FRANKENTEK RESIDENTIAL SYSTEMS, LLC v. BUERGER et al

Filing 69

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE ANITA B. BRODY ON 4/24/2014. 4/24/2014 ENTERED AND COPIES VIA ECF.(mo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
FRANKENTEK RESIDENTIAL
SYSTEMS, LLC,

:
:

Plaintiff,

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CIVIL ACTION

v.

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No. 2:12-cv-00767

REID BUERGER, et al.,
Defendants.
FRANKENTEK RESIDENTIAL
SYSTEMS, LLC,

:
:
:
:

Plaintiff,

:

CIVIL ACTION

v.

:

No. 2:12-cv-03505

REID BUERGER, et al.,
Defendants.
FRANKENTEK RESIDENTIAL
SYSTEMS, LLC,

:
:
:
:

Plaintiff,

:

CIVIL ACTION

v.

:

No. 2:12-cv-00768

ALAN BUERGER, et al.,
Defendants.

:
:

April _24th_ , 2014

Anita B. Brody, J.
MEMORANDUM

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

1

4301 Bayberry Drive LLC (collectively, the “Buergers”)1 to recover over $1 million for work it
performed on the Buergers’ properties. The Buergers bring counterclaims in the three actions
against Frankentek Residential, Marc Franken, and Michael Pavluk (collectively, “Frankentek”)
for breaches of contract, statutory computer-related offenses, and common law torts. I exercise
jurisdiction over the three actions pursuant to 28 U.S.C. § 1332.
Frankentek has filed motions for partial summary judgment on the Buergers’
counterclaims in all three actions.2 For the reasons set forth below, I will grant in part and deny
in part Frankentek’s motions for partial summary judgment. 3
I.

BACKGROUND
A. Factual Background4
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”).
1

In most instances, the use of the term the “Buergers” in this Memorandum refers to all eight parties, but in some
cases, it refers to fewer than all eight. Unless otherwise stated and relevant to the analysis, this Memorandum will
refer to the “Buergers.”
2
Neither party has moved for summary judgment on the claims that Frankentek Residential brings against the
Buergers.
3
The Buergers never filed a motion for summary judgment on the counterclaims, but in their responses in
opposition to Frankentek’s partial motions for summary judgment, the Buergers mention summary judgment in their
favor on the counterclaims for statutory computer-related offenses and the common law torts. Buergers’ Opp. Br. at
21, ECF No. 62-1, Civil Action No. 2:12-cv-00767; Buergers’ Opp. Br. at 21, ECF No. 38-1, Civil Action No. 2:12cv-03505; Buergers’ Opp. Br. at 21, ECF No. 57, Civil Action No. 2:12-cv-00768. I will not rule on their request.
4
For the purposes of summary judgment, “the nonmoving party’s evidence is to be believed, and all justifiable
inferences are to be drawn in [that party’s] favor.” Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (alteration in
original) (internal quotation marks omitted).

2

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. 63-2.5 Frankentek
Residential installed and provided continuous maintenance to the systems until a dispute
regarding nonpayment arose in 2010. Franken Decl. ¶ 2, Aug. 16, 2013, ECF No. 60-1. As a
result of this dispute, the electronic home systems at the Pennsylvania Property and the New
Jersey Property were twice disabled. Buerger Decl. ¶ 3; Franken Decl. ¶ 4, 5, Aug. 16, 2013;
Arb. Tr., 78:19-80:13, Buergers’ Opp. Br. Ex. B, ECF No. 62-3.
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’
5

Unless otherwise noted, all ECF citations in the remainder of this Memorandum refer to the electronic docket in
Civil Action No. 2:12-cv-00767.

3

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.
At the same time, on November 13, 2010, Frankentek Residential also remotely accessed
and disabled the electronic home system at the New Jersey Property. Buerger Decl. ¶ 12. On or
around November 17, 2010, Frankentek Residential reactivated the electronic home system at the
New Jersey Property. On January 7, 2011, Reid Buerger discovered that Frankentek Residential
had again disabled the electronic system at the New Jersey Property. Id. ¶ 13. In contrast,
Franken states that Frankentek Residential and its personnel ceased to have any physical or
remote access to the New Jersey Property on November 18, 2010, and he denies ever personally
having physical or remote access to the New Jersey Property. Franken Decl. ¶¶ 8, 13, Sept. 16,
2013.
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.

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B. Procedural Background
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
Property6 and one related to the Bahamas Property.7 The following day, in the District of New
Jersey, Frankentek Residential filed a third suit against the Buergers related exclusively to the
New Jersey Property. Pursuant to an agreement between the parties, that suit was subsequently
transferred to the Eastern District of Pennsylvania.8
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

6

See Civil Action No. 2:12-cv-00767.
See Civil Action No. 2:12-cv-00768.
8
See Civil Action No. 2:12-cv-03505.
7

5

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 Jersey Property Suit originally filed in New Jersey with the exception of its
claim for a violation of the New Jersey Prompt Payment Act. In response, the Buergers
dismissed all of their counterclaims in the same suit.9
II.

LEGAL STANDARD
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 (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 (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. In ruling on a motion for summary judgment, the court must draw all
9

I will not discuss further any of the counterclaims on which the motions for summary judgment are uncontested or
any of the counterclaims that the Buergers have dismissed.

6

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 (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.
III.

DISCUSSION
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:
I. Breach of Contract;10
II. Breach of Contract;
III. Violation of 18 Pa. Cons. Stat. Ann. § 5741 (“Unlawful Access to Stored
Communications”) (with respect to the Pennsylvania Property only);
IV. Violation of N.J. Stat. Ann. § 2A:38A-1 et seq. (“Computer Related Offenses”) (with
respect to the New Jersey Property only);
V. Invasion of Privacy (with respect to the New Jersey Property only);
VI. Conversion; and
VII. Trespass.

10

The breach of contract counterclaims in all three actions are asserted exclusively against Frankentek Residential.
All other counterclaims are asserted against all three Frankentek parties.

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(2) Counterclaims asserted by Alan Buerger and Constance Buerger in the Bahamas Property
Suit filed in the Eastern District of Pennsylvania:
I. Breach of Contract; and
II. Breach of Contract.
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, Franktentek 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.11
A. Statute of Limitations Bar to Common Law Tort Counterclaims in the
Pennsylvania Property and New Jersey Property Suit filed in the Eastern
District of Pennsylvania
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
11

In its reply brief, Frankentek raises new arguments in support of its partial motions for summary judgment. For
the first time, Frankentek argues that the Buergers’ counterclaims for statutory computer-related offenses are timebarred and that the Buergers’ failed to name a party with a cognizable claim for invasion of privacy under
Pennsylvania or New Jersey law. Frankentek’s Reply Br. at 11, 16. Other courts in this district have declined to
address issues raised for the first time in a reply brief. See, e.g., U.S. v. Martin, 454 F.Supp.2d 278, 281 n. 3 (E.D.
Pa. 2006) (“A reply brief is intended only to provide an opportunity to respond to the arguments raised in the
response brief; it is not intended as a forum to raise new issues.”); Sproull v. Golden Gate Nat’l Senior Care, LLC,
No. 08-1107, 2010 WL 339858, at *3 (W.D. Pa. Jan. 22, 2010) (“[T]he reply brief generally cannot be used to
expand the issues presented for adjudication beyond those raised in the moving papers.”). Thus, I will not address
these arguments in support of summary judgment.

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law.” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (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 Mfg. Co., 313 U.S. 487, 496 (1941); Van Buskirk v. Cary 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 (1945). Because this Court sits in Pennsylvania, the Pennsylvania choiceof-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-Mansville
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 jurisdiction is either the
limitations period of the jurisdiction where the claim accrued or the Pennsylvania limitations
period, “whichever first bars the claim.”12 42 Pa. Cons. Stat. Ann. § 5521(b). In determining
which state bars the claim first, the Court also considers the laws of Pennsylvania and the foreign
jurisdiction where the claim accrued on questions such as when the statute of limitations begins
to run and if any tolling doctrines apply. See McKenna v. Ortho Pharm. Corp., 622 F.2d 657,
660 (3d Cir. 1980) (“In our view, the essential question posed under the ‘borrowing statute’ is
12

The Buergers argue that the Pennsylvania borrowing statute does not apply to counterclaims, but they cite no
Pennsylvania cases nor is there any rationale to support their argument. Buergers’ Sur-Reply Br. at 4-5. To the
contrary, Pennsylvania courts have found that the borrowing statute applies to counterclaims. See Stoody Co. v.
Wandel, 6 Ches. Co. Rep. 219, 220 (1954) (applying the borrowing statute to hold that defendant’s counterclaim that
arose in California and was time-barred in California was also barred in Pennsylvania although the Pennsylvania
limitations period had not expired.)

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whether the action in question is precluded by the laws of the state in which it accrued, and the
answer to that question also must be based on the law of the state in which the claim arose.”).
Thus, Pennsylvania’s limitations period applies to the claim unless the foreign jurisdiction’s
laws, including laws on tolling and the date of accrual, bar the claim first. See Gwaltney v.
Stone, 564 A.2d 498, 503 (Pa. Super. Ct. 1989) (“The provisions of Pennsylvania’s borrowing
statute unequivocally evince the legislative intent to prevent a plaintiff who sues in Pennsylvania
from obtaining greater rights than those available in the state where the cause of action
arose.”).13
1. Invasion of Privacy Relating to the New Jersey Property
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.

13

Contrary to arguments in the briefing, under Pennsylvania law, the filing of a complaint does not toll the statute of
limitations applicable to compulsory or permissive counterclaims. See Buergers’ Opp. Br. at 14; Harmer v. Hulsey,
467 A.2d 867, 868-69 (Pa. Super. Ct. 1983) (holding that a compulsory counterclaim was barred by Pennsylvania’s
two-year statute of limitations, notwithstanding that the plaintiff filed his complaint late in the two-year limitations
period). Additionally, the Court finds no support in Pennsylvania case law for the tolling of the statute of limitations
for compulsory or permissive counterclaims while a motion to dismiss is pending. See Buergers’ Opp. Br. at 17.
Thus, the Court will not apply either tolling doctrine to its calculations of the applicable Pennsylvania limitations
periods. Furthermore, the Court need not decide the applicability of tolling to the limitations periods for
counterclaims under New Jersey law because such a rule would only extend the New Jersey limitations period
beyond the Pennsylvania limitations period, making New Jersey law inapplicable.

10

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.14
N.J. Stat. Ann. § 2A:14-1. Given the significant difference between the limitations periods, the
counterclaims would be barred first in Pennsylvania. Thus, Pennsylvania’s one-year statute of
limitations applies.
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., 468 A.2d 468,
471 (Pa. 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., 468 A.2d 468, 471 (Pa. 1983) (citing medical
14

Both parties agree that the applicable New Jersey statute of limitations for an invasion of privacy claim is six
years. Buergers’ Opp. Br. at 12; Frankentek’s Reply Br. at 9.

11

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.
2. Conversion and Trespass Relating to the New Jersey Property
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, 530 A.2d 112, 114 (Pa. Super. Ct.
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. As
12

explained above, the Buergers’ counterclaims for conversion and trespass at the New Jersey
Property accrued on two separate occasions – November 13, 2010 and sometime between
November 17, 2010 and January 7, 2011. Buerger Decl. ¶¶ 12, 13. The counterclaims were filed
on January 7, 2013, and thus under Pennsylvania’s two-year statute of limitations, both the
counterclaims were untimely.15 Thus, Frankentek’s motion for summary judgment on the
conversion and trespass counterclaims relating to the New Jersey Property in this suit will be
granted.
3. Conversion and Trespass Relating to the Pennsylvania Property
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 twoyear 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.

15

As explained previously, the Complaint was filed on February 12, 2012, but Pennsylvania does not toll the statute
of limitations for compulsory or permissive counterclaims when a complaint is filed. See Harmer v. Hulsey, 467
A.2d 867, 868-69 (Pa. Super. Ct. 1983).

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B. Statute of Limitations Bar to Breach of Contract Counterclaims in the
Pennsylvania and New Jersey Property Suit and in the Bahamas Property Suit
filed in the Eastern District of Pennsylvania
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.
C. Insufficient Evidence on Pennsylvania Statutory Counterclaim in the
Pennsylvania and New Jersey Property Suit filed in the Eastern District of
Pennsylvania
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.16
The counterclaim turns on the issue of Frankentek’s authority, specifically whether
Frankentek Residential and its personnel accessed the electronic home systems in a manner
consistent with Frankentek Residential’s authority as the owner/installer/servicer/monitor of the
systems. To succeed on a claim for unlawful access to stored communications, the Buergers
must offer evidence that Frankentek (1) “acces[ed] without authorization a facility through which
an electronic communication service is provided” or (2) “exceed[ed] the scope of [its]
authorization to access the facility.” 18 Pa. Cons. Stat. Ann. § 5741. Reid Buerger states that the
16

Frankentek acknowledged in their Reply Brief that genuine disputes of material fact exist with respect to several
counterclaims on which they initially moved for summary judgment. Frankentek’s Reply Br. at 20-21, 22.

14

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 at both properties in a
manner consistent with its authority as the owner/installer/servicer/monitor of the systems.
Franken Decl. ¶¶ 14, 15, Sept. 16, 2013. Given the parties’ conflicting statements as to the scope
of Frankentek Residential’s authorization, a genuine dispute of material fact precludes summary
judgment at this time, and Frankentek’s motion for summary judgment on this claim will be
denied.
D. Insufficient Evidence on Statutory Counterclaims Asserted Against Franken and
Pavluk in the Pennsylvania 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. Franktentek 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,

15

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.
IV.

CONCLUSION
In summary, I am denying in part and granting in part Frankentek’s motion for partial

summary judgment in the Pennsylvania Property and New Jersey Property Suit filed in the
Eastern District of Pennsylvania. I am denying the motion for partial summary judgment on the
breach of contract counterclaims and the motion for summary judgment on the statutory
computer-related counterclaims. I am granting the motion for summary judgment on the
invasion of privacy claim relating to the Pennsylvania Property as conceded by the Buergers. I
am also granting the motion for summary judgment on the remaining invasion of privacy,
conversion, and trespass counterclaims. In the New Jersey Property Suit originally filed in the
District of New Jersey, I am denying as moot Frankentek’s motion for partial summary judgment
given the Buergers’ dismissal of all counterclaims in that suit. Finally, in the Bahamas Property
Suit filed in the Eastern District of Pennsylvania, I am denying Frankentek’s motion for partial
summary judgment on the breach of contract counterclaims and granting the motion for
16

summary judgment on the invasion of privacy, conversion, and trespass counterclaims as
uncontested by the Buergers.

s/Anita B. Brody
_______________________
ANITA B. BRODY, J.

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