J-A07023-15


                                  2015 PA Super 195

EUGENE R. YENCHI AND RUTH I.                      IN THE SUPERIOR COURT OF
YENCHI, HUSBAND AND WIFE                                PENNSYLVANIA

                            Appellants

                       v.

AMERIPRISE FINANCIAL, INC.,
AMERIPRISE FINANCIAL SERVICES,
INC., RIVERSOURCE LIFE INSURANCE
COMPANY AND BRYAN GREGORY
HOLLAND

                            Appellees                 No. 753 WDA 2014


                Appeal from the Judgment Entered May 5, 2014
               In the Court of Common Pleas of Allegheny County
                      Civil Division at No(s): GD 01-006610


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

CONCURRING AND DISSENTING OPINION BY LAZARUS, J.:
                                    FILED: September 15, 2015

        I concur with the majority that the denial of the Yenchis’ motion to

compel production of sales practices documents was proper, that the pre-

amended version of the Unfair Trade Practices Consumer Protection Law

(UTPCPL)1 applies, and that the trial court did not err in rejecting several of

the Yenchis’ proposed voir dire questions. I respectfully dissent, however,

as to the majority’s decision to remand this matter for further proceedings



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1
    73 P.S. §§ 201-1 – 201.9.3.
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regarding the Yenchis’ claims for breach of fiduciary duty, fraudulent

misrepresentation, and violation of the UTPCPL.

      In my view, the relationship between the Yenchis and Appellees cannot

be characterized as a confidential or fiduciary relationship, since the Yenchis

bear the burden of proof and have failed to set forth a prima facie case

demonstrating that such a relationship exists. See Wisniski v. Brown &

Brown Ins. Co., 906 A.2d 571, 579 (Pa. Super. 2006) (party asserting

confidential relationship bears burden of proving its existence).

      Instantly, the breach of fiduciary duty claim was decided via summary

judgment. Our rules of civil procedure dictate that

      [w]here the non-moving party bears the burden of proof on an
      issue, he may not merely rely on his pleadings or answers in
      order to survive summary judgment.         Further, failure of a
      nonmoving party to adduce sufficient evidence on an issue
      essential to his case and on which he bears the burden of proof
      establishes the entitlement of the moving party to judgment as a
      matter of law.

      Thus, our responsibility as an appellate court is to determine
      whether the record either establishes that the material facts are
      undisputed or contains insufficient evidence of facts to make out
      a prima facie cause of action, such that there is no issue to be
      decided by the fact-finder.

Sokolsky v. Eidelman, 93 A.3d 858, 862 (Pa. Super. 2014) (quotation

marks and citations omitted).

      It is well-established that a confidential relationship resulting in a

fiduciary duty “can arise even in the absence of an agency relationship.”

Wisniski, supra, at 577. As the majority correctly notes, the determination



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of whether a confidential relationship exists is a question of fact that is

highly specific to the particular matter. “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.” Id.

Further, where the relationship “between the parties is not one ordinarily

known as confidential in law, the evidence to sustain a confidential relation

must be certain.” Leedom v. Palmer, 117 A. 410, 412 (Pa. 1922).

      The relationship created by a commercial, arm’s-length transaction is

such a relationship that is not ordinarily confidential by law.     Indeed, in

Wisniski, our Court established a presumption against the existence of a

confidential relationship in interactions between insurance brokers and their

clients. The Court observed

      that clients will bring various degrees of sophistication and
      initiative to their relationship with a broker. While one client
      may unthinkingly accept any recommendation and place a great
      deal of trust in a broker, another client may be a “picky shopper”
      and second-guess the broker’s every decision. We certainly
      cannot conclude as a matter of law that the relationship between
      an insurance broker and a client is always (or even generally)
      confidential. To the contrary, we will presume that, for the
      great     majority     of    broker-client    interactions,   the
      relationship will not be so extremely one-sided as to be
      confidential.

Wisniski, supra, at 578-79 (emphasis added).

      Moreover,

      [m]ost commercial contracts for professional services involve
      one party relying on the other party’s superior skill or expertise


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J-A07023-15


      in providing that particular service. Indeed, if a party did not
      believe that the professional possessed specialized expertise
      worthy of trust, the contract would most likely never take place.

      This does not mean, however, that a fiduciary relationship arises
      merely because one party relies on and pays for the specialized
      skill or expertise of the other party. Otherwise, a fiduciary
      relationship would arise whenever one party had any marginally
      greater level of skill and expertise in a particular area than
      another party. Rather, 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, Inc. v. Elias/Savion Adver., Inc., 811 A.2d 10, 23 (Pa. Super.

2002) (quoting Basile v. H & R Block, Inc., 777 A.2d 95, 101 (Pa. Super.

2001)).    Additionally, the eToll Court accepted and agreed with the

reasoning that “[t]here is a crucial distinction between surrendering control

of one’s affairs to a fiduciary or confidant or party in a position to exercise

undue influence and entering an [arm’s-]length commercial agreement.”

eToll, supra, at 23 (quoting Valley Forge Convention & Visitors Bureau

v. Visitor’s Servs., Inc., 28 F.Supp. 2d 947, 953 (E.D.Pa. 1998)).

      The record reveals that the Yenchis developed a relationship with

Holland, an American Express employee who sold insurance and financial

products and provided fee-based financial planning advice based upon an

analysis of the Yenchis’ assets and liabilities.   However, the Yenchis made

each decision to purchase a product from Holland, as indicated by their

signatures authorizing the purchases. Thus, throughout their dealings with

Holland, the Yenchis maintained their agency and did not surrender

complete control to Holland. eToll, supra.

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J-A07023-15



     Indeed, the Yenchis chose to follow only some of the recommendations

included in the Financial Management Proposals. For example, the Yenchis

did not purchase additional life insurance as recommended in the 1998

Proposal.   Despite Mr. Yenchi’s testimony that he did not take any action

regarding the investments and that he let Holland handle everything, Mr.

Yenchi signed his name on each financial action he agreed to take. See N.T.

Deposition of Eugene Yenchi, 12/2/09, at 145. Because the Yenchis retained

their decision-making authority, the relationship cannot be characterized as

one in which Holland exerted overmastering influence over the Yenchis.

Wisniski, supra.

     The Yenchis assert that they blindly trusted that Holland was advising

them to take actions that would be in their best interest financially.

However, this claim is based upon a bare assertion that simply because

Holland had greater knowledge regarding financial planning, the relationship

became a confidential one. This argument is belied by the Yenchis’ decisions

to follow some, but not all, of Holland’s recommendations.     The Yenchis’

argument is further undermined by the fact that Holland was acting on

behalf of American Express.     As Judge Wettick noted, “the policyholders

knew that they were dealing with a representative of American Express who

was recommending purchases of American Express investments.”           Trial

Court Opinion, 7/25/14, at 3.

     Ultimately, the record indicates that the Yenchis relied on Holland’s

advice and superior knowledge during the relationship, primarily regarding

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J-A07023-15



life insurance.    However, in my view, the evidence offered by the Yenchis

fails to make a prima facie showing that the relationship progressed beyond

reliance on superior skill that is the typical reason for entering into a

contract for professional services. eToll, supra.

       Accordingly, the Yenchis have failed to adduce sufficient, much less

certain, evidence to sustain a claim that a confidential or fiduciary

relationship existed between the parties.        Sokolsky, supra; Leedom,

supra.    Thus, the trial court did not abuse its discretion when it granted

Appellees’ motion for summary judgment.

       Because I would affirm the trial court’s dismissal of the Yenchis’ claim

for breach of fiduciary duty, I would affirm the trial court’s grant of the

Appellees’ motions in limine, which precluded the introduction of evidence

regarding fraudulent misrepresentation.2

       Here, in ruling on the Yenchis’ motions in limine, the trial court

permitted the Yenchis to introduce evidence of the replacement of their

preexisting life insurance policies, the language of the American Express

policy, and the purchase of the financial management proposals.             The

____________________________________________


2
  The majority indicates that the trial court’s disposition of the motions in
limine was a clear error of law since it was error to dismiss the fiduciary duty
claim. The majority also notes that the precluded information could be
relevant to the Yenchis’ fraudulent misrepresentation and UTPCPL claims.
However, the issue the Yenchis raise on appeal regarding the motions in
limine is limited to whether the trial court erred in preventing the
introduction of evidence supporting fraudulent misrepresentation.



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J-A07023-15



Yenchis were prevented, however, from offering expert testimony describing

how these facts failed to meet a standard of care since their claim was

limited to fraudulent misrepresentation.3        Because evidence related to

standard of care is not relevant to establishing fraudulent misrepresentation,

the trial court neither erred nor abused its discretion when it granted

Appellees’ motions in limine.

       For the foregoing reasons, I would affirm the trial court’s judgment in

its entirety.




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3
  To establish fraudulent misrepresentation, a plaintiff must prove: (1)
misrepresentation of a material fact; (2) scienter; (3) intention by the
declarant to induce action; (4) justifiable reliance by the party defrauded
upon the misrepresentation and (5) damage to the party defrauded as a
proximate cause. Ross v. Foremost Ins. Co., 998 A.2d 648, 654 (Pa.
Super. 2010).



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