J-A16023-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ALAN B. ZIEGLER IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
COMCAST CORPORATION D/B/A COMCAST BUSINESS
Appellee No. 2073 MDA 2019
Appeal from the Order Dated November 18, 2019 In the Court of Common Pleas of Berks County Civil Division at No: 18-00353
BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED APRIL 7, 2021
Appellant, Alan B. Ziegler, appeals from the November 18, 2019 order
sustaining in part the preliminary objections of Appellee, Comcast Corporation
d/b/a Comcast Business. We quash.
The trial court recited the pertinent facts and procedural history:
[Appellant] alleged that in July 2017, he began negotiating with a business account executive of [Appellee] to switch his telephone and internet service to [Appellee] from another provider. During negotiations, [Appellant] 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. [Appellant] alleged that the account executive estimated the sales taxes and other fees to be approximately ten percent of the contract price. [Appellant] claimed that on July 24, 2017, [Appellee] sent [Appellant] a writing confirming the monthly charges were $204.65 (which amount [Appellant] insists included taxes and fees), plus a one- time installation charge of $119.80. However, [Appellant’s] Exhibit “A” to the Complaint contradicts [Appellant’s] claim. The J-A16023-20
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 [Appellee] billed [Appellant] $204.65 plus taxes and fees. This continued until June of 2018[.] [Appellant] paid only the estimated monthly charges and not the applicable taxes and fees. On April 6, 2018, [Appellee] shut off [Appellant’s] services because the bills were not being paid in full. [Appellant] made his regular $204.65 monthly payment and the services were restored. [Appellant’s] services were shut off again on April 11, 2018 and [Appellant] filed an emergency injunction requesting that [Appellee] be ordered to turn on and leave on [Appellant’s] services pending further order of court. The injunction was granted on April 11, 2018. On June 18, 2018, [Appellant] filed a complaint against [Appellee] demanding damages “in excess of $50,000.” The complaint asserts three causes of action: at count 1, breach of contract; at count II, fraud; and count III, negligent misrepresentation. Although [Appellant’s] demand is “in excess of $50,000,” the actual amount in controversy is $445.65 as calculated and itemized at paragraph 7 of [Appellee’s] preliminary objections to [Appellant’s] complaint.
[Appellee] raised three preliminary objections seeking: 1) to enforce a contractual arbitration clause, arguing that small claims are excluded from the arbitration provision and unless [Appellant’s] claims were determined by this court to be within the jurisdiction of small claims courts and referred to a magisterial district justice, the matter must be referred to contractually mandated AAA arbitration; 2) dismissal of the fraud and negligent misrepresentation claims because, [Appellee] argued, pursuant to the gist of the action doctrine, [Appellant] is prohibited from pleading tort claims for fraud and negligent misrepresentation because he attached a copy of a contract to the complaint to support his claim under a theory of breach of contract; and 3) dismissal of [Appellant’s] breach of contract claim because [Appellant’s] allegation that taxes and fees in addition to the contract amount constituted breach is contradicted by [Appellant’s] own Exhibit “A” to the complaint which exhibit comprises the contract and incudes language clearly and inarguably excepting taxes and fees from the contract amount.
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Trial Court Opinion, 10/3/18, at 1-3.
On August 6, 2018, the trial court sustained Appellee’s preliminary
objections to Appellant’s fraud and negligent misrepresentation causes of
action and overruled the objection to the breach of contract claim. The court
dismissed Appellant’s complaint without prejudice to refile it before a
magisterial district judge, given that the amount in controversy was $445.65.1
Appellant filed a timely appeal from the August 6, 2018 order. On March 27,
2019, this Court quashed, concluding that the order was interlocutory because
it did not dispose of all claims and parties. Zeigler v. Comcast Commc’ns,
1431 MDA 2018 (Pa. Super. 2019) (unpublished memorandum). On
November 4, 2019, Appellee filed a motion in the trial court requesting
reconsideration of a prior order forbidding Appellee to terminate Appellant’s
services. On November 18, 2019, the trial court entered an order permitting
Appellee to terminate services unless Appellant filed a complaint before the
magisterial district judge within thirty days. Appellant filed a motion for
reconsideration on December 2, 2019. The trial court denied reconsideration
on December 17, 2019, and Appellant filed this appeal the same day.
____________________________________________
1 The parties’ contract requires arbitration of any claim arising thereunder unless the amount in dispute falls within the jurisdiction of a magisterial district judge. The trial court’s directive to proceed before a magisterial district judge came in response to Appellee’s preliminary objection seeking to enforce an arbitration agreement as per Pa.R.C.P. No. 1028(a)(6).
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Appellant raises seven issues for our review, including his argument that
he has appealed from a final order. We will confine our analysis to the finality
of the trial court’s order, as we find that issue dispositive. An appeal to this
Court lies only from a final order, unless otherwise provided by rule or statute.
Puricelli v. Puricelli, 667 A.2d 410, 412 (Pa. Super. 1995). If the order
before us is not final and appealable, we lack jurisdiction. Id. A final order is
one that disposes of all claims and parties. Pa.R.A.P. 341(b)(1). For example,
a final order is one that dismisses a complaint in full and with prejudice. Meir
v. Stewart, 683 A.2d 930 (Pa. Super. 1996).
As we explained, the order on appeal was nothing more than a minor
revision of a prior order, entered June 20, 2018, which forbade Appellee to
terminate Appellant’s services during the pendency of this litigation. The order
on appeal permitted Appellee to terminate Appellant’s services unless
Appellant filed a complaint before the magisterial district judge within thirty
days. Instead, Appellant filed this appeal.
In essence, the procedural posture of this case remains unchanged since
the prior appeal. Appellant’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 August 7, 2018 order from which
Appellant previously appealed. Appellant never attempted to amend his
complaint, and therefore Appellee filed no new preliminary objections. The
prior panel of this Court held that no final appealable order existed where the
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J-A16023-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ALAN B. ZIEGLER IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
COMCAST CORPORATION D/B/A COMCAST BUSINESS
Appellee No. 2073 MDA 2019
Appeal from the Order Dated November 18, 2019 In the Court of Common Pleas of Berks County Civil Division at No: 18-00353
BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED APRIL 7, 2021
Appellant, Alan B. Ziegler, appeals from the November 18, 2019 order
sustaining in part the preliminary objections of Appellee, Comcast Corporation
d/b/a Comcast Business. We quash.
The trial court recited the pertinent facts and procedural history:
[Appellant] alleged that in July 2017, he began negotiating with a business account executive of [Appellee] to switch his telephone and internet service to [Appellee] from another provider. During negotiations, [Appellant] 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. [Appellant] alleged that the account executive estimated the sales taxes and other fees to be approximately ten percent of the contract price. [Appellant] claimed that on July 24, 2017, [Appellee] sent [Appellant] a writing confirming the monthly charges were $204.65 (which amount [Appellant] insists included taxes and fees), plus a one- time installation charge of $119.80. However, [Appellant’s] Exhibit “A” to the Complaint contradicts [Appellant’s] claim. The J-A16023-20
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 [Appellee] billed [Appellant] $204.65 plus taxes and fees. This continued until June of 2018[.] [Appellant] paid only the estimated monthly charges and not the applicable taxes and fees. On April 6, 2018, [Appellee] shut off [Appellant’s] services because the bills were not being paid in full. [Appellant] made his regular $204.65 monthly payment and the services were restored. [Appellant’s] services were shut off again on April 11, 2018 and [Appellant] filed an emergency injunction requesting that [Appellee] be ordered to turn on and leave on [Appellant’s] services pending further order of court. The injunction was granted on April 11, 2018. On June 18, 2018, [Appellant] filed a complaint against [Appellee] demanding damages “in excess of $50,000.” The complaint asserts three causes of action: at count 1, breach of contract; at count II, fraud; and count III, negligent misrepresentation. Although [Appellant’s] demand is “in excess of $50,000,” the actual amount in controversy is $445.65 as calculated and itemized at paragraph 7 of [Appellee’s] preliminary objections to [Appellant’s] complaint.
[Appellee] raised three preliminary objections seeking: 1) to enforce a contractual arbitration clause, arguing that small claims are excluded from the arbitration provision and unless [Appellant’s] claims were determined by this court to be within the jurisdiction of small claims courts and referred to a magisterial district justice, the matter must be referred to contractually mandated AAA arbitration; 2) dismissal of the fraud and negligent misrepresentation claims because, [Appellee] argued, pursuant to the gist of the action doctrine, [Appellant] is prohibited from pleading tort claims for fraud and negligent misrepresentation because he attached a copy of a contract to the complaint to support his claim under a theory of breach of contract; and 3) dismissal of [Appellant’s] breach of contract claim because [Appellant’s] allegation that taxes and fees in addition to the contract amount constituted breach is contradicted by [Appellant’s] own Exhibit “A” to the complaint which exhibit comprises the contract and incudes language clearly and inarguably excepting taxes and fees from the contract amount.
-2- J-A16023-20
Trial Court Opinion, 10/3/18, at 1-3.
On August 6, 2018, the trial court sustained Appellee’s preliminary
objections to Appellant’s fraud and negligent misrepresentation causes of
action and overruled the objection to the breach of contract claim. The court
dismissed Appellant’s complaint without prejudice to refile it before a
magisterial district judge, given that the amount in controversy was $445.65.1
Appellant filed a timely appeal from the August 6, 2018 order. On March 27,
2019, this Court quashed, concluding that the order was interlocutory because
it did not dispose of all claims and parties. Zeigler v. Comcast Commc’ns,
1431 MDA 2018 (Pa. Super. 2019) (unpublished memorandum). On
November 4, 2019, Appellee filed a motion in the trial court requesting
reconsideration of a prior order forbidding Appellee to terminate Appellant’s
services. On November 18, 2019, the trial court entered an order permitting
Appellee to terminate services unless Appellant filed a complaint before the
magisterial district judge within thirty days. Appellant filed a motion for
reconsideration on December 2, 2019. The trial court denied reconsideration
on December 17, 2019, and Appellant filed this appeal the same day.
____________________________________________
1 The parties’ contract requires arbitration of any claim arising thereunder unless the amount in dispute falls within the jurisdiction of a magisterial district judge. The trial court’s directive to proceed before a magisterial district judge came in response to Appellee’s preliminary objection seeking to enforce an arbitration agreement as per Pa.R.C.P. No. 1028(a)(6).
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Appellant raises seven issues for our review, including his argument that
he has appealed from a final order. We will confine our analysis to the finality
of the trial court’s order, as we find that issue dispositive. An appeal to this
Court lies only from a final order, unless otherwise provided by rule or statute.
Puricelli v. Puricelli, 667 A.2d 410, 412 (Pa. Super. 1995). If the order
before us is not final and appealable, we lack jurisdiction. Id. A final order is
one that disposes of all claims and parties. Pa.R.A.P. 341(b)(1). For example,
a final order is one that dismisses a complaint in full and with prejudice. Meir
v. Stewart, 683 A.2d 930 (Pa. Super. 1996).
As we explained, the order on appeal was nothing more than a minor
revision of a prior order, entered June 20, 2018, which forbade Appellee to
terminate Appellant’s services during the pendency of this litigation. The order
on appeal permitted Appellee to terminate Appellant’s services unless
Appellant filed a complaint before the magisterial district judge within thirty
days. Instead, Appellant filed this appeal.
In essence, the procedural posture of this case remains unchanged since
the prior appeal. Appellant’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 August 7, 2018 order from which
Appellant previously appealed. Appellant never attempted to amend his
complaint, and therefore Appellee filed no new preliminary objections. The
prior panel of this Court held that no final appealable order existed where the
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trial court dismissed Appellant’s complaint without prejudice to refile his claim
before a magisterial district judge. Zeigler, 1431 MDA 2018. That holding is
the law of this case, and it is controlling here. See Melley v. Pioneer Bank,
N.A., 834 A.2d 1191, 1204 (Pa. Super. 2003) (noting that law of the case
doctrine provides that “a court involved in later phases of a litigated matter
should not reopen questions decided by another judge of the same court or
by a higher court in earlier phases”), appeal denied, 847 A.2d 1287 (Pa.
2004).
Appellant counters that he cannot file a declaratory judgment action in
magisterial district court because a magisterial district court is not a court of
record. Appellant’s Brief at 11, 16. Whatever the merit of this assertion, it
does not render the order before us final and appealable. Appellant’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
has not dismissed all causes of action with prejudice, nor has Appellant filed
a praecipe to dismiss his complaint with prejudice, as the prior panel of this
Court suggested he might. Zeigler, 1431 MDA 2018, (unpublished
memorandum at 5). Thus, we once again must quash Appellant’s appeal.
Appellee, in its brief, has requested counsel fees pursuant to Pa.R.A.P
2744. That Rule permits this Court to award reasonable counsel fees if we
determine that “an appeal is frivolous or taken solely for delay or that the
conduct of the participant against whom costs are to be imposed is dilatory,
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obdurate, or vexatious.” Pa.R.A.P. 2744. An appeal is frivolous if it lacks any
basis in law or fact. Gargano v. Terminix Int’l Co., L.P., 784 A.2d 188, 195
(Pa. Super. 2001). If this Court concludes that this standard is met, we return
the case to the trial court for computation of an appropriate award of counsel
fees. Mellon Bank, N.A. v. Durzinsky, 800 A.2d 955, 958 (Pa. Super.
2002).
As we have explained, Appellant 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 Appellant 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. Appellant has thus prolonged the efficacy
of an order preventing Appellee from terminating his services. We observe,
also, that some of Appellant’s arguments are disingenuous. Appellant 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.” Appellant’s Brief at 16. 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. Id. at 17. Given the
foregoing, we direct the trial court to award Appellee counsel fees reasonably
incurred in connection with this appeal.
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Appeal quashed. Case remanded for entry of an award of counsel fees
in favor of Appellee. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 04/07/2021
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