Plaintiff Carlotta M. Bohm, as trustee for debtors Howard Hammonds and IMPS, filed this case on September 4, 1987. The complaint contains claims for breach of the covenant of good faith and fair dealing, breach of fiduciary duty, fraud, duress, and breach of contract. For the following reasons, all claims except the breach of contract claim will be dismissed.
A. Choice of Law
Commerce suggests that Tennessee law should be applied. It does not point to any conflict between Tennessee and Pennsylvania law applicable to this case, however. Further, there is no significant difference between the relevant laws of those states. Therefore, the choice of law issue need not be addressed.
B. Summary Judgment
Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
When deciding a motion for summary judgment, it is not the court's function to weigh the evidence and determine the truth of the matter, but rather simply to determine whether there is a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202 , 106 S. Ct. 2505 (1986). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.
The moving party has the burden to identify those portions of pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265 , 106 S. Ct. 2548 (1986). The nonmoving party then must go beyond the pleadings and use affidavits, depositions, answers to interrogatories and admissions on file to designate facts establishing a genuine issue for trial. Id. at 324.
Commerce offers numerous arguments in support of its motion for summary judgment. They will be addressed in turn.
1. Claims on Behalf of Howard Hammonds
Commerce asserts that Howard Hammonds' bankrupt estate has no actionable claim against it because as a shareholder and director of IMPS, Mr. Hammonds cannot maintain an individual cause of action to redress the alleged injuries of IMPS.
It is well established that a shareholder, director, officer, or employee of a corporation has no personal or individual right of action against third persons for damages that result indirectly to the individual because of an injury to the corporation. Pitchford v. Pepi, Inc., 531 F.2d 92, 97 (3d Cir. 1975), cert. denied, 426 U.S. 935, 49 L. Ed. 2d 387 , 96 S. Ct. 2649 (1976). One exception to this general rule is where there is a special duty between the alleged wrongdoer and the shareholder. Cole v. Ford Motor Co., 566 F. Supp. 558, 569 (W.D. Pa. 1983). This exception, however, applies most often where there is a fiduciary relationship. Id.
Plaintiffs have failed to present any evidence that a fiduciary relationship existed between Mr. Hammonds and Commerce. The fact that Mr. Hammonds was the guarantor of the loan does not create a personal right of action independent of the harm allegedly suffered by IMPS. See Temp-Way Corp. v. Continental Bank, No. 87-6930, 139 Bankr. 299, 1992 U.S. Dist. LEXIS 3046, at *47 (E.D. Pa. March 13, 1992). Therefore, all claims that the estate of Howard Hammonds asserts against Commerce must be dismissed.
In the remainder of this opinion, "plaintiff" will refer only to Carlotta M. Bohm as trustee for IMPS.
2. Claims on Behalf of IMPS
a. Breach of Contract
Commerce argues that under the terms of the contract, plaintiff does not have a cause of action for its failure to fund subsequent to December 29, 1984. Commerce relies on the following provision of the contract:
2(b) First disbursement of the loan being made not later than FOUR months from the date of this Authorization, and no disbursements being made later than TWELVE months from the date of this Authorization, unless such time is extended pursuant to prior written consent of SBA.
Complaint, Ex. F. Commerce argues that since the authorization was dated December 29, 1983, they had no obligation to fund after twelve months from that date, or after December 29, 1984.
Further, Commerce asserts that the terms of the demand clause in the SBA Authorization permitted them to discontinue funding at any time. Specifically, Commerce points to the provision of the contract which makes the authorization contingent upon:
2(c) Receipt by lender of evidence satisfactory to its sole discretion, that there has been no unremedied adverse change since the date of the application,. . . .