone v. Donovan, 332 Pa.Super. 185, 189, 480 A.2d 1249, 1251 (1984), citing Restatement (Second) of Torts § 433A, citing Comment i (1977) and Prosser, Law of Torts § 47 (1941). "Most personal injuries are by their very nature incapable of division." Id.

"If the tortious conduct of two or more persons causes a single harm which cannot be apportioned, the actors are joint tortfeasors even though they may have acted independently." Capone v. Donovan, 332 Pa.Super. at 189, 480 A.2d at 1251 (1984), citing Restatement (Second) of Torts § 879 (1977). Joint tortfeasors are:

". . . two or more persons jointly or severally liable in tort for the same injury to persons or property, whether or not judgment has been recovered against all or some of them." 12 P.S. § 2082. In Black's Law Dictionary, to be a joint tortfeasor, "the parties must either act together in committing the wrong, or their acts, if independent of each other, must unite in causing a single injury." 4th Ed. (1968) page 1661. A joint tort is defined as "where two or more persons owe to another the same duty and by their common neglect such other is injured . . ." Id. at 973.

Lasprogata v. Qualls, 263 Pa.Super. 174, 179 n. 4, 397 A.2d 803, 805 n. 4 (1979).

Smith v. Pulcinella, 440 Pa.Super. 525, 656 A.2d 494, 496-497 (1995). In this case Mercury and Bavarian Motors, as amply demonstrated by the record, acted in concert to facilitate the sale of this stolen vehicle to plaintiff. Regardless of whether Mercury's actions were less culpable than that of Bavarian Motors, the inexcusable failure of Mercury to comply with required procedures in financing a vehicle contributed to the harm suffered by the plaintiff. Thus, we detect no error in the decision of the trial court to impose joint and several liability.

¶ 5 Next, both appellants contend that the trial court...