J-A25010-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LEO CANNON 

Appellant

v.

TRE RACING ENGINES

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 243 EDA 2018

Appeal from the Order December 14, 2017

In the Court of Common Pleas of Delaware County Civil Division at 

No(s): 2015-004590

BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY DUBOW, J.: FILED APRIL 29, 2019

Leo “Rease” Cannon (“Appellant”) appeals from the Order granting 

Summary Judgment to Tre Racing Engines (“Appellee”). He also challenges 

the trial court’s order granting Appellee’s Petition to Open Default Judgment. 

We affirm.

The relevant facts are as follows. In 1997, Appellant purchased an

engine for his 1969 Camaro. Appellant, who owns a business based in 

Haverford called B&R Auto, contacted Appellee, based in Texas, to repair the 

Camaro engine. Taylor Lastor (“Lastor”) owns Appellee.

The first time Appellant used Appellee to repair his engine was in 2009. 

After contacting Appellee and reaching an agreement regarding the repair job,

Appellant himself arranged the packing and shipping of the engine through 

R+L Carriers, and allegedly paid an additional fee to the shipping company for 

insurance to cover the engine during transit. See Complaint, ¶10. Upon 
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completion of the work, Appellee shipped the engine back to Appellant using 

its shipping agent, Unishippers, from whom it gets a volume discount rate.1 

Appellant reimbursed Appellee for those shipping costs.2

In 2010, Appellant again needed work done on the engine and he 

contacted Appellee. Lastor agreed to install a fogger system in Appellant’s

engine and arranged shipping through Unishippers so that Appellant could get 

the benefit of Appellee’s volume discounted shipping rate. Unishippers, 

through its subcontractor, picked up the engine in Haverford and shipped it to 

Texas. Upon completion, Appellee used Unishippers to ship the engine back 

to Appellant. The shipping charge appeared on the invoice/receipt that 

Appellee submitted to Appellant’s Company, B&R Auto, for the cost of repairs 

and shipping.3 There is no indication that insurance was part of the 

agreement.

____________________________________________

1 Unishipper utilizes subcontractors, including R+L Carriers, to render shipping 

services.

2 Appellant averred in his Complaint that he paid an additional fee to the 

shipping company to insure it “while in transit to Texas and during its return 

to Pennsylvania.” Complaint, ¶10. See also Appellant’s Response to 

Interrogatories, annexed as Exh. E to Appellee’s Motion for Summary 

Judgment, at ¶¶ 15(q) and 94 (asserting Appellant “assumed” and/or 

“believed” the shipment was insured). Appellant’s Complaint and his answers 

to the interrogatories do not indicate that he ever explicitly discussed 

insurance with Appellee in 2009.

3 Appellant asserted in his Complaint that “Lastor represented to [him] that 

Lastor “could arrange for the shipment of the ... Engine in the same manner 

as that previously used by [Appellant], but at a lower cost than was available 

to” Appellant. Complaint, ¶15 (emphasis added). 
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Appellant again utilized Appellee to repair his engine in July 2013. 

Lastor made the shipping arrangements with Unishippers and returned the 

engine to Appellant in 2014. 

In December 2014, Appellant again spoke with Lastor about making 

modifications to the engine and Lastor again arranged the shipping through 

Unishippers for Appellant’s convenience. As part of the arrangement, Lastor

downloaded Unishipper’s form Bill of Lading, filled out basic information, such 

as the name of the parties, where the engine was to be picked up, and how it 

was to be shipped. He then faxed the form Bill of Lading to Appellant for his 

review and completion. Nothing in the pleadings, admissions, and 

interrogatories indicates that the parties ever discussed insurance.

Appellant packed up the engine in a crate and confirmed the pick up 

date with R+L Carriers, Unishippers’ subcontractor. On December 9, 2014, 

R+L picked up the engine at Appellant’s business, B&R Auto in Haverford, for 

shipment to Texas. At that time, Appellant signed and handed the Bill of 

Lading to the driver. Neither Appellant nor Appellee had written a value of 

the engine on the Bill of Lading.4 The engine never arrived in Texas; it is 

presumably lost. 

____________________________________________

4 According to Appellant, “Lastor knew that the tariff of the trucking company 

hired by Unishippers to transport the Camaro Engine . . . provided that . . . 

the value of the Camaro Engine would be calculated on a cents per pound

basis unless a higher value was declared for the Camaro Engine on the 

trucking company’s Bill of Lading.” Complaint, ¶33.
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Appellant sought reimbursement from Appellee for the lost engine, to 

no avail.5 In May 2015, Appellant filed a Complaint in the court of common 

pleas of Delaware County, asserting that Appellee was negligent in failing to 

purchase insurance for the engine, failing to declare the value of the engine 

on the Bill of Lading, failing to notify Appellant that it had not declared the full 

value of the engine on the Bill of Lading, and failing to notify Appellant that it 

had not purchased insurance for the full value of the engine from Unishippers, 

See Complaint, ¶39. 

Appellant mailed the Complaint by certified mail in May 2015, but the 

post office returned it to Appellant’s counsel as “unclaimed.” Appellant 

reinstated the Complaint and on July 31, 2015, Appellant personally served 

Appellee. Appellee obtained an attorney, and in August 2015, counsel for the 

parties had two conversations. Appellee’s counsel did not enter an appearance 

of record.

On September 11, 2015, pursuant to Pa.R.C.P. 237.1, Appellant sent a 

Notice to Appellee of his intent to file a Praecipe for a Default Judgment.6 On 

____________________________________________

5 Prior to the filing of the Complaint, Appellant filed a claim with R+L Carriers, 

using R+L’s claim form, seeking $27,500.00, which Appellant represented was 

the value of the engine. Appellant alleged that “[p]ursuant to R+L Carriers’ 

tariff, R+L is obligated to pay Cannon only $77.50 for the lost or stolen Camaro 

Engine.” Complaint, ¶38.

6 Although Appellee’s counsel had been in contact with Appellant’s counsel, 

Appellant did not send the Notice to file Praecipe for Default Judgment to the 

attorney.
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September 28, 2015, the court entered a Default Judgment in the amount of

$80,000.00 against Appellee pursuant to Appellant’s Praecipe. 

On November 2, 2015, Appellee filed a Petition to Open or Strike Default 

Judgment and for Leave to File Answer. On May 4, 2016, the court held a 

hearing. Appellant submitted evidence of mailings. Lastor testified that he 

never received mailings or USPS notices because he lives off a rural road in 

Texas behind an electric gate where mail carriers throw his mail over the gate, 

or pin USPS notices to the fence post. The court granted the Petition and 

entered an Order opening the Default Judgment.

Appellee subsequently filed an Answer with New Matter.7 Appellant 

responded on June 6, 2016. Discovery ensued, with Appellant responding to 

the interrogatories propounded by Appellee’s counsel. Neither party took 

depositions.

On September 19, 2017, Appellee filed a Motion for Summary Judgment 

and/or Judgment on the Pleadings, attaching copies of the Appellant’s 

responses to its Interrogatories, Bills of Lading, and invoices/receipts.

On December 12, 2017, the Hon. Christine Fizzano Cannon heard oral 

argument on the Motion for Summary Judgment, at which Appellant’s counsel 

agreed with the court that the failure to insure the engine did not cause the 

engine to get lost in transit. See N.T., 12/12/17, at 26. He also agreed that 

the loss at issue is the monetary value of the engine, not the engine itself.

____________________________________________

7 Appellee did not file preliminary objections in the nature of a demurrer based 

on the failure of the Complaint to state a cause of action.
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Id. at 26-28. He asserted that Appellant “understood” that Appellee would 

ship the engine insured as he himself had done in 2009, and Appellee failed 

to do so.

Appellee’s counsel argued that any duty owed to Appellant was 

“contractual/transactional in nature” and “not sufficient to support a 

negligence claim.” See Appellee’s Memorandum of Law in Support of Motion 

for Summary Judgment, filed 9/19/17, at 13, citing Bruno v. Erie Insurance 

Co., 106 A.3d 48 (Pa. 2014). See also N.T., 12/12/17, at 31. Appellee also 

argued that because Appellant asserted negligence for failing to obtain 

insurance, the issue pertained only to the loss of the ability to bring an 

insurance claim. See N.T. at 37. With respect to Appellant’s argument that 

he had a claim for negligence under a theory of gratuitous undertaking set 

forth in Restatement (Second) Torts § 323, Appellee’s attorney observed that, 

pursuant to case law, Section 323 does not allow recovery of a financial loss

and is, in any event, inapplicable. See N.T. at 37, referencing Carlotti v. 

Employees of GE Fed. Credit Union No. 1161, 717 A.2d 564, 567 (Pa. 

Super. 1998). Counsel also observed that Appellant acknowledged that he 

had not read the Bill of Lading before signing it when the engine was picked 

up for shipment; thus, Appellant “should not be able to recast his failure to 
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review and complete a contract as someone else’s negligence.” Appellee’s 

Memorandum of Law in Support of Motion for Summary Judgment, at 18.8 

On December 13, 2017, Judge Fizzano Cannon entered an Order 

summarily granting Appellee’s Motion for Summary Judgment and entering 

judgment in favor of Appellee and against Appellant.

Appellant filed a timely Notice of Appeal seeking review of the Orders 

granting the Petition to Open the Default Judgment and granting Summary 

Judgment. Appellant filed a Pa.R.A.P. 1925(b) Statement as ordered; the 

Hon. Chad F. Kenney filed a Rule 1925(a) Opinion.9

Appellant raises the following issues for our review:

1. Did the trial court abuse its discretion when it granted 

[Appellee’s] Petition/Motion to Open and/or Strike Default 

Judgment?

2. Did the trial court abuse its discretion when it granted 

Appellee’s Motion for Summary Judgment?

Appellant’s Brief at 6.

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8 Appellee’s counsel also noted that the failure to state a value on the Bill of 

Lading represented an omission of a term of the contract for shipping and, 

even if that were the fault of Appellee, “that is not the sort of duty or obligation 

that would justify a negligence claim” because such an omission has “no 

impact beyond the parties and no impact on any greater social policy.” 

Appellee’s Memorandum of Law, at 17. 

9 Prior to the filing of the Notice of Appeal, Judge Fizzano Cannon left the 

Delaware County Court of Common Pleas to join the Commonwealth Court. 
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Motion to Open Default Judgment

In his first issue, Appellant contends that the trial court abused its 

discretion in granting Appellee’s Petition to Open the Default Judgment. He 

asserts that Appellee did not meet any of the criteria required to open a default 

judgment. See id. at 18, 21-22. 

Our standard of review is well-settled. A petition to open a default 

judgment “is an appeal to the equitable powers of the court, and absent an 

error of law or a clear, manifest abuse of discretion, [the trial court’s order] 

will not be disturbed on appeal.” Myers v. Wells Fargo Bank, N.A., 986 

A.2d 171, 175 (Pa. Super. 2009) (citation omitted). A court abuses its 

discretion when, “in reaching its conclusions, overrides or misapplies the law, 

or exercises judgment which is manifestly unreasonable, or the result of 

partiality, prejudice, bias[,] or ill will.” Id. (citation omitted).

A court may open a default judgment if the moving party meets the 

following three criteria: (1) it promptly files a petition to open the default 

judgment; (2) it provides a reasonable explanation for failing to file a 

responsive pleading; and (3) it pleads a meritorious defense to the allegations 

contained in the Complaint. Id. at 176. See also Pa.R.C.P. 237.3, 

Explanatory Comment - 1994. The court “cannot open a default judgment 

based on the ‘equities’ of the case when the defendant has failed to establish 

all three of the required criteria.” Myers, supra at 176. (citation omitted). 
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With respect to the first prong pertaining to timeliness of the petition to 

open, “[t]he law does not establish a specific time period within which a 

petition to open a judgment must be filed to qualify as time[ly].” Id. (citation 

omitted). Instead, the court “must consider the length of time between 

discovery of the entry of the default judgment and the reason for the delay.” 

Id. (citation omitted). 

Here, the court entered the Default Judgment on September 28, 2015, 

and Appellee filed the Petition to Open just over one month later, on November 

2, 2015. In concluding that Appellee had timely filed the Petition, the trial 

court observed the following:

[ ] Lastor testified that he had only received the hand delivered 

[C]omplaint on July 31, 2015 and had not received any notices or 

mailings concerning the litigation or entry of [J]udgment. He 

further elaborated that he lived in a rural part of Texas on a dirt 

road with an electric gate protecting the entry of his property. He 

testified that he and his wife often have mail that is lost and never 

appears and that the mail is often thrown over the fence. He 

elaborated on cross-examination that certified mail notices are 

regularly pinned to his fence and that when received, he does 

drive the fifteen (15) miles to the post office to sign and accept. 

... 

The Default Judgment in this proceeding was entered on 

September 28, 2015. It appears form the record that Jack Lastor 

next received a call from an attorney from Texas attempting to 

collect the judgment. Lastor then immediately call his counsel, 

[Andrew E.] Guilfoil, who then promptly called [Appellant’s] 

counsel on or about October 30, 2016. The Petition to Open 

Default Judgment was filed November 2, 2015.

It appears from the record that the trial court found credible the 

testimony that [Appellee] failed to receive any mail concerning the 

notice of entry of the Default Judgment. It appears that notice of 

the Judgment was received by [Appellee] through the phone call 
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in late October, 2015, and that a Petition to Open was promptly 

filed. The first prong of the standard to open a default judgment 

was met.

Trial Ct. Op., filed 3/6/18, at 5-6. 

Appellant argues that Appellee did not file the Petition to Open timely,

baldly stating various presumptions about when Lastor received various 

documents and asserting that Lastor willfully ignored communications. See

Appellant’s Brief at 20-21. Appellant is essentially asking this Court to reweigh 

the testimony provided to the trial court to reach his desired outcome. This 

we cannot and will not do. See Ruthrauff, Inc. v. Ravin, Inc., 914 A.2d 

880, 888 (Pa. Super. 2006) (noting that “[i]ssues of credibility and conflicts 

in evidence are for the trial court to resolve; this Court is not permitted to 

reexamine the weight and credibility determinations or substitute our 

judgment for that of the factfinder.” (citation and internal quotation marks 

omitted)). We discern no abuse of discretion in the trial court’s conclusion 

that Appellee timely filed the Petition to Open.

With respect to the second criteria—whether the defendant provided a 

reasonable explanation for not filing a responsive pleading—Appellant avers 

that Appellee’s explanation that it did not receive a copy of the 10-day notice 

of Appellant’s intent to Praecipe for a Default Judgment “simply ignores the 

facts.” Appellant’s Brief at 21. 

The trial court addressed this second requirement as follows:

The Complaint was served on [Appellee] on July 31, 2015. 

[Appellee] retained counsel who communicated with counsel for 
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[Appellant] in mid-August, 2015 but failed to enter his 

appearance. [Appellee] received notice of the Default Judgment 

in late October, 2015. A period of 90 days elapsed between 

service of the Complaint and the actual notice of the Default 

Judgment. Counsel for [Appellee] indicated that it was his belief 

that he would be notified by [Appellant’s] Counsel before any 

Default Judgment was entered, and was not copied on the notice 

of intent or the entry of default. [Appellee’s] Counsel indicated 

that he was researching insurance policies, jurisdictional issues 

and other aspects of the litigation. It appears that the trial court 

concluded that the second prong was established due to 

[Appellee] having promptly retained counsel, the belief of counsel 

that it would receive [c]ourt notices from opposing counsel and 

due to time needed to review the complicated issues presented in 

the Complaint involving interstate shipping, bills of lading[,] and 

an engine loss [sic] in transit. 

Trial Ct. Op. at 6-7.

Again, Appellant is asking us to reweigh the evidence presented to the 

trial court and reach our own credibility determinations. This we will not do. 

See Ruthrauff, Inc., supra at 888. Appellant has not adequately supported 

his conclusory statement that the trial court abused its discretion. We discern 

no abuse of discretion.

With respect to the third criteria, Appellant has failed to acknowledge or 

address the trial court’s conclusion that Appellee presented a meritorious 

defense to the allegations contained in the Complaint. See Trial Ct. Op. at 7. 

Appellant, thus, failed to establish that the trial court abused its discretion in 

granting Appellee’s Petition to Open Default Judgment. Accordingly, we affirm 

that Order.
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Motion for Summary Judgment

In his second issue, Appellant challenges the grant of Summary 

Judgment to Appellee.10 Appellant asserts that Appellee’s agreement to 

arrange the shipping was “clearly not an enforceable contract because there 

is no consideration from [Appellant] for [Appellee’s] performance.” 

Appellant’s Brief at 25. Instead, Appellant argues that Appellee’s arrangement 

of shipping was “simply [ ] an accommodation for a customer” for which 

recovery lies under Restatement (Second) Torts § 323. Id. 

We review a grant of summary judgment under the following wellsettled standards:

Pennsylvania law provides that summary judgment may be 

granted only in those cases in which the record clearly 

shows that no genuine issues of material fact exist and that 

the moving party is entitled to judgment as a matter of law. 

The moving party has the burden of proving that no genuine 

issues of material fact exist. 

In determining whether to grant summary judgment, the 

trial court must view the record in the light most favorable 

to the non-moving party and must resolve all doubts as to 

the existence of a genuine issue of material fact against the 

moving party. 

Thus, summary judgment is proper only when the 

uncontroverted allegations in the pleadings, depositions, 

answers to interrogatories, admissions of record, and 

____________________________________________

10 It is not until page 34 of his Brief that Appellant summarily concludes the 

trial court abused its discretion when it granting the Motion for Summary 

Judgment. The bulk of the argument section of his Brief is dedicated to 

refuting the legal analysis provided in Appellee’s Motion for Summary 

Judgment, which Appellant asserts is “completely wrong.” Appellant’s Brief 

at 24.
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submitted affidavits demonstrate that no genuine issue of 

material fact exists, and that the moving party is entitled to 

judgment as a matter of law. In sum, only when the facts 

are so clear that reasonable minds cannot differ, may a trial 

court properly enter summary judgment.

On appeal from a grant of summary judgment, we must 

examine the record in a light most favorable to the nonmoving party. With regard to questions of law, an appellate 

court's scope of review is plenary. The Superior Court will 

reverse a grant of summary judgment only if the trial court 

has committed an error of law or abused its discretion. 

Judicial discretion requires action in conformity with law 

based on the facts and circumstances before the trial court 

after hearing and consideration.

Weible v. Allied Signal, Inc., 963 A.2d 521, 525 (Pa. Super. 2008) (citation 

and quotation omitted; paragraph breaks added).

We first address Appellant’s averment that the shipping arrangement 

was not part of a contractual arrangement, and therefore the claims in his 

Complaint were properly asserted under a tort theory.

Pennsylvania is a fact-pleading jurisdiction. Thus, “the complaint must 

not only apprise the defendant of the claim being asserted, but it must also 

summarize the essential facts to support the claim.” Steiner v. Markel, 968 

A.2d 1253, 1260 (Pa. 2009); Pa.R.C.P. 1019(a). “[T]he mere labeling by the 

plaintiff of a claim as being in tort, e.g., for negligence, is not controlling.” 

Bruno, 106 A.2d at 69. Under the “gist of the action” doctrine, “[i]f the facts 

of a particular claim establish that [the] duty breached is one created by the 

parties by the terms of their contract—i.e., a specific promise to [do] 

something that the party would not ordinarily have been obligated to do but 
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for the existence of the contract— then the claim is to be viewed as a breach 

of contract.” Id.

“The ‘gist of the action’ doctrine is designed to maintain the conceptual 

distinction between breach of contract and tort claims. As a practical matter, 

the doctrine precludes plaintiffs from recasting ordinary breach of contract

claims into tort claims.” Pennsylvania Manufacturers' Ass'n Ins. Co. v. 

L.B. Smith, Inc., 831 A.2d 1178, 1182 (Pa. Super. 2003) (citation omitted).

We have recognized, however, that 

it is possible that a breach of contract also gives rise to an 

actionable tort. To be construed as in tort, however, the wrong 

ascribed to defendant must be the gist of the action, the contract 

being collateral. The important difference between contract and 

tort actions is that the latter lie from the breach of duties imposed 

as a matter of social policy while the former lie for the breach of 

duties imposed by mutual consensus. In other words, a claim 

should be limited to a contract claim when the parties' obligations 

are defined by the terms of the contracts, and not by the larger 

social policies embodied by the law of torts.

eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 14 (Pa.Super.

2002). 

Here, the contract is not simply “collateral” to the wrong ascribed to 

Appellee, i.e., the failure to obtain insurance for Appellant. As the court noted 

in the Rule 1925(a) Opinion, the parties “negotiated for the repair of the 

engine that had to be shipped back and forth. The offer in December, 2010 

to procure cheaper shipping costs by [Appellee] was made as part of the 

existing transaction to return the repaired engine to [Appellant].” Trial Ct. 

Op., filed 3/6/18, at 10. Likewise, in the parties’ subsequent interactions, 
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Appellee agreed to arrange shipping so Appellant could receive cheaper 

shipping charges as part and parcel of their repair agreements. Any obligation 

on Appellee’s part with respect to the arrangement was, therefore, not defined 

by “the larger social policies embodied in the law of torts.” eToll, supra at 

14. Rather, the parties reached a mutual consent. Accordingly, any 

agreement to obtain insurance would have to have been a term of their 

agreement, the breach of which would be properly asserted under a theory of 

breach of contract. Appellant did not assert any breach of contract claims in 

his Complaint.11

Moreover, nothing in the pleadings, interrogatories, or admissions 

indicates that the parties ever discussed insurance when making their 

agreement. The parties do not dispute that insurance was never obtained 

over the years in the parties’ shipping arrangements. Further, Appellant 

acknowledged that he never explicitly discussed the cost of insurance or the 

value of the engine with Appellee. See, e.g., Answer to Interrogatories, ¶ 95 

(Appellant acknowledging that he never requested a quote on the cost of 

insuring the shipment), and ¶99 (Appellant acknowledging that he never 

checked if insurance was available at the time of pick up and never instructed 

anyone else to purchase or confirm the purchase of insurance on the engine). 

____________________________________________

11 We reiterate that Appellee did not file preliminary objections in the nature 

of a demurrer, and the failure to state a claim upon which relief could be 

granted was not the basis for the court’s dismissal.
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Both parties agree that insurance was not obtained in 2014. Accordingly, 

there are no material facts upon which relief could be granted under a breach 

of contract theory, even if Appellant had raised a breach of contract claim.

Notwithstanding the above facts, Appellant avers that because he did

not pay Appellee to arrange the shipping, Appellee’s promise to arrange 

shipping was “an accommodation” gratuitously undertaken, and not part of 

any contractual arrangement between the two of them. Appellant’s Brief at 

25. As such, Appellant asserts, Appellee had a duty to obtain insurance to 

“protect the racing engine and its value,” pursuant to Section 323 of the 

Restatement (Second) Torts. Appellant’s Brief at 25, 32. We disagree.

Section 323 of the Restatement (Second) Torts, which has been adopted 

by the Pennsylvania Supreme Court, provides:

One who undertakes, gratuitously or for consideration, to render 

services to another which he should recognize as necessary for 

the protection of the other’s person or things, is subject to liability 

to the other for physical harm resulting from his failure to exercise 

reasonable care to perform his undertaking, if 

(a) his failure to exercise such care increases the risk of such 

harm, or

(b) the harm is suffered because of the other’s reliance upon the 

undertaking.

Restatement (Second) Torts, § 323. 

Section 323 is not applicable in this case. As noted above, Appellee 

agreed to arrange shipping through Unishippers, its usual shipping agent, only 

because Appellee had a contract with Appellant to repair the engine in its 
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facility in Texas, not because Appellee had a social duty to do so. Moreover,

Appellant reimbursed Appellee for the shipping charges it incurred through 

Unishippers. Appellee did not gratuitously or for consideration ship the engine

itself.

Most significantly, when Appellee agreed to arrange the shipping

through Unishippers, it did so as a convenience to Appellant, not as a “service 

rendered . . . as necessary for the protection of the other’s person or things.” 

Restatement (Second) Torts § 323. Appellee rendered the service of 

arranging the shipping solely for Appellant’s convenience and financial benefit. 

Accordingly, Section 323 is inapplicable.12

In another attempt at obtaining relief under a negligence theory, 

Appellant asserted that Appellee agreed to ship the engine “in the same 

manner” that Appellant himself had in 2009, which to Appellant meant that 

Appellee would purchase insurance on Appellant’s behalf. See Complaint ¶ 

15. See also Appellant’s Response to Interrogatories, ¶¶15(q) and 94

____________________________________________

12 Moreover, this Court has previously observed that “we have been unable to 

find any binding decision that would impose a duty under § 323 where the 

harm alleged is merely financial. Indeed, the existing cases would suggest 

that economic harm is not the basis for recovery.” Carlotti, 717 A.2d at 567. 

See also Sonecha v. New England Life Ins. Co., 124 F. App'x 143, 146–

47 (3d Cir. 2005) (listing Pennsylvania cases, including Carlotti, supra, 

distinguishing between tangible and intangible property for purposes of 

determining applicability of Restatement (Second) Torts, § 323, and 

concluding that no duty arises under Restatement 323 because neither an 

insurance policy nor its proceeds are tangible property). 
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(asserting Appellant “assumed” and/or “believed” the shipment was insured). 

This averment has no support. As noted above, nothing in the pleadings, 

admissions, or answers to interrogatories indicates that Appellant and 

Appellee ever discussed insurance with respect to the engine. Moreover, 

nothing in the record indicates that Appellant, in fact, ever told Appellee “the 

manner” in which Appellant had shipped the engine in 2009, i.e., that he had 

insured it. Accordingly, this argument fails to overcome the grant of Summary 

Judgment. See, e.g., Shaw v. Kirshbaum, 653 A.2d 12, 17 (Pa. Super. 

1994) (concluding that where a doctor, who had communicated to the 

appellees his belief that a patient would die in the near future without a

recommended surgery, undertook to assist in travel and financial 

arrangements but did not undertake to obtain her informed consent, he would 

not be found liable for the failure of the surgeon to obtain the patient’s 

informed consent). 

In his final attempt at garnering relief under a negligence theory,

Appellant avers that Appellee “knew that shipping companies offer insurance 

for valuable merchandise and [ ] knew or should have known that shipping 

company tariffs provide only minimal reimbursement for uninsured racing 

engines.” Appellant’s Brief at 32. Thus, according to Appellant, Appellee’s

failure to obtain insurance showed that Appellee failed “to act reasonably when 

it made arrangements to ship” the engine, which resulted in a physical harm
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to his engine and the financial loss of its value. Appellant’s Brief at 32; 

Complaint at § 39. As a matter of law, this averment garners no relief.

In order to establish ordinary negligence on the part of a defendant, a 

plaintiff must prove the following four elements: “(1) a duty or obligation 

recognized by law; (2) a breach of that duty; (3) a causal connection between 

the conduct and the resulting injury; and (4) actual damages.” Estate of 

Swift v. Northeastern Hosp., 690 A.2d 719, 722 (Pa. Super. 1997). In any 

negligence action, “establishing a breach of a legal duty is a condition 

precedent to a finding of negligence.” Id.

As noted above, Appellee did not have a legal duty to obtain insurance 

on Appellant’s behalf. Even if it did, the failure to obtain insurance did not 

cause the harm to Appellant’s engine. Rather, it is the loss of the engine, and 

not the failure to obtain insurance, that caused Appellant’s harm.

In conclusion, our review of the pleadings, admissions, and 

interrogatories, in the light most favorable to Appellant as the non-moving 

party, and our consideration of the relevant law, supports the trial court’s 

grant of Appellee’s Motion for Summary Judgment. We discern no abuse of 

discretion or error of law. Accordingly, we affirm the Order granting Summary 

Judgment to Appellee.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/29/19