MOSS et al v. AARON'S, INC.
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE WENDY BEETLESTONE ON 10/21/2015. 10/21/2015 ENTERED AND COPIES E-MAILED.(kp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SEENA MOSS and CHASE PARKER,
This case arises from a dispute over payment for a high-definition television and Blu-ray
player. Plaintiffs Seena Moss (“Moss”) and Chase Parker (“Parker”) allege that Defendant
Aaron’s, Inc. (“Aaron’s”) trespassed on their land when its employees came to their house
concerning payment for the electronics.1 Defendant has asserted counterclaims for breach of
contract against Moss, and conversion, fraud, and unjust enrichment against both Plaintiffs
arising from allegations that they did not pay in full for the merchandise. Plaintiffs and
Defendant have both moved for summary judgment on Defendant’s liability for trespass.
Defendant has also moved for summary judgment to limit Plaintiffs to nominal damages, as well
as summary judgment in favor of its breach-of-contract claim. For the reasons discussed below,
the motions will be denied in all respects.
Plaintiffs, who are married, have lived in Philadelphia since 2011. Joint Appendix (“JA”)
38, 159. Defendant owns and operates rent-to-own stores throughout the United States,
including a location in Upper Darby, Pennsylvania. Compl. ¶ 7. From April through September
Plaintiffs also asserted a claim under Pennsylvania’s Fair Credit Extension Uniformity Act, 73 Pa. Cons. Stat. §
2270.4, which was dismissed by Order of the Court on Feb. 20, 2015. See Moss v. Aaron’s, Inc., No. 14-cv-3753,
2015 WL 731836 (E.D. Pa. Feb. 20, 2015).
2013, Parker was an employee in Defendant’s Upper Darby store. JA 157. Parker’s job
responsibilities included making site visits to the homes of customers who were delinquent on
payments for merchandise. JA 84. Parker testified in his deposition that Defendant encouraged
employees to “intimidate individuals into turning over property. They would want us to stand
outside of your house and just be belligerent” in an effort to “make them feel uncomfortable.”
Several months into his employment with Defendant, Parker became interested in
purchasing a television, but was informed that Defendant’s policies do not permit employees to
open accounts in their own names. JA 47. He discussed this situation with Moss, who agreed to
allow him to open an Aaron’s account in her name for the purposes of purchasing a new
television. JA 197. Moss testified at her deposition that she was unaware that she would be
financially responsible for merchandise purchased with this account. JA 197.
Parker gave Moss’s information to his manager at the store, Maribel Leon (“Leon”), and
Leon set up an Aaron’s account in Moss’s name in late August 2013. JA 46. No paperwork was
presented to Parker at the time, and neither he nor Moss (who never visited the store) signed any
documents concerning the account. JA 49, 196. The account was then used to purchase a 70inch high-definition television and a Blu-ray player. JA 46-47. Parker agreed with Leon to
make $70 cash payments directly to Leon every two weeks for 24 months to pay for the
merchandise. JA 49. The television and Blu-Ray player were delivered to Plaintiffs’ residence
within a week. JA 54. Defendant has produced computerized records purportedly
memorializing a purchase in Moss’s name of a Blu-ray player and “Sharp” high-definition
television on August 22, 2013. JA 1-2. Plaintiffs admit that the description of the Blu-ray player
in the computer record matches the Blu-ray player they obtained from Defendant, but assert that
the television they received—and still possess—is a Vizio, not a Sharp. Pls.’ Statement of
Disputed Facts ¶ 22. Parker testified that he made two $70 cash payments to Leon after the
television was delivered. JA 55. Defendant’s computer records indicate that payments were
made for both the “Sharp” television and the Blu-ray player on August 28, 2013. JA 2-3.
On September 27, 2013, Parker was terminated as an employee of Defendant for reasons
unrelated to this case. JA 58. After his termination, Parker stopped making payments to Leon.
JA 55-56. Shortly thereafter, Defendant’s employees made several calls to the telephone
numbers associated with Moss’s account. JA 58. Moss did not answer or return any of the calls.
JA 62. Instead, Parker contacted Leon and indicated that he would resume making payments on
the merchandise when he obtained new employment. JA 58-60. Parker’s conversations with
Leon did not stop Defendant’s phone calls. JA 61.
After its efforts to contact Moss by telephone proved unsuccessful, Defendant sent
employees to Plaintiffs’ home. There is a dispute concerning the number of visits that occurred.
The parties agree that one was on the evening of October 31, 2013. Def.’s Statement of Disputed
Facts ¶ 33; Pls.’ Statement of Undisputed Facts ¶ 33. Plaintiffs claim that three prior visits
occurred during the day on October 15, October 19, and October 31, 2013. They have produced
three placards allegedly left by Defendant’s employees on those three dates. The placards each
display Defendant’s logo in large print, and a message that “Aaron’s Came by _____ at ____.”
JA 6-8. The blank spaces on the placards contain handwritten dates and times indicating visits
were made on October 15, 2013 at 12:53 p.m.; October 19, 2015 at 10:15 a.m.; and October 31,
2013 at 9:23 a.m. Id. The placards also contain notes threatening to return to the premises with
law enforcement if merchandise was not returned. Id. Defendant has no record of site visits to
Plaintiffs’ residence on the dates and times indicated on the placards, and has not admitted that
these three visits occurred. Def.’s Statement of Disputed Fact ¶¶ 30-32.
Defendant does, however, concede that a site visit occurred on Halloween night, October
31, 2013. JA 127. Defendant’s employees Lebaron Alejandro (“Alejandro”) and Brian Kenner
(“Kenner”) appeared at Plaintiffs’ front door at 8:45 p.m. JA 127. Parker testified at his
deposition that he and Moss were upstairs putting their son to bed when Parker
heard a loud banging and repeated taps on our glass window, and it seemed to be with a
key or something, but it was repeated, and it was loud. It was alarming. It kind of made
my wife feel uncomfortable. She seemed to be nervous to find out like why is somebody
knocking on our door this late. It was Halloween. You didn’t know what somebody
could be doing. Mind you, it’s too late for kids to be out tricker-treating [sic]. It was
JA 104.2 Prior to answering the door, Parker retrieved an unloaded replica Beretta BB gun. JA
105. Upon opening the door, Parker saw Alejandro, who he had never met. JA 106. With the
replica Baretta visible, Parker directed Alejandro to move away from the door and asked him
why he was there. JA 106. As Alejandro backed away from the door, Parker stepped outside
and saw Brian Kenner (who had fired Parker from Aaron’s) near the window “getting ready to
knock on the window again.” Id. It was then that Parker realized the two men were Defendant’s
employees. Id. Kenner and Parker exchanged heated words concerning the purpose and timing
of the visit. Id. Kenner then asked to see Moss. Id. Parker refused and threatened to call the
police if Alejandro and Kenner did not leave immediately. Id. Kenner said he would wait for
Moss. Id. At that point, Parker stepped back inside and closed the door. Id. As the door was
closing, Parker heard Kenner threaten to call the police. Id. He then went upstairs to check on
his son, who had awoken during the incident. Id.
Defendant has not presented testimony from Alejandro, Kenner, or any other witnesses. Thus, Plaintiffs’
deposition testimony is the only evidence in the record concerning the details of the incident on October 31, 2013.
While Parker was returning his son to bed, the police knocked on Plaintiffs’ front door.
Id. Parker answered the door. Id. Following questioning, Parker was arrested on charges of
simple assault, making terroristic threats, and possessing an instrument of crime. JA 177. Parker
then spent two days in jail while Moss collected $1,000 to post his bail. JA 201. The charges
were later dropped after Alejandro and Kenner failed to appear as witnesses. JA 179.
Moss testified that she experienced migraines, shoulder pain, and an exacerbation of her
fibromyalgia from “not knowing whether they would actually come back again, or not knowing
whether you would be harmed in any way over a television.” JA 202. Parker testified that
during the encounter with Alejandro and Kenner he “was uncomfortable . . . extremely
nervous . . . did not know what was going on . . . [and] was pretty much scared . . . because you
could open the door, somebody could rush in and try to hurt my wife and my children.” JA 10405. The interaction left him “upset and a little shaken” with “a lot of anxiety.” JA 106. In the
aftermath of October 31, 2013, Parker “didn’t really eat much . . . had a hard time
sleeping . . . [and] had anxiety for quite a while” because “it could have been people hurting my
kids. It could have been somebody hurting my wife. And yet I’ll [sic] still get arrested for it.”
“[S]ummary judgment is appropriate where there is no genuine issue as to any material
fact and the moving party is entitled to a judgment as a matter of law.” Alabama v. North
Carolina, 560 U.S. 330, 344 (2010) (citations and internal quotation marks omitted). “By its
very terms, this standard provides that 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 v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
“A genuine issue is present when a reasonable trier of fact, viewing all of the record
evidence, could rationally find in favor of the non-moving party in light of his burden of proof.”
Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322-26 (1986); Anderson, 477 U.S. at 248-52). A fact is material if it might affect
the outcome of the suit under the governing law. Scheidemantle v. Slippery Rock Univ. State
Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006). “The reviewing court should view the
facts in the light most favorable to the non-moving party and draw all reasonable inferences in
that party’s favor.” Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013). However, to
prevail on a motion for summary judgment, “the non-moving party must present more than a
mere scintilla of evidence; ‘there must be evidence on which the jury could reasonably find for
the [non-movant].’” Jakimas v. Hoffmann-LaRoche, Inc., 485 F.3d 770, 777 (3d Cir. 2007)
(quoting Anderson, 477 U.S. at 252) (alteration in Jakimas). In other words, “[t]he non-moving
party may not merely deny the allegations in the moving party’s pleadings; instead he must show
where in the record there exists a genuine dispute over a material fact.” Doe, 480 F.3d at 256
(citing Celotex, 477 U.S. at 322-26).
A. Trespass Liability
Trespass claims in Pennsylvania are governed by the Restatement (Second) of Torts.
Gilbert v. Synagro Cent., LLC, 90 A.3d 37, 52 (Pa. Super. Ct. 2014); see also Woodham v.
Dubas, 256 F. App’x 571, 576 (3d Cir. 2007). A plaintiff must show that defendant made an
“unprivileged, intentional intrusion upon land in possession of another.” Boring v. Google, Inc.,
362 F. App’x 273, 280 (3d Cir. 2010) (citation omitted). Proof of damages is not required to
impose liability for trespass. Id. at 281.
Defendant disputes whether the alleged site visits to Plaintiffs’ home occurred on October
15, 19, and in the morning of October 31, 2013. Def.’s Statement of Disputed Facts ¶¶ 30-32.
Defendant notes that Parker had access to Aaron’s placards from his time as an Aaron’s
employee, and thus could have obtained the placards himself.
The parties agree that Defendant’s employees made a site visit to Plaintiffs’ home on the
evening of October 31, 2013. However, Defendant argues that this intrusion and any other site
visits that occurred were not trespasses for two reasons. First, Defendant claims that it was
induced to make the site visits by Plaintiffs’ conduct. Second, Defendant argues that any visits
that occurred were privileged by an implied license to approach Plaintiffs’ property to attempt to
speak with Plaintiffs.
To support its inducement argument, Defendant relies on section 164 of the Restatement
(Second) of Torts. However, this section of the Restatement governs “Intrusions Under
Mistake,” and the provision Defendant cites excuses only a “merely harmless intrusion on land
under a mistake.” Restatement (Second) of Torts § 164 cmt. b (1965). Defendant does not claim
that its employees visited Plaintiffs’ residence by mistake. Accordingly, Defendant’s
inducement argument is without merit.
Defendant’s legal citations in support of its implied license argument are not so readily
dismissed. In the course of adopting the Restatement approach to define a trespass, Pennsylvania
courts have turned to section 330 of the Restatement (Second) of Torts, which concerns licensees
and is instructive in deciding whether Defendant here had an implied license to go on to
Plaintiffs’ property. See Longbottom v. Sim-Kar Lighting Fixture Co., 651 A.2d 621, 623 (Pa.
Commw. Ct. 1994). Section 330 provides that “[a] licensee is a person who is privileged to enter
or remain on land only by virtue of the possessor’s consent,” Restatement (Second) of Torts §
330 (1965), and the comments thereto note that consent may be granted not only by explicit
invitation, but also by acts upon “consideration [of] all the surrounding circumstances,”
including “customs prevailing in the community.” Restatement (Second) of Torts § 330 cmt. c
(1965). By definition, the scope of the license turns on the specific factual circumstances
presented in a given case. Pennsylvania courts have not set forth guidance for analyzing the
implied license, but useful principles have emerged in recent jurisprudence.
More specifically, the United States Supreme Court has described the implied license as
permission to “approach the home by the front path, knock promptly, wait briefly to be received,
and then (absent invitation to linger longer) leave.” Florida v. Jardines, 133 S. Ct. 1409, 1415
(2013).3 The license is limited; it does not apply to situations in which the prevailing customs of
the community would not condone an unsolicited visit. One limitation is the purpose of the visit.
For example, the Supreme Court in Jardines held that the license did not apply to a visit solely
for the purpose of conducting a dog-sniff search, with no attempt to speak to the occupant. See
Jardines, 133 S. Ct. at 1416 (noting that the license “is limited not only to a particular area but
also to a specific purpose . . . the background social norms that invite a visitor to the front door
do not invite him there to conduct a search”). Time of day is another limitation. “Courts have
emphasized that the implied license to visit is generally understood to extend during daylight
In Jardines, the Supreme Court invoked trespass law generally, and specifically the license “‘implied from the
habits of the country,’” to analyze residential searches under the Fourth Amendment. Florida v. Jardines, 133 S. Ct.
1409, 1415 (2013) (quoting McKee v. Gratz, 260 U.S. 127, 136 (1922)). The Supreme Court’s analysis of trespass
law to inform a Fourth Amendment holding in Jardines is not binding on this Court’s evaluation of Pennsylvania
trespass law, particularly in a matter which does not implicate the Fourth Amendment. However, Jardines and the
Fourth Amendment jurisprudence emerging from it present the most recent and thoroughly reasoned analysis of the
purpose and limits of this implied license. In light of the sparse guidance from Pennsylvania courts, the Court will
consider reasoning from Jardines and other courts’ application of Jardines to further elucidate the contours of the
implied license recognized by the Restatement.
hours.” United States v. Lundin, 47 F. Supp. 3d 1003, 1013 (N.D. Cal. 2014); see also Jardines,
133 S. Ct. at 1422 (Alito, J., dissenting) (“Nor, as a general matter may a visitor come to the
front door in the middle of the night without an express invitation.”). This lack of an implied
license at night arises from community disapproval of late-night intrusions. As the Supreme
Court of Kentucky has noted, “Girl Scouts, pollsters, mail carriers, [and] door-to-door salesmen
just do not knock on one’s door at midnight; and if they do, they are more likely to be met by an
enraged (and possibly armed) resident than one with a welcoming smile.” Commonwealth v.
Ousley, 393 S.W.3d 15, 30 (Ky. 2013). Although Pennsylvania courts have not specifically
analyzed the limits of the implied license, neither the parties nor the Court have located any
authority to suggest that Pennsylvania would depart from the principles articulated by the
Restatement, as discussed by the United States Supreme Court and elaborated upon by other
state and federal courts. Accordingly, the Court finds that Pennsylvania law recognizes the
implied license to approach a residence and knock on the door in an effort to speak with the
occupant, and that the scope of this license is determined by the “prevailing customs of the
The three alleged daytime visits on October 15, 19, and 31, 2013, if they occurred, do not
support a trespass claim. The only evidence concerning these visits is the three placards that
were allegedly left on Plaintiffs’ front door. From this evidence, the most that a fact finder could
rationally infer is that an employee or employees of Defendant approached Plaintiffs’ front door
in the late morning or early afternoon and left letter-sized placards with a brief message when
nobody answered the door. Any conclusion that Defendant’s employees did more than this
would be speculative. This specific activity—approaching a home to speak with the occupants
during daylight hours—is at the heart of the implied license. Without evidence of anything more
than attempts to speak with Plaintiffs and placards seeking follow-up, there is no rational basis
on which a fact finder could conclude that the implied license was exceeded. Accordingly,
Defendant is not liable for trespass arising from these alleged daytime visits.
Defendant’s employees’ status as invitees on the evening of October 31 cannot, however,
be determined as a matter of law. The visit occurred at 8:45 p.m.: a time at which a fact finder
could reasonably conclude, given the facts presented in the record before the Court, that the
prevailing customs in the community have implied a license to approach and knock, but could
also reasonably find that community customs do not imply such a license. Furthermore,
Plaintiffs have alleged that even if a license can be implied at that time in the evening,
Defendant’s employees’ purpose and conduct exceeded the scope of the license. The record is
not sufficient to determine the specific purpose of Alejandro and Kenner’s visit, their conduct
during the visit, or how long they lingered after being asked to leave. Since Defendant’s liability
for trespass turns on the existence of the implied license and whether any such license was
exceeded, there remain genuine issues of material fact and summary judgment cannot be granted
for either party on this claim.
B. Trespass Damages
In Pennsylvania, a “trespasser becomes liable not only for personal injuries resulting
directly and proximately from the trespass but also for those which are indirect and
consequential.” Kopka v. Bell Tel. Co., 91 A.2d 232, 235-36 (Pa. 1952); see also Restatement
(Second) of Torts § 162 (1965) (“A trespass on land subjects the trespasser to liability for
physical harm to the possessor of the land at the time of the trespass . . . or to members of his
household . . . caused by any act done, activity carried on, or condition created by the
Parker testified under oath that, after the incident on the evening of October 31, 2013, he
“didn’t really eat much . . . had a hard time sleeping . . . [and] had anxiety for quite a while.” JA
134. Immediately before describing these injuries, Parker said that “[I]t could have been people
hurting my kids. It could have been somebody hurting my wife. And yet I’ll still get arrested for
it.” JA 134. While it could be inferred that his anxiety arose from the arrest, there is a genuine
issue of fact whether the nighttime encounter with Defendant’s employees’ was itself the cause
of anxiety-related injuries. The alleged causal attribution of Moss’s headaches, shoulder pain,
and fibromyalgia is even more direct. She was not arrested and the description she provided at
deposition of the cause of her anxiety was “just not knowing whether or not they would actually
come back again, or not knowing whether or not [she] would be harassed over a television.” JA
202. Defendant presented no evidence to dispute these injuries. A reasonable fact finder could
credit Parker’s and Moss’s testimony, and thus award compensatory damages.
Plaintiffs also seek punitive damages. In Pennsylvania, punitive damages “must be
supported by evidence sufficient to establish that (1) a defendant has a subjective appreciation of
the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the
case may be, in conscious disregard of that risk.” Hutchinson v. Luddy, 870 A.2d 766, 772 (Pa.
2005). Punitive damages may be awarded even without compensatory damages under
Pennsylvania law, so long as there is a finding of liability on the underlying tort. See Rhoads v.
Heberling, 451 A.2d 1378, 1380 (Pa. Super. Ct. 1982) (“Pennsylvania has adopted the rule of
punitive damages as set forth in § 908 of the Restatement of Torts and the comments
thereunder.”) (citations and internal quotations marks omitted); Restatement (Second) of Torts §
908 cmt. c (1965) (“[A]n award of nominal damages is enough to support a further award of
punitive damages, when a tort, such as a trespass to land, is committed for an outrageous
purpose.”). When punitive damages are awarded along with compensatory damages, the
punitive damages need not be proportional to the compensatory damages. Kirkbride v. Lisbon
Contractors, Inc., 555 A.2d 800, 803-04 (Pa. 1989).
In this case, Plaintiffs have introduced testimony that Defendant encouraged employees
to use aggressive tactics during site visits to make customers feel “uncomfortable.” JA 84.
Given the timing of the October 31 evening visit and Defendant’s employees’ conduct during
that visit, a fact finder could conclude that the visit constituted outrageous conduct carried out in
conscious disregard of the risk of anxiety-based harm to the Plaintiffs—a conclusion that would
warrant the imposition of punitive damages. Thus, summary judgment limiting Plaintiffs to
nominal damages must be denied.
C. Breach of Contract
In Pennsylvania, “[t]he formation of a valid contract requires the mutual assent of the
contracting parties.” Degenhardt v. Dillon Co., 669 A.2d 946, 950 (Pa. 1996). Plaintiffs dispute
whether the computerized record of the purchase of a Sharp television produced by Defendant
concerns the television that Plaintiffs obtained from Defendant, which Plaintiffs maintain is a
Vizio. Pls.’ Statement of Disputed Facts ¶ 22. Furthermore, even if the reference to a “Sharp”
television is the result of a computer-input error and the computerized record is related to the
television in Plaintiffs’ residence, Plaintiffs dispute that any contract was formed between
Defendant and Moss (or any other party) concerning the purchase of the television or the Blu-ray
player. Defendant has not set forth evidence that Moss knew the essential terms of the alleged
contract to purchase the merchandise from Defendant, let alone assented to such terms. Nor has
Defendant presented arguments or authority concerning Moss’s liability for contracts entered
into by Parker as an agent on Moss’s behalf. Given Moss’s testimony that she did not know that
she was financially responsible for the merchandise, the lack of evidence that she ever
communicated directly with Defendant concerning the merchandise, and the discrepancies
between the information contained in Defendant’s records and the actual merchandise Plaintiffs’
admit to possessing, a rational fact finder could conclude that Moss never entered into a contract
with Defendant. Accordingly, summary judgment on Defendant’s breach of contract
counterclaim must be denied.
For the reasons stated herein, Plaintiffs’ and Defendant’s motions for summary judgment
are denied in all respects. An appropriate order will follow this opinion.
Dated: October 21, 2015
BY THE COURT:
/S/WENDY BEETLESTONE, J.
WENDY BEETLESTONE, J.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?