J-A27024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARK A. REARICK,                                   IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                           Appellant

                     v.

ELDERTON STATE BANK,

                           Appellee                   No. 1769 WDA 2014


             Appeal from the Order Entered October 24, 2014
            In the Court of Common Pleas of Armstrong County
                     Civil Division at No(s): 1615-2012


MARK A. REARICK,                                   IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                           Appellant

                     v.

ELDERTON STATE BANK,

                           Appellee                   No. 1770 WDA 2014


            Appeal from the Order Entered September 24, 2014
            In the Court of Common Pleas of Armstrong County
                     Civil Division at No(s): 1615-2012

BEFORE: BOWES, OLSON & STABILE, JJ.

MEMORANDUM BY OLSON, J.:                          FILED NOVEMBER 19, 2015

     Appellant, Mark A. Rearick, appeals from the orders entered on

September     24,   2014    and   October   24,   2014,   sustaining   preliminary

objections complaint filed by Elderton State Bank (ESB) and dismissing

Appellant’s complaint. Upon review, we affirm.
J-A27024-15



         We briefly set forth the facts and procedural history of this case as

follows.1    This case concerns the development of a commercial real estate

venture, generally referred to as the Saltwork Project, in Elderton,

Pennsylvania.     In 2006, Appellant secured a $205,000.00 loan from ESB,

secured by the property and guaranteed by Appellant.       In July 2007, ESB

loaned Appellant an additional $443,000.00 to begin construction. Appellant

and ESB agreed to expand the Saltwork Project from approximately 11,000

square feet of rental space to just under 16,000 square feet.      In January

2008, ESB agreed to lend Appellant a total of $1,200,000.00 and Appellant

secured the loan with several unrelated residential properties.     Appellant

transferred these properties to ESB via deeds in lieu of foreclosure.2 By the

end of 2008, the Saltwork Project was two-thirds completed when Appellant

requested another $1,000,000.00 to finish construction. ESB would not lend

additional funds because Appellant had received the bank’s maximum credit

limit.    In October 2008, ESB recommended an investor, Tom Smith, to

Appellant.     Smith loaned Appellant $875,000.00 and the Saltwork Project

was completed.

____________________________________________


1
   A more detailed account of this case may be found in this Court’s prior
memorandum filed on July 23, 2014. See Rearick v. Elderton State
Bank, 2014 Pa. Super. 157.
2
   Appellant owned another residential property that he also used to secure
the loans for the Saltwork Project.         However, this property was not
transferred through deeds in lieu of foreclosure. As discussed infra, ESB
later filed a complaint against Appellant to foreclosure on this property.



                                           -2-
J-A27024-15



      In September 2009, Appellant defaulted on his loans citing poor

economic conditions and low rental rates. Prior to default, however, on June

1, 2009, ESB executed the deeds in lieu of foreclosure on the residential

properties used by Appellant to secure the Saltwork Project loan.             In

October 2010, Smith purchased the Saltwork Project at auction for

$450,000.00;     the   Saltwork   Project   was   appraised   at   approximately

$1,450,000.00.     Thereafter, in January 2011, ESB filed an action in

mortgage foreclosure on the residential property owned by Appellant, used

to secure the ESB loan, which was not one of the properties transferred

through deeds in lieu of foreclosure. In June 2012, the trial court granted

summary judgment for ESB in the mortgage foreclosure action.           Appellant

did not appeal that decision.

      On October 24, 2012, Appellant filed a complaint against ESB, alleging

claims for breach of the implied covenant of good faith and fair dealing,

breach of fiduciary duty, alter ego, and negligence. On December 13, 2012,

ESB filed preliminary objections to the complaint.            In particular, ESB

demurred based on res judicata on the theory that Appellant should have

raised his claims in the earlier foreclosure action. The trial court agreed and

sustained ESB’s preliminary objection on res judicata grounds, concluding

that the substance of Appellant’s claims could, and therefore should, have

been raised in the earlier foreclosure action. The trial court dismissed ESB’s

remaining preliminary objections as moot.         On appeal, after a lengthy

discussion regarding permissive counterclaims in a mortgage foreclosure

                                      -3-
J-A27024-15



action, we remanded the matter for the trial court to rule on Appellant’s

remaining preliminary objections or to allow Appellant to amend his

complaint.

       On September 24, 2014, by order and accompanying opinion, the trial

court sustained ESB’s remaining preliminary objections and dismissed

Appellant’s complaint.         On October 14, 2014, without leave of court,

Appellant filed an amended complaint. He then filed a motion for leave of

court and an amended complaint on October 24, 2014.            The trial court

entered an order on October 24, 2014 denying Appellant’s request for leave

to file an amended complaint. This timely appeal followed.3

       On appeal, Appellant presents the following issues for our review:

         1. Whether the trial court erred when it, after sustaining
            ESB’s preliminary objections and dismissing [Appellant’s]

____________________________________________


3
   On October 24, 2014, Appellant filed a notice of appeal from the order
entered on September 24, 2014 granting ESB’s preliminary objections and
dismissing Appellant’s complaint. On that same date, Appellant also filed a
notice of appeal from the order entered on October 24, 2014, denying
Appellant’s motion to amend his complaint. On October 27, 2014, the trial
court ordered Appellant to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b) for both matters. On November
14, 2014, Appellant filed separate Rule 1925(b) statements. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on December 11, 2014. In
that opinion, the trial court addressed the issues pertaining to Appellant’s
request to amend his complaint and relied upon its earlier decision, issued
on September 24, 2014, for its rationale in sustaining preliminary objections
and dismissing Appellant’s complaint.         Appellant terms the instant
proceedings as “consolidated appeals.” In fact, Appellant simply challenges
two separate orders in the same case. Accordingly, we refer to these
proceedings as a single appeal.



                                           -4-
J-A27024-15


          [c]omplaint, did not allow [Appellant] to amend the
          [c]omplaint.

       2. Whether the trial court erred when it denied [Appellant’s]
          request to file an amended complaint.

       3. Whether in the course of disposing of ESB’s preliminary
          objections to count I of [Appellant’s] [c]omplaint, the
          trial court erred when it determined that [Appellant]
          failed to plead facts sufficient to establish that ESB owed
          [Appellant] a duty of good faith and fair dealing.

       4. Whether in the course of disposing of ESB’s preliminary
          objections to count I of [Appellant’s] [c]omplaint, the
          trial court erred when it determined that [Appellant]
          failed to plead facts sufficient to establish that ESB could
          have breached a duty of good faith and fair dealing that
          it owed to [Appellant].

       5. Whether in the course of disposing of ESB’s preliminary
          objections to count II of [Appellant’s] [c]omplaint, the
          trial court erred when it determined that [Appellant]
          failed to plead facts sufficient to establish that ESB owed
          [Appellant] a fiduciary duty.

       6. Whether in the course of disposing of ESB’s preliminary
          objections to count II of [Appellant’s] [c]omplaint, the
          trial court erred when it determined that for [Appellant]
          to advance a cause of action for breach of fiduciary duty,
          [Appellant] must plead facts sufficient to prove that
          Thomas Smith was ESB’s agent, expressly or implicitly
          authorized to make decisions and take actions binding on
          ESB.

       7. Whether in the course of disposing of ESB’s preliminary
          objections to count II of [Appellant’s] [c]omplaint, the
          trial court erred when it determined that [Appellant]
          failed to plead facts sufficient to establish that Thomas
          Smith was ESB’s agent, expressly or implicitly authorized
          to make decisions and take actions binding on ESB.

       8. Whether in the course of disposing of ESB’s preliminary
          objections to count III of [Appellant’s] [c]omplaint, the


                                    -5-
J-A27024-15


           trial court erred in determining that the alter ego theory
           of liability is inapplicable to this case.

        9. Whether in the course of disposing of ESB’s preliminary
           objection to count III of [Appellant’s] [c]omplaint, the
           trial court erred in determining that [Appellant] did not
           plead facts sufficient to establish a prima facie case for
           alter ego liability.

        10. Whether in the course of disposing of ESB’s preliminary
           objections to count IV of [Appellant’s] [c]omplaint, the
           trial court erred in determining that [Appellant’s] claim
           for negligence is barred by the economic loss doctrine.

        11. Whether in the course of disposing of ESB’s preliminary
           objections to count IV of [Appellant’s] [c]omplaint, the
           trial court erred in determining that [Appellant] did not
           plead facts sufficient to establish a prima facie case for
           negligence.

Appellant’s Brief at 4-5.

      Our review of a challenge to a trial court's decision to sustain

preliminary objections is guided by the following standard:

        Our standard of review of an order of the trial court
        overruling or [sustaining] preliminary objections is to
        determine whether the trial court committed an error of
        law. When considering the appropriateness of a ruling on
        preliminary objections, the appellate court must apply the
        same standard as the trial court.

        Preliminary objections in the nature of a demurrer test the
        legal sufficiency of the complaint. When considering
        preliminary objections, all material facts set forth in the
        challenged pleadings are admitted as true, as well as all
        inferences reasonably deducible therefrom. Preliminary
        objections which seek the dismissal of a cause of action
        should be sustained only in cases in which it is clear and
        free from doubt that the pleader will be unable to prove
        facts legally sufficient to establish the right to relief. If any
        doubt exists as to whether a demurrer should be sustained,



                                      -6-
J-A27024-15


         it should be resolved in favor of overruling the preliminary
         objections.

Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011) (citation

omitted).

      We have reviewed the certified record, the parties’ briefs, the relevant

law, and the trial court’s opinion entered on September 24, 2014.           That

opinion thoroughly and accurately disposes of Appellant’s issues regarding

ESB’s preliminary objections. Thus, we adopt that decision as our own. We

briefly recount the trial court’s determinations here.

      First, the trial court determined Appellant failed to present sufficient

allegations of fact to establish a claim for breach of the contractual duty of

good faith and fair dealing, relying upon this Court’s decisions in Creeger

Brick & Bldg. Supply Inc. v. Mid-State Bank & Trust Co., 560 A.2d 151,

153 (Pa. Super. 1989) and Cable & Associates Ins. Agency, Inc. v.

Commercial Nat. Bank of Pennsylvania, 875 A.2d 361, 362 (Pa. Super.

2005).      The trial court noted that Appellant did not aver ESB violated the

terms of any executed loan documents, made specific misrepresentations, or

committed fraud. Moreover, the trial court determined that Appellant, not

ESB, decided to expand the Saltwork Project and requested additional

funding. Additionally, the trial court opined Appellant failed to set forth facts

that gave rise to ESB’s independent duty of good faith, based solely upon

Appellant’s unsubstantiated allegation that his family had done business with

ESB for more than 50 years. Thus, the trial court determined Appellant had

not set forth a viable claim for breach of the contractual duty of good faith

                                      -7-
J-A27024-15



and fair dealing as a matter of law and sustained ESB’s demurrer on this

count of Appellant’s complaint.        We discern no legal error or abuse of

discretion.

      Next,   the   trial   court   examined    ESB’s   preliminary   objection    to

Appellant’s breach of fiduciary claim.     The trial court determined Appellant

failed to present facts showing that ESB directly controlled Appellant’s

business decisions or managed the funds used to finance the construction of

the Saltwork Project.       It further concluded Appellant failed to plead facts

sufficient to establish an agency relationship between ESB and Smith.

Instead, Appellant only alleged that Smith acted as an independent investor

who rendered opinions regarding construction and possible tenants.                The

trial court found there was no indication that ESB or Smith managed the

daily operations of the Saltwork Project.        Thus, the trial court sustained

ESB’s demurrer to Appellant’s breach of fiduciary claim. Again, we discern

no error of law or abuse of discretion.

      Regarding negligence, the trial court concluded Appellant’s claim was

barred by the economic loss doctrine, because no cause of action exists for

negligence that results solely in economic damages unaccompanied by

physical injury or property damage.           Here, Appellant’s alleged damages

included only the loss of his economic investment in property.           Moreover,

citing our decision on remand, the trial court held that Appellant’s claim that

ESB frivolously sold off Appellant’s properties, or that Smith subsequently

acquired properties improperly, should have been raised during the

                                        -8-
J-A27024-15



mortgage foreclosure action.     Thus, the trial court determined Appellant’s

negligence claim was barred by the economic loss doctrine. We agree.

      Finally, with regard to Appellant’s alter ego claim, the trial court found

that the claim was largely duplicative of Appellant’s fiduciary duty claim.

Moreover, it noted the alter ego theory is a means of piercing the corporate

veil and assessing liability for the acts of a corporation against an equity

holder in the corporation.      The trial court opined that there were no

allegations that Appellant or the Saltwork Project were themselves corporate

entities or that Appellant claimed that ESB shareholders were responsible for

his damages. Thus, the trial court sustained ESB’s preliminary objection in

the nature of a demurrer to Appellant’s claim under the alter ego theory of

liability. Again, we discern no abuse of discretion or error of law.

      We turn, now, to Appellant’s claims regarding the trial court’s denial of

his request to file an amended complaint. Recently, our Court has stated:

        Even where a trial court sustains preliminary objections on
        their merits, it is generally an abuse of discretion to dismiss
        a complaint without leave to amend. There may, of course,
        be cases where it is clear that amendment is impossible and
        where to extend leave to amend would be futile....
        However, the right to amend should not be withheld where
        there is some reasonable possibility that amendment can be
        accomplished successfully. In the event a demurrer is
        sustained because a complaint is defective in stating a
        cause of action, if it is evident that the pleading can be
        cured by amendment, a court may not enter a final
        judgment, but must give the pleader an opportunity to file
        an amended pleading....

        Nevertheless, a defective pleading that cannot be cured by
        amendment is appropriately dismissed upon a demurrer.

                                     -9-
J-A27024-15



Juszczyszyn v. Taiwo, 113 A.3d 853, 856 (Pa. Super. 2015) (internal

citations omitted).

       Here, in its December 11, 2014 opinion, the trial court determined

Appellant was not entitled to amend his complaint.        First, the trial court

deduced that Appellant did not request leave of court prior to filing his first

amended complaint.       Pursuant to Pa.R.Civ.P. 1028(e), the trial court

concluded that Appellant failed to file a motion for leave within 20 days of

the order dismissing his complaint and, thus, his request to amend was

untimely.   The trial court further declared Appellant never presented a

proper and timely filed motion for leave. Instead, without advance notice,

Appellant presented a single motion to file the prior amended complaint at

the same time he filed a second amended complaint.          Finally, and most

importantly, the trial court stated that on October 24, 2014, at motions

court, Appellant’s counsel specifically requested, with Appellant’s express

written consent, that the trial court deny the motion to amend. Thus, the

trial court concluded that Appellant could hardly complain about the entry of

an order that was requested and to which he consented. In sum, the trial

court concluded Appellant’s motion to amend his complaint was untimely,

procedurally defective, and denied at Appellant’s request with his express

consent. Upon review, we agree.

       Therefore, we conclude there has been no error or abuse of discretion

in this case and that the trial court’s September 24, 2014 and December 11,

2014    opinions   meticulously,   thoroughly,   and   accurately   dispose   of

                                     - 10 -
J-A27024-15



Appellant’s issues on appeal.   Therefore, we affirm on the basis of the trial

court’s opinions and adopt them as our own. Because we have adopted the

trial court’s opinions, we direct the parties to include the trial court’s

opinions in all future filings relating to our examination of the merits of this

appeal, as expressed herein.

      Orders affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2015




                                     - 11 -
                                                                          Circulated 10/29/2015 01:27 PM




  IN THE COURT OF COMMON PLEAS OF ARMSTRONG               COUNTY, PENNSYLVANIA


MARK A. REARICK,
                Plaintiff,

                     vs.
                                               No. 2012-1615-CIVIL
ELDERTON    STATE BANK,
                  Defendant.

                                  MEMORANDUM
Panchik,    J.

     Before the Court for disposition               are the Preliminary

Objections       filed by Defendant      Elderton    State Bank    ("Defendantn

or "ESB") to the Complaint          filed by Plaintiff Mark A. Rearick

{"Plaintiff" or "Rearick").             The Court originally       held argument

on the preliminary         objections    on February    28,    2013.     We then

entered a Memorandum          and Order on May 9,      2013, sustaining         ESB's

preliminary       objection   based on the doctrine       of res judicata and

dismissing       the remaining    objections   as moot.        Rearick    appealed

the Court's decision          to the Superior Court, which reversed                 the

Court's decision       on the res judicata issue.             The Superior      Court

directed    that on remand this Court could either rule on ESB's

remaining    preliminary      objections    or permit Rearick to amend his

complaint.        Pursuant    to the Superior Court's         directives,      we

herein rule on ESB's remaining            objections.
                                                                                             Circulated 10/29/2015 01:27 PM

Rearick   v.   Elderton    State   Bank
No. 2012-1615-Civil


                                          I.      STANDARD OF REVIEW

          In deciding preliminary                    objections            in the nature of a

demurrer,          we determine                the legal sufficiency            of the complaint.

Feingold v. Hendrzak,                      15 A.3d 937,            941 (Pa.    super. Ct.     2011}.

We accept as true all well-pleaded                                 material    facts set forth in

the complaint               as well as all inferences                      reasonably   induced

therefrom.            However,            we need not accept as true conclusions                       of

law,      unwarranted              inferences,       allegations,            or expressions       of

opinion.           Bayada Nurses,                Inc. v. Comm., Dep't of Labor and

Industry,          8 A.3d 866,             884    (Pa.   2010}.           Preliminary   objections

should be sustained                       "only in cases in which it is clear and free

from doubt that the pleader will be unable to prove facts

legally sufficient                    to establish         the right to relief."               Feingold,

15 A.3d at 941.                    We consider       the preliminary            objections      mindful

of a complaint's                   purpose:       to "apprise the defendant              of the

nature and extent of the plaintiff's                                 claim so that the defendant

has notice of what the plaintiff                               intends to prove at trial and

may prepare               to meet such proof with his own evidence."                            Weiss v.

Equibank, 460 A.2d 271,                         274-75   (Pa.       Super. Ct.      1983).    Any

doubts regarding whether                         a demurrer         should be sustained         should

be resolved in favor of overruling                                 it.     Employers    Ins. of Wausau

v. PennDOT,               865 A.2d 825,           830 n.       5   (Pa.    2005}.




                                                           2
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Rearick v. Elderton   State Bank
No. 2012-1615-Civil


                          II.      RELEVANT FACTUAL ALLEGATIONS

       We accept as true the following material                       allegations       of

fact pled in Rearick's                complaint.        We do not accept as true any

legal conclusions,              unwarranted    inferences,      or expressions          of

opinion.

        In 2006, Rearick developed                a plan to purchase        an abandoned

commercial       building          in Elderton,       Pennsylvania,     and renovate         it

to house retail and office space.                       In the Fall of 2006, Rearick

approached       ESB, with whom his family had a long-standing

relationship          of more than fifty years,             to secure funding for

what came to be known as the "Saltwork Project.n                           On July 25,

2006, Rearick requested                a $205,000,000       loan from ESB to purchase

the Saltwork Project property                 and to begin preparation             work      for

the development           of the site.        Rearick asked ESB whether              it was

interested       in participating          in the United States Department                   of

Agriculture's          Business       and Industry Guaranteed           Loan Program

("Loan Program"),            pursuant     to which the Department           of

Agriculture       would guarantee          80 percent       of a bank's investment                in

an approved development                project.        Rearick believed     that ESB's

participation          in the program would benefit             all parties        involved.

ESB was not interested                in the Loan Program.            Instead,   ESB made a

loan to Rearick           in the amount of $205,000.00,                secured by the

Saltwork      Project property           and by a guaranty        from Rearick.




                                                  3
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Rearick v. Elderton   State Bank
No. 2012-1615-civil


        On July 17, 2007, ESB loaned Rearick an additional

$443,000.00 to begin construction at the Saltwork Project,                      which

at that point totaled                10,927 square feet.     ESB previously had

approved the construction plans.                   Rearick then, with ESB's

approval, expanded the Saltwork Project from 10,927 square feet

first to 15,383           square feet and ultimately to 15,973 square

feet.      To cover the construction costs              for the increased space,

in January 2008, ESB increased the loan toiRearick                  to a total of

$1.2    million.        Rearick secured the additional debt using several

of residential          properties that were not part of the Saltwork

Project.       By late 2008, the Saltwork Project was only 66 percent

completed,      and Rearick needed another $1 million to complete

construction.           However,       ESB informed Rearick that it could not

increase     the loan any further because it had reached its

internal limit for credit that could be extended to any single

borrower.       ESB informed Rearick that he would have to secure

funding from another source.

        On October 16,             2008, at ESB's request,   an individual named

Tom Smith became an investor in the Saltwork Project.                   At the

time, Smith was an ESB shareholder.                   ESB had approached him

earlier about investing in the Project, but he had not been

interested.           This time, however, he agreed.          Smith loaned

Rearick a total of $875,000.00                that ESB agreed would be paid

back in full.          Using these funds,          the Saltwork Project was

                                               4
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Rearick v. Blderton State Bank
No. 2012-1615-Civil


completed.        During the final planning and construction of the

Project, Smith controlled the Project in that he made decisions

relating to construction, build-out, and tenant selection.            ESB

secured a guaranty from the Department of Agriculture's Loan

Program to ensure that Smith's investment would be repaid.            The

guarantee amounted to 90 percent (90%) of the total debt used to

fund the Saltwork Project.

       On May 8, 2009, Rearick and his real estate company, MKR

Rentals, Inc., executed loan documents pursuant to which they

agreed to pay ESB the principal sum of $3,415,000.00, secured by

the Saltwork Project and the additional properties owned by

Rearick.       Because of its guaranty from the Loan Program, ESB's

outstanding risk exposure regarding the debt was approximately

$340,000.00, or about 10 percent of Rearick's total debt.           In

September 2009, amid slow economic conditions and lower-than-

expected rental rates, Rearick defaulted on the loan.

       Rearick initially approached ESB about utilizing $800,000

in tax credits to ease some of his debt burden, but ESB instead

directed Rearick to sell his rental properties.        One month

later, ESB accelerated the loan, making the entire balance due

and payable immediately.         On June 1, 2009, apparently prior to

Rearick's default, ESB executed deeds in lieu of foreclosure for

the ten parcels of property that had secured the Saltwork

Project loan, not including the saltwork Project property

                                       5
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Rearick v. Elderton   State Bank
No. 2012-1615-Civil


itself, which was appraised at approximately $1.45 million.                          ESB

did not list the properties with a real estate broker.                        Instead,

it advertised the properties in the local Horse Trader, which is

a weekly advertisement publication.                   The properties were not

able to be sold at their appraised values.                      One property, valued

at $450,000.00,          ultimately was sold for $46,000.00, despite ESB

having previously received an offer of $360,000.00.                     The

Saltwork Project property was advertised by an auctioneer hired

by ESB.       On October 29,          2010, Smith purchased the Saltwork

Project property for $450,000.

                                   III. PROCEDUREAL   HISTORY

       ESB ultimately foreclosed on the properties that had

secured the Saltwork Project.                This Court entered summary

judgment in ESB's favor on June 11, 2008, at Civil No. 2011-

0984.     Rearick subsequently filed the instant action on October

24,   2012.     He brings claims for Breach of Contract (Implied

Covenant of Good Faith and Fair Dealing) (Count I), Breach of

Fiduciary Duty (Count II), Alter Ego (Count III), and Negligence

(Count IV).           ESB filed preliminary objections challenging all

counts of Rearick's complaint.                With the exception of ESB's

first preliminary objection based on res judicata, we rule on

each of the objections               as follows.1


1
  Because the issue regarding whether ESB used commercially reasonable
practices in its attempt to liquidate the properties that secured the
Saltwork Project was raised and litigated in the prior mortgage foreclosure

                                              6
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Rearick v. Elderton State Bank
No. 2012·1615-Civil




                                      IV.      DISCUSSION

          1.      Preliminary      Objection       2 - Demurrer         (Count I)

          ESB first demurs         to Court I of Rearick's              complaint        for

breach of the contractual              duty of good faith and fair dealing.

ESB contends         that it did not owe Rearick a duty of good faith

and fair dealing         merely because of the parties'                      lender-borrower

relationship.          ESB further argues that even if such a duty did

exist,         Rearick has not pled sufficient                facts to establish              that

it breached         such a duty.       Rearick counters              that a contractual

duty of good faith was implied in the loan documents                               executed by

the parties         and that he has pled facts                showing       that ESB breached

its duty by maneuvering              to protect          itself    against the

increasingly         debt-laden      Saltwork          Project.

          In Creeger Brick and Building                  Supply,    Inc. v. Mid-State

Bank and Trust         Co.,      560 A.2d    151       (Pa. Super.    Ct.     1989),     the

Superior Court confronted              facts remarkably            similar      to those in

this case,         addressing      the issue of "whether a borrower                     has

stated         a legally cognizable         cause of action against              a lending

institution         which, although         it has not violated             the terms of its

loan agreement,         has allegedly         failed to deal          with its         borrower

in good faith."          Id.     at 152.      Because the facts             in Creeger are



action,    Rearick is precluded in this case from seeking any damages allegedly
arising    from ESB's conduct in this regard.  See Superior Ct. Op. at 21.

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Rearick v. Elderton State Bank
No. 2012-1615-Civil


so analogous         to those alleged         in this case, we will discuss

Creeger in some detail.

       In Creeger,          the plaintiff/appellant         borrowers       had purchased

a closed, apparently             dilapidated        factory property    with the

intention of rehabilitating                it and reopening        a brick

manufacturing        plant.        Id.    The project was financed principally

by a loan from the defendant/appellant                    bank in the amount of

$250,000.00.          Id.     The Small Business Administration               guaranteed

ninety percent         (90%}     of this loan,        which was further secured by

the factory property             and additional        residential    properties         owned

by the plaintiff            borrowers.      The plaintiff        borrowers    contributed

a substantial         sum of their own money to the project,                  together

with funds that they borrowed                 from other entities.           Id.

       The plant initially did not become operational                        for several

months and was closed for several additional                       months    in the

winter season.          Id. at 153.         This caused the plaintiffs              to

suffer a cash shortage,              and so they requested          an additional         line

of credit from the defendant                bank.      The bank denied their

request.       Id.     The plaintiffs         then requested       that the bank

release one of their residential                    properties    so that it could be

sold for additional              funds.    The bank ultimately        agreed       to do so,

but on terms that plaintiffs                 could not meet.        The plaintiffs

ultimately      found another            lender who was willing       to purchase         90%

of the defendant            bank's loan and make additional            funds available

                                                B
                                                                                 Circulated 10/29/2015 01:27 PM

Rearick v. Elderton State Bank
No. 2012-1615-Civil


to the plaintiffs.               The bank refused to assign the loan and

demanded     payment under its guarantee                from the Small Business

Administration.           The plaintiffs        thereafter       suffered       financial

collapse.         Id.

        The plaintiff       borrowers     filed suit against             the bank,

alleging     that,      although     it had not breached          any specific         terms

of the loan agreement              with the plaintiffs,          it failed to act in

good faith in the following              respects:       1)    failing to provide          a

line of credit to plaintiffs;              2)       unreasonably       requiring    the

plaintiffs        to use borrowed       funds to buy equipment             and make

repairs;     3)    failing to release a property                from the loan so that

plaintiffs        could secure additional             capital;    4)    failing to

cooperate      with the plaintiffs         to obtain supplemental               financing;

5)   over-collateralizing            the loan; 6)       failing to notify

plaintiffs        of its demand       for payment on the guarantee                from the

Small Business Administration;              and 7)       taking the position           that

the plaintiffs          were not able to produce marketable                 product at

the plant and notifying              the plaintiffs'          other lenders of that

fact.     Id. at 153.            The defendant      bank filed preliminary

objections        to the complaint,       demurring       to the claim for breach

of the duty of good faith ·on the ground that such an action did

not exist in Pennsylvania.               The trial court sustained               the

preliminary       objections        and dismissed       the claim.        Id.   at 152.




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       On appeal, the Superior    Court summarized    as follows the law

of good faith as it applies      to lender-borrower    relationships:

       Section 205 of the Restatement (Second) of Contracts
       suggests that "[e]very contract imposes upon each
       party a duty of good faith and fair dealing in its
       performance and its enforcement." A similar
       requirement has been imposed upon contracts within the
       Uniform commercial Code by 13 Pa.c.s. § 1203. The duty
       of "good faith" has been defined as "[h]onesty in fact
       in the conduct or transaction concerned." Where a duty
       of good faith arises, it arises under the law of
       contracts, not under the law of torts. In this
       Commonwealth the duty of good faith has been
       recognized in limited situations.   Most notably, a
       duty of good faith has been imposed upon franchisors
       in their dealings with franchisees.   It has also been
       imposed upon the relationship between insurer and
       insured.

       Conversely, the Supreme Court of Pennsylvania has
       refused to impose a duty of good faith which would
       modify or defeat the legal rights of a creditor.

       It seems reasonably clear from the decided cases that
       a lending institution does not violate a separate duty
       of good faith by adhering to its agreement with the
       borrower or by enforcing its legal and contractual
       rights as a creditor. The duty of good faith imposed
       upon contracting parties does not compel a lender to
       surrender rights which it has been given by statute or
       by the terms of its contract. Similarly, it cannot be
       said that a lender has violated a duty of good faith
       merely because it has negotiated terms of a loan which
       are favorable to itself. As such, a lender generally
       is not liable for harm caused to a borrower by
       refusing to advance additional funds, release
       collateral, or assist in obtaining additional loans
       from third persons. A lending institution also is not
       required to delay attempts to recover from a guarantor
       after the principal debtor has defaulted. Finally, if
       the bank in this case falsely represented appellants'
       financial circumstances to other creditors for the
       purpose of damaging appellants' ability to continue
       doing business, appellants may have causes of action
       in tort for slander, misrepresentation, or

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         interference with existing or prospective contractual
         relations. There is no need in such cases to create a
         separate tort for breach of a duty of good faith.

 Creeger,      560 A.2d at 153-54             (internal citations          omitted}.     Given

 the nature of the plaintiffs'                  allegations,       which essentially

 claimed that that bank failed to extend them extra credit,

 failed to work with them to obtain additional                         financing

 elsewhere,       and maneuvered            to protect       itself against    the

 plaintiffs'       default,           the Superior Court agreed with the trial

 court that the plaintiffs                  had failed to plead facts sufficient

- to establish         a claim for breach of the duty of good faith and

 affirmed      the trial court's decision.                    Id. at 155.

         The Superior           Court confirmed          the Creeger decision        in Cable

 & Assocs. Ins. Agency, Inc. v. Commercial Nat'l Bank of Pa., 875

 A.2d    361 (Pa.       Super. Ct.         2005}.        In Cable & Associates,       the

 plaintiff      borrower         brought     claims for "Lender's          liability"       and

 "Bad Faith" against                  the defendant      bank, alleging     that the bank

 engaged     in bad faith when it refused                    to release certain accounts

 receivable       from the security on the plaintiff's                     loan so that it

 could obtain additional                  financing       elsewhere.    Id. at 362-63.

 The plaintiff          alleged         that the bank intended         to transfer     the

 money received           from the accounts              to an insurance    business    in

 which it had an interest.                   Id. at 363.        The bank demurred       to

 both claims, alleging                  that there existed no duty of good faith




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in the lender-borrower              relationship,     Id.    The trial court

agreed, and sustained              the preliminary     objections.         Id.

       on appeal, the Superior Court, relying on Creeger, noted

that there does not exist a separate duty of good faith between

a borrower      and lender outside of the general                contractual         duty of

good faith inherent              in every contract.         Id. at 364.      But see

Corestates      Bank, N.A. v.         Cutillo, 723 A.2d 1053, 1059 (Pa.

Super. Ct.      1999) ("due to the longstanding               relationship        between

the parties in this case, we cannot say that the parties                              have

not, as a matter of law,              developed     a relationship        wherein      the

Bank owes appellant              [borrower] a duty of good faithll).                The

Court reiterated         that "a borrower may plead sufficient                    facts to

make out a claim that a lender violated                     its general duty of

                                                                     1'
"good faith" arising out of the law of contracts.                           Id.

However,     the court was careful to note that a borrower                        must

demonstrate       more than the fact that a lender negotiated                       terms of

a loan favorable         to itself, adhered to and enforced                 its

contractual       or statutory        rights, or refused to advance

additional      funds, release         collateral,     or assist the borrower                in

obtaining      additional         financing    from other lenders.          Id. at 364.

The court affirmed          the trial court's dismissal            of the

plaintiff1s       claim, holding        that the bank's refusal            to release

collateral      on the plaintiff's            loan was insufficient         as a matter




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of law to establish                 a claim for breach of the duty of good

faith.      Id. at 365.

        Based on our readings of Creeger and Cable & Associates, we

find Count I of Rearick's                 complaint    to be devoid of sufficient

allegations       of fact that could establish              a claim for breach of

the contractual            duty of good faith and fair dealing.                Examined

closely, and without                 regard to the colorful rhetoric          and

conclusory       allegations           regarding ESB's intentions          and state of

mind, the complaint                 indicates that Rearick's    claim for breach of

the duty of good faith and fair dealing                    is based on the

following actions of ESB: 1) encouraging                    Rearick       to expand the

Saltwork Project without                 sufficient    financing;    2)    selecting

Smith as an investor in the project and ensuring                          that the

investment       would be repaid using Rearick's payments                    on the loan;

3)   allowing         Smith to control the Saltwork          Project and make

construction           and business decisions          to benefit    ESB ~nd Smith; 4)

requiring      Rearick        to increase the amount of his loan to cover

the funds advanced by Smith; 5) overburdening                       the Saltwork

Project with excessive                 debt and refusing    to restructure          the debt

to benefit Rearick;                 and 6) executing    deeds in lieu of

foreclosure       and then liquidating              the properties    in a

commercially          unreasonable        manner.      (Complaint at~~       26(a)-(f)).

       These allegations               are insufficient    as a matter of law to

establish      that ESB breached            any general duty of good          faith and

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fair     dealing       implicit         in the loan documents.             Rearick    does not

allege     that ESB violated               any terms of any of the loan documents

executed      among him, ESB, and Smith.                       Nor does    he,    outside     of

generalized           statements         about ESB's alleged            hidden intent and

scheming,         plead    that        ESB made     any specific        misrepresentations           or

committed         any fraud           in the parties'        business     relationship.            See

Cable, 875 A.23d at 365 (plaintiff borrower                              alleging    breach of

duty of good faith must                   "define the issues and every act or

performance         essential           to that     end must be set        forth in the

complaint";         plaintiff's           complaint        must contain      facts   to support

reasonable         inferences           as to defendant        bank's     state of mind or

improper      behavior).               Further,     Rearick's     own allegations         indicate

that it was Rearick,                   and not ESB,        that decided      to expand      the

Saltwork      Project          and request        additional      funding.        The fact     that

ESB protected          its investment             with     a guarantee     from    the United

States Department              of Agriculture,             refused   to directly      advance

any further         funding           to Rearick,     and executed        loan    documents        that

protected      its     interests          in the deal cannot            form the basis        of a

claim    for breach of the duty of good faith and fair dealing.

Those facts are almost                   identical        to those   in Creeger,      where        the

Superior      Court       rejected        the plaintiff's        claim.      It    is noteworthy

that Rearick          does not discuss              the Creeger case anywhere            in his

brief,     most    likely because            it     is fatal    to Count I of his

complaint.

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       Rearick relies heavily on the fact that ESB allegedly                                 hand-

picked Smith as an investor in the Saltwork                           Project.     He

contends     that ESB,      instead of directly                  loaning more money to

Rearick,     found an investor, who also was a shareholder                            of ESB,

to advance significant              additional         funds to the Project,            to be

repaid via loan payments              from Rearick.               Pursuant   to this

arrangement,       Rearick alleges that ESB minimized                        its risk by

getting     a guarantee          from the Department              of Agriculture      (which

Rearick     initially      suggested)           and leaving Rearick with the debt

burden.      However,      none of those facts, even if proven, could

amount to bad faith.               ESB protected           itself with the guarantee

and the funds from Smith.                  It also increased           Rearick's      debt

load, which would have increased                      in any event had ESB directly

loaned the funds to Rearick                 instead of employing              an outside

investor.       Finally, Rearick alleges that ESB forced the

expansion      of the Saltwork            Project and Rearick           to incur more

debt, and then deviously              failed to fund the project                 to

completion.        However,        Rearick himself admits              in the complaint

that the Project was expanded at his request,                           that he desired

the additional         funds to support the expansion,                   and that the

Project ultimately          was funded to completion.                   Compare Complaint,

~ 26 with complaint,              ~~ 4,    7,    8,   9,   16.

       Moreover,      we further find that Rearick has failed to plead

any facts to establish              a duty of good faith separate                  and apart
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from the general duty of good faith contained                 in the parties'

loan documents.          A plaintiff      borrower may establish      the

existence      of a separate duty of good faith owed by a lender if

it   can establish       that it and the lender's relationship              is

longstanding       and of a quality        that would give rise to such a

duty.     See Cutillo,           723 A.2d at 1059.     In the instant case,

Rearick pleads a single allegation                 that his family and ESB had

been "doing business with ESB for more than 50 years."

(Complaint, ~ 4).           He does not, however, allege any facts with

regard to the nature of the relationship,                 the types of

transactions       that were involved, or, most importantly,                the

specifics      of the relationship         between ESB and Rearick himself.

Without more, Rearick              has failed to allege any facts that could

give rise to an independent              duty of good faith outside of the

loan documents.          Compare Cutillo,         723 A.2d at 1059.

        In sum,    even accepting        as true all of the material         facts

pled    in the complaint,          many of which are contradictory,         we

cannot glean any set of circumstances                 that could support a

viable    claim for breach of the contractual              duty of good faith

and fair dealing.           For all these reasons,        and based on the

Superior     Court's decisions          in Creeger and Cable & Associates,           we

conclude     that Count I of Rearick's            complaint   fails as a matter

of law and must be dismissed.




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       2.      Preliminary        Objection   3 - Failure to Conform     (Count I)

       ESB next argues that Count I of Rearick's complaint should

be dismissed pursuant to Pa. R. Civ. P. 1028(a) (2) and Pa. R.

Civ. P. 1019(i)           because Rearick did not attach to his complaint

the loan documents that form the basis of his breach of contract

claim.      Rearick counters that he is not required to attach any

of the loan documents because the breach of contract claim is

based on an \\implied" duty and not on any particular               term of the

loan documents.            He argues alternatively     that he is under no

obligation      to attach the loan documents because they are in

ESB's possession.

       Rule 1019(i) of the Pennsylvania Rules of Civil Procedure

provides as follows:

       (i) When any claim or defense is based upon a writing,
       the pleader shall attach a copy of the writing, or the
       material part t·hereof, but if the writing or copy is
       not accessible to the pleader, it is sufficient so to
       state, together wit~ the reason, and to set forth the
       substance in writing.

Pa. R. Civ.         P. 1019(i).       By its clear language,   the Rule

requires a plaintiff to attach to the complaint the writings on

which the claims in the complaint are based.                Although     this

requirement         may be waived or overlooked where the missing

documents are in the possession               of the defendant,   see 4 Standard

Pa. Prac.      2d    §   21:80,    Rearick has not argued any viable reason

why the requirement              should be waived in this case.    He does not


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argue that the loan documents                    are large and cumbersome       or that

attaching       them would incur significant               cost.   He further does

not argue that he is not in possession                     of the loan documents        or

that he has demanded a copy from ESB and they were not produced.

Rearick      instead merely relies on the fact that ESB is in

possession       of the documents,              and therefore he should not have to

attach them.

        Because Count I of the complaint                   does not allege a specific

breach of any of the terms of the loan documents,                       and because

ESB no doubt is in possession                    of those documents,    we will not

dismiss      Count I solely on the basis of Rearick's                  failure to

attach them to the complaint.                      We note, however,   that because

the documents          are not attached,            their contents do not become        a

part of the allegations                  in the complaint,     and we do not have the

benefit      of reviewing             them to better determine     the relationship

between      the parties.              Nevertheless,    we will overrule    this

preliminary       objection.

        3.     Preliminary             Objection    4 - Demurrer   (Count II)

       ESB next demurs to Count II of Rearick's                    complaint     for

breach of fiduciary                  duty.   Rearick    alleges that ESB owed a

fiduciary      duty to Rearick               created by ESB's exertion     of control

over the Saltwork Project via its "proxy," Smith.                        ESB contends

that no fiduciary duty existed between                     ESB and Rearick      because




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Rearick has not pled facts sufficient                           to show the requisite

control necessary          to create the duty.                   We agree.

       For a fiduciary            relationship          to exist in a commercial

setting,     there must be a special relationship                          between      the

parties     involving      ~confidentiality,               the repose of special              trust

or fiduciary responsibilities."                         eToll, Inc.       v. Elias/Savion

Advertising,       Inc., 811 A.2d 10,              22     (Pa.    Super. Ct.      2002) (citing

Valley Forge Convention                 & Visitors Bureau v. Visitor's Servs.,

Inc., 28 F. Supp.2d              947,    952-953        (E.D.    Pa.    1998)).    Such a

relationship        "generally          involves a situation where by virtue of

the respective        strength and weakness                 of the parties,          one has the

power to take advantage                 of or exercise undue influence                   over the

other."      Id.     The critical question                 is "whether the relationship

goes beyond mere reliance on superior                           skill, and into a

relationship       characterized           by 'overmastering              influence'       on one

side or 'weakness, dependence,                 or trust, justifiably                 reposed'         on

the other side."           eToll, 811 A.2d at 23                  (quoting Basile v. H & R

Block, 777 A.2d 95,              101 (Pa.    Super. Ct.           2001)).

       Ordinarily,       the relationship               between a lender and a

borrower     is contractual             in nature and does not give rise to a

confidential       relationship.            See Fed. Land Bank of Baltimore                      v.

Fetner, 410 A.2d 344,              348 (Pa.    Super. Ct.              1979); Buczek v.         First

Nat'] Bank, 531 A.2d 1122, 1124                     (Pa.    Super. Ct.       1987); Temp-Way

Corp. v. Continental             Bank, 139 B.R.            299,    318    (E.D.   Pa.    1992).

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However,      the ordinary              lender-borrower         relationship   may be

transformed       into a special or fiduciary relationship                         if the

lender gains substantial                   control over the borrower's             business

affairs.       Stainton           v. Tarantino,         637 F. Supp. 1051, 1066          (E.D.

Pa.   1986)           "Control over the borrower                 is demonstrated     when

there is evidence               that the lender was involved             in the actual

day-to-day       management            and operations         of the borrower    or that the

lender had the ability                   to compel the borrower         to engage in

unusual transactions."                    Temp-Way,         139 B.R. at 318.    Generally,

courts have required a strong showing of control                             to establish        a

fiduciary relationship.                    Blue Line Coal Co., Inc. v. Equibank,

683 F. Supp. 493,               496     (E.D.    Pa.   1988).     A lender's   actions      in

monitoring       the borrower's             operations,         proffering   of management

advice, or taking measures                      to minimize      risk do not constitute

sufficient       control to establish                  a fiduciary    relationship.         Temp-

Way, 139 B.R.           at 318;        Blue Line Coal, 683 F.          Supp. At 496-97

(citing cases).

       Rearick alleges                 in his complaint         that: "[a]s a result of

ESB selecting           the individual            with whom Rearick would          'partner'

and by ESB,       through             its proxy, taking direct control of the

Saltwork      Project, ESB's involvement                     with Rearick extended        beyond

the traditional            lender/borrower             relationship    to form a

confidential          relationship          giving rise to a fiduciary           duty."

(Complaint, ~ 29);                "ESB,    acting through its proxy, exercised

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complete     control over the Saltwork Project, going so far as to

make construction          decisions       and pass judgment on what kind of

business     constituted         an appropriate       tenant"    (Id.,   130); and "the

Saltwork     Project was completed            with Smith, as ESB's surrogate,

assuming     complete control of the Saltwork                 Project and making all

decisions      relating      to construction,         build-out,    tenant selection

and the like."         (Complaint,     1    16).     Rearick does not allege that

ESB or any of its employees                directly    controlled    Rearick,      his

business,      his decisions,        or the day-to-day          operations     of the

Saltwork     Project,       Nor does Rearick argue that ESB directly

managed     the funds that were used to finance the construction                          of

the Saltwork Project.             Rearick     instead contends       that ESB,

through a "proxy" or "surrogate,"                   controlled    the Saltwork

Project.      Thus, as a preliminary               matter,   for Rearick's      breach of

fiduciary     duty claim to succeed, he must be able to show that

Smith was ESB's agent, expressly                   or implicitly    authorized       to

make decisions        and take actions binding on ESB.

       The Pennsylvania          Supreme Court has summarized            the

parameters      of the principal-agent             relationship     as follows:

      The law is clear in Pennsylvania that the three basic
      elements of agency are: the manifestation by the
      principal that the agent shall act for him, the
      agent1s acceptance of the undertaking and the
      understanding of the parties that the principal is to
      be in control of the undertaking. Agency results only
      if there is an agreement for the creation of a
      fiduciary relationship with control by the
      beneficiary. The burden of establishing an agency

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        relationship rests with the party asserting the
        relationship.   An agency relationship is a fiduciary
        one, and the agent is subject to a duty of loyalty to
        act only for the principal1s   benefit. Thus, in all
        matters affecting the subject of the agency, the agent
        must act with the utmost good faith in furthering and
        advancing the principal1s   interests, including a duty
        to disclose to the principal all relevant information.



        The special relationship arising from an agency
        agreement, with its concomitant heightened duty,
        cannot arise from any and all actions, no matter how
        trivial, arguably undertaken on another's behalf.
        Rather, the action must be a matter of consequence or
        trust, such as the ability to actually bind the
        principal or alter the principal1s   legal relations.
        Indeed, implicit in the long-standing Pennsylvania
        requirement that the principal manifest an intention
        that the agent act on the principal1s   behalf is the
        notion that the agent has authority to alter the
        principal1s relationships with third parties, such as
        binding the principal to a contract.

Basile v. H & R Block, 761 A.2d 1115, 1120, 1121 (Pa.

2000) (internal citations           and quotations       omitted).

        Considering        these principles,       we conclude    that Rearick      has

failed to plead facts sufficient                  to establish   an agency

relationship          between ESB and Smith that would operate            to bind

ESB to Smith's actions with regard to the Saltwork                    Project.

Rearick alleges throughout              his complaint     that ESB selected

Smith, who was then a shareholder                 of ESB, to be an investor         in

the Project, built into the loan documents                  a guarantee      to

protect Smith's           investment,    and that Smith, after Rearick's

default, purchased            the Saltwork Project property.          These facts,



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even accepted as true and taken in the light most favorable                                  to

Rearick,        do not establish           that ESB manifested           its intention       for

Smith to act on its behalf,                     to alter ESB's relationship           with

Rearick or other third parties, or to bind ESB in its legal

dealings.            The facts instead establish,              at most, that Smith

acted as an investor               in the Project and took actions                 for his own

benefit.         There is no indication                 in the complaint that Smith

acted specifically               for ESB's benefit or under its direction.

Further,        the mere fact that Smith allegedly                     was a shareholder          of

ESB does not,             in and of itself, create an agency relationship.

A shareholder does not, by virtue of its ownership                            interest       in a

corporation,          become a de facto agent of the corporation                      in

dealing with third parties.                     MacBrine-McAdams         Realty Co.     v.

Morris,        196   A.   511,    512    (Pa.   Super. Ct.     1938)    (citing Puritan

Coal Mining Co.            v. Pa.       Railroad   Co.,     85 A.426,     432-33    (Pa.

1912))     .

          Even assuming          that Smith became ESB's agent, Rearick

nonetheless          has failed to allege facts in his complaint                      that

would evidence the level of control necessary                            to create a

fiduciary        relationship           between ESB and Rearick.            Rearick    alleges

that Smith made construction                    decisions,     determined     what kinds of

tenants he thought would be appropriate,                        and made decisions

regarding        \\build-out."          He makes several conclusory            allegations

that Smith took \\direct"                and "complete"        control of the Saltwork

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Project,         but he alleges no facts to support those contentions.

He does not allege              that either Smith or ESB entered                    into

contracts         with builders,          subcontractors,         or tenants.         He does

not allege         that either          ESB employees        or Smith     dealt with local

government         agencies          and municipalities        in securing       necessary

permitting,         utilities,          taxes,     or the like.        Most importantly,

with     regard to the          funds disbursed            to Rearick,     he does      not

allege     that     ESB or Smith dictated                 how the funds would be

disbursed,         managed      payments         to third parties,        or in any other

way exercised          dominating         control        over the funding,       planning,          or

management         of the Saltwork             Project.      Other than making decisions

regarding         construction         matters      and rendering        opinions     with

regard to who would be appropriate                         tenants on the premises,

Smith,     and thereby          ESB,     did not exert the         requisite        level     of

control over Rearick                 or the Saltwork         Project     that would         create       a

fiduciary        duty.

         Rearick      relies       heavily       on the Superior       Court's    decision          in

Garbish     v.    Malvern Federal Savings and Loan Ass'n,                        517 A.2d          547

(Pa.     Super.     Ct.    1986)      to support         his argument     that ESB owed

Rearick     a fiduciary            duty outside          of their ordinary       lender-

borrower     relationship.              We find      Garbish    to be markedly

distinguishable            from the case at bar.               In Garbish,       the plaintiff

borrowers        brought      suit against the defendant                 bank in trespass

and assurnpsit,           alleging      that     the bank misappropriated             the

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disbursement       of funds from a construction              account over which the

bank retained complete              control.        Id. at 550.     The plaintiffs          in

Garbish argued that the bank owed the plaintiffs                       a fiduciary

duty as their agent in disbursing                    the construction      funds, which

the bank breached.               A jury agreed, and the bank appealed                the

verdict.        Id. at 550-51.

        On appeal, the Superior Court agreed that the bank owed the

plaintiffs      a fiduciary         duty given the degree of control                that the

bank exercised        over the fund used to finance the construction                        of

the plaintiffs'         new home.       The court noted that the fund was

created at closing, where both the plaintiffs                       and the building

company were required              to execute a building          agreement,    a

schedule     of operations,          and a description       of materials.           The

plaintiffs      also were required to contribute                  $16,000 of their own

money at closing that ultimately                    would be controlled       by the

bank.     Id.   at 549.          The plaintiffs       in Garbish were not permitted

to participate        at all in the payments             that the bank made to the

builder and generally              were not advised of the nature and details

of the vouchers         that were paid.             The bank also expressly          told

the plaintiffs        that it was an expert in the disbursement                      of

construction       fund money and utilized              its own inspectors          to

review the progress              of the construction       site.     Id.   at 549-50.

Based on those facts, the Superior Court concluded                         that the bank

had indeed exercised              absolute and exclusive          authority    over the

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Rearick v. Elderton State Bank
No. 2012-1615-civil


building project         and the fund that was financing         it.     Id. at

551.

       Such are not the facts pled in Rearick's               complaint.       There

are no indications           that ESB or Smith managed       the day-to-day

operations      of the Saltwork       Project.    Rearick cannot merely state

that Smith exerted           "complete"   control over the Project without

showing how that occurred,            particularly   with regard to how funds

were used and who made financial decisions.

       For these reasons, we will sustain ESB's preliminary

objection      and dismiss Count II of Rearick's            complaint.

       4.      Preliminary       Objection   5 - Demurrer    (Count IV)

       ESB demurs to Count IV of Rearick's            complaint    for

negligence      on several grounds.          ESB argues first that the claim

is barred by Pennsylvania's            "gist of the action doctrine."              ESB

next argues that the negligence              claim fails because Rearick           has

failed to plead facts that would establish               that ESB either owed

a duty of care to Rearick            or that any breach of such a duty

caused Rearick's         default.     Finally, ESB argues that the

negligence      claim is barred by the "economic            loss doctrine."         We

will address each argument            in turn.

       a.      Gist of the Action

       The "gist of the action" doctrine             remains viable      in

Pennsylvania,        as it is used and addressed        frequently     by the

Superior     Court and has not expressly been rejected by the

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Rearick v. Elderton State Bank
No. 2012-1615-Civil


Supreme Court.          See Reardon v. Allegheny             College,   926 A.2d 477,

486 & nn.      10,11    (Pa.     Super. Ct.   2007).     Generally,       the doctrine

bars a plaintiff         from re-casting        ordinary breach of contract

claims into tort claims.              Empire Trucking Co.,           Inc. v. Reading

Anthracite      Coal Co.,        71 A.3d 923,      931 n.2    (Pa.   Super. Ct.     2013}.

In Reardon,       the Superior Court summarized               the doctrine     as

follows:

       The gist of the action doctrine acts to foreclose tort
       claims: 1) arising solely from the contractual
       relationship between the parties; 2) when the alleged
       duties breached were grounded in the contract itself;
       3) where any liability stems from the contract; and 4)
       when the tort claim essentially duplicates the breach
       of contract claim or where the success of the tort
       claim is dependent on the success of the breach of
       contract claim. The critical conceptual distinction
       between a breach of contract claim and a tort claim is
       that the former arises out of breaches of duties
       imposed by mutual consensus agreements between
       particular individuals, while the latter arises out of
       breaches of duties imposed by law as a matter of
       social policy.

Reardon,      926 A.2d at 486-87        (internal quotations            and citations

omitted).        "A breach of contract may give rise to an actionable

tort where the wrong ascribed             to the defendant           is the gist of

the action,       the contract       being collateral."          Hart v. Arnold,         884

A.2d 316,      339 {Pa.      Super. Ct.   2005).       In determining       whether      the

doctrine     applies      to bar a tort claim,'        Pennsylvania       courts employ

the following principles:

       When a plaintiff alleges that the defendant committed
       a tort in the course of carrying out a contractual
       agreement, Pennsylvania courts examine the claim and

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Rearick v. Elderton state Bank
No. 2012-1615-civil


       determine whether the "gist" or gravamen of it sounds
       in contract or tort. The test is not limited to
       discrete instances of conduct; rather, the test is, by
       its own terms, concerned with the nature of the action
       as a whole.

Indalex Inc.       v. Nat'l Union Fire Ins.           Co.    of Pittsburgh,       83 A.3d

418,   424 (Pa.      Super. Ct.      2013) (quoting Erie Ins. Exchange             v.

Abbott Furnace Co.,              972 A,2d 1232, 1238    (Pa.    Super. Ct.       2009))

       We note first that the relationship                  between    Rearick    and ESB

essentially       was contractual.        Although     Rearick generally         alleges

that his family and ESB had a relationship                    lasting more than 50

years, such a relationship              in and of itself does not give rise

to a special, social relationship                 that would create any duties

between     them independent         of their financial        agreements.       Rearick

argues in his brief that the duties underlying                    his negligence

claim arise from the "special relationship"                    between ESB and

Rearick, whereby ESB made Rearick's                 business    decisions     for him

and "took control" of the business.                  (Rearick Brief, at 12) .

Rearick     alleges that ESB selected             Smith as an investor and

forced Rearick to enter into a relationship                    with him so that the

Saltwork     Project could be financed by Smith's                funds.     He further

alleges that ESB entered              into a financing arrangement          with

Rearick     such that Smith would be paid back his investment                      via

Rearick's      payments on the loan.          Rearick contends          that ESB

protected      itself against a significant            majority       of the financial

risk of the Project by utilizing                 the Business    and Industry

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Rearick v. Elderton State Bank
No. 2012-1615-Civil


Guaranteed      Loan Program, which Rearick himself                         initially

suggested      to ESB.       ( Comp 1 a int ,   1,   5,   12 - 1 7 ) .

       We conclude       that, as pled, the alleged duties giving rise

to Rearick's        negligence      claim are grounded               in what Rearick

argues is a "special relationshipn                    that existed between               the

parties outside         the parameters          of the loan documents.              The

gravamen     of Rearick's        claims in this regard essentially                      sound in

tort and not in contract.                This relationship                is the very

relationship        that forms the basis of Rearick's                       breach of

fiduciary      duty claim, discussed             infra.        The only contractual

claim in Rearick's          complaint       is Count I,          which is based on a

general     duty of good faith and fair dealing.                           Rearick does not

allege any specific breaches                of any of the several agreements

between himself and ESB.               We therefore          are constrained            to

conclude     that    his action, taken as a whole, is grounded                           in what

he contends are duties arising out of social policy

considerations        and not strictly contractual                       obligations.        For

this reason, we conclude              that the gist of the action doctrine

does not,      in and of itself, bar Rearick's                     negligence     claim.           We

already have discussed,             and will again discuss                  supra, whether

these alleged duties are in fact present                         in this case.

               b.     Economic Loss Doctrine

       ESB contends        that Rearick's        negligence              claim, which seeks

monetary     damages     in excess of $25,000,               is barred by

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Pennsylvania's        economic       loss doctrine.      The economic       loss

doctrine,      as adopted by the Pennsylvania                Supreme Court, provides

that "no cause of action exists for negligence                     that results

solely in economic damages unaccompanied                     by physical    injury or

property     damage."       Knight v.     Springfield        Hyundai,   81 A.3d 940,

952 (Pa.     Super. Ct.          2013) {quoting Excavation       Technologies,       Inc.

v.   Columbia Gas Co.            of Pa, 985 A.2d 840, 841 (Pa. 2009)).               See

also Id.     at 952 n.      9     (noting alternative        definitions   of the

doctrine,      which preclude         recovery     in tort of purely economic

losses that either arise exclusively                  from a contract      or are

unaccompanied        by physical harm to a plaintiff              or his property).

       Rearick does not specify the amount of damages                      that he

seeks in this action.               It is unclear     from the complaint       whether

he seeks reimbursement              of funds paid on the loans that financed

the Saltwork       Project, the value of the properties                 that were

foreclosed      upon in the mortgage         foreclosure        action, or another

amount.      What is clear, however,              is that any damages       that

Rearick allegedly          has suffered are purely economic              and cannot be

recovered     via his negligence          claim.      Rearick has not alleged          any

personal     injury or damage to property              as a result of any of

ESB's actions.          Instead, he claims that he seeks monetary

damages     together with damages as a result of the "loss of his

properties      which ESB frivolously             disposed   of through     the Horse

Trader or unfairly bestowed upon its own agent."                        {Rearick

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No. 2012-1615-Civil


Brief, at 14);         (Complaint,     ~1   19-22).    The loss of the

properties      and their value also is economic harm that cannot be

recovered      in a negligence        claim.      Moreover,    the loss of

Rearick's      income-producing        properties,     which he argues came as a

result of ESB's "frivolous" manner of reselling                    them and unfair

bestowal     of the properties         on Smith, are damages        that cannot be

recovered      in this action.         They directly     are related    to the

prior mortgage        foreclosure      action and permitting        such a claim in

this action would undermine             ESB's judgment        in that case.       See

Superior Court Op. at 21.

        Accordingly,      we conclude       that Rearick's     negligence     claim is

barred by the economic             loss doctrine,     and we will sustain ESB's

preliminary      objection        in this regard.

        c.    Duty and Causation

        To establish      a claim for negligence,         a plaintiff      must

demonstrate      that "the defendant           owed a duty of care to the

plaintiff,      the defendant        breached     that duty, the breach resulted

in injury to the plaintiff,             and the plaintiff       suffered     an actual

loss or damage."          Martin v. Evans, 711 A.2d 458, 461 (Pa.                 1998).

        Rearick alleges          in his negligence     claim that ESB owed him a

duty of care arising out of "its longstanding                   relationship       with

him,"    its directive       to him to contact other investors             for the

Saltwork     Project, and its "brokering" of the transaction                   between

him and Smith.          (Complaint, ~~ 39-41)          He then alleges       that ESB

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Rearick v. Elderton   State   Bank
No. 2012-1615-Civil



breached      those duties of care by selecting                Smith as an investor

and colluding          with him to place Rearick at a disadvantage.

These alleged duties are separate and apart from the duties that

undergird      Rearick's             breach of contract and breach of fiduciary

duty claims.           The facts, however, do not as a matter of law give

rise to a duty of care running from ESB to Rearick                       that is

independent       of the duties embodied              in the loan documents        between

the parties.           Absent a special relationship            that would give rise

to a potential           fiduciary        duty, a lending institution         does not

owe a general duty of care to a borrower.                      See Rousseau       v.    City

of Phila., 514 A.2d 649, 652 {Pa. Commw. Ct. 1986).                           Rearick

argues in his brief that a duty of care arose because                          of the

"special role" that ESB took in Rearick's                     business   by

controlling       its business            through its alleged agent, Smith.                 That

relationship,          however,         if it did indeed exist, would give rise

to a potential          claim for breach of fiduciary duty and not one

for ordinary          negligence,          As we discussed    above, no claim for

breach of fiduciary                  duty exists in this case.

       Moreover,        Rearick has not pled any facts to substantiate

his allegations           that a duty arose from his prior relationship

with ESB.       The mere fact that the relationship                is alleged          to

have been for a significant                  duration   {50 years) does not create

a duty of care between ESB and Rearick.                      Nor do the facts that

ESB found an investor                  to fund the Saltwork project and organized

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Rearick v. Elderton State   Bank
No. 2012-1615-Civil


the contractual         arrangements         to allow the investor          to become

involved in the Project in and of themselves                       give rise to a duty

of care.       Rearick has directed            the Court to no legal authority

that would support such a duty, and we have not found any in our

own search.         Thus, we find that Rearick              has failed to plead

facts that,       if true, would establish            a duty to support his

negligence       claim, which we will dismiss on this ground.

       We further conclude            the Rearick     has failed to plead facts

sufficient       to establish        the causation        element of his negligence

claim.      Even assuming          that Rearick has pled facts establishing                   a

duty of care and that ESB breached                  that duty by involving            Smith

in the financing            arrangement,     over-leveraging        the properties,        or

organizing       or exercising        control over the Saltwork             Project,

Rearick does not plead any facts showing how any of the Bank's

actions caused Rearick's              default.      Instead, he alleges         that many

of the increases            in financing were made at his own request,                  that

the Saltwork Project ultimately                was completed,           and that he paid

on the loan for several months before defaulting,                         at least in

part because of "a still floundering                  economy and tenant

occupancy      rates that, as a result of a poor economy,                     were below

projections."          (Complaint,      ~1   4-9,   12,    16,   18}.    Because     Rearick

has failed to set forth sufficient                  facts to establish         the

causation      element of his negligence             claim, we will sustain ESB's

preliminary       objection        on this additional        ground as well.

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Rearick v. Elderton State Bank
No. 2012·1615·Civil


       5.      Preliminary       Objection    6 - Demurrer    (Count III)

       Lastly, ESB demurs to Rearick's              "alter ego" claim on the

ground that such a claim does not exist in Pennsylvania.

Rearick alleges         that ESB controlled       Rearick    and the Saltwork

Project to a degree that ESB,            Rearick,     and the Saltwork Project

essentially       were the same economic          entity.    Rearick   alleges     that

                                                                                         11
ESB controlled        the Sal twork Project chiefly          through its \\proxy,

Mr.   Smith.      We conclude      that the "alter ego" theory is

inapplicable       to this case and,         even if it were applicable,

Rearick     has failed to plead facts that could prove the claim in

any event.

       The Pennsylvania          Superior Court recently       has described       the

nature of the "alter ego" theory of liability                  as follows:

       Piercing the corporate veil is a means of assessing
       liability for the acts of a corporation against an
       equity holder in the corporation. The party seeking to
       establish personal liability through piercing the
       corporate veil must show the person in control of a
       corporation used that control, or used the corporate
       assets, to further his own personal interests.
       Pennsylvania law has a strong presumption against
       piercing the corporate veil. Any inquiry involving
       corporate veil-piercing must start from the general
       rule that the corporate entity should be recognized
       and upheld, unless specific, unusual circumstances
       call for an exception. One "exception" is the alter
       ego theory which requires proof (1) that the party
       exercised domination and control over corporation; and
        (2) that injustice will result if corporate fiction is
       maintained despite unity of interests between
       corporation and its principal.




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Rearick v. Elderton State Bank
No. 2012-1615-Civil


Allegheny      Energy Supply Co. v. Wolf Run Min. Co., 53 A.3d 53, 58

(Pa.   Super. Ct.       2012) (internal citations            and quotations

omitted).       Piercing-the-veil         principles        may be applied          in the

context of a lender-borrower              context, wherein           a corporate          lender

so controls and dominates              a corporate        borrower    that that

corporate      construct         of the borrower should be set aside and the

lender held responsible              for the borrower's           debts.     See Pearson

v. Component Tech.           Corp.,    80 F. Supp.2d        510,    521    (W.D.    Pa.

1999); 12 Bumm. Pa. Jur.2d Bus.              Rel.     §    1:30    (2d ed.).        Thus, in

a lender-borrower          relationship,     a corporate           lender may so

dominate      and control a corporate             borrower    that the borrower's

debts, incurred at the behest of the lender, must be ascribed                                   to

the lender because          the borrower's         "separate existence             was a mere

sham."       Pearson,    80 F. Supp.2d at 523.              See also 15 Am. Jur. 3d.

695,   §4.

       Even reading Rearick's            complaint        in the light most

favorable to him, we cannot conceive of how the alter ego theory

of piercing       the corporate       veil applies         in this case.           There are

no allegations        that either Rearick or the Saltwork                   Project were

themselves      corporate        entities.   There also are no allegations

even suggesting         that Rearick      is attempting           to hold the

shareholders       of ESB responsible        for Rearick's           debts.        Although

Rearick has alleged,             in somewhat conclusory            fashion,    that ESB,

via its "proxy," controlled             and dominated         his business          dealings

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    Rearick v. Elderton State Bank
    No. 2012-1615-Civil


    and the Saltwork Project operations,                  there simply are no facts

    suggesting      that Rearick seeks to disregard               or set aside a

    particular      corporate        form.    Rearick's    argument    that ESB must be

    held accountable         for Rearick's       debt because ESB dominated            and

    controlled      Rearick essentially          is duplicative       of Rearick's

    breach of fiduciary duty claim, which we addressed                     above.        The

    alter ego theory, even in the lender-borrower                     context,    is a

    child of corporate          liability      jurisprudence      and simply cannot

    apply in this case.              After a diligent      search, we have found no

    authority,      in Pennsylvania          or any other jurisdiction,          that would

    support such a claim in these circumstances;                    neither   has Rearick

provided         the Court with any such authority.2                  For these reasons,

we will sustain this preliminary                      objection   and dismiss Count III

of Rearick's           complaint.

                                        V.      CONCLUSION

           For all the reasons stated above, we will sustain ESB's

preliminary          objections       that remain after remand and dismiss

Rearick's         complaint.

          An appropriate         Order follows.




2
  The alter ego theory typically is used in lender-borrower situations where a
separate creditor of an insolvent borrower attempts to disregard the
borrower's corporate form to reach the coffers of the lender to satisfy debts
incurred by the borrower. We have found no reported cases where an
individual borrower seeks to use the alter ego theory to hold a lender
corporately responsible for his own debts serviced by that lender.

                                                 36
                                                                Circulated 10/29/2015 01:27 PM




    IN THE COURT OF COMMON PLEAS OF ARMSTRONG COUNTY, PENNSYLVANIA


 MARK A. REARICK,                        )
                                        )
                      Plaintiff,        )
                                        )
                     vs.                )        No. 2012-1615-CIVIL
                                        )
ELDERTON STATE BANK,                    )
                                        }                                          ··r) ...


                     Defendant.         }                         . ..        ":~-- -·..
                                                                             :.-.:.
                                                                                                  - .
                                                                  .      )   . ·- ~ ·-   ..   r
                                                                                              ::.~ i

                             1925(a) OPINION

Panchik,    J.

      Plaintiff Mark A. Rearick ("Rearick") appeals from (1) this

Court's Memorandum and Order entered September 24, 2014, which

sustained those preliminary objections to Rearick's complaint that

remained undecided after remand from the Superior Court, and (2)

this Court's Order dated October 24, 2014, denying Rearick's "Mo-

tion for Leave to File Amended Complaint."              For the reasons that

follow, and for the reasons set forth in the Court's Memorandum

entered September 24, 2014, I recommend affirmance in both ap-

peals.

                            I.     PROCEDURAL HISTORY

     This case has an unnecessarily protracted and confused proce-

dural history.        Rearick filed his original complaint on October

24, 2012.        That complaint asserted several contract      and tort-

based claims against Defendant Elderton State Bank ("ESB") related

to the parties' business dealings from 2006 to 2009.            ESB filed
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    Rearick   v. Elderton   State   Bank
    No. 2012-1615-Civil

    preliminary objections to the complaint, one of which was sus-

    tained by this Court on the ground of res judicata.            The Court de-

    clined to decide the remaining preliminary objections as moot.

    Rearick appealed the Court's decision to the Superior Court, which

    reversed this Court's decision and remanded with instructions to

    either rule on ESB's remaining preliminary objections or permit

    Rearick to amend his complaint.            The Court thereafter ruled on the

    remaining preliminary objections, all but one of which it sus-

    tained.1      The Court therefore dismissed Rearick's complaint and did

    not grant him leave to file an amended complaint.

          On October 14, 2014, twenty days after the entry of the

    Court's order dismissing his complaint, Rearick filed an amended

    complaint without leave of court.           The amended complaint includes

    revisions to Counts I and II and also includes two new claims for

    fraudulent/negligent misrepresentation and "constructive fraud."

    Ten days later, on October 24, 2014, in motions court, on the last

day of the 30-day appeal period following the Court's dismissal of

his original complaint, Rearick presented a motion requesting that

the Court both "deem" the amended complaint properly filed and

permit Rearick to file a second amended complaint.                Rearick did

not present to the Court or to ESB a proposed second amended com-

plaint prior to or at motions court on October 24, 2014.                Nor was


1
  The Court overruled ESB's preliminary objection based on the "gist of the ac-
tion" doctrine. However, the Court sustained several other preliminary objec-
tions regarding Rearick's negligence claim, making dismissal of the claim appro-
priate in any event.
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 Rearick   v. Elderton State Bank
 No. 2012-1615-Civil


 Rearick's first amended complaint either attached to his motion or

 presented to the Court for review prior to October 24, 2014.                       ESB

 submitted a written opposition to Rearick's motion, in which it

 argued that the filing of the amended complaint was improper, the

 motion for leave was untimely, and that no proposed second amended

 complaint was presented to the Court or ESB for review.                   ESB re-

 quested that Rearick's motion be denied without prejudice and

 Rearick be directed to file an appropriate motion for leave to-

 gether with the amended pleading that he proposed to file.

        Inexplicably, Rearick's counsel then requested that the Court

 deny   his motion for leave to file the first and second amended

complaints.        The Court's order denying the motion clearly indi-

cates that the denial was entered at Rearick's counsel's request

and with his written consent.          Rearick then filed, the same day,

notices of appeal from the Court's orders from both September 24,

2014 and October 24, 2014.          The Court thereafter entered an order

directing Rearick to file Concise Statements of Errors Complained

of on Appeal pursuant to Pa. R. App. P. 1925(b) for each of his

two appea Ls, with which Rearick timely complied.                 We will address

each of his assertions of error in turn.

                II.    APPEAL REGARDING       PRELIMINARY   OBJECTIONS

        Rearick makes nine assignments of error in his appeal from

the Court's order sustaining ESB's preliminary objections and dis-

missing his original complaint.           All of the issues raised in

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 Rearick v. Elderton   State Bank
 No, 2012-1615-Civil


 Rearick's concise statement thoroughly are addressed in the

 Court's September 24, 2014 Memorandum.                The Court remains con-

 vinced that its reasoning is sound and dismissal of Rearick's com-

 plaint appropriate,          Of note is the fact that Rearick's amended

 complaint does not include claims for alter ego or negligence, and

 his motion for leave acknowledges that, at the very least, Counts

 I and II for breach of the duty of good faith and fair dealing and

 breach of fiduciary duty are deficient.               For these reasons, and

 for the reasons set forth in the Memorandum entered September 24,

2014, I recommend affirmance on all issues raised in this appeal.

             III. APPEAL       REGARDING   REARICK'S   MOTION FOR LEAVE

       The Court frankly is at a loss to fully understand the

grounds for this appeal.             Rearick asserts in his concise statement

that the Court erred by (1) denying his motion to "allow as

properly filedll his amended complaint, filed without leave after

the Court dismissed his original complaint, and {2) denying

Rearick's motion for leave to file a second amended complaint.

      The Court acknowledges the governing rule in Pennsylvania

that amendments to pleadings may be made at any time and should

liberally be permitted.             See Chaney v. Meadville   Med.    Ctr., 912

A.2d 300, 303 (Pa. Super. Ct. 2006) (citing, in part, Pa. R. Civ.

P. 1033)).     Amendment generally should be permitted when it will

not work "unduell prejudice on the opposing party.              Id.      Moreover,

although orders denying a party's motion for leave to amend a

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 Rearick v. Elderton State Bank
 No. 2012-1615-Civil

 pleading generally are considered interlocutory and therefore non-

 appealable, see Horowitz v. Universal Underwriters         Ins.   Co., 580

 A.2d 395, 397 (Pa. Super. Ct. 1990), such orders are appealable if

 they in essence put a plaintiff "out of court" or control the out-

 come of the entire case.         Id.       Here, Rearick's motion for

 leave to file both his amended and second amended complaints was

 filed after the Court already had dismissed Rearick's original

complaint without leave to amend.           Thus, the order dismissing the

original complaint was final and appealable.           I will assume for

purposes of this appeal that, although Rearick already had been

put "out of court," the order denying his request to file amended

pleadings effectively worked the same result and should be treated

as final for purposes of this appeal.

      However, the appealability of the Court's order being estab-

lished, I conclude that the appeal is without merit in any event

on several grounds.         First, the Court did not have any opportunity

to rule upon the propriety of Rearick's amended complaint because

he did not request leave prior to filing it.          Rule 1028(e) of the

Pennsylvania Rules of Civil Procedure provides that "if the filing

of an amendment, an amended pleading, or a new pleading is allowed

or required," it must be filed either within 20 days after the or-

der permitting the amendment or within a period fixed by the

court.    Pa. R. Civ. P. 1028(e).       In this case, the Court sustained

ESB's remaining preliminary objections and dismissed Rearick's

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 complaint without leave to amend.              Therefore, if Rearick desired

 to file an amended complaint, he should have filed a motion for

 leave to do so within 20 days of the Court's order.             Rearick did

not file such a motion and did not present a proposed amended com-

plaint to the Court prior to filing it on October 14, 2014.                   Thus,

on its face, Rearick's motion appears to be untimely and therefore

was properly denied.

        Second, with regard to Rearick's proposed second amended com-

plaint, neither the Court nor ESB was presented with a copy of the

amended pleading before, at, or since motions court on October 24,

2014.     Indeed, the Court has never been presented with a proper

and timely filed motion for leave to file any amended pleadings.

Instead, and without notice, the Court was presented with a motion

to file both an amended complaint and a second amended complaint,

without having any prior opportunity to review proposed drafts of

either document.          On that basis, Rearick's motion for leave to

file both proposed amended pleadings is inappropriate and was

properly denied by the Court.

      Finally, and most importantly, Rearick's counsel requested at

motions court on October 24, 2014, that the Court not grant the

motion for leave to file either his amended or second amended com-

plaints (the latter to which ESB likely would have consented), and

instead enter an order, with his express, written consent, that

the motion be denied.             Thus, the Court had no opportunity to

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 ~earick v. Elderton                  State   Bank
 No. 2012-1615-Civil


  schedule a separate time for argument on Rearick's motion, permit

 the submission of a proposed second amended complaint, or permit

 ESB to review the proposed filing and reconsider its opposition to

 the motion,                     In short, Rearick hardly can be heard to complain

 about an order the entry of which was requested and consented to

 in writing by his counsel.

             I remain convinced that Rearick's motion was untimely-filed,

was procedurally defective, and was entered as his request and

with his express consent.                            For those reasons, I recommend affir-

mance on this appeal.



                                                                 By the Court:



Date : ~....u.lJ-·___,l"'---(-e.c)O=f+--<j           _




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