J-A08010-16



                             2016 PA Super 159

TELWELL INC.,                                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

GRANDBRIDGE REAL ESTATE CAPITAL
LLC,

                        Appellee                    No. 1713 EDA 2015


               Appeal from the Order Entered April 30, 2015
           In the Court of Common Pleas of Philadelphia County
                           Civil Division at No(s):
                       August Term 2011 No. 02204
                      October Term 2013 No. 02327


BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

OPINION BY BOWES, J.:                                 FILED JULY 21, 2016

      Telwell Inc. (“Telwell”) appeals from the trial court’s grant of summary

judgment in favor of Grandbridge Real Estate Capital LLC (“Grandbridge”),

on its contract claim, which was premised upon the court’s finding that there

was no evidence of a contractual relationship between the parties.         In

addition, Telwell challenges the court’s earlier grant of a demurrer as to its

tort claims against Grandbridge based upon the gist of the action doctrine.

After thorough review, we affirm in part and reverse in part.

      Telwell commenced this action in contract and tort against the Public

School Employees’ Retirement System (“PSERS”), and Grandbridge, alleging

that, together, they overcharged it interest on a $2.6 million ten-year

* Retired Senior Judge assigned to the Superior Court.
J-A08010-16



balloon mortgage note (“Note”) executed on March 3, 2003. The loan was

obtained to refinance a property Telwell owned in Philadelphia. PSERS and

Telwell executed a Permanent Loan Commitment setting forth the terms of

the loan and Telwell signed the Note.            The Note provided that, after sixty

months of interest at 8.5 percent, the interest would be recalculated based

on the U.S. Treasury Note Yield Rate at the time.1

       It is unclear whether, at the time of the mortgage loan, PSERS had

already entered a commercial real estate mortgage servicing agreement with

Laureate Capital, LLC (“Laureate”), Grandbridge’s predecessor, or whether it

did so shortly thereafter.            Nonetheless, as of November 1, 2007,

Grandbridge, the successor-in-interest to Laureate and the agent of PSERS,

assumed responsibility for collecting the monthly payments of capital and

interest   from    Telwell    and   escrowing     money    for    payment   of   taxes.

Grandbridge retained for itself a monthly servicing fee of $279.16, and paid

the remainder to PSERS.              After sixty months, Grandbridge did not

recalculate the interest as provided in the Note.                According to Telwell,

Grandbridge continued to charge, and Telwell continued to pay, 8.5 percent

interest instead of 4.85 percent interest, the recalculated rate.



____________________________________________


1
 The terms of the Note regarding the interest rate appear to be inconsistent
with the terms of the loan commitment document.



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      Telwell first became aware of this overpayment after it notified

Grandbridge on May 26, 2011, that it intended to refinance the property and

requested a payoff statement. In the midst of a disagreement over whether

a prepayment penalty was due, Telwell realized and communicated to

Grandbridge that it had been overcharged interest since March of 2008.

Grandbridge did not repay the overage or recalculate the interest, but

instead continued to charge Telwell the higher rate of interest.

      Telwell refinanced the loan and then commenced this action against

PSERS and Grandbridge sounding in both contract and tort. In its amended

complaint at count one, Telwell alleged that Grandbridge and PSERS

breached the terms of the Note as well as the implied covenant of good faith

and fair dealing in charging excessive interest. At count two, Telwell pled

that Grandbridge knew that it was overcharging and that it did so

intentionally, knowingly, and fraudulently. Additionally, Telwell averred that

Grandbridge made fraudulent misrepresentations to induce Telwell to enter

the loan relationship, never intending to recalculate the interest after sixty

months.    At count three, Telwell alleged that Grandbridge negligently

misrepresented the terms of repayment.       Finally, Telwell alleged in count

four that the defendants conspired to breach the contract and fraudulently

overcharge Telwell.

      Grandbridge and PSERS filed extensive preliminary objections, initially

challenging the court’s jurisdiction.   Specifically, Grandbridge and PSERS

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alleged that, under the Commonwealth Procurement Code, 62 Pa.C.S.

§1724, the Board of Claims had exclusive jurisdiction to hear all contract

claims   against   Commonwealth      agencies.     Preliminary   Objections   of

Defendants, 9/6/11, at ¶4. The defendants also demurred to the contract

count, maintaining that, since the complaint failed to allege that Grandbridge

was a party to the loan contract, the complaint failed to state a claim in

contract against that entity. Furthermore, the defendants alleged that the

loan commitment, which was executed on December 16, 2012, between

Telwell and PSERS, contained the agreement of the parties and it did not

provide for adjustment of the interest rate.     Telwell neglected to attach a

copy of that document to its complaint.

      With regard to the tort claims, the defendants averred that fraud was

not pled with the particularity required under Pa.R.C.P. 1019(b), in that

Telwell failed to plead that defendants’ representations were knowingly false

or that Grandbridge was involved prior to or during the formation of the loan

relationship. PSERS and Grandbridge also asserted that the tort claims were

barred by the gist of the action doctrine as the claims arose from the

contract and the duties allegedly breached were duties imposed in the

contract itself.

      Following the filing of preliminary objections, the trial court transferred

the contract claims against both defendants to the Board of Claims, agreeing

the Board had exclusive jurisdiction over claims arising from Commonwealth

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contracts pursuant to 62 Pa.C.S. § 1724.2 The court also concluded that the

gravamen of the tort claims sounded in contract, and dismissed them based

on the gist of the action doctrine.

        The Board of Claims subsequently determined that it did not have

subject matter jurisdiction over the contract claims against PSERS and

Grandbridge.       It further held that there was no exception from sovereign

immunity that would permit recovery against PSERS, and dismissed the case

in its entirety.    On appeal, the Commonwealth Court affirmed the Board’s

determination that it lacked subject matter jurisdiction, but concluded that

the Board erred in failing to transfer the claims against Grandbridge back to

the court of common pleas, and remanded with directions to the Board to
____________________________________________


2
    Title 62 Pa.C.S. § 1724, Jurisdiction, provides in pertinent part:

        (a) Exclusive jurisdiction. — The board [of Claims] shall have
        exclusive jurisdiction to arbitrate claims arising from all of the
        following:

              (1)A contract entered into by a Commonwealth agency in
              accordance with this part and filed with the board in
              accordance with section 1712.1 (relating to contract
              controversies).

              ...

              (3)Unless otherwise provided by law, a contract entered
              into by a Commonwealth agency involving real property
              interests in which the Commonwealth agency is the
              respondent.

62 Pa.C.S. § 1724.



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effectuate the transfer.         Telwell, Inc. v. Public School Employees’

Retirement System and Grandbridge Real Estate Capital LLC, No.

1734 C.D. 2013 (Pa.Cmwlth. 2014).

        Following transfer of the breach of contract claim against Grandbridge

to    the   court   of   common     pleas,     the   parties   engaged   in   discovery.

Grandbridge then filed a motion for summary judgment, which the trial court

granted, finding no contractual relationship that would support recovery in

contract.    This timely appeal followed in which Telwell challenges both the

earlier dismissal of its tort claims under the gist of the action doctrine and

the grant of summary judgment on its contract claim.3

        1.    Should the trial court have granted Grandbridge’s Motion
        for Summary Judgment, resulting in the entry of judgment in
        favor of defendant Grandbridge, on the basis that Grandbridge
        was not a party to the underlying agreement and that Telwell
        had not introduced evidence sufficient to sustain a claim for
        unjust enrichment, notwithstanding the fact that Telwell had
        adduced clear evidence that Grandbridge was aware of, and
        concerned about, the fact that it significantly overcharged
        Telwell in breach of obligations set forth in an applicable loan
        agreement?

        2.    Should the trial court have dismissed Telwell’s claims
        against Grandbridge for fraudulent misrepresentation, negligent
        misrepresentation, and conspiracy pursuant to the “gist-of-the-
        action” doctrine, notwithstanding the fact that the court did not
        determine whether Telwell had any contractual relationship with
        Grandbridge, and, later, inconsistently held that Grandbridge did
        not owe contractual duties to Telwell?

____________________________________________


3
     We have re-ordered the issues for ease of disposition.



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Appellant’s brief at 4.

      Telwell’s overarching premise is that the trial court’s order granting

summary judgment on the contract claims due to the absence of evidence of

a contractual relationship is fundamentally inconsistent with its earlier order

dismissing its tort claims against Grandbridge on the basis that the gist-of-

the-action was in contract. Telwell contends that a contractual relationship

with Grandbridge was a prerequisite to the applicability of the gist-of-the-

action doctrine, and that the trial court’s dismissal of its tort claims before

ascertaining whether there was a contractual relationship was premature

and improper.

      Grandbridge asserts Telwell’s position constitutes a false dichotomy.

According to Grandbridge, Telwell merely recast an ordinary breach of

contract claim as a tort claim in which the duty breached was the failure to

reduce the mortgage interest rate per the agreement. Since there was no

contractual relationship between Grandbridge and Telwell, Telwell could not

prevail on a breach of contract claim and summary judgment was properly

entered.

      As our Supreme Court reiterated in Gilbert v. Synagro Cent., LLC,

131 A.3d 1, 10 (Pa. 2015) (citing Basile v. H & R Block, Inc., 761 A.2d

1115, 1118 (Pa. 2000)), an appellate court’s scope of review of an order

granting summary judgment is plenary. Our standard of review is that “the

trial court's order will be reversed only where it is established that the court

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committed an error of law or clearly abused its discretion.”               Id.

Furthermore,

     [s]ummary judgment is appropriate only in those cases where
     the record clearly demonstrates that there is no genuine issue of
     material fact and that the moving party is entitled to judgment as
     a matter of law. The reviewing court must view the record in the
     light most favorable to the nonmoving party, resolving all doubts
     as to the existence of a genuine issue of material fact against the
     moving party. When the facts are so clear that reasonable minds
     cannot differ, a trial court may properly enter summary
     judgment.

Gilbert, supra at 10.

      The trial court granted summary judgment on the breach of contract

claim against Grandbridge because Telwell produced no evidence that

Grandbridge was a party to the loan commitment or Note, or that

Grandbridge purchased the Note, or that the Note was subsequently

assigned by PSERS to Grandbridge.         The court further concluded that

contractual liability could not be sustained on an unjust enrichment theory

because the benefit of overpayment was conferred upon PSERS, as

Grandbridge’s service fee remained the same regardless of the amount

collected.

      Telwell alleges that summary judgment was improper for three

reasons. First, it contends that the court’s ruling was inconsistent with its

earlier ruling that the gist of the action was in contract. Secondly, Telwell

argues that Grandbridge received a benefit from overcharging, if only briefly.

Finally, Telwell maintains that Grandbridge, as PSERS’s agent, undertook

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responsibility for compliance with the terms of the Note, and thus was liable

for any breach of its terms.      In support of that position, it relies upon

Bennett v. A.T. Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145,

150 (Pa.Super. 2012), where an agent who made repeated assurances and

guarantees about the quality of the construction work was held to have

voluntarily assumed personal responsibility on the principal’s contract with

the homeowner. Telwell contends that, at a minimum, there were genuine

issues of material fact as to whether Grandbridge personally undertook

responsibility for compliance with the Note, and exposed itself to personal

liability.

       Grandbridge counters first that Telwell failed to allege the existence of

a contractual relationship with Grandbridge.      Telwell merely pled that it

believed that at some point, Grandbridge may have purchased the Note from

PSERS.       Amended Complaint, 9/13/11, at ¶8.     Furthermore, Grandbridge

asserts that Telwell bore the burden of proving the breach of contract, and

that to avoid entry of summary judgment, it could not simply rely upon its

pleadings. See Pa.R.C.P. 1035.2(2) (providing for summary judgment if “an

adverse party who will bear the burden of proof at trial has failed to produce

evidence of facts essential to the cause of action or defense”).      It alleges

that Telwell offered no proof of a contractual relationship with Grandbridge.

In contrast, Grandbridge denied that it purchased the Note from PSERS,

denied the existence of a contractual relationship with Telwell, and supplied

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affidavits from its employees to the effect that there was no assignment of

the Note to Grandbridge. Additionally, Grandbridge provided a copy of the

mortgage satisfaction piece that was filed following the payoff that indicated

that the mortgage lender was PSERS.

       Grandbridge also challenges Telwell’s ability to recover on an unjust

enrichment theory, pointing out that Telwell did not plead that claim in its

amended complaint. Furthermore, if Telwell had been permitted to amend

after April 2012 to assert such a claim, Grandbridge asserts the claim would

be time-barred as it arose in March 2008. Moreover, Grandbridge maintains

that Telwell did not introduce sufficient evidence that it was unjustly

enriched as it received the same fixed monthly fee for servicing the loan and

transferred the remaining sums to PSERS.           Finally, Grandbridge contends

that Telwell is precluded from recovery on such a theory because it has

unclean hands: although Telwell knew it was being overcharged, it took no

action.

       Telwell counters that the grant of summary judgment based on

affidavits proffered by Grandbridge employees violates the Nanty-Glo rule.4

____________________________________________


4
  In Nanty-Glo v. American Surety Co., 163 A. 523, 524 (Pa. 1932), the
Supreme Court reversed a directed verdict, recognizing that "[h]owever
clear and indisputable may be the proof when it depends on oral testimony,
it is nevertheless the province of the jury to decide, under instructions from
the court, as to the law applicable to the facts, and subject to the salutary
power of the court to award a new trial if they should deem the verdict
(Footnote Continued Next Page)


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With regard to the unjust enrichment claim, Telwell argues that the trial

court would not have directed the parties to address unjust enrichment

unless the pleadings, liberally construed, fairly presented such a claim.

Furthermore, Telwell relies upon the persuasive value of Ruddy v. Mt. Penn

Borough Mun. Auth., 2014 WL 1852002, at *4 (Pa.Cmwlth. 2014)

(unpublished memorandum)5 for the proposition that recovery on an unjust

enrichment theory does not require that a defendant retain the benefit for

any specific length of time and that a party can be unjustly enriched even if

it passed along part of the benefit to another. Therein, a public utility was

deemed enriched due to a customer’s overpayment, even though it

effectively passed on the overpayment to ratepayers, because it benefitted

from the goodwill that flowed from not having to raise its rates. The critical

inquiry, according to Telwell, was whether one benefitted from what it

wrongfully obtained.          Appellant’s reply brief at 17 (citing Torchia v.

Torchia, 499 A.2d 581 (Pa.Super. 1985) (unjust to allow second wife to
                       _______________________
(Footnote Continued)

contrary to the weight of the evidence."       Nanty-Glo is cited for the
proposition that, when courts are determining whether there is a genuine
issue of material fact that would warrant submission of the issue to the jury,
the court may not summarily enter a judgment where the evidence consists
exclusively of oral testimony. See Stimmler v. Chestnut Hill Hosp., 981
A.2d 145, 154 (Pa. 2009).
5
  “An unreported panel opinion of the Commonwealth Court issued after
January 15, 2008, shall be cited only for its persuasive value, not as binding
precedent.” See Commonwealth Court's Internal Operating Procedures, 210
Pa.Code §69.414.



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retain the proceeds of her deceased husband’s life insurance policies where

husband promised for consideration to maintain the policies for the benefit

of his children, but subsequently changed the beneficiary designation to

second wife)).   Moreover, Telwell rejects Grandbridge’s assertion of its

unclean hands for a mere failure to act, maintaining that the doctrine would

only apply where the party seeking relief commits fraud, bad faith, or

unconscionable conduct.    Appellant’s brief at 18 (citing Olson v. N. Am.

Indus. Supply, Inc., 658 A.2d 358 (Pa.Super. 1995)).       In short, Telwell

contends that genuine issues of material fact surrounding the unjust

enrichment claim preclude the entry of summary judgment.

     As this Court held in Lackner v. Glosser, 892 A.2d 21, 24 (Pa.Super.

2006), in order “[t]o maintain a cause of action in breach of contract, a

plaintiff must establish: (1) the existence of a contract, including its

essential terms; (2) a breach of a duty imposed by the contract; and (3)

resulting damages.” We agree with the trial court that, as to its breach of

contract claim, Telwell had the burden of proving a contractual relationship

with Grandbridge.   It simply proffered no evidence of such a relationship

while Grandbridge supplied evidence refuting it.

     At the time the loan agreement was executed, Telwell dealt exclusively

with PSERS through its agent, BB&T. The record contains no evidence that

either Grandbridge or its predecessor, Laureate, was a party to the contract

between Telwell and PSERS. Furthermore, there was no proof that the Note

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subsequently was assigned to Grandbridge. Moreover, the Nanty-Glo rule

is not implicated herein because the affidavits supplied by Grandbridge

employees were not the sole evidence relied upon by Grandbridge in support

of its motion. The Note, the loan commitment document, the payoff letter,

and the mortgage satisfaction piece refuted Telwell’s allegation that there

was a contractual relationship between Grandbridge and Telwell.

       Nor   did   Telwell    offer   any      evidence   that   would   suggest   that

Grandbridge, as PSERS’s agent, voluntarily assumed personally liability on

the loan. Although Telwell dealt exclusively with Laureate and Grandbridge

in connection with repayment of the loan, Telwell did not plead or prove that

Grandbridge made any guarantees similar to those in Bennett, supra, that

would subject it to personal liability on the contract. In short, Telwell failed

to offer sufficient proof of a contractual relationship with Grandbridge to

raise a genuine issue of material fact as to a breach of contract.

       Unjust enrichment, however, is not dependent on the existence of a

contractual relationship.6 See Roman Mosaic & Tile Co. v. Vollrath, 313

A.2d 305, 307 (Pa.Super. 1973) (holding the doctrine inapplicable when the

parties’ relationship is based on a written agreement or contract).            Unjust

____________________________________________


6
  Although Telwell did not specifically plead a claim entitled unjust
enrichment, it pled facts that would arguably support such a cause of action.
Hence, the trial court did not err or abuse its discretion in directing the
parties to brief whether recovery could be premised on that legal theory.



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enrichment is an equitable doctrine that imposes a duty despite the absence

of an agreement, when one party is unjustly enriched at the expense of the

other.   In determining if the doctrine applies, the focus is on whether the

defendant has been unjustly enriched. As we reaffirmed in Lackner, supra,

“The elements of unjust enrichment are benefits conferred on defendant by

plaintiff, appreciation of such benefits by defendant, and acceptance and

retention of such benefits under such circumstances that it would be

inequitable for defendant to retain the benefit without payment of value.”

Id. at 24.    Whether the enrichment of the defendant was unjust was

deemed in Lackner to be the determining factor, and where the doctrine

applied, the remedy was to require the defendant to make restitution in

quantum meruit.      See Wilson Area School Dist. v. Skepton, 895 A.2d

1250, 1254 (Pa. 2006) (opinion announcing the judgment of the Court) (the

doctrine contemplates that "[a] person who has been unjustly enriched at

the expense of another must make restitution to the other.").

     The trial court concluded that Grandbridge did not retain any direct

benefit conferred due to the alleged overpayment of interest since it

transmitted any overpayment to PSERS. Furthermore, since Grandbridge’s

servicing fee was fixed rather than based on the amount collected, it was not

unjustly enriched in the form of higher fees. We agree. We find Ruddy,

supra, inapposite.    Telwell offered no evidence that Grandbridge received

any benefit, financial or otherwise, from overcharging it, and hence, no

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recovery will lie under that theory.        The facts herein are also readily

distinguishable from those in Torchia, where the second wife both received

and retained insurance proceeds to which she was not entitled.           Absent

proof    that   Grandbridge   benefitted   from   the   overpayment,   summary

judgment was properly entered on the unjust enrichment theory.

        We turn now to Telwell’s claim that the trial court improperly sustained

a demurrer to its tort claims against Grandbridge based upon the gist of the

action doctrine.

              The question presented in a demurrer is whether, on the
        facts averred, the law says with certainty that no recovery is
        possible. If doubt exists concerning whether the demurrer should
        be sustained, then this doubt should be resolved in favor of
        overruling it. Our Court's standard of review of a lower court's
        decision granting a demurrer is de novo.

Bruno v. Erie Ins. Co., 106 A.3d 48 (Pa. 2014) (internal citations and

quotations omitted).

        Preliminarily, we agree with Grandbridge that the granting of summary

judgment on the contract claims does not ipso facto mean that the trial court

erred in dismissing the tort claims as sounding in contract. It is possible for

a plaintiff to plead tort claims that are actually based on a breach of

contract, but suffer summary judgment on the breach of contract due to lack

of sufficient proof. That was not the case herein.

        Telwell pled both contract and tort claims, a common practice since

our rules permit the pleading of claims in the alternative.      See Pa.R.C.P.



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1020(c) (providing that “causes of action . . . may be pleaded in the

alternative.”). Grandbridge filed a preliminary objection in the nature of a

demurrer seeking to eliminate the tort claims as redundant of the contract

claim.   It also took the position that there was no contract between the

parties. The trial court was faced with a determination whether, as a matter

of law, Telwell’s tort claims sounded in contract and were barred by the gist

of the action doctrine.   The record consisted of the complaint, preliminary

objections, and response to preliminary objections.      Although Telwell pled

that Grandbridge breached a contract, Grandbridge denied that there was

any contract between itself and Telwell. Telwell maintains that it sufficiently

pled tort claims to withstand a demurrer based on failure to state a claim.

      We agree with Telwell that the trial court’s dismissal of the tort claims

based on a finding that the gist of the action was in contract was both

premature and erroneous. The Supreme Court’s recent decision in Bruno,

supra, informs our review. Justice Todd, writing for the majority, traced the

origins of the gist of the action doctrine, and reasoned that, “[i]f the facts of

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

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

something that a party would not ordinarily have been obligated to do but

for the existence of the contract — then the claim is to be viewed as one for

breach of contract.” Id. at 68 (citations omitted). “If, however, the facts

establish that the claim involves the defendant's violation of a broader social

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duty owed to all individuals, which is imposed by the law of torts and, hence,

exists regardless of the contract, then it must be regarded as a tort.” Id.

(citations omitted). The Court also referenced cases where even a party to a

contract was subject to liability in tort for negligently performing its

obligations under the contract and causing injury or harm to the other party

or to a third party.

      It was far from clear at the demurrer stage that the gist of the action

against Grandbridge sounded in contract and that recovery on a tort theory

was impossible. Telwell pled that Grandbridge fraudulently misrepresented

the amount of the monthly payment.             According to the complaint,

Grandbridge knew that it was overcharging Telwell, but withheld that

information and continued to overcharge Telwell.      Such a claim sounds in

tort as it implicates the “societal duty not to affirmatively mislead or advise

without factual basis.” Bruno, supra at 58 (citing Mendelsohn Drucker v.

Titan Atlas Mfg., 885 F. Supp. 2d 767, 790 (E.D. Pa. 2012) (tort claim for

fraudulent inducement of contractual relations not barred by the gist of the

action doctrine since act of fraudulent misrepresentation "constitutes a

breach of duty of honesty imposed by society, and not contractual duties.").

      Telwell also alleged that Grandbridge negligently misrepresented the

amount due.       “Negligent misrepresentation requires proof of: (1) a

misrepresentation of a material fact; (2) made under circumstances in which

the misrepresenter ought to have known its falsity; (3) with an intent to

                                    - 17 -
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induce another to act on it; and (4) which results in injury to a party acting

in justifiable reliance on the misrepresentation.” Bilt-Rite Contrs., Inc. v.

Architectural Studio, 866 A.2d 270, 277 (Pa. 2005).        Therein, our High

Court expressly adopted the Restatement (Second) of Torts § 552

(“Information Negligently Supplied for the Guidance of Others”), which

imposes tort liability against one whose business is to supply information,

and who knows it will influence others, but supplies it negligently. The Court

also held therein that the economic loss doctrine did not apply to preclude a

monetary recovery for claims of negligent misrepresentation falling within

that section.

      Based on the foregoing rationale, we affirm the grant of summary

judgment on the contract and unjust enrichment claims.       We reverse the

November 7, 2011 order sustaining the demurrer and dismissing all tort

claims against Grandbridge, and remand for further proceedings consistent

with this opinion.

      Order affirmed in part and reversed in part.          Case remanded.

Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2016




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