Appeal from the Judgment Entered June 24, 2010 In the Court of Common Pleas of Allegheny County Civil Division, No(s): GD No. 95-17282.
BEFORE: STEVENS, P.J., GANTMAN, AND STRASSBURGER [*] , JJ.
Appellants, Gerald DeArmitt and Ada DeArmitt, appeal from the summary judgment entered in the Allegheny County Court of Common Pleas in favor of Appellees, New York Life Insurance Company ("NYLIC") and Russell F. Bicker ("Mr. Bicker"). For the following reasons, we reverse and remand for further proceedings.
The relevant facts and procedural history of this case are as follows. In 1985, Appellants sold their motel and motor home park business. The buyers gave Appellants a down payment, and a mortgage that the buyers agreed to pay off over the course of twenty years, beginning in 1986. In 1988, Appellants contacted Mr. Bicker, an agent for NYLIC, about putting $50, 000.00 in an annuity or annuity-like investment product. Appellants specifically told Mr. Bicker they did not want life insurance; they wanted something that would produce a steady source of retirement income to replace the income they were getting from the mortgage payments when the mortgage was paid in full.
Mr. Bicker provided Appellants with an illustration showing how an initial investment of $50, 000.00 could grow to $153, 000.00 after eighteen years. Mr. Bicker indicated Appellants could then withdraw $12, 000.00 to $14, 000.00 each year without depleting the principal. Mr. Bicker insisted an investment product like this always had a small life insurance component. Appellants purchased the recommended product.
In 1993, Appellants noticed an approximate $1, 800.00 shortfall between the projected and the actual cash values of the investment, so Mr. DeArmitt again met with Mr. Bicker. Mr. Bicker explained to Mr. DeArmitt that the investment he had purchased was performing slightly below estimates but assured him that it would eventually meet its projected cash value as promised.
In 1995, Appellants received a notice from NYLIC informing customers of an upcoming class action suit. Appellants had their NYLIC investment product independently reviewed only to discover it was not an annuity investment at all. Instead, Appellants learned for the first time that they had purchased a whole life insurance policy.
Appellants initiated this action against NYLIC and Mr. Bicker by writ of summons filed on October 26, 1995. In Appellants' third amended complaint, which they filed on May 20, 1999, they raised five counts: (I) common law fraud and deceit, (II) negligence, (III) statutory violation of the Unfair Trade Practice and Consumer Protection Law ("UTPCPL"),  (IV) fraud violation of the UTPCPL, (V) and negligent supervision.
In June 2008, the trial court entered partial summary judgment in favor of NYLIC and Mr. Bicker and dismissed the negligence counts (II and V) of Appellants' third amended complaint, based on the statute of limitations relevant to those negligence counts. The trial court also decided Appellants could not prevail on a fraud-in-the-execution claim based on a failure of the writing to include a guarantee Appellants would receive $153, 000.00 at the end of eighteen years, because Mr. DeArmitt said he knew ahead of time that dividends were not guaranteed. The court characterized Mr. DeArmitt's testimony as an "admission" that barred his claim on that basis. The court then stated:
I reach the opposite result with respect to the claim that the writing should have included an investment vehicle different from a standard whole life policy. According to the testimony of Mr. DeArmitt, he did not want life insurance and the New York Life agent never told [the DeArmitts] that their money was being used to purchase a standard whole life policy. Instead, he described what [the DeArmitts] were purchasing as an annuity tied in with insurance. A fact finder may find that the agent's alleged description was intended to and did cause [the DeArmitts] to reasonably believe that they were not purchasing only a whole life policy under which substantial portions of the annual dividends would be used to cover life insurance.
(Order and Opinion, filed June 16, 2008, at 4). Essentially, the court preserved Appellants' fraud-in-the-execution claim based on the nature of the writing itself to the extent it was not the product sought and promised. Nevertheless, by order dated June 23, 2010 and entered June 24, 2010, the court granted final summary judgment against Appellants and dismissed their complaint entirely, based on the court's conclusion, as a matter of law, that Appellants could not establish at trial any actual damages or ascertainable loss.
Appellants timely filed a notice of appeal on June 25, 2010. On July 2, 2010, the trial court ordered Appellants to file a concise statement of the errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); they timely filed it on July 21, 2010.
Appellants raise the following issues for review:
THE TRIAL COURT ERRED IN GRANTING PARTIAL SUMMARY JUDGMENT…AND DISMISSING [APPELLANTS'] CLAIMS BASED UPON [APPELLEES'] ORAL MISREPRESENTATION THAT [APPELLANTS'] INVESTMENT OF A ONE-TIME PAYMENT OF $50, 000.00, WOULD GENERATE A RETURN OF AT LEAST $153, 000.00 IN EIGHTEEN YEARS, EVEN THOUGH [APPELLEES] HAD NO REASONABLE BASIS TO BELIEVE THIS REPRESENTATION TO BE TRUE AT THE TIME OF SALE.
THE TRIAL COURT ERRED…IN HOLDING THAT [APPELLANTS] HAD SUFFERED NO DAMAGES AS A RESULT OF [APPELLEES'] MISREPRESENTATIONS SINCE [APPELLEES], WHO WERE ALLEGED TO HAVE COMMITTED AN INTENTIONAL FRAUD IN THE SALE OF A LIFE INSURANCE POLICY DISGUISED AS AN INVESTMENT, WERE PERMITTED BY THE COURT TO USE THE COST OF THE FRAUDULENTLY SOLD LIFE INSURANCE POLICY, AS WELL AS THE CASH VALUE OF THE POLICY, AS A SET-OFF AGAINST [APPELLANTS'] RECOVERY OF DAMAGES.
THE TRIAL COURT ERRED…IN HOLDING THAT A TORTFEASOR WITH UNCLEAN HANDS IN THE SALE OF AN INSURANCE PRODUCT WAS ENTITLED TO CLAIM AS AN OFFSET OF DAMAGES THE ALLEGED VALUE OF THE FRAUDULENTLY SOLD PRODUCT.
THE TRIAL COURT ERRED IN GRANTING PARTIAL SUMMARY JUDGMENT…AND FINAL SUMMARY JUDGMENT… BY MAKING CREDIBILITY DETERMINATIONS IN VIOLATION OF THE NANTY-GLO RULE.
(Appellants' Brief at 3).
Initially, we observe:
"Our scope of review of an order granting summary judgment is plenary." Harber Philadelphia Center City Office Ltd. v. LPCI Ltd. Partnership, 764 A.2d 1100, 1103 (Pa.Super. 2000), appeal denied, 566 Pa. 664, 782 A.2d 546 (2001). "[W]e apply the same standard as the trial court, reviewing all the evidence of record to determine whether there exists a genuine issue of material fact." Id. "We view the record in the light most favorable to the non-moving 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." Caro v. Glah, 867 A.2d 531, 533 (Pa.Super. 2004) (citing Pappas v. Asbell, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002)).
Motions for summary judgment necessarily and directly implicate the plaintiff's proof of the elements of his cause of action. Grandelli v. Methodist Hosp., 777 A.2d 1138, 1145 n.7 (Pa.Super. 2001). … Thus, a record that supports summary judgment will either (1) show the material facts are undisputed or (2) contain insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the [fact-finder]. [Id.] at 1143 (citing Pa.R.C.P. 1035.2 Note). "Upon appellate review, we are not bound by the trial court's conclusions of law, but may reach our own ...