¶ 1 Appellants, Marion and Steele McKeeman and Rose Chendorian, appeal from an order of the Court of Common Pleas of Philadelphia County, which granted Appellee Security Abstract of PA, Inc.'s preliminary objections. We affirm, in part, and reverse, in part.
¶ 2 The record reflects that the McKeemans and Chendorian filed a complaint (hereinafter "the Complaint") against Corestates Bank (hereinafter "Corestates") and Security Abstract (hereinafter "Security") on January 27, 1998, stemming from transactions surrounding the sale and settlement of the McKeeman's property. The Complaint alleges that in September, 1996, the McKeeman's were in the process of selling their residence. Complaint at 2. Settlement of the property was conducted by Security, acting as title and/or settlement clerks for the buyers. Id. "In preparation for the settlement, plaintiffs provided Security with information regarding two loan accounts held by them with defendant Corestates," one of which was secured by a mortgage against the residence, and the other of which was unsecured.
¶ 3 As a result of these circumstances, the Complaint alleges that Corestates and
¶ 4 Preliminary objections to the Complaint were filed by Security on March 20, 1998. Appellants did not file an amended complaint pursuant to Pennsylvania Rule of Civil Procedure 1028(c)(1), but they did file an answer to the preliminary objections on April 27, 1998. Subsequently, the trial court granted Security's preliminary objections by order dated June 12, 1998, and filed June 15, 1998.
¶ 5 Thereafter, the McKeemans and Chendorian settled the case with Corestates, but on November 30, 1998, Appellants filed the instant appeal of the grant of Security's preliminary objections. The trial court responded by ordering Appellants to file a statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), and Appellants did so on December 28, 1998, averring that it was error for the trial court to grant Security's preliminary objections. The trial court then filed its opinion pursuant to Rule 1925(a) on February 4, 1999.
¶ 6 On appeal, Appellants raise two issues for our review: (1) "Whether the trial court abused its discretion in refusing to grant plaintiffs leave to amend the complaint;" and (2) "Whether the trial court erred in granting the demurrer of appellee Security Abstract to plaintiffs' complaint." Appellants' brief at 3.
¶ 7 Prior to addressing the merits of these issues, we note that Appellants' 1925(b) statement does not include an allegation that the trial court erred in refusing to grant Appellants leave to amend their Complaint, and, subsequently, this issue was not addressed by the trial court in its 1925(a) opinion. An appellant's failure to include an issue in his 1925(b) statement waives that issue for purposes of appellate review. Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998).
¶ 8 Turning to Appellants' assertion that the trial court erred in granting Security's demurrer to their Complaint, we address such a claim under the following standard:
Emerich v. Philadelphia Center for Human Development, 554 Pa. 209, 213, 720 A.2d 1032, 1034 (1998) (citation omitted). "For purposes of our review of the complaint, only well pleaded material facts are admitted, and not conclusions of law." Stempler v. Frankford Trust Co., 365 Pa.Super. 305, 529 A.2d 521, 523 (1987) (citation omitted).
¶ 9 With this standard in mind, we address Appellants' remaining claims. Appellants first assert that it was error for the trial court to grant the demurer to the negligence portion of the Complaint. Appellants assert that Security undertook to insure that the secured loan was paid off at the time of settlement, and, having undertaken such a duty, they allege that Security was under a legal obligation to perform the service in a non-negligent manner. Appellants' brief at 10. Appellants argue that the allegations contained
¶ 10 In Hicks v. Saboe, 521 Pa. 380, 384, 555 A.2d 1241, 1243 (1989), the Supreme Court held that "[i]n general, the duty of a title insurance company runs only to its insured, not to third parties who are not party to the contract. The purpose of insurance is to protect the insured, the buyer, from loss arising from defects in the title which he acquires." (citation omitted). However, the Supreme Court also noted that an intended third party beneficiary may have a limited cause of action under such a contract. Id.
¶ 11 In the case sub judice, we conclude that, although Appellants were not a party to the contract between Security and the buyers of the McKeeman residence, Security owed a duty to Appellants. While Security was not Appellants' title agent, it undertook to satisfy the secured loan and Appellants relied on Security to perform. It was to Security's benefit to confirm that the recorded liens against the property were discharged, and it did so by controlling the settlement distribution. As such, we conclude that the trial court erred in granting Security's preliminary objections as to the negligence claim.
¶ 12 We turn now to the conversion claim,
Complaint at 3. The lack of conversion allegations against Security, the title insurance company, is not surprising, as only
¶ 13 We turn now to the conspiracy claim, which hinges on the validity of the conversion claim. Since we have concluded that preliminary objection was properly granted with regard to the conversion claim, we must also conclude that preliminary objection was properly granted as to the conspiracy claim.
¶ 14 In order to state a civil action for conspiracy, a complaint must allege (1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose; (2) an overt act done in pursuance of the common purpose; and (3) actual legal damage. McGuire v. Shubert, 722 A.2d 1087, 1092 (Pa.Super.1998). Additionally, "absent a civil cause of action for a particular act, there can be no cause of action for civil conspiracy to commit that act." Pelagatti v. Cohen, 370 Pa.Super. 422, 536 A.2d 1337, 1342 (1987) (citation omitted).
¶ 15 The conspiracy portion of the Complaint avers that Security and Corestates conspired to commit an unlawful act as follows:
Complaint at 7.
¶ 16 Clearly, in their complaint, Appellants allege that Corestates and Security conspired to commit conversion of their money. Because we have concluded that preliminary objection was properly granted with regard to the conversion claim, there can be no cause of action for civil conspiracy here based on that claim.
¶ 17 Turning to Appellants' allegation that Security is guilty of intentional/negligent infliction of emotional distress, the Complaint asserts that:
Complaint at 8. As this claim follows the Complaint's allegations of negligence, conspiracy, and conversion, we assume Appellants are referring to those allegations when they reference the defendants' "aforesaid conduct." As we have stated previously, preliminary objection was properly granted with regard to the conversion and conspiracy claims. As such, we cannot conclude that it was error for the trial court to grant preliminary objection
Strickland v. University of Scranton, 700 A.2d 979, 987 (Pa.Super.1997) (citations omitted). Similarly, we will not disturb the trial court's conclusion that Appellants have not alleged outrageous conduct by Security which would constitute intentional/negligent infliction of emotional distress.
¶ 18 Appellants lastly assert that they are entitled to punitive damages. Specifically, Appellants assert that Corestates and Security displayed reckless conduct which would warrant the imposition of punitive damages. In light of our conclusion that preliminary objection was properly granted with regard to the conversion, conspiracy, and intentional/negligent infliction of emotional distress claims, it is clear that punitive damages are not warranted with regard thereto. As to the negligence claim, we conclude that it does not warrant punitive damages as it does not include "outrageous and egregious conduct done in a reckless disregard of [Appellants'] rights." Johnson v. Hyundai Motor America, 698 A.2d 631, 639 (Pa.Super.1997) ("[A] court may award punitive damages only if an actor's conduct was malicious, wanton, willful, oppressive, or exhibited a reckless indifference to the rights of others.") (citations omitted).
¶ 19 For the foregoing reasons, we affirm the grant of preliminary objections to Appellants' complaint, in part, and reverse as to the negligence claim.
¶ 20 Affirmed, in part; Reversed, in part; Remanded for proceedings consistent with this decision; Jurisdiction relinquished.
¶ 21 Concurring Opinion by BROSKY, J.
BROSKY, J., concurring.
¶ 1 I join in the majority's disposition of the arguments relating to the trial court's grant of a demurrer in favor of Security Abstract.
¶ 2 However, I write separately to also address the majority's disposition of Appellants' first issue: whether the trial court abused its discretion in refusing to grant Appellants leave to amend the complaint. The majority has concluded that the principles set forth by our Supreme Court in Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), a criminal case, "are equally applicable in civil cases." Memorandum at 4-5. Therefore, the majority concludes, this issue has been waived by Appellants' failure to include it in their 1925(b) statement.
¶ 3 Lord, however, specifically addressed the issue of "whether Pa.R.Crim.P. 1410 precludes an appellate court from deeming an issue waived when an Appellant fails to raise that issue in his Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925(b)." 719 A.2d at 307. The issue thus presented to our Supreme Court involved construction and interpretation of both Pa.R.Crim.P. 1410 and Pa.R.A.P.
¶ 4 My concern is with an unwavering, blanket application of Lord to all cases on appeal. I do not read the decision in Lord to automatically preclude consideration of all issues in every civil and criminal case, where an appellant has failed to include a specific question in his 1925(b) statement. Absent such an interpretation by our Supreme Court or this Court en banc, I would decline to so hold. See Commonwealth v. Steadley, 748 A.2d 707, 2000 PA Super 62 (2000) (Popovich, J., concurring and dissenting) (questioning such blanket application of the language in Lord, and concluding that Superior Court has discretion to consider an issue raised by an appellant as provided by Pa.R.A.P. 1925).
¶ 5 Moreover, I would decline to so extend Lord to the situation presented in the instant appeal. I would, instead, focus on the longstanding analysis of whether effective appellate review has been foreclosed. See, e.g., Taylor v. Owens-Corning Fiberglas Corp., 446 Pa.Super. 174, 666 A.2d 681 (1995), appeal denied, 544 Pa. 661, 676 A.2d 1201 (1996)(failure to raise a particular issue in concise statement of matters complained of on appeal may result in waiver of that issue, where that failure hinders effective appellate review); Pa. R.A.P. 1925 (same). Cf. Giles v. Douglass, 747 A.2d 1236, 2000 PA Super 55 (2000) (ruling that failure of appellant to file 1925(b) statement waived all issues for appellate review).
¶ 6 A determination of whether amendment to pleadings should be permitted rests within the sound discretion of the trial court. Borough of Mifflinburg v. Heim, 705 A.2d 456 (Pa.Super.1997). As Appellants failed to raise this issue in their 1925(b) statement, the trial court did not address amendment of Appellants' complaint. Without the benefit of the trial court's reasons for failing to permit such amendment, effective appellate review of its exercise of discretion has been foreclosed. I would, under this analysis, conclude that Appellant's argument has therefore been waived pursuant to Taylor, supra. Accordingly, I concur only in the result of the majority's disposition of the issue of amendment of the complaint.