Appeal from the Judgment entered May 1, 2008 In the Court of Common Pleas of Monroe County Civil No. 1050 CIVIL 2006.
The opinion of the court was delivered by: Klein, J.
BEFORE: ORIE MELVIN, KLEIN, and FITZGERALD,*fn1 JJ.
¶ 1 Mico Petro and Heating Oil, LLC and Kamal Singh appeal from the judgment entered against them determining that Mico Petro and Singh, personally, are responsible for the failure of the corporation to meet its corporate obligations to pay for oil supplied to it pursuant to contract. The trial court determined Mico Petro and Singh owed $80,790.38 in unpaid invoices, service charges and returned check bank charges. While we agree that Mico Petro is responsible, we disagree that Singh is also liable under the participation theory. Therefore, we reverse that portion of the judgment. ¶ 2 Singh owned and operated a gasoline service station under the corporate name Mico Petro and Heating Oil, LLC. Mico Petro had a long term contractual relationship with Parker Oil for oil supplies. Parker alleged that from May 2002 to April 2005 it supplied gasoline to Mico Petro accruing an unpaid balance of $51,667.91 plus fees and finance charges. Following a non-jury trial, the trial court ruled in favor of Parker and against Mico Petro. The trial court also determined that Singh, personally, was liable for the unpaid balance under a participation theory. Participation is where a corporate officer is held liable for a business debt where that person participates in tortuous conduct that led to the liability. Wicks v. Milzoco Builders, Inc., 470 A.2d 86 (Pa. 1983). Additionally, the trial court added a finance charge of 11/2 % ($27,472.47) and bank fees of $30.00 per returned check ($1,650.00)*fn2 to the stipulated amount of unpaid invoices ($51,667.91).
¶ 3 Mico Petro and Singh now raise 6 issues on appeal.
1. Did the trial court err in finding in favor of Parker and against Mico Petro and Singh in the amount of $80,790.38?
2. Did the trial court fail to find that the business and contractual relationships were solely between Parker and Mico Petro?
3. Did the trial court err in finding that the interest due calculated to $27,472.47?
4. Did the trial court err in finding that there was a conversion by Singh?
5. Did the trial court err in finding that there was personal liability on behalf of Singh on a participation theory and a participation theory for misfeasance?
6. Did the trial court err in finding that Singh acknowledged participating in wrongful acts when he received petroleum products and failed to pay for same?
¶ 4 Our standard of review for a non-jury trial is well established. "We [may] reverse the trial court only if its findings of fact are predicated on an error of law or are unsupported by competent evidence in the record. As fact finder, the judge has the authority to weight the testimony of each party's witnesses and to decide which are most credible." Skurnowicz v. Lucci, 798 A.2d 788, 793 (Pa. Super. 2002).
¶ 5 We will address those issue that deal with the participation theory first.*fn3 Participation
¶ 6 We begin by noting that this is not a case where the creditor has any evidence to pierce the corporate veil. It is clear that Singh was not trading individually but always traded under the corporate name. Likewise, there is no evidence of fraud. The complaint charged fraud, but the trial court did find for Parker on that basis. See Shay v. Flight C Helicopter Services, Inc., 822 A.2d 1, 17 (Pa. Super. 2003).
¶ 7 Here, the trial court only found against Singh individually because it determined there was a "conversion" and Singh can be found individually liable on a "participation" theory. That means Singh participated in some kind of misfeasance. We do not believe the evidence is sufficient to establish any kind - - of "conversion" or other illegal act. There is no evidence that Mico Petro planned to take oil and never pay for it.
¶ 8 Rather, the evidence demonstrates that this matter represents an ongoing commercial relationship, a relationship that had existed for years, where the purchaser struggled and did not make full payment for the product delivered on a number of occasions.
¶ 9 The situation may well have been different if there was one large transaction and evidence that Singh knew the corporation could not pay for it. However, that is not the situation here. First, it is undisputed that Parker knew that Singh was operating through a corporation, and in fact had dealt with him for years, always in a corporate rather than individual relationship. Second, it is undisputed that Parker knew for a long time that Mico Petro was having financial difficulty, as many checks were drawn with insufficient funds but later made good. This is evidence of a corporation struggling to make it, and a supplier going along with this. When the corporation finally goes out of business, this does not turn a long-time contractual relationship into a tort. This is a classic situation where an individual wishes to shield himself from personal liability and uses the classic corporate structure, and a supplier knows about both the corporate structure and the financial difficulties of the corporation and chooses to take the risk. The decision by the trial court in this case could drastically undermine our business structure by allowing creditors to end-run the normal burden of piercing the corporate veil under the little used - - "participation" theory. The only participation here was that of a corporation trying to stay afloat and a creditor going along with it in the hope that ultimately it will get paid -- incidentally making a profit for a number of years along the way.
¶ 10 We also note that in the current economic situation, this is something that is likely to happen more and more. While there is certainly evidence that Mico Petro owed a great deal of money to Parker, we cannot find any evidence that Singh accepted the oil planning not to pay for it. There is nothing more than a showing that finally the corporation came to the conclusion that it was not profitable and had to close.
¶ 11 Simply calling a contractual dispute a tort does not make it so. Because of this lack of evidence, we do not believe it has been demonstrated that Singh was malfeasant in his actions. Without malfeasance, this is merely a breach of contract by a corporation, and the individual should not be found to be personally liable. Shay, supra.
¶ 12 As a result of the above, judgment shall be reversed as to Kamal Singh, personally. The judgment against Mico Petro and Heating Oil, LLC is affirmed.
¶ 13 While the trial court erred in concluding Singh was personally responsible for the debts of the corporation, it correctly determined the amount of liability.
¶ 14 Mico Petro makes a perfunctory argument that there is no written agreement between the parties with respect to the assessment of interest in finance charges and therefore, the trial court erred in imposing those fees. While Singh may have testified that he never received monthly statements that contained any mention of finance charges, the trial court believed otherwise. Parker presented evidence that the standard invoices it provided to its customers contained a provision for 11/2 % finance charges on any bill more than 30 days overdue. The record demonstrates that Plaintiff's exhibits 1 and 2 are a sample invoice and a delivery ticket used by Parker. Both of these documents plainly state there will be a 11/2 % per month (18% annual) finance charge added after 30 days. Further, Plaintiff's exhibits 3-8 are delivery tickets for deliveries made to Mico Petro and these tickets, identical in form to the sample provided in exhibit 1, have the finance charge notice. There is clearly no error in accepting evidence of the finance charge.
¶ 15 We further note that such language on an invoice or delivery ticket is not the type term that will materially alter an agreement and thus void a contract. See Herzog Oil Field Serv. Inc., v. Otto Torpedo Co., 570 A.2d 549, 551 (Pa. Super. 1990).
¶ 16 Finally, Mico Petro makes no argument in its brief that the trial court improperly added the returned check charges to the determination of damages. Therefore, that issue is waived. Harris v. Toys "R" Us-Penn Inc., 880 A.2d 1270 (Pa. Super. 2005) (failure to develop argument with citations and analysis waives issue on appeal). We note, in support of the trial court, that Singh admitted that there were 55 returned checks issued by Mico Petro. We would see no error in including these fees, incurred by Parker, in the amount of total damages.
¶ 17 Judgment affirmed in part, reversed in part. Case remanded for action consistent with this decision. Appellee's Application for Dismissal of Appeal For Failure by Appellant to Enter Judgment is denied. Judgment was entered on May 1, 2008. Jurisdiction relinquished.
CONCURRING AND DISSENTING OPINION BY FITZGERALD, J.:
¶ 18 FITZGERALD, J., files a Concurring and Dissenting Opinion.
BEFORE: ORIE MELVIN, KLEIN, and FITZGERALD,*fn4 JJ.
¶ 1 Insofar as the majority reverses the portion of the judgment finding Appellant ("Singh") liable under the participation theory, I respectfully dissent. Insofar as the majority concludes that Mico Petro and Heating Oil, LLC is responsible, I concur.
¶ 2 The majority concludes that the evidence was insufficient "to establish any kind of 'conversion' or other illegal act" on Singh's part. Majority Op. at 3-4. I disagree. Singh testified that he was the only member of Mico Petro. Id. at 22. Singh is the sole shareholder of Mico Petro. Findings of Fact, Discussion, Conclusion of Law, and Verdict ("Verdict"), 7/23/07, at 1. He was responsible for paying the bills. Id. at 23. He testified that after the delivery of the petroleum products, the products were then sold. Id. at 24.
¶ 3 The trial court found, inter alia, "that a conversion of the petroleum products delivered to [Appellants] had taken place." Trial Ct. Op., 11/23/07, at 4. The trial court found that "the written confirmation . . . embod[ied] the terms agreed upon including the imposition of finance charges on outstanding balances after 30 days." Id. at 6. "[Appellee] has established by a preponderance of the evidence that ...