                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                   ______

                                     No. 11-4441
                                       ______

            ADVANCE CAPITAL PARNTERS, LLC, AND LIZA PRICE,

                                          v.

                                 BELA ROSSMANN
                                          Appellant
                                     ______

                 On Appeal from the United States District Court for the
                            Eastern District of Pennsylvania
                           (District Court No. 2:09-cv-03467)
          District Court Judge: Honorable Thomas J. Rueter, Magistrate Judge
                                        ______

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                September 11, 2012

             Before: SMITH, CHAGARES, and GARTH, Circuit Judges.

                             (Filed: September 12, 2012)


                                       ______

                             OPINION OF THE COURT
                                     ______

GARTH, Circuit Judge.

      Bela Rossmann appeals from the judgment of the District Court awarding

compensatory damages to Advance Capital Partners, LLC, and Liza Price for claims of

fraudulent concealment and negligent misrepresentation arising from Rossmann’s efforts
to finance a real estate purchase. We have jurisdiction pursuant to 28 U.S.C. § 1291. For

the reasons that follow, we will affirm the judgment of the District Court.

                                              I

       We write principally for the benefit of the parties and recite only the facts essential

to our disposition.

       In order to purchase a parcel of land for subsequent resale and development,

Rossmann arranged for a loan in excess of three million dollars from National Penn

Bank, conditioned on his posting approximately nine hundred thousand dollars in

collateral and interest reserve accounts. In order to raise money to meet these conditions,

Rossmann in turn sought a second loan of 1.1 million dollars. Rossmann approached an

acquaintance, Liza Price, to obtain information regarding potential investors. Price in turn

introduced Rossmann to Peter Cocoziello, the CEO of Advance Capital Partners, LLC

(ACP). Over the course of a brief meeting, a tour of the property, and a lunch meeting,

Rossmann provided Cocoziello and Price with a brochure for the proposed development

as well as rough engineering and architectural plans. The three also discussed the terms

of the proposed loan, which was to be secured in part by a pledge of stock in the

corporate entity created by Rossmann to hold title to the property. Rossmann, who

wished to close the sale quickly in order to execute an anticipated resale of a portion of

the land and was desperate to obtain financing because his own investment in the

property would otherwise be lost, did not inform Cocoziello and Price that the terms of

sale of the property obligated Rossmann to pay the seller of the land one hundred



                                              2
thousand dollars upon the subsequent resale of the property, nor did Rossmann provide a

copy of the addendum to the principal sale agreement that contained this provision.

       Following the lunch meeting, Cocoziello requested that Rossmann forward all

relevant documents to Thomas Dillon, a consultant retained by ACP, for review. In

addition to relying on this consultant to perform the necessary due diligence, Cocoziello

also relied on the decision of National Penn Bank to issue the principal loan in deciding

whether to lend to Rossmann. Price performed no independent investigation, but rather

relied on the diligence of the other lenders.

       ACP and Price agreed to provide the requested financing, and Rossmann

proceeded to purchase the parcel of land. Approximately two years later, Rossmann,

having failed to sell the property, defaulted on the National Penn Bank loan. This default

in turn entitled ACP and Price to take control of the corporate entity that held the land,

which they did. ACP and Price subsequently failed to cure the default on the National

Penn loan, and National Penn foreclosed on the property. ACP in turn purchased the

property at a foreclosure sale.

       ACP and Price then brought an action against Rossmann, asserting claims of

breach of contract, breach of implied covenant of good faith and fair dealing, fraudulent

inducement, fraudulent concealment, breach of fiduciary duty, and negligent

misrepresentation. Following a bench trial, conducted by agreement before a Magistrate

Judge, the court found for ACP and Price on their fraudulent concealment and negligent

misrepresentation claims, both of which concerned Rossmann’s alleged failure to

disclose the obligation to pay the additional $ 100,000 to the seller of the property upon

                                                3
resale of the land. The court awarded ACP $ 64,000 and Price $ 36,000 in compensatory

damages. Rossmann timely appealed.

                                               II

       We begin by considering Rossmann’s challenge to the District Court’s negligent

misrepresentation finding. Under Pennsylvania law, “[n]egligent misrepresentation

requires proof of: (1) a misrepresentation of a material fact; (2) made under

circumstances in which the misrepresenter ought to have known its falsity; (3) with an

intent to induce another to act on it; and; [sic] (4) which results in injury to a party acting

in justifiable reliance on the misrepresentation.” Bortz v. Noon, 556 Pa. 489, 500, 729

A.2d 555, 561 (1999). The question of “[w]hether any particular representation . . . was

false or misleading is a question of fact subject to review under the clearly erroneous

standard. . . . Under the clearly erroneous standard, a finding of fact may be reversed on

appeal only if it is completely devoid of a credible evidentiary basis or bears no rational

relationship to the supporting data.” Tracinda Corp. v. DaimlerChrysler AG, 502 F.3d

212, 229-230 (3d Cir. 2007) (internal quotation marks omitted). Questions concerning the

parties’ knowledge, mental states, and reliance likewise are factual determinations subject

to review for clear error. Id. at 229.

       Rossmann asserts that the evidence presented at trial failed to show by a

preponderance of evidence that he failed to disclose that additional money would be

owed to the seller of the land following resale of the land. He further contends that

Cocoziello’s and Price’s reliance on such a failure, if it did occur, was not justifiable

because Cocoziello and Price were sophisticated investors who unreasonably chose not to

                                               4
conduct a further investigation. Rossmann does not contest the court’s findings that the

nondisclosure, if it occurred, was a material misrepresentation, 1 that he ought to have

known the nondisclosure was a misrepresentation, or that he intended to—and in fact

did—induce reliance through such nondisclosure.

       With respect to whether the evidence supports a finding of nondisclosure, it is

undisputed that at no point did Rossmann affirmatively state to Cocoziello and Price that

money would be owed to the seller upon resale of the land. Testimony provided by Price,

Cocoziello, and Dillon, moreover, indicated that Rossmann never supplied the sales

agreement addendum that contained this obligation. Although Rossmann disputes this

testimony and claims to have provided the document, the trier of fact’s decision to credit

the testimony of Price, Cocoziello, and Dillon is, in the absence of contrary extrinsic

evidence or internal contradiction, entitled to considerable deference. Anderson v. City of

Bessemer City, N.C., 470 U.S. 564, 575, 105 S. Ct. 1504, 1512, 84 L. Ed. 2d 518 (1985).

Although Price, Cocoziello, and Dillon all exhibited some imprecision in their respective

memories of the relevant events, they testified consistently, and their testimony that


1
  The parties appear to assume that a failure to disclose may, as a general matter,
unproblematically qualify as a misrepresentation for purposes of a negligent
misrepresentation claim. We note, however, that several district court opinions, relying
on an opinion by the Pennsylvania Court of Common Pleas, have held that under
Pennsylvania law a negligent misrepresentation claim may not be made out on the basis
of a failure to disclose. See, e.g., Lazin v. Pavilion Partners, CIV. A. 95-601, 1995 WL
614018 (E.D. Pa. Oct. 11, 1995) (“Non-disclosure of a material fact would give rise to a
cause of action for fraudulent non-disclosure, not for negligent misrepresentation.”),
citing Lang v. Helios Capital Corp., 86-08031, 1989 WL 299241 (Pa. Com. Pl. Jan. 20,
1989) (“non-disclosure would give rise to a cause of action only for fraudulent non-
disclosure, and not for fraudulent or negligent misrepresentation.”). As Rossmann has not
raised this issue, we treat it as waived and do not address it.
                                             5
Rossmann never provided the addendum to the sales agreement is not controverted by

other evidence. The Magistrate Judge therefore properly found that Rossman failed to

disclose the addendum to the sales agreement.

       Regarding the justifiability of Cocoziello’s and Price’s reliance on Rossmann’s

misrepresentation through nondisclosure, ACP and Price assert that Rossmann has raised

this issue for the first time on appeal and that we therefore should not review it.

Rossmann does not challenge this assertion in his reply brief. “As a general rule we do

not review issues raised for the first time at the appellate level. Although we have the

discretion to review an argument not raised below, we will ordinarily refuse to do so.”

Gardiner v. Virgin Islands Water & Power Auth., 145 F.3d 635, 646-47 (3d Cir. 1998)

(citation and internal quotation marks omitted). As Rossmann has provided no reason to

depart from the general policy of not reviewing unpreserved arguments, and no such

reason is readily apparent, we decline to review this aspect of Rossmann’s claim on

appeal.

       Moreover, even if we were to reach the merits of this claim, Rossmann would not

be entitled to prevail on this ground. In the proceedings below, ACP and Price presented

expert evidence opining that reliance on Rossmann’s representations was reasonable in

light of the very short time window available to the parties to conduct the transaction.

Rossmann did not meaningfully challenge this testimony on cross examination, nor did

he offer any evidence in rebuttal. In presenting proposed findings of fact and law to the

trial court, Rossmann made no proposals concerning lack of justifiable reliance. The

Magistrate Judge was thus entitled to credit the uncontroverted testimony regarding the

                                              6
reasonableness of Cocoziello’s and Price’s reliance on Rossmann under the

circumstances of the transaction in this case.

       We therefore conclude that the Magistrate Judge properly found for ACP and

Price on their negligent misrepresentation claim. As the Magistrate Judge determined,

and Rossmann does not dispute on appeal, a prevailing plaintiff in both negligent

misrepresentation and fraudulent concealment actions is entitled to recovery for the loss

caused by the concealment or misrepresentation. See Peters v. Stroudsburg Trust Co., 348

Pa. 451, 453, 35 A.2d 341, 343 (1944); Restatement (Second) of Torts § 552B (1977).

Because identical damages are available under each theory on which Rossmann was

found liable and both claims arose from the same failure to disclose, the damages award

may be sustained on the basis of the negligent misrepresentation finding standing alone. 2

                                             III

       For the reasons stated above, the judgment of the District Court will be affirmed. 3




2
  We therefore need not consider whether the Magistrate Judge properly found for ACP
and Price on the fraudulent concealment claim as well. See CIBA-GEIGY Corp. v. Bolar
Pharm. Co., Inc., 719 F.2d 56, 57 n.1 (3d Cir. 1983).
3
  Federal Rule of Appellate Procedure 30, “Appendix to the Briefs” provides, inter alia,
that “the relevant portions of the pleadings” must be included in the appendix. The
complaint, which is essential to the resolution of this appeal, was not included in the
appendix. It is unacceptable that counsel is not familiar with and did not comply with the
basic rules of appellate procedure.

                                             7
