HARRISBURG – The Superior Court of Pennsylvania concurred with a Berks County court that Comcast properly survived a breach of contract and fraud case, brought against it by one of its customers.
The Superior Court’s three-judge panel of Jack A. Panella, Victor P. Stabile and John L. Musmanno ruled on April 7 that Comcast was within its legal rights to shut off its telephone and Internet services to customer and plaintiff Alan B. Ziegler, and survive an appeal of a subsequent breach of contract and fraud lawsuit. Stabile authored the Court’s opinion in this case.
Ziegler alleged that in July 2017, he began negotiating with a business account executive of Comcast to switch his telephone and Internet service to it, from another provider. During negotiations, Ziegler insisted that the sales tax and other fees be included in the negotiated sum for telephone and internet services to establish a monthly amount certain on the billing of his account. Ziegler then alleged that the account executive estimated the sales taxes and other fees to be approximately 10 percent of the contract price.
But, Ziegler claimed that on July 24, 2017, Comcast sent him a written confirmation that the monthly charges were $204.65, plus a one-time installation charge of $119.80. However, Ziegler’s Exhibit ‘A’ to the complaint contradicts his claim. The exhibit shows what is described as ‘Estimated Monthly Recurring Charges’ of $204.65. In fact, the next sentence clearly states, ‘Estimated monthly recurring charges may not reflect all applicable discounts. Excludes equipment and usage-based fees, taxes, and surcharges.”
Starting in October 2017, Comcast billed Ziegler $204.65, plus taxes and fees, which continued until June of 2018. During this time, Ziegler paid only the estimated monthly charges, and not the applicable taxes and fees. Then, on April 6, 2018, Comcast shut off Ziegler’s services, because the bills were not being paid in full.
Ziegler made his regular $204.65 monthly payment and the services were restored. However, Ziegler’s services were shut off again on April 11, 2018 and Ziegler filed an emergency injunction requesting that Comcast be ordered to turn on and leave on Ziegler’s services pending further order of court. The injunction was granted on April 11, 2018.
On June 18, 2018, Ziegler filed a complaint against Comcast, demanding damages ‘in excess of $50,000.’ The complaint asserts three causes of action: At count I, breach of contract; At count II, fraud; And count III, negligent misrepresentation. Although Ziegler’s demand is ‘in excess of $50,000,’ the actual amount in controversy is $445.65, as calculated and itemized at paragraph 7 of Comcast’s preliminary objections to Ziegler’s complaint.
On Aug. 6, 2018, the Berks County Court of Common Pleas sustained Comcast’s preliminary objections to Ziegler’s fraud and negligent misrepresentation causes of action, and overruled the objection to the breach of contract claim. The Court dismissed Ziegler’s complaint without prejudice to refile it before a magisterial district judge, given that the amount in controversy was $445.65.
Ziegler filed a timely appeal from the Aug. 6, 2018 order, but the Court quashed the initial appeal on March 27, 2019, concluding that the order was interlocutory, because it did not dispose of all claims and parties.
On Nov. 4, 2019, Comcast filed a motion in the trial court requesting reconsideration of a prior order forbidding it to terminate Ziegler’s services. On Nov. 18, 2019, the trial court entered an order permitting Comcast to terminate services, unless Ziegler filed a complaint before the magisterial district judge within 30 days. Ziegler filed a motion for reconsideration on Dec. 2, 2019, which the trial court denied on Dec. 17, 2019, and Ziegler filed the instant appeal the same day.
“In essence, the procedural posture of this case remains unchanged since the prior appeal. Ziegler’s tort claims have been dismissed, and his breach of contract claim has been dismissed without prejudice to file it before a magisterial district judge, as per the Aug. 7, 2018 order from which Ziegler previously appealed,” Stabile said
“Ziegler never attempted to amend his complaint, and therefore Comcast filed no new preliminary objections. The prior panel of this Court held that no final appealable order existed where the trial court dismissed Ziegler’s complaint without prejudice to refile his claim before a magisterial district judge. That holding is the law of this case, and it is controlling here.”
Ziegler countered that he cannot file a declaratory judgment action in magisterial district court, because a magisterial district court is not a court of record, but the Superior Court found it could not label the order before it final and appealable.
Though Ziegler’s complaint did not seek declaratory relief, his causes of action sounded in breach of contract and tort and he sought money damages. The trial court did not dismiss all causes of action with prejudice, nor had Ziegler filed a praecipe to dismiss his complaint with prejudice, as the prior panel of the Superior Court suggested he might. Thus, the Court again quashed Ziegler’s appeal.
“As we have explained, Ziegler has filed a second appeal from a case that remains in the same procedural posture that led this court to quash his prior appeal. This appeal clearly has no basis in law or fact, and we can only conclude that Ziegler sought to delay these proceedings by appealing to this court rather than proceeding as directed by the trial court or seeking to have this action dismissed with prejudice. Ziegler has thus prolonged the efficacy of an order preventing Comcast from terminating his services,” Stabile said.
“We observe, also, that some of Ziegler’s arguments are disingenuous. Ziegler claims he cannot proceed before a magistrate because declaratory relief is unavailable there. In support of that argument, he concedes that he ‘has no cause of action for breach of contract.’ On the next page, he begins his merits analysis with an argument that the trial court erred in dismissing his validly pled breach of contract claim. Given the foregoing, we direct the trial court to award Comcast counsel fees reasonably incurred in connection with this appeal.”
Superior Court of Pennsylvania case 2073 MDA 2019
Berks County Court of Common Pleas case 18-00353
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com