PRE-SETTLEMENT FINANCE, LLC v. ELLIS et al

Filing 56

OPINION. Signed by Judge Kevin McNulty on 9/24/20. (jc, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
PRE-SETTLEMENT FINANCE, LLC,
Plaintiff,
v.
THERESA M. ELLIS and SCOTT A.
ZUKOWSKI,

Civ. No. 18-06339 (KM) (CLW)
OPINION

Defendants.
KEVIN MCNULTY, U.S.D.J.:
Defendants Theresa Ellis and Scott Zukowski sued Ellis’s former
employer and contracted with Plaintiff Pre-Settlement Finance, LLC (“PSF”) for
litigation financing. Their agreement provided that PSF would be compensated
from the settlement proceeds if the matter settled. PSF claims that the
employment litigation settled, and that Ellis received settlement money without
paying PSF, thus breaching their agreement. In this separate action, PSF sued
Ellis and Zukowski, alleging claims arising from the alleged breach. (DE 1.)1
1

Citations to certain record items will be abbreviated as follows:
DE = docket entry number
Compl. = PSF’s Complaint (DE 1)
PSF Brf. = PSF’s Brief in Support of its Motion for Summary Judgment (DE 46-

3)
PSF Statement = PSF’s Statement of Uncontested Facts (DE 46-2)
Agreement = Exhibit 1 to PSF Motion for Summary Judgment (DE 46-5),
“Plaintiff’s Agreement to Pay Proceeds Contingent on Successful Settlement, Judgment
or Verdict and Receipt of Proceeds”
POA = Exhibit 9 to PSF Motion for Summary Judgment (DE 46-13),
Attachment: Durable Power of Attorney
Payment Order = Exhibit 15 to PSF Motion for Summary Judgment (46-19),
Order Regarding Settlement Monies Deposited with Court, Ellis v. Ethicon Inc., Civ. No.
05-726 (D.N.J. Aug. 9, 2015), DE 265.

Now before the Court are motions for summary judgment filed by PSF
(DE 46), Ellis (DE 51), and Zukowski (DE 52). For the following reasons, PSF’s
motion is GRANTED as to its breach of contract claim (Count 1) and DENIED
as to the remaining claims, while Ellis’s and Zukowski’s motions are DENIED
as to Count 1 and are GRANTED as to the remaining claims.
I.

BACKGROUND
A. Facts
In 2005, Ellis and Zukowski sued Ellis’s former employer, Ethicon Inc.,

alleging that Ethicon failed to accommodate her disability (a mild traumatic
brain injury she suffered after a car accident). (PSF Statement ¶¶ 7, 10, 16,
17.)2 Following the accident, Ellis granted Zukowski power of attorney. (Id.
¶ 11.) The case was tried, and judgment was entered in Ellis’s favor in March
2010. (Id. ¶¶ 19, 21.) Ethicon appealed. (Id. ¶ 22.)

Settlement Order = Order, Ellis v. Ethicon Inc., Civ. No. 05-726 (D.N.J. June 2,
2014), DE 236.
Answers = Exhibit 26 to PSF Motion for Summary Judgment (DE 46-30), Ellis’s
Answers to PSF’s First Set of Interrogatories
Defs.’ Resp. = Ellis and Zukowski’s Response Brief to PSF’s Motion for
Summary Judgment (DE 53)
Ellis Brf. = Ellis’ Motion for Summary Judgment (DE 51)
Zukowski Brf. = Zukowski’s Motion for Summary Judgment (DE 52)
Ellis Reply = Ellis’s Reply Brief in Support of her Motion for Summary
Judgment (DE 55)
Because Ellis and Zukowski do not dispute many of the facts in PSF’s
Statement of Facts (see Defs.’ Resp. 7–9), I rely on that Statement to outline the facts.
L. Civ. R. 56(a). For the dispositive facts in this case, however, I rely on the Agreement,
judicial orders in the underlying case, and Ellis’s answers to interrogatories. See
generally Anchorage Assocs. v. V.I. Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir.
1990) (holding that even where a local rule deeming unopposed motions to be
conceded, the court was still required to analyze the movant’s summary judgment
motion under the standard prescribed by Fed. R. Civ. P. 56(e)); Fed. R. Civ. P.
56(c)(1)(A) (listing forms of evidence that can support a factual finding at summary
judgment)
2

2

In September 2010, Ellis contracted with PSF, a company that advances
money to plaintiffs, for litigation financing in connection with her employment
action. (Id. ¶ 1, 24–25.) At the time, Ellis was represented by attorney Jill
Fisher. (Id. ¶¶ 18, 25.) Under the Agreement, PSF agreed to advance Ellis
$29,000. (Agreement at 1.) The interest rate was compounded monthly at 3.5%,
resulting in an annual rate of 51.1%. (Id.) This was, however, a contingent
arrangement. Ellis was required to repay PSF only if she was successful in the
underlying case—“success” being defined as a settlement, judgment, or verdict.
(Id. at 3.) If Ellis was unsuccessful in the litigation, she was not required to pay
any principal or interest on the loan. (Id.) PSF wired the $29,000 advance to
Ellis. (Id. at 16.)
The Agreement also contained an “Attorney Acknowledgement,” which
was signed by Fisher. (Id. at 14–15.) Fisher agreed to distribute any proceeds
received from the litigation to PSF, after attorney fees and any liens which had
priority over that of PSF were paid off. (Id.) Only after PSF was paid would any
remaining balance of proceeds from the litigation be paid to Ellis. (Id.)
Years later, in 2013, Patricia Barasch replaced Fisher as Ellis’s counsel.
(Id. ¶ 34.) Then, in a 2014 mediation, Barasch, Ellis, Zukowski, and Ethicon
agreed to settle the case for an undisclosed amount, and Ellis signed a
handwritten settlement agreement. (Id. ¶ 36.) Ethicon later sent a formalized
agreement for signature, which Ellis refused to sign, claiming that she was not
competent at the mediation. (Id. ¶¶ 38, 39.) Nonetheless, Judge Sheridan, the
presiding judge in the employment action, entered an order enforcing the
signed, handwritten agreement, and the Third Circuit affirmed. (Id. ¶¶ 43–44,
50; Settlement Order; see also Ellis v. Ethicon, Inc., 614 F. App’x 613 (3d Cir.
2015).) Judge Sheridan entered a subsequent order directing the Clerk to
distribute attorney’s fees to Barasch, and further directing that Ellis be paid
the remainder of the settlement proceeds that had been deposited by Ethicon.
(PSF Statement ¶ 52; see also Payment Order.)

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Zukowski never advised PSF that the case had settled, but Barasch
emailed PSF advising them of Judge Sheridan’s order. (PSF Statement ¶ 54–
55.) PSF then sent Ellis a letter advising her that the principal and interest,
now totaling $262,168.42, were due. (Id. ¶ 57.) In answers to interrogatories,
Ellis states that she received a settlement check and that it was deposited into
a joint account with Zukowski. (Answers 6, 7.) PSF has not received any
payment from Ellis.
B. Procedural History
PSF filed a complaint against Ellis and Zukowski, alleging breach of
contract against Ellis (Count 1), breach of the covenant of good faith and fair
dealing against Ellis (Count 2), conversion against Ellis and Zukowski (Count
3), unjust enrichment against Ellis and Zukowski (Count 4), aiding and
abetting against Zukowski (Count 5), and tortious interference with contract
against Zukowski (Count 6). (Compl.) Ellis and Zukowski answered (DE 8, 10)
and moved to dismiss (DE 13, 14). PSF opposed the motions and cross-moved
for summary judgment. (DE 16.) I construed the motions to dismiss as motions
for judgment on the pleadings and denied those motions along with PSF’s
motion as premature. (DE 33; see also Pre-Settlement Fin., LLC v. Ellis, Civ. No.
18-6339, 2019 WL 3543999 (D.N.J. Aug. 2, 2019).) Following discovery, the
parties have all moved for summary judgment.
II.

DISCUSSION AND ANALYSIS
PSF is entitled to summary judgment on its breach of contract claim, but

judgment on that claim precludes relief on its remaining claims.
A. Standard of Review
Federal Rule of Civil Procedure 56(a) provides that summary judgment
should 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.”
See Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding a motion
for summary judgment, a court must construe all facts and inferences in the

4

light most favorable to the nonmoving party. See Boyle v. County of Allegheny,
139 F.3d 386, 393 (3d Cir. 1998) (citing Peters v. Del. River Port Auth. of Pa. &
N.J., 16 F.3d 1346, 1349 (3d Cir. 1994)). The moving party bears the burden of
establishing that no genuine issue of material fact remains. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986). “[W]ith respect to an issue on which the
nonmoving party bears the burden of proof . . . the burden on the moving party
may be discharged by ‘showing’—that is, pointing out to the district court—that
there is an absence of evidence to support the nonmoving party’s case.” Id. at
325.
Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
as to material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). The opposing party must present actual evidence that creates
a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; see
also Fed. R. Civ. P. 56(c) (setting forth types of evidence on which nonmoving
party must rely to support its assertion that genuine issues of material fact
exist).
Unsupported allegations, subjective beliefs, or argument alone, however,
cannot forestall summary judgment. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S.
871, 888 (1988) (nonmoving party may not successfully oppose summary
judgment motion by simply replacing “conclusory allegations of the complaint
or answer with conclusory allegations of an affidavit.”); see also Gleason v.
Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001) (“A nonmoving party has
created a genuine issue of material fact if it has provided sufficient evidence to
allow a jury to find in its favor at trial.”). Thus, if the nonmoving party fails “to
make a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof at
trial . . . there can be ‘no genuine issue of material fact,’ since a complete
failure of proof concerning an essential element of the nonmoving party’s case

5

necessarily renders all other facts immaterial.” Katz v. Aetna Cas. & Sur. Co.,
972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex, 477 U.S. at 322–23).
Moreover, the “mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.”
Anderson, 477 U.S. at 247-48. A fact is only “material” for purposes of a
summary judgment motion if a dispute over that fact “might affect the outcome
of the suit under the governing law.” Id. at 248. A dispute about a material fact
is “genuine” if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
Where the matter comes before the court on cross-motions for summary
judgment, the analysis remains the same:
This [Rule 56] standard “does not change when the issue is
presented in the context of cross-motions for summary judgment.”
[quoting Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d
Cir. 1987)]. When both parties move for summary judgment, “[t]he
court must rule on each party’s motion on an individual and
separate basis, determining, for each side, whether a judgment may
be entered in accordance with the Rule 56 standard.” 10A Charles
Alan Wright et al., Federal Practice & Procedure § 2720 (3d ed.
2016).
Auto–Owners Ins. Co. v. Stevens & Ricci Inc., 835 F.3d 388, 402 (3d Cir. 2016)
That one of the cross-motions is denied does not imply that the other must be
granted. Ill. Nat’l Ins. Co. v. Wyndham Worldwide Operations, Inc., 85 F. Supp.
3d 785, 794 (D.N.J. 2015). Rather, “[i]t is well settled that cross-motions for
summary judgment do not warrant the court in granting summary judgment
unless one of the moving parties is entitled to judgment as a matter of law
upon the facts that are not genuinely disputed.” Manetas v. Int'l Petroleum
Carriers, Inc., 541 F.2d 408, 413 (3d Cir. 1976). For each motion, “the court
construes facts and draws inferences in favor of the party against whom the
motion under consideration is made” but does not “weigh the evidence or make
credibility determinations” because “these tasks are left for the fact-finder.”

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Pichler v. UNITE, 542 F.3d 380, 386 (3d Cir. 2008) (internal quotation and
citations omitted).
B. Breach of Contract Claim
PSF is entitled to summary judgment on its breach of contract claim
against Ellis (Count 1). To prevail on a breach of contract claim, “plaintiffs
must demonstrate ‘the existence of a contract, their performance pursuant to
that contract, the defendants’ breach of their obligations pursuant to the
contract, and damages resulting from that breach.’” De Guaman v. Am. Hope
Grp., 83 N.Y.S.3d 253, 256 (N.Y. App. Div. 2018) (quoting Elisa Dreier Reporting
Corp. v. Global NAPs Networks, Inc., 921 N.Y.S.2d 329, 333 (N.Y. App. Div.
2011)) (alterations omitted).3 There is no dispute that a contract existed, PSF
performed by advancing money to Ellis, and Ellis has not paid PSF following
the settlement.
Nonetheless, Ellis argues that there was no breach because “there is no
Settlement Agreement” and she did not receive any settlement monies from
which to pay PSF. (Ellis Brf. at 10–11.) See generally MHR Capital Partners LP
v. Presstek, Inc., 912 N.E.2d 43, 47 (N.Y. 2009) (“[A] condition precedent is ‘an
act or event . . . which, unless the condition is excused, must occur before a
duty to perform a promise in the agreement arises.’” (quoting Oppenheimer &
Co. v. Oppenheim, Appel, Dixon & Co., 660 N.E.2d 415, 418 (N.Y. 1995))).
However, Ellis has failed to raise a genuine issue of fact regarding whether a
settlement was reached or whether she received settlement monies. Judge
Sheridan approved and enforced the handwritten settlement agreement, which
represented “full and final settlement of this matter” (Settlement Order at 5),

I apply New York law to all claims because the Agreement provides that New
York law “control[s] interpretation of this Agreement” (Agreement at 6.) and the parties
agree that New York law applies (PSF Brf. at 1; Ellis Brf. at 10; Zukowski Brf. at 13).
Alphonse Hotel Corp. v. Tran, 828 F.3d 146, 152 (2d Cir. 2016) (“The parties’ briefs
assume that New York law controls, and such implied consent . . . is sufficient to
establish choice of law.” (citation omitted)); see also TekDoc Servs., LLC v. 3i-Infotech
Inc., Civ. No. 09-6573, 2013 WL 2182565, at *10 n.12 (D.N.J. May 20, 2013).
3

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and the Third Circuit affirmed, Ellis, 614 F. App’x at 616. In a subsequent
order, Judge Sheridan directed the Clerk to distribute the settlement amount
(minus attorney’s fees) to Ellis and that disbursement “represents the full and
final payment of the Settlement Amount” and “discharged” the settlement.
(Payment Order at 2–3.)4 Indeed, in answers to interrogatories, Ellis indicated
that the settlement amount was deposited into her and Zukowski’s joint
account. (Answers 6, 7.)5 Thus, the evidence shows that a settlement was
reached and Ellis received settlement monies, thus triggering her duty to pay
PSF. See MHR Capital Partners, 912 N.E.2d at 47. She did not and so breached
the Agreement.
For these reasons, I will grant summary judgment in favor of PSF on
Count 1.
C. Breach of the Covenant of Good Faith and Fair Dealing Claim
PSF asserts a claim against Ellis of breach of the implied covenant of
good faith and fair dealing. (Count 2; Compl. ¶¶ 71–76.) The basis of that
claim, however, is simply that Ellis breached an express term of the
Agreement—the one requiring payment. (Id.) Under New York law, a plaintiff
cannot recover on a breach of the implied covenant claim for breaching an
express term of a contract. Cruz v. FXDirectDealer, LLC, 720 F.3d 115, 125 (2d
Cir. 2013); Amcan Holdings, Inc. v. Canadian Imperial Bank of Commerce, 894
N.Y.S.2d 47, 49–50 (N.Y. App. Div. 2010). PSF’s implied-covenant claim does
not seek any relief beyond what is claimed for breach of contract. (Compare
Compl. ¶¶ 68–70, with id. ¶ 76.) Because PSF is already entitled to recovery on
its breach of contract claim, and its theory for its breach of the implied
Though her argument is difficult to comprehend, Ellis seems at times to argue
that the Settlement Order did not settle her case, as there were multiple judgments,
settlements, and appeals. (Ellis Brf. at 10–11.) But the language in the Settlement
Order and Payment Order clearly establishes that the parties reached a final
settlement.
4

Ellis also argues that she assigned responsibility for the proceeds to Barasch.
(Ellis Reply at 5.) But the evidence indicates that Ellis herself received the settlement
monies, so performance required her to pay PSF herself. She did not.
5

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covenant claim is no different, I will deny summary judgment in favor of PSF on
Count 2 and grant summary judgment in favor of Ellis.
D. Conversion Claim
PSF asserts a conversion claim against Ellis and Zukowski (Count 3),
alleging that they deprived PSF of property consisting of proceeds from the
settlement. (Compl. ¶¶ 77–90; PSF Brf. at 15–17.) As damages, PSF seeks the
amount owed pursuant to the Agreement. (Compl. ¶ 89.) “A conversion takes
place when someone, intentionally and without authority, assumes or exercises
control over personal property belonging to someone else, interfering with that
person's right of possession.” Colavito v. N.Y. Organ Donor Network, Inc., 860
N.E.2d 713, 717 (N.Y. 2006). “Money, if specifically identifiable, may be the
subject of a conversion action.” Petrone v. Davidoff Hutcher & Citron, LLP, 54
N.Y.S.3d 25, 27 (N.Y. App. Div. 2017) (citation omitted). However, “a cause of
action alleging conversion cannot be predicated upon a mere breach of
contract.” Conn. N.Y. Lighting Co. v. Manos Bus. Mgmt. Co., 98 N.Y.S.3d 101,
103 (N.Y. App. Div. 2019). Although Zukowski was not party to the Agreement,
courts have enforced the rule as to non-parties, too. Culwick v. Wood, 384 F.
Supp. 3d 328, 343 (E.D.N.Y. 2019); Ellington Credit Fund, Ltd. v. Select Portfolio
Servicing, Inc., 837 F. Supp. 2d 162, 204 (S.D.N.Y. 2011).6 Because the theory
of the conversion claim is no different from the breach of contract claim and
seeks the same damages, it fails. I will deny summary judgment in favor of PSF
on Count 3 and grant summary judgment in favor of Ellis and Zukowski.
Although there are no decisions from New York courts directly addressing
whether the rule that there is no double recovery for breach of contract and
conversion claims applies to non-parties, I may look to decisions of federal courts
interpreting New York law. Alpizar-Fallas v. Favero, 908 F.3d 910, 915 (3d Cir. 2018).
Indeed, decisions from courts within the Second Circuit are particularly worthy of
deference. See Casey v. Merck & Co., Inc., 653 F.3d 95, 100 (2d Cir. 2011)
(“Where . . . a question of state law has not been conclusively resolved by [state]
courts, our general practice is to look next to the law of the circuit in which the state
is located . . . .”); Dawn Equip. Co. v. Micro-Trak Sys., Inc., 186 F.3d 981, 989 n.3 (7th
Cir. 1991) (same); Indep. Petrochem. Corp. v. Aetna Cas. & Sur. Co., 944 F.2d 940,
944–55 (D.C. Cir. 1991) (same).
6

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E. Unjust Enrichment Claim
PSF asserts an unjust enrichment against Ellis and Zukowski (Count 4),
alleging that they unjustly retained the settlement monies without paying PSF.
(Compl. ¶¶ 91–96; PSF Brf. 17–18.) Again, PSF’s theory and requested relief for
this claim are indistinguishable from its breach of contract claim. (See id.) As
with conversion, “recovery on a theory of unjust enrichment for events arising
out of [a breach of contract] is ordinarily precluded.” IDT Corp. v. Morgan
Stanley Dean Witter & Co., 907 N.E.2d 268, 274 (N.Y. 2009). The rule applies to
non-parties like Zukowski. Ellington Credit Fund, 837 F. Supp. 2d at 202
(collecting cases). Thus, I will deny summary judgment in favor of PSF on
Count 4 and grant summary judgment in favor of Ellis and Zukowski.
F. Aiding and Abetting Conversion
PSF asserts a claim against Zukowski (Count 5), alleging that Zukowski
aided and abetted Ellis in converting the settlement monies. (Compl. ¶¶ 97–
105; PSF Brf. at 18–19.) “Aiding and abetting conversion requires the existence
of a conversion by the primary tortfeasor . . . .” William Doyle Galleries, Inc. v.
Stettner, 91 N.Y.S.3d 13, 18 (N.Y. App. Div. 2018). “[S]uch a claim stands or
falls with the underlying tort” of conversion.” Dickinson v. Igoni, 908 N.Y.S.2d
85, 88 (N.Y. App. Div. 2010) (citation omitted). Accordingly, when a conversion
claim fails because it is based on a breach of contract, as here, an aiding and
abetting conversion claim also fails. Johnson v. Cestone, 80 N.Y.S.3d 15, 17
(N.Y. App. Div. 2018); Green Bright Light Home Care Servs., Inc. v. Jeffries-El, 58
N.Y.S.3d 68, 76 (N.Y. App. Div. 2017). Thus, I will deny summary judgment in
favor of PSF on Count 5 and grant summary judgment in favor of Zukowski.
G. Tortious Interference with Contract
Finally, PSF asserts a claim of tortious interference with contract against
Zukowski (Count 6), alleging that he “intentionally prevented [Ellis] from paying
PSF.” (Compl. ¶ 112.) More specifically, PSF argues that Zukowski acted on
Ellis’s behalf as her attorney-in-fact, and should have paid PSF when she
received the settlement monies. (PSF Brf. at 19–20.) For a tortious interference

10

claim, “[PSF] must show the existence of its valid contract with a [Ellis],
[Zukowski’s] knowledge of that contract, [Zukowski’s] intentional and improper
procuring of a breach, and damages.” White Plains Coat & Apron Co. v. Cintas
Corp., 867 N.E.2d 381, 383 (N.Y. 2007). Additionally, where “an agent is alleged
to have induced its principal to breach a contract, the agent cannot be found
liable unless it does not act in good faith and commits independent torts or
predatory acts directed at another for personal pecuniary gain.” Schmidt &
Schmidt, Inc. v. Town of Charlton, 962 N.Y.S.2d 393, 396 (N.Y. App. Div. 2013).
PSF’s claim fails because it is based on Zukowski’s conduct as an agent,
yet PSF has not shown bad faith or additional torts. Power of attorney
establishes an agent-principal relationship. Am. Orthopedic & Sports Med. v.
Indep. Blue Cross Blue Shield, 890 F.3d 445, 455 (3d Cir. 2018); Kutnyak v.
Dep’t of Corr., 748 A.2d 1275, 1280 n.11 (Pa. Cmwlth. Ct. 2000).7 As a result,
to succeed on its theory that Zukowski procured Ellis’s breach by failing to act
on her behalf, PSF must show bad faith or an independent tort by Zukowski.
Schmidt, 962 N.Y.S.2d at 396. Yet PSF has neither made an argument nor
presented evidence to show bad faith or another tort.
Agency issues aside, PSF has not presented any evidence that Zukowski
intentionally procured a breach. PSF argues that he procured the breach by
failing to disclose the settlement and, when PSF contacted him about the
settlement, directing PSF to contact Barasch about disbursement. (PSF Brf. at
19–20.) New York law, however, does not permit a tortious interference claim
for mere failure to prevent a breach; rather, some more affirmative, intentional
act is required. See Gundlach v. Int’l Bus. Machines, Inc., 594 F. App’x 8, 9–10
(2d Cir. 2014) (“Gundlach’s allegation that Tsubota did nothing to ensure that
Gundlach’s contract with Cognos would not be breached failed to plausibly
show, as required by New York law, that ‘the defendant intentionally procured
The power of attorney was made under Pennsylvania law (see POA), so I use
that law to construe it. See generally Kaneff v. Del. Title Loans, Inc., 687 F.3d 616, 624
(3d Cir. 2009) (“[B]ecause choice of law analysis is issue-specific, different states’ laws
may apply to different issues in a single case.” (citation omitted)).
7

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the third party’s breach of the contract.’” (quoting Kirch v. Liberty Media Corp.,
449 F.3d 388, 401 (2d Cir. 2006)) (alterations omitted)). Thus, a theory that
Zukowski should have facilitated Ellis’s fulfillment of her obligations under the
Agreement is insufficient.8
Accordingly, I will deny summary judgment in favor of PSF on Count 6
and grant summary judgment in favor of Zukowski.
III.

CONCLUSION
For the reasons set forth above, PSF’s motion for summary judgment is

granted as to its breach of contract claim (Count 1) and denied as to the
remaining claims (Counts 2–6), while Ellis’s and Zukowski’s motions are denied
as to Count 1 and are granted as to the remaining claims (Counts 2–6).
A separate order will issue. PSF shall submit a proposed form of
judgment.
Dated: September 24, 2020
/s/ Kevin McNulty
___________________________________
Hon. Kevin McNulty
United States District Judge

The power of attorney, by its own terms, did not obligate to Zukowski to fulfill
any of Ellis’s preexisting contractual duties. (POA.) See generally Bennett v. A.T.
Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145, 150 (Pa. Super. Ct. 2012) (“[A]n
individual acting as an agent for a disclosed principal is not personally liable on a
contract between the principal and a third party unless the agent specifically agrees to
assume liability.” (citation and alterations omitted)).
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