United States District Court, E.D. Pennsylvania
ALBERT L. DEUTSCH
JORDAN NAMEROW, ESQUIRE DAVID NENNER, ESQUIRE AND NENNER & NAMEROW, P.C.
J. RUETER, UNITED STATES MAGISTRATE JUDGE
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
SUMMARY JUDGMENT STANDARD
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,
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.
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
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.
court addressed defendants' statute of limitations
arguments in their prior Motion for Summary Judgment,
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.
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
(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.)
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 ...