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Deutsch v. Namerow

United States District Court, E.D. Pennsylvania

August 7, 2019

ALBERT L. DEUTSCH
v.
JORDAN NAMEROW, ESQUIRE DAVID NENNER, ESQUIRE AND NENNER & NAMEROW, P.C.

          MEMORANDUM ORDER

          THOMAS J. RUETER, UNITED STATES MAGISTRATE JUDGE

         Presently before the court is defendants' Motion for Summary Judgment (“Mot.”; Doc. 77), plaintiff's response in opposition thereto (“Resp.”; Doc. 80), and defendants' reply (“Reply”; Doc. 81). For the reasons set forth below, defendants' motion is DENIED.

         I. SUMMARY JUDGMENT STANDARD

         Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A factual dispute is material when “it might affect the outcome of the suit under the governing law, ” and genuine when “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). To defeat summary judgment, the party opposing the motion cannot “rely merely upon bare assertions, conclusory allegations or suspicions” to support its claim, Fireman's Ins. Co. v. DuFresne, 676 F.3d 965, 969 (3d Cir. 1982), but must go beyond the pleadings and present specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, “the court is required to examine the evidence of record in the light most favorable to the party opposing summary judgment, and resolve all reasonable inferences in that party's favor.” Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). See also Celotex, 477 U.S. at 322 (same). If, after applying the above standard, “reasonable minds can differ as to the import of the proffered evidence that speaks to an issue of material fact, ” summary judgment should not be granted. Burkett v. Equitable Life Assurance Soc'y, 2001 WL 283156, at *3 (E.D. Pa. Mar. 20, 2001).

         II. BACKGROUND

         The instant case arises from plaintiff, Albert L. Deutsch's (“Deutsch”), sale of his law practice to defendants, David S. Nenner (“Nenner”), Jordan S. Namerow (“Namerow”), and Nenner & Namerow, P.C. Plaintiff alleges that defendants failed to make payments to him in accordance with the October 1, 2011, purchase agreement (“Purchase Agreement” or “Agreement”). Defendants assert that plaintiff's action is barred by the statute of limitations, and, alternatively, that plaintiff himself failed to uphold certain provisions of the Purchase Agreement. The Purchase Agreement provided, inter alia, that plaintiff was to transfer his entire case load and legal practice, in the form of “good will, ” to defendants for compensation calculated pursuant to the Agreement. (Exh. 1 to Mot. at 10-12.) The Agreement further provided that plaintiff was to “continue to service his case load.” Id. at 12.

         Defendants thereafter encountered some economic difficulties, and reportedly had difficulty paying plaintiff in accordance with the terms of the Purchase Agreement. Defendants also took issue with plaintiff's alleged failure to uphold certain provisions of the Agreement. The parties attempted to resolve their disputes, but plaintiff filed the instant action in September 2017.

         III. DEFENDANTS' MOTION

         Defendants assert that they are entitled to summary judgment based on the statute of limitations. (Mot. at 2.) In support of their motion, defendants present two alternative arguments. Defendants first allege that “the Purchase Agreement was repudiated in early 2013, ” and thus the statute of limitations with respect to all claims had expired by the time plaintiff's complaint was filed on September 27, 2017. Id. Alternatively, defendants argue that “the statute of limitations has expired as to all payments allegedly due and owing under the Purchase Agreement prior to September 27, 2013, ” and that the doctrines of modification, acknowledgment, and the first-in, first-out rule do not apply so as to take the case out of the statute of limitations. Id. at 2-3.

         The court addressed defendants' statute of limitations arguments in their prior Motion for Summary Judgment, [1] finding that there existed several genuine issues of material fact precluding summary judgment. Deutsch v. Namerow, 2019 WL 1787594 (E.D. Pa. Apr. 24, 2019). However, the parties have since completed discovery. Defendants contend that the genuine issues of material fact identified by the court in the prior Memorandum Opinion are no longer in dispute. Plaintiffs respond that material issues of fact remain as to any alleged repudiation and/or modification of the agreement, acknowledgment of the debt by defendants, and allocation of the payments. See Resp. at 1-10. The court will address defendants' arguments in turn.

         1. Repudiation of the Purchase Agreement

          Defendants assert that “there is no genuine issue of material fact that the four (4) year statute of limitations on Deutsch's claim for breach of contract[, 42 Pa. Cons. Stat. Ann. § 5525], and the two (2) year statute of limitations on Deutsch's claim for conversion[, 42 Pa. Cons. Stat. Ann. § 5524(3)], were triggered by the repudiation of the Purchase Agreement on March 15, 2013, such that the statutes of limitation as to all claims expired prior to the September 2017 filing of the within lawsuit.” (Mot. at 15.) Defendants' argument is based upon two emails sent from defendant Nenner to plaintiff, the first of which was sent in January 2013:

Also I really need for you to keep your part of our bargain. You have settled one or two small cases in the last year. Both cases were settled this past summer when you were in Phila. Recently I had to borrow more money just to make payroll. We are operating in the red and that must change soon. If you have lost interest in working files then I would respectfully suggest that you consider adjusting your percentage downward.

(Exh. 5 to Mot. at 2.) The second email was sent in March 2013, and reads as follows:

I just sent you 5000 dollars. I can't keep paying overhead out of my own pocket. I am doing the best I can trying to keep my head above water. I haven't made a dime from this venture. All monies have gone to overhead and you. If you need more money then work harder. If you want the practice back then say so. I haven't put one penny in my pocket from your cases and have incurred substantial debt to keep it a float.

(Exh. 6 to Mot. at 1.) Defendants characterize these two emails as an “ultimatum” evidencing repudiation of the parties' Purchase Agreement. (Mot. at 7.) Plaintiff responds that the emails do not demonstrate a repudiation of the parties' Purchase Agreement, but rather a modification of the Agreement. (Resp. at 5.)

         Under Pennsylvania law, repudiation of a contract requires “an absolute and unequivocal refusal to perform or a distinct and positive statement of an inability to do so.” Andrews v. Cross Atl. Capital Partners, Inc., 158 A.3d 123, 130 (Pa. Super. Ct. 2017). See also Edwards v. Wyatt, 335 F.3d 261, 272 (3d Cir. 2003) (observing that the Pennsylvania Supreme Court has “reject[ed] any argument suggesting a dilution of our long recognized standard of an ‘absolute and unequivocal refusal to perform.'” (quoting 2401 Pennsylvania Ave. Corp. v. Fed'n of Jewish Agencies, 489 A.2d 733, 737 (Pa. 1985))). Neither email quoted by defendants demonstrates an absolute and unequivocal refusal to perform. As such, viewing the facts in a light most favorable to plaintiff, the ...


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