ANITA B. BRODY, District Judge.
Frankentek Residential Systems, LLC ("Frankentek Residential") brings three actions against Reid Buerger, Krista Buerger, Alan Buerger, and Constance Buerger and their limited liability companies Harner Realty 1 LLC, Harner Management LLC, Mathers Road LP, and 4301 Bayberry Drive LLC (collectively, the "Buergers")
Frankentek has filed motions for partial summary judgment on the Buergers' counterclaims in all three actions.
Frankentek's motions for partial summary judgment concern three Buerger properties: (1) a residential property located at 225 Mathers Road, Ambler, Pennsylvania 19002 (the "Pennsylvania Property"); (2) a residential property located at 4301 Bayberry Drive, Avalon, New Jersey 08202 (the "New Jersey Property"); and (iii) a residential property located at Lots 85, 86, and 87 Ocean Club, Paradise Island, Bahamas (the "Bahamas Property") (collectively, the "three Properties").
Beginning in 2005, the Buergers retained Frankentek Residential to install comprehensive electronic home systems in the three Properties. Reid Buerger Decl. ("Buerger Decl.") ¶ 2, ECF No. 62-3; Franken Decl. ¶ 2, Sept. 16, 2013; ECF No. 63-2.
Specifically, on November 13, 2010, the electronic home system at the Pennsylvania Property stopped functioning. Buerger Decl. ¶ 4. As a result, the lighting, HVAC, television, security cameras, and security reporting system at the Pennsylvania Property were no longer operational. Id. Reid Buerger subsequently learned that Frankentek Residential's President Marc Franken ("Franken") and Vice President Michael Pavluk ("Pavluk") had remotely disabled or ordered the remote disabling of the system. Id. ¶ 5. When Reid Buerger phoned Franken about the system outage, Franken told Reid Buerger, "We did it," and Franken admitted to disabling the system because of the nonpayment dispute. Id. ¶ 7. On or around November 16, 2010, Frankentek Residential personnel came to the Pennsylvania Property to restore the electronic home system. Id. ¶ 9. Frankentek Residential personnel simultaneously installed an "electronic bomb" that would allow Frankentek Residential to remotely disable the system in the future. Id. In the early morning of December 6, 2010, Frankentek Residential again disabled the electronic home system at the Pennsylvania Property. Id. ¶ 11; Dec. 6, 2010 Email, Buergers' Opp. Br. Ex. D, ECF No. 62-3. In contrast, Franken states that Frankentek Residential and its personnel ceased to have any physical or remote access to the Pennsylvania Property on November 18, 2010, and he denies ever personally having physical or remote access to the Pennsylvania Property. Franken Decl. ¶¶ 12, 13, Sept. 16, 2013. Franken and Pavluk deny remotely detonating an "electronic bomb." Franken Decl. ¶ 17, Sept. 16, 2013; Pavluk Decl. ¶ 9.
Reid Buerger states that the Buergers never gave Frankentek Residential the authority to disable the electronic home systems at the Pennsylvania Property or New Jersey Property or to enter either Property, either directly or remotely, for that purpose. Buerger Decl. ¶ 15. In contrast, Franken states that Frankentek Residential and its personnel accessed the electronic home systems in the Pennsylvania Property and New Jersey Property in a manner consistent with its authority as the owner/installer/servicer/monitor of the systems. Franken Decl. ¶¶ 14, 15, Sept. 16, 2013.
On February 12, 2012, Frankentek Residential filed two suits in the Eastern District of Pennsylvania against the Buergers — one related to the Pennsylvania Property and New Jersey Property
On May 14, 2012, the Buergers filed a motion to dismiss in both the Pennsylvania Property and New Jersey Property Suit filed in the Eastern District of Pennsylvania and the New Jersey Property Suit originally filed in New Jersey. On December 5, 2012, the Court ruled on the motions to dismiss, granting them in part and denying them in part. On January 7, 2013, the Buergers filed an Answer with Affirmative Defenses and Counterclaims in each of the three actions.
On August 16, 2013, Frankentek filed a motion for partial summary judgment in each of the three cases. In the course of the briefing, the Buergers chose not to contest the motions for summary judgment on several counterclaims. In the Pennsylvania Property and New Jersey Property Suit filed in the Eastern District of Pennsylvania, the Buergers conceded that their invasion of privacy counterclaim with respect to the Pennsylvania Property was untimely. In the Bahamas Property Suit filed in the Eastern District of Pennsylvania, the Buergers did not contest the motions for summary judgment on their invasion of privacy, conversion, and trespass counterclaims. Buergers' Opp. Br. at 2 n. 2 & 3, ECF No. 62-1.
Finally, on April 22, 2014, in accordance with the agreement transferring the suit to the Eastern District of Pennsylvania, Frankentek Residential dismissed all of its claims against the Buergers in the New
Summary judgment will be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "genuine" if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. Id.
The moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). After the moving party has met its initial burden, the nonmoving party must then "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. 2548. In ruling on a motion for summary judgment, the court must draw all inferences from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, the nonmoving party may not "rely merely upon bare assertions, conclusory allegations or suspicions" to support its claims. Fireman's Ins. Co. of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3d Cir.1982).
In essence, the inquiry at summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.
The remaining counterclaims are as follows:
(1) Counterclaims asserted by Reid Buerger, Harner Realty 1 LLC, Mathers Road LP, and 4301 Bayberry Drive LLC in the Pennsylvania Property and New Jersey Property Suit filed in the Eastern District of Pennsylvania:
(2) Counterclaims asserted by Alan Buerger and Constance Buerger in the Bahamas Property Suit filed in the Eastern District of Pennsylvania:
Frankentek seeks summary judgment on all of the remaining counterclaims. On the invasion of privacy, conversion, and trespass counterclaims, Frankentek argues that the counterclaims are barred by the applicable statutes of limitations. Frankentek argues that the Buergers' breach of contract counterclaims are also barred in part by the statute of limitations. In addition, Frankentek asserts that the Buergers have no evidence to support an essential element of the unlawful access to stored communications counterclaim. Finally, Frankentek argues that all of the counterclaims asserted against Franken and Pavluk in an individual capacity are unsupported by evidence.
In this suit, Frankentek argues that all of the Buergers' remaining common law tort counterclaims are barred by the applicable statutes of limitations. In order to determine the applicable statutes of limitations, the Court must conduct a choice-of-law analysis. "Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law." Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). Choice-of-law rules are considered substantive law; therefore, a federal court looks to state law for choice-of-law rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 487 (3d Cir.1985). A federal court exercising diversity jurisdiction over a claim applies the choice-of-law rules of the state in which it sits. Guaranty Trust Co. v. York, 326 U.S. 99, 108-09, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). Because this Court sits in Pennsylvania, the Pennsylvania choice-of-law rule regarding statutes of limitations applies.
Pennsylvania courts ordinarily apply the Pennsylvania statute of limitations with the exception of cases in which the claim accrued in a foreign jurisdiction. Ross v. Johns-Manville Corp., 766 F.2d 823, 826 n. 3 (3rd Cir.1985). A claim accrues where "the final significant event that is essential to a suable claim occurs." Mack Trucks, Inc. v. Bendix-Westinghouse Automotive Air Brake Co., 372 F.2d 18, 20 (3rd Cir.1966). Under Pennsylvania's borrowing statute, the limitations period for a claim that accrued in a foreign
This invasion of privacy counterclaim relating to the New Jersey Property was filed in the Eastern District of Pennsylvania under federal diversity jurisdiction. As explained above, a federal court sitting in diversity jurisdiction in Pennsylvania must follow Pennsylvania's conflict-of-law rules. Under Pennsylvania law, Pennsylvania's statute of limitations applies unless the claim accrued in a foreign jurisdiction that would bar the claim before it would be barred in Pennsylvania. The parties dispute whether Pennsylvania's or New Jersey's statute of limitations applies. Buergers' Opp. Br. at 12; Frankentek's Reply Br. at 13.
In Pennsylvania, the limitations period for invasion of privacy is one year. 42 Pa. Cons.Stat. Ann. § 5523. In New Jersey, the limitations period for invasion of privacy is six years.
Under Pennsylvania law, a claim accrues as of the date on which the right to institute and maintain a suit first arose. Pocono Int'l Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468, 471 (1983). The Buergers had the right to institute a suit for invasion of privacy on two separate occasions — first, on November 13, 2010, when Frankentek Residential first disabled the electronic home system, and second, sometime between November 17, 2010, when Frankentek Residential restored the system, and January 7, 2011, when Reid Buerger discovered that Frankentek Residential had again disabled it. Buerger Decl. ¶¶ 12, 13. The Buergers argue that under the discovery rule, their invasion of privacy counterclaim did not accrue until January 7, 2011 when Reid Buerger discovered that Frankentek Residential had again disabled the electronic home system at the New Jersey Property. Buergers' Opp. Br. at 13. By relying on the discovery rule, however, the Buergers are implicitly admitting that the event in question occurred prior to January 7, 2011. The discovery rule is not applicable in this case. In Pennsylvania, "[L]ack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations.... The `discovery rule' is ... an exception, and arises from the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause." Pocono Int'l Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468, 471 (1983) (citing medical malpractice resulting from failure of a surgeon to remove a surgical implement as an example of plaintiff's inability to know of injury). Here, there is no evidence of any inability on the part of the Buergers to know of the disabling of the electronic home system. The fact that the Buergers are unable to identify the exact date on which the disabling occurred does not trigger the discovery rule. Rather, because Reid Buerger discovered the second disabling of the system on January 7, 2011, the counterclaim must necessarily have accrued prior to that date.
Therefore, under Pennsylvania's one-year statute of limitations, the invasion of privacy counterclaims were untimely when filed on January 7, 2013. Frankentek's motion for summary judgment will be granted on the counterclaims for invasion of privacy in this suit.
Similarly, these conversion and trespass counterclaims relating to the New Jersey Property were filed in the Eastern District of Pennsylvania under federal diversity jurisdiction. Applying Pennsylvania's choice-of-law rules, Pennsylvania's statute of limitations applies unless the claim accrued in a foreign jurisdiction that would bar the claim before it would be barred in Pennsylvania. The parties dispute whether Pennsylvania's or New Jersey's statute of limitations applies. Buergers' Opp. Br. at 12; Frankentek's Reply Br. at 13.
In Pennsylvania, the limitations period for both conversion and trespass is two years. 42 Pa. Cons.Stat. Ann. § 5524; see also Shonberger v. Oswell, 365 Pa.Super. 481, 530 A.2d 112, 114 (1987) ("Conversion is an action at law and is, therefore, subject to the two-year statute of limitations."). In New Jersey, the limitations period for both conversion and trespass is six years. N.J. Stat. Ann. § 2A:14-1. Thus, the counterclaims would be barred first in Pennsylvania, and Pennsylvania's statute of limitations applies regardless of where the counterclaims accrued.
With respect to the Pennsylvania Property, the conversion and trespass counterclaims were filed in the Eastern District of Pennsylvania under federal diversity jurisdiction. Applying Pennsylvania's choice-of-law rules, the counterclaim accrued in Pennsylvania at the Pennsylvania Property, and thus Pennsylvania law applies. Under Pennsylvania law, conversion and trespass actions are subject to a two-year statute of limitations. 42 Pa. Cons.Stat. Ann. § 5524. With respect to the Pennsylvania Property, the Buergers had the right to institute a suit for conversion and trespass on two separate occasions — on November 13, 2010, when Frankentek Residential first disabled the electronic home system, and on December 6, 2010, when Frankentek Residential again disabled the system. Buerger Decl. ¶¶ 4, 11. Thus under the two-year statute of limitations, these counterclaims were time-barred after November 13, 2012 and December 6, 2012, respectively, and were untimely when filed on January 7, 2013. Frankentek's motion for summary judgment on these counterclaims will be granted.
Frankentek also argues that the Buergers' breach of contract counterclaims are barred in part by the applicable statutes of limitations. Because Frankentek failed to present any evidence in its motions for partial summary judgment as to the date on which the counterclaims for breach of contract accrued, I will not address Frankentek's statute of limitations arguments with respect to these counterclaims. Frankentek's motions for partial summary judgment will be denied with respect to the breach of contract counterclaims.
Of the remaining counterclaims, Frankentek argues that the Buergers have failed to present evidence to support one or more essential elements of the Pennsylvania statutory offense of unlawful access to stored communications in the Pennsylvania Property and New Jersey Property Suit filed in the Eastern District of Pennsylvania.
Frankentek also seeks summary judgment in favor of Franken and Pavluk on the remaining counterclaims for statutory computer-related offenses. Frankentek argues that the Buergers offer no evidence of Franken's or Pavluk's individual involvement in any interference with the electronic home systems. As evidence of Franken and Pavluk's individual liability, the Buergers emphasize that Franken twice admitted that "we" disabled the electronic system at the Pennsylvania Property. See Buerger Decl. ¶ 7; Arb. Tr., 80:22-24, Buergers' Opp. Br. Ex. B, ECF No. 62-3. In addition, Franken made a general admission that "Frankentek personnel... disabled certain functionalities of the home smart systems" at the Buergers' properties. Franken Decl. ¶ 5. Aug. 16, 2013. However, Franken denies ever personally having physical or remote access to the Pennsylvania Property or New Jersey Property. Franken Decl. ¶¶ 9, 13, Sept. 16, 2013. Similarly, Pavluk denies personally having physical or remote access to either property after November 18, 2010. Pavluk Decl. ¶¶ 5, 7.
Thus, on the issue of individual liability, a genuine dispute of material fact exists as to whether Franken and Pavluk personally disabled the electronic home system in the Pennsylvania Property or New Jersey Property. A genuine dispute of material fact also remains with respect to the latest date on which Frankentek and its personnel ceased to have any physical or remote access to the Pennsylvania Property or New Jersey Property such that Franken or Pavluk could be individually liable for the second outages of the electronic home systems. Thus, Frankentek's motion for summary judgment on these claims will be denied.
In summary, I am denying in part and granting in part Frankentek's motion for
