Denlinger, Inc. v. Dendler

608 A.2d 1061, 415 Pa. Super. 164, 1992 Pa. Super. LEXIS 1308
Superior Court of Pennsylvania·Decided May 11, 1992·No. 1988 and 2127·Published·Cited by 82 cases

Opinions

CIRILLO, Judge:

This is a consolidated appeal from an order entered in the Court of Common Pleas of Lancaster County granting defendant Brad A. Dendler’s motion for summary judgment and denying his request for attorney’s fees pursuant to 42 Pa.C.S.A. § 2503(9). Plaintiff Denlinger, Inc. is appealing the granting of summary judgment, while defendant Dendler is cross-appealing the denial of attorney’s fees. We reverse the order granting summary judgment and affirm the order denying attorney’s fees.

Defendant Brad Dendler (“Dendler”) is the sole shareholder, president and treasurer of Blue Mountain Development Company, Inc. (“Blue Mountain”), a construction company that specializes in residential projects. Blue Mountain was incorporated under the laws of Pennsylvania on July 15, 1988, after having functioned as a de facto corporation since April of 1988. Prior to forming Blue Mountain, Dendler had been in the construction business for several years, operating as a sole proprietorship under the name of Blue Mountain Contractors. Plaintiff Denlinger, Inc. (“Denlinger”) is a building supply company based in Lancaster, Pennsylvania. As a sole proprietor, Dendler had regularly purchased materials and supplies from Denlinger, on a cash-only basis. However, once Dendler formed Blue Mountain, he either contacted, or was contacted by, Den-linger to open a credit account. In July of 1988 Dendler was given a one page, two-sided credit application to complete. Dendler returned the completed form four to six weeks later, and an “open book” credit account was established for Blue Mountain. Essentially, it is the validity of the credit application Dendler completed which is under review here.

[168] Blue Mountain filed a voluntary petition under Chapter Eleven of the Bankruptcy Code in May of 1990. At that time Blue Mountain owed Denlinger $44,157.94 for materials that had already been delivered and accepted. On June 26,1990 Denlinger filed suit against Brad Dendler personally,1 as permitted by paragraph four of the credit application, to recoup the $44,157.94 due on the account, plus $5,994.84 in finance charges,2 and attorney’s fees.3 Dendler asserted in his answer, as an affirmative defense, that the credit application was an adhesion contract and, as such, was unconscionable and against the public policy of the Commonwealth. Dendler also counterclaimed for attorney’s fees under section 2503(9) of the Judicial Code, 42 Pa. C.S.A., contending that Denlinger’s suit was arbitrary, vexatious, and filed in bad faith. The trial court agreed that the credit application was an adhesion contract, and on that basis granted summary judgment in favor of Dendler. The court denied Dendler’s request for attorney’s fees, finding that Denlinger’s conduct did not rise to the level required by section 2503(9). Denlinger filed this timely appeal; subsequently, Dendler filed a timely cross-appeal.

[169] Denlinger presents the following issues for our consideration:

1. Is the sole shareholder and president of a closely held corporation to be held personally liable for corporate obligations when he has signed a writing assuming personal responsibility?
2. Does Pennsylvania law require a separate signature in an “individual capacity” for a personal guarantee to be effective, even though the individual signing in a representative capacity has unequivocally agreed to be personally liable; and does Pennsylvania law require a contracting party to explain to another business person the effect of a personal guarantee?
3. Is a credit application a contract of adhesion; is demanding a personal guarantee from the sole shareholder of a closely held corporation unconscionable?
4. Is a personal guarantee of a sole shareholder supported by consideration when given with respect to credit extended to his closely held corporation?
5. Is a signature in a representative capacity sufficient to satisfy the statute of frauds applicable to guarantee agreements?
6. Are finance charges (or interest) and percentage attorney’s fees collectible when agreed upon in writing?

In his cross-appeal Dendler asks us to determine whether the trial court erred in refusing to award him attorney’s fees pursuant to section 2503(9) of the Judicial Code.

Summary judgment may only be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). Summary judgment should be granted only when the right is clear and free from doubt. Musser v. Vilsmeier, 522 Pa. 367, 369, 562 A.2d 279, 280 (1989).

[170] In determining whether a summary judgment was properly granted, we must accept as true all properly pleaded facts, as well as all reasonable inferences that may be drawn therefrom. Overly v. Kass, 382 Pa.Super. 108, 111, 554 A.2d 970, 971 (1989). We must resolve all doubts regarding the existence of a genuine issue of material fact against the party moving for summary judgment. Marks v. Tasman, 527 Pa. 132, 133, 589 A.2d 205, 206 (1991). On appeal, we must examine the record in the light most favorable to the non-moving party, id., and we will not reverse the trial court’s order unless there has been an error of law or a manifest abuse of discretion. Vargo v. Hunt, 398 Pa.Super. 600, 601, 581 A.2d 625, 626 (1990).

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Denlinger, Inc. v. Dendler, 608 A.2d 1061, 415 Pa. Super. 164, 1992 Pa. Super. LEXIS 1308 (Pa. Ct. App. 1992).

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