Parker Oil Co. v. Mico Petro & Heating Oil, LLC

979 A.2d 854, 2009 Pa. Super. 105, 2009 Pa. Super. LEXIS 1003, 2009 WL 1562773
CourtSuperior Court of Pennsylvania
DecidedJune 3, 2009
Docket399 EDA 2008
StatusPublished
Cited by24 cases

This text of 979 A.2d 854 (Parker Oil Co. v. Mico Petro & Heating Oil, LLC) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Parker Oil Co. v. Mico Petro & Heating Oil, LLC, 979 A.2d 854, 2009 Pa. Super. 105, 2009 Pa. Super. LEXIS 1003, 2009 WL 1562773 (Pa. Ct. App. 2009).

Opinions

OPINION BY

KLEIN, J.:

¶ 1 Mico Petro and Heating Oil, LLC and Kamal Singh appeal from the judgment entered against them determining that Mico Petro and Singh, personally, are responsible for the failure of the corporation to meet its corporate obligations to pay for oil supplied to it pursuant to contract. The trial court determined Mico Petro and Singh owed $80,790.38 in unpaid invoices, service charges and returned check bank charges. While we agree that Mico Petro is responsible, we disagree that Singh is also liable under the participation theory. Therefore, we reverse that portion of the judgment.

[856]*856¶ 2 Singh owned and operated a gasoline service station under the corporate name Mico Petro and Heating Oil, LLC. Mico Petro had a long term contractual relationship with Parker Oil for oil supplies. Parker alleged that from May 2002 to April 2005 it supplied gasoline to Mico Petro accruing an unpaid balance of $51,667.91 plus fees and finance charges. Following a non-jury trial, the trial court ruled in favor of Parker and against Mico Petro. The trial court also determined that Singh, personally, was liable for the unpaid balance under a participation theory. Participation is where a corporate officer is held liable for a business debt where that person participates in tortuous conduct that led to the liability. Wicks v. Milzoco Builders, Inc., 503 Pa. 614, 470 A.2d 86 (1983). Additionally, the trial court added a finance charge of 1% ($27,472.47) and bank fees of $30.00 per returned check ($1,650.00)1 to the stipulated amount of unpaid invoices ($51,667.91).

¶ 3 Mico Petro and Singh now raise 6 issues on appeal.

1. Did the trial court err in finding in favor of Parker and against Mico Petro and Singh in the amount of $80,790.38?

2. Did the trial court fail to find that the business and contractual relationships were solely between Parker and Mico Pe-tro?

3. Did the trial court err in finding that the interest due calculated to $27,472.47?

4. Did the trial court err in finding that there was a conversion by Singh?

5. Did the trial court err in finding that there was personal liability on behalf of Singh on a participation theory and a participation theory for misfeasance?

6.Did the trial court err in finding that Singh acknowledged participating in wrongful acts when he received petroleum products and failed to pay for same?

¶ 4 Our standard of review for a non-jury trial is well established. “We [may] reverse the trial court only if its findings of fact are predicated on an error of law or are unsupported by competent evidence in the record. As fact finder, the judge has the authority to weight the testimony of each party’s witnesses and to decide which are most credible.” Skurnowicz v. Lucci, 798 A.2d 788, 793 (Pa.Super.2002).

¶ 5 We will address those issue that deal with the participation theory first.2

Participation

¶ 6 We begin by noting that this is not a case where the creditor has any evidence to pierce the corporate veil. It is clear that Singh was not trading individually but always traded under the corporate name. Likewise, there is no evidence of fraud. The complaint charged fraud, but the trial court did find for Parker on that basis. See Shay v. Flight C Helicopter Services, Inc., 822 A.2d 1, 17 (Pa.Super.2003).

¶ 7 Here, the trial court only found against Singh individually because it determined there was a “conversion” and Singh can be found individually liable on a “participation” theory. That means Singh participated in some kind of misfeasance. We do not believe the evidence is sufficient to establish any kind of “conversion” or other illegal act. There is no evidence that Mico Petro planned to take oil and never pay for it.

¶ 8 Rather, the evidence demonstrates that this matter represents an ongoing commercial relationship, a relationship [857]*857that had existed for years, where the purchaser struggled and did not make full payment for the product delivered on a number of occasions.

¶ 9 The situation may well have been different if there was one large transaction and evidence that Singh knew the corporation could not pay for it. However, that is not the situation here. First, it is undisputed that Parker knew that Singh was operating through a corporation, and in fact had dealt with him for years, always in a corporate rather than individual relationship. Second, it is undisputed that Parker knew for a long time that Mico Petro was having financial difficulty, as many checks were drawn with insufficient funds but later made good. This is evidence of a corporation struggling to make it, and a supplier going along with this. When the corporation finally goes out of business, this does not turn a long-time contractual relationship into a tort. This is a classic situation where an individual wishes to shield himself from personal liability and uses the classic corporate structure, and a supplier knows about both the corporate structure and the financial difficulties of the corporation and chooses to take the risk. The decision by the trial court in this case could drastically undermine our business structure by allowing creditors to end-run the normal burden of piercing the corporate veil under the little used “participation” theory. The only participation here was that of a corporation trying to stay afloat and a creditor going along with ■ it in the hope that ultimately it will get paid — incidentally making a profit for a number of years along the way.

¶ 10 We also note that in the current economic situation, this is something that is likely to happen more and more. While there is certainly evidence that Mico Petro owed a great deal of money to Parker, we cannot find any evidence that Singh accepted the oil planning not to pay for it. There is nothing more than a showing that finally the corporation came to the conclusion that it was not profitable and had to close.

¶ 11 Simply calling a contractual dispute a tort does not make it so. Because of this lack of evidence, we do not believe it has been demonstrated that Singh was mal-feasant in his actions. Without malfeasance, this is merely a breach of contract by a corporation, and the individual should not be found to be personally liable. Shay, supra.

¶ 12 As a result of the above, judgment shall be reversed as to Kamal Singh, personally. The judgment against Mico Petro and Heating Oil, LLC is affirmed.

Award

¶ 13 While the trial court erred in concluding Singh was personally responsible for the debts of the corporation, it correctly determined the amount of liability.

¶ 14 Mico Petro makes a perfunctory argument that there is no written agreement between the parties with respect to the assessment of interest in finance charges and therefore, the trial court erred in imposing those fees. While Singh may have testified that he never received monthly statements that contained any mention of finance charges, the trial court believed otherwise. Parker presented evidence that the standard invoices it provided to its customers contained a provision for Vk

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Cite This Page — Counsel Stack

Bluebook (online)
979 A.2d 854, 2009 Pa. Super. 105, 2009 Pa. Super. LEXIS 1003, 2009 WL 1562773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parker-oil-co-v-mico-petro-heating-oil-llc-pasuperct-2009.