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[U] Scondras v. LSI Flood Services

Superior Court of Pennsylvania

February 11, 2014

REBEKAH SCONDRAS, Appellant
v.
LSI FLOOD SERVICES; NBT SETTLEMENT SERVICES, LLC.; PENNSTAR BANK, A DIVISION OF NBT BANK; AND NBT BANK, Appellees

NON-PRECEDENTIAL DECISION

Appeal from the Order January 8, 2013 in the Court of Common Pleas of Wyoming County Civil Division at No.: 2007-00998

BEFORE: PANELLA, J., MUNDY, J., and PLATT, J. [*]

MEMORANDUM

PLATT, J.

Appellant, Rebekah Scondras, appeals from the order, following remand, which granted summary judgment in favor of Appellee, NBT Settlement Services, LLC.[1] She asserts the trial court erred in concluding that Appellee owed no duty to warn her that the property she was purchasing was in a flood zone. The trial court reasoned that Appellant could not recover from Appellee merely based on its corporate affiliation with Pennstar Bank, which provided inaccurate information about flood zone status, but had been earlier dismissed from the suit. We affirm.

The trial court provided the underlying facts of the case in the opinion accompanying its order granting summary judgment:

[O]n or about April 24, 2006 [Appellant] entered into a standard agreement for the sale of a property located at 2 Water Street, Nicholson, Wyoming County, Pennsylvania for the purchase price of Fifty Six Thousand Seven Hundred Two Dollars ($56, 702.00). [Appellant] closed on the property on or about May 30, 2006 and a deed was recorded in the Wyoming County Register and Recorder's Office on June 23, 2006.
Prior to the consummation of the purchase of the property, Pennstar Bank, a division of NBT Bank, individually and/or through its agents, servants, employees and/or subcontractors ordered a Flood Certification from LSI Flood Services pursuant to the National Flood Insurance Act, 42 U.S.C.[A]. §§ 4001-4129, under the statutory program operated by the Federal Emergency Management Agency. A Flood Certification was issued on May 5, 2006, which represented that the property was not in a flood hazard area. As a result of this, [Appellant] did not obtain flood insurance. Upon closer review of the Flood Certification, it was learned that the property that was subject to the Flood Certification was actually a property located at 2 Water Street, Susquehanna County, Pennsylvania.
Subsequent to purchasing the home, the property at issue, which is, in fact, located in a flood hazard area, was subject to a flood. As a result of the flood, the home was completely destroyed and is now uninhabitable.
Sometime after the filing of the Complaint, LSI Flood Services, Pennstar Bank, a division of NBT Bank and NBT Bank filed Preliminary Objections, which were sustained by the Honorable Brendan J. Vanston in January of 2008. The Complaint was therefore dismissed as against LSI Flood Services, Pennstar Bank, a division of NBT Bank and NBT Bank. No appeal was ever taken of this decision.
Thereafter [Appellee], NBT Settlement Services, filed a Motion for Judgment on the Pleadings in April of 2008, which was granted in June. [Appellant] did file an appeal to that decision. On March 26, 2009 the Pennsylvania Superior Court issued a Memorandum, vacated the judgment and remanded the matter back [to] the Court of Common Pleas for Wyoming County for further proceedings to create a record to assess whether [Appellee] owed [Appellant] any duty.
Discovery has been completed in this matter, namely depositions were taken of [Appellant], Christine Pollard of NBT Settlement Services and Jeannette O'Malley of NBT Settlement Services. [Appellee] filed the instant Motion for Summary Judgment, oral arguments were held and the matter is now ripe for decision.

(Trial Court Opinion, filed 1/08/13, at 3-4) (record citations and footnote omitted).[2] The trial court filed an order which granted Appellee's motion for summary judgment, and a supporting opinion. Appellant timely filed a notice of appeal.[3]

Appellant raises one question for our review:
A. Did the learned trial judge err in granting the motion of summary judgment of Appellee in specifically holding that Appellee owed no duty to Appellant, contrary to the finding of the Superior Court in its memorandum, dated March 26, 2009?

(Appellant's Brief, at 4).

Appellant argues that the trial court's grant of summary judgment was "[c]ontrary to the findings and conclusions of the Superior Court . . . that a duty did, in fact, exist." (Id. at 8). We disagree.

Our review on an appeal from the grant of a motion for summary judgment is well-settled. A reviewing court may disturb the order of the trial court only where it is established that the court committed an error of law or abused its discretion. As with all questions of law, our review is plenary.
In evaluating the trial court's decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. Pa.R.C.P. 1035.2. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof . . . . establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will 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.

Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 429 (Pa. 2001) (case citations and internal quotation marks omitted).

Whether a judge has correctly interpreted a writing and properly determined the legal duties which arise therefrom is a question of law for the appellate court. The legal effect or enforceability of a contract provision presents a question of law accorded full appellate review and is not limited to an abuse of discretion standard. A cornerstone principle of contract interpretation provides that where the words of the document are clear and unambiguous, we must give effect to the language.

Midwest Financial Acceptance Corp. v. Lopez, 2013 WL 4500036, *6 (Pa.Super. 2013) (citations and internal quotation marks omitted).

In this case, preliminarily, we observe that Appellant overstates the holding of our predecessor panel. Appellant argues that this Court found "that a duty did, in fact, exist." (Appellant's Brief, at 10). It did not.

To the contrary, our predecessor panel remanded to the trial court to make findings on whether the Appellee had the requisite duty to Appellant. See Scondras v. LSI Flood, No. 1101 MDA 2008, unpublished memorandum at 12 (Pa.Super. filed March 26, 2009).[4] If the panel had found that there was a duty, there would have been no need for a remand directing the trial court to make that finding. Appellant's claim misstates the holding and is unsupported by the record. Appellant's issue fails.

Moreover, the claim would not merit relief. Appellant offers no pertinent authority in support of her assertion that Appellee, as the settlement agent, owed her a duty to provide accurate flood zone information, other than her misplaced reliance on the remand decision of the prior panel. (See Appellant's Brief, at 8-13).

Instead, she relies exclusively on a factual narrative which emphasizes that the flood zone misinformation was provided by Pennstar's employee, Mr. Calabro, noting that Pennstar is a division of NBT Bank, which has an eighty per cent ownership interest in Appellee. (See id. at 12-13). Appellant asserts, without reference to the record, that Appellee used its relationship with its majority owner bank to obtain business. (See id. at 11). Appellant suggests, but fails to develop a legal argument, that Appellee had a duty to her arising out of its corporate affiliation with the other defendants, since dismissed. This does not establish a legal duty.

To the contrary, none of the arguments raised in Appellant's brief establish a direct legal duty of the settlement agent to provide flood zone status information to her; nor does Appellant allege that she was compelled to accept Appellee as settlement agent, or that she was somehow prevented from engaging her own attorney to represent her interests exclusively during the settlement process. In any event, mere corporate affiliation does not impose a duty on Appellee as settlement agent, which it did not have otherwise, or create a duty because the other defendants, now dismissed from the case, allegedly had one.[5] Appellant fails to develop an argument and offers no pertinent authority in support of this claim. (See Appellant's Brief, at 10-14); see also Pa.R.A.P. 2119(a), (b). Accordingly the claim is waived. Moreover, it would not merit relief.

The flood hazard determination form for this property, contained in the certified record, states in bold, all-capital letters:

THIS FLOOD DETERMINATION IS PROVIDED TO THE LENDER PURSUANT TO THE FLOOD DISASTER PROTECTION ACT AND FOR NO OTHER PURPOSE. IT DOES NOT CREATE ANY PRIVATE CAUSE OF ACTON ON BEHALF OF THE BORROWERS AGAINST THE LENDER OR THE FLOOD DETERMINATION PROVIDER.

(See Preliminary Objections, Exhibit A, Standard Flood Hazard Determination, 9/21/07) (emphasis added). Similarly, our predecessor panel noted:

[T]he purpose of the requirement that a lender obtain a flood zone determination is not to inform the borrower of the home's flood zone status, but rather to protect the lender and the federal government from the financial risk that is posed by uninsured homes located in flood zones.

(Scondras v. LSI Flood, supra at 6-7 (citation omitted) (emphases added)).

The trial court properly found that Appellee owed no duty to provide flood zone information to Appellant. Appellant presented no legal theory under which she could recover. The trial court properly granted summary judgment.

Order affirmed.

Judgment Entered.


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