J-A12021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    THOMAS PERKINS, III AND DONNA              :   IN THE SUPERIOR COURT OF
    SNYDER                                     :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 2039 EDA 2017
    VENEZIA ENTERPRISES, FRANK                 :
    VENEZIA, JOHN J. VENEZIA AND               :
    ANDREW VENEZIA                             :

                  Appeal from the Order Entered June 5, 2017
             In the Court of Common Pleas of Montgomery County
                      Civil Division at No(s): 2006-07884


BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                              FILED DECEMBER 20, 2018

       Thomas Perkins, III, and Donna Snyder, brother and sister (collectively,

“Perkins”) appeal from the order entered on June 5, 2017, in the Court of

Common Pleas of Montgomery County, granting summary judgment to

Venezia Enterprises, Frank Venezia, John J. Venezia, and Andrew Venezia

(collectively, “Venezia”), and dismissing their fraudulent misrepresentation or

concealment, negligent misrepresentation or concealment, and violation of

Unfair Trade Practices and Consumer Protection Law (“UTPCPL”)1 claims. The

underlying action stems from the sale of commercial real estate from Venezia

____________________________________________


1 See 73 P.S. § 201-1, et seq. As will be discussed infra, Perkins does not
assert any argument involving the UTPCPL claim, therefore, it is waived for
purposes of this appeal.
J-A12021-18


to Perkins, in which Perkins alleged Venezia misrepresented the actual acreage

of the property at issue, which induced them to enter into an Agreement of

Sale for the same. Perkins now claim the trial court erred and/or abused its

discretion regarding the following: (1) by granting motions in limine which

duplicated, in terms of issues, facts, law, and request for relief, a motion for

summary judgment previously denied by a judge of coordinate jurisdiction;

(2) by granting the motion in limine which, based on the gist-of-the-action

doctrine, did not preclude any evidence, but rather barred [Perkins]’ recovery

pursuant to their tort claims; and (3) by granting the motion in limine which,

based on the parol evidence rule, precluded all evidence which could in any

way   support   [Perkins]’   fraud   in   the   inducement    claim,   including

representations made within the agreement.         See Perkins’ Brief at 4-5.

Perkins also claims the court erred in granting summary judgment based on

these arguments. Id. For the reasons below, we affirm.

      The trial court summarized the relevant facts as follows:

      [Perkins’] agent/realtor, Anthony Giamo, contacted Frank Venezia
      inquiring whether Venezia would be interested in selling the
      property located at 703 W. Ridge Pike, Limerick, Pennsylvania.
      [Venezia’s] property was not listed for sale at the time. After
      some conversation, [Venezia] agreed to sell the Property to
      [Perkins] for $960,000. During the parties’ meeting, [Perkins]
      allege that there was discussion concerning the actual acreage of
      the property. The tax map indicated that the property was 9.89
      acres but Mr. Venezia allegedly orally claimed that the property
      was slightly less—9.3 acres. Despite this confusion, [Perkins’]
      realtor prepared an Agreement of Sale and inserted 9.3 acres in
      the Agreement.      [Perkins’] agent inserted 9.3 acres in the
      Agreement based solely upon [Venezia’s] alleged oral assertion.
      [Perkins] conducted no independent confirmation of the acreage.

                                     -2-
J-A12021-18


     On January 19, 2001, the parties executed the Agreement of Sale.
     [Venezia was] not represented by a realtor. On that same day,
     the parties added an Addendum to the Agreement of Sale which
     included a 90 day due diligence clause which allowed [Perkins] 90
     days to conduct due diligence including a survey. [Perkins] failed
     to conduct a survey within those 90 days. In 2004, [Perkins]
     conducted a survey of the property in connection with a zoning
     application and learned that the property was only 7.6 acres. The
     present law suit followed.

           In their Amended Complaint, [Perkins pled] tort claims,
     namely, Count [I] – Fraudulent Misrepresentation or Concealment
     and Count II – Negligent Misrepresentation or Concealment.1
     [Perkins] did not plead breach of contract under the Agreement of
     Sale because they believed that the statute of limitations had run
     on the same, and because[] they did not believe that there was a
     breach of the actual contract terms.

     ________________________

        1  [Perkins] also ple[d] Count III – Violation of the
       [UTPACPL]. However, Count III is not at issue herein. The
       [UTPACPL] does not apply to commercial properties like the
       one at bar, and [Perkins] conceded and/or waived any
       argument contra.
     ________________________

           [On February 17, 2016, Venezia filed a motion for summary
     judgment, alleging, inter alia, Perkins’ tort claims should be
     dismissed based on: (1) the “gist of the action” doctrine and (2)
     due to the integration clause contained in the Agreement of Sale,
     Perkins cannot rely on oral representations made by Venezia
     where the contract states that no such representations are
     included in the terms of the document. Perkins filed a response
     on March 24, 2016, as well as a cross-motion seeking judgment.

           On July 1, 2016, the Honorable Richard P. Haaz denied both
     parties’ motions for summary judgment without explanation. The
     matter was then transferred to the Honorable Carolyn Tornetta
     Carluccio.

           On May 15, 2017, Venezia filed a motion in limine,
     requesting the trial court to preclude Perkins’ recovery on the tort
     claims under the “gist of the action” doctrine. Additionally,

                                    -3-
J-A12021-18


       Venezia sought to preclude any evidence related to Perkins’ fraud-
       in-the-inducement claims based on the integration clause set forth
       in the Agreement of Sale.]

              On June 2, 2017, after argument and review of briefs, the
       trial court granted [Venezia’s] [m]otion [in limine] to [p]reclude
       [r]ecovery under [a]ny and [a]ll [t]ort [c]laims in the above
       captioned matter. In addition[,] the trial court also granted
       [Venezia’s] [m]otion to [p]reclude any [e]vidence relating to
       [f]raud in the [i]nducement as the [a]greement of [s]ale was a
       fully integrated document.

Trial Court Opinion, 11/22/2017, at 1-2 (emphasis in original, citations

omitted). Subsequently, on June 5, 2017, the trial court granted Venezia’s

oral motion for summary judgment. Perkins filed this timely appeal.2

       On appeal, with respect to all of their arguments, Perkins contend the

trial court abused its discretion in granting Venezia’s motion in limine, and

consequently, their motion for summary judgment. See Perkins’ Brief at 3-4.

Our standard of review is well-settled:

       A motion in limine is used before trial to obtain a ruling on the
       admissibility of evidence. It gives the trial judge the opportunity
       to weigh potentially prejudicial and harmful evidence before the
       trial occurs, thus preventing the evidence from ever reaching the
       jury. A trial court’s decision to grant or deny a motion in limine is
       subject to an evidentiary abuse of discretion standard of review.

       Questions concerning the admissibility of evidence lie within the
       sound discretion of the trial court, and we will not reverse the
       court’s decision absent a clear abuse of discretion. An abuse of
       discretion may not be found merely because an appellate court
       might have reached a different conclusion, but requires a manifest
____________________________________________


2  On July 6, 2017, the trial court ordered Perkins to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Perkins filed
a concise statement on July 29, 2017. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on November 22, 2017.

                                           -4-
J-A12021-18


      unreasonableness, or partiality, prejudice, bias, or ill-will, or such
      lack of support so as to be clearly erroneous.

      In addition, to constitute reversible error, an evidentiary ruling
      must not only be erroneous, but also harmful or prejudicial to the
      complaining party.

Parr v. Ford Motor Co., 109 A.3d 682, 690-691 (Pa. Super. 2014) (citations

omitted), appeal denied, 123 A.3d 331 (Pa. 2015), cert. denied, 136 S. Ct.

557 (U.S. 2015). Moreover, because the trial court’s grant of Venezia’s motion

in limine formed the basis for its subsequent grant of Venezia’s motion for

summary judgment, we are also guided by the following:

      We review an order granting summary judgment for an abuse of
      discretion or error of law. Indalex, Inc. v. Nat'l Union Fire Ins.
      Co. of Pittsburgh, PA, 2013 PA Super 311, 83 A.3d 418, 420
      (Pa. Super. 2013). Our standard of review is plenary, and we view
      the record in the light most favorable to the nonmoving party. Id.
      A party bearing the burden of proof at trial is entitled to summary
      judgment “whenever there is no genuine issue of any material fact
      as to a necessary element of the cause of action or defense which
      could be established by additional discovery or expert report[.]”
      Pa.R.C.P. 1035.2(1).       In response to a summary judgment
      motion, the nonmoving party cannot rest upon the pleadings, but
      rather must set forth specific facts demonstrating a genuine issue
      of material fact. Pa.R.C.P. 1035.3.

Vetter v. Miller, 157 A.3d 943, 948 (Pa. Super. 2017), appeal denied, 182

A.3d 987 (Pa. 2017).

      In their first argument, Perkins claim the court “failed to adhere to the

coordinate jurisdiction rule in granting the motions in limine which served as

the   basis   for   the   dismissal   of   Perkins’   fraudulent   and   negligent

misrepresentation claims.” See Perkins’ Brief at 18. By way of background,

they state:

                                       -5-
J-A12021-18


     Nearly a year before Judge Carluccio issued her ruling, on July 5,
     2016, Judge Haaz, who did not preside over the trial phase of the
     case, ruled on cross -motions for summary judgment. Within their
     motion for summary judgment, Venezia requested the entry of
     summary judgment in its favor related to Perkins’ claims for
     fraudulent and negligent misrepresentation. Venezia alleged that
     gist-of-the-action doctrine barred those claims as a matter of law,
     and that the underlying contract is integrated thereby also barring
     Perkins from presenting any evidence which could prove fraud-in-
     the-inducement. Based on Venezias’ motion and brief, Perkins’
     response and brief, and after oral argument, Judge Haaz denied
     Venezias’ motion for summary judgment on all counts, including
     but not limited to the gist -of -the -action doctrine and the parol
     evidence rule. Judge Haaz permitted Perkins’ claims to proceed
     to trial, and the case was then reassigned to Judge Carluccio for
     the trial phase.

          On May 15, 2017, Venezia filed with Judge Carluccio a
     motion in limine titled, “Defendants’ Motion in limine to Preclude
     Recovery Under Any and All Tort Claims.”

Id. at 19-20 (reproduced record citations omitted).

     Relying on Campbell v. Attanasio, 862 A.2d 1282 (Pa. Super. 2004),

appeal denied, 881 A.2d 818 (Pa. 2005), Perkins allege:

     As is evident from their prayer for relief, Venezia’s motion in limine
     is nothing more than a reconstituted motion for summary
     judgment.

                                       …

     The motions in limine did not present any new evidence, let alone
     a substantial change in the facts. Likewise, Venezia did not
     present any new case law, let alone an intervening change in the
     controlling law. Absent a substantial change in the facts or an
     intervening change in the controlling law, the coordinate
     jurisdiction rule required Judge Carluccio to afford Judge Haaz’s
     denial extreme deference, and hold the defense to a strict burden
     of persuasion. Judge Carluccio failed to do so, and therefore did
     not properly evaluate Judge Haaz’s ruling against the clearly
     erroneous standard of review. This deprived Perkins of their right


                                     -6-
J-A12021-18


      to a trial against Venezia, and it was thus Perkins who suffered
      the “manifest injustice.”

Id. at 21, 24-25 (reproduced record citations omitted).

      The Pennsylvania Supreme Court has explained the coordinate

jurisdiction rule as follows:

      One of the distinct rules that are encompassed within the “law of
      the case” doctrine is the coordinate jurisdiction rule. Generally,
      the coordinate jurisdiction rule commands that upon transfer of a
      matter between trial judges of coordinate jurisdiction, a transferee
      trial judge may not alter resolution of a legal question previously
      decided by a transferor trial judge. More simply stated, judges of
      coordinate jurisdiction should not overrule each other’s decisions.
      The reason for this respect for an equal tribunal’s decision ... is
      that the coordinate jurisdiction rule is based on a policy of
      fostering the finality of pre-trial applications in an effort to
      maintain judicial economy and efficiency. Furthermore, consistent
      with the law of the case doctrine, the coordinate jurisdiction rule
      serves to protect the expectations of the parties, to insure
      uniformity of decisions, to maintain consistency in proceedings, to
      effectuate the administration of justice, and to bring finality to the
      litigation.

Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003) (internal citations and

footnote omitted).

      In addressing Perkins’ argument, the trial court noted:

      [T]o the extent that [Perkins] argue that the trial court improperly
      entered summary judgment herein due to the previous cross-
      summary judgment rulings in this matter, the trial court refers the
      appellate court to Nobles v. Staples, Inc.[,] 150 A.[3]d 110 (Pa.
      Super. 2016). In addition, as stated on the record, a motion for
      summary judgment and a motion in limine require two different
      standards of review. (Notes of Testimony 5/31/17, pg. 3)[.]
      Finally, the parties herein conceded that the question before the
      court concerning the gist of the action was a question of law. (Id.
      at pgs. 13-14)[.]

Trial Court Opinion, 11/22/2017, at 3 n.2.

                                      -7-
J-A12021-18


      In Nobles, supra, the plaintiff filed a personal injury action against the

defendant. Nobles, 150 A.3d at 112. The defendant moved for summary

judgment, which was denied without prejudice by the Honorable Annette M.

Rizzo because the motion had been filed prior to the expiration of the

discovery period. Id. Subsequently, the defendant moved again for summary

judgment, repeating the same ground as in its first motion.             Id.    The

Honorable Federica Massiah-Jackson entered an order denying the motion,

without further comment. Id. The defendant then filed two motions in limine,

asserting similar grounds to the motions for summary judgment. Id. at 112-

113. The Honorable Mary D. Colins heard argument on the two motions in

limine and granted both. Id. at 113. In light of those decisions, the trial

judge granted the defendants’ motion to dismiss the action. Id. On appeal,

the plaintiff alleged it was a “violation of the coordinate jurisdiction rule for a

trial court to grant a motion for non-suit, which it deemed a motion for

summary judgment, after the court had already denied a motion for summary

judgment[.]” Id. In affirming the trial court’s decision, a panel of this Court

stated:

      In the current action, once Judge Colins granted [the defendant’s]
      motions in limine, the status of the case changed materially.
      Therefore, the basis upon which Judge Colins granted the final
      motion for summary judgment was very different from the bases
      upon which Judge Rizzo and Judge Massiah-Jackson relied when
      they denied [the defendant’s] first and second motions for
      summary judgment several months earlier. Once Judge Colins
      held that [the plaintiff’s] expert would not be allowed to testify, it
      became clear that there was no viable way in which [the plaintiff]
      could recover — as [the plaintiff’s] counsel himself admitted when

                                       -8-
J-A12021-18


      he told Judge Colins that she had “put us out of court.” See Trial
      Court Opinion, 2/9/16, at 5-6. Accordingly, it was appropriate for
      Judge Colins to then grant [the defendant’s] motion to dismiss the
      case, even if that motion was the equivalent of a third motion for
      summary judgment. In doing so, the trial court did not violate
      the coordinate jurisdiction rule.

Nobles, 150 A.3d at 119-20.

      In Campbell, supra, the defendants filed motions for summary

judgment wherein they sought to preclude the defendant’s expert from

testifying at trial. Campbell, 862 A.2d at 1284. The trial judge denied the

motions. Id. at 1285. The defendants subsequently filed motions in limine,

in which they raised the same issue as presented in the motions for summary

judgment. Id. The matter was transferred to a second judge, who granted

the motions in limine. That judge then dismissed the action in its entirety.

On appeal, a panel of this Court determined the coordinate jurisdiction rule

was violated because: (1) both sets of motions raised the same issue; and

(2) there was no indication that the second judge “considered additional facts

or evidence that had not been presented to” the first judge. Id. at 1287.

      Turning to the present matter, we agree with the trial court that Nobles

is applicable, and we find Campbell is distinguishable. In Ryan v. Berman,

813 A.2d 792 (Pa. 2002), the Pennsylvania Supreme Court stated: “Where

the motions differ in kind, as preliminary objections differ from … motions for

summary judgment, a judge ruling on a later motion is not precluded from

granting relief although another judge has denied an earlier motion.” Ryan,

813   A.2d   at   794,   quoting   Goldey   v.   Trustees of   University   of

                                      -9-
J-A12021-18


Pennsylvania, 675 A.2d 264, 267 (Pa. 1996). As pointed out by the trial

court, a motion for summary judgment and a motion in limine require two

different standards of review and therefore, are motions that differ in kind.

See Ryan, supra. Moreover, unlike in Campbell, we find dispositive that,

here, while Judge Haaz denied Venezia’s motion for summary judgment, he

did so without providing any explanation regarding his determination. It is

unknown whether Judge Haaz made that finding because the discovery period

had not ended, a procedural defect, or for some reason other than the viability

of the claims presented by Venezia. If so, then the coordinate jurisdiction rule

would not bar Judge Carluccio from ruling on the merits of the substantive

claims set forth in their motions in limine.3      As such, given these specific

circumstances, particularly the lack of clarification from Judge Haaz, we are

compelled to conclude that the coordinate jurisdiction rule was not implicated

in this case. See Nobles, supra.4

       Next, Perkins contends its “tort claims are not barred by the gist-of-the-

action doctrine as the claims assert misfeasance rather than nonfeasance; the

claims are deception, not a failure to perform pursuant to a contract.” Perkins’

Brief at 26. They state:


____________________________________________


3  Further, as the trial court noted, and the parties agreed, the gist of the
action doctrine argument was a legal question that needed to be decided
before the trial.

4 See also Salerno v. Phila. Newspapers, Inc., 546 A.2d 1168, 1170 (Pa.
Super. 1988).

                                          - 10 -
J-A12021-18


       Perkins     filed  claims      for    fraudulent    and    negligent
       misrepresentation. The gist of Perkins’ claims is deception by
       Venezia, not that Venezia failed to perform pursuant to the
       Agreement. Stated another way, the substance of Perkins’ claims
       is not that Venezia failed to deliver, pursuant to the Agreement, a
       property 9.3 acres in size. Rather, the substance of the claims is
       that there would be no contract [] but for Venezias’ gross
       misrepresentation of the size of the property, which at best were
       negligent and at worst intentional.

Id. at 31 (reproduced record citation omitted).5 For example, Perkins points

to the following allegations in their amended complaint as the basis for the

fraudulent misrepresentation or concealment claim:

       14. At the meeting, [Perkins’ real estate agent] indicated that he
       felt that the Property was approximately 9.9 acres in size.

       15. At the meeting, Defendant Frank Venezia represented that
       the Property was not 9.9 acres, but in fact was slightly smaller.

       16. After the meeting, Defendant Frank Venezia contacted
       [Perkins’ real estate agent] and indicated that the size of the
       Property was 9.3 acres.

       17. [Perkins] subsequently met with Defendant Frank Venezia to
       inspect the Property, at which time Defendant Frank Venezia
____________________________________________


5   “A cause of action for fraudulent misrepresentation is comprised of the
following elements: ‘(1) a misrepresentation, (2) a fraudulent utterance
thereof, (3) an intention by the maker that the recipient will thereby be
induced to act, (4) justifiable reliance by the recipient upon the
misrepresentation and (5) damage to the recipient as the proximate result.’”
Martin v. Lancaster Battery Co., 606 A.2d 444, 448 (Pa. 1992), quoting
Scaife Co. v. Rockwell-Standard Corp., 285 A.2d 451, 454 (Pa. 1971),
cert. denied, 407 U.S. 920 (1972). The tort of negligent misrepresentation
has the following elements: “(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; (4) which
results in injury to a party acting in justifiable reliance on the
misrepresentation.” Bortz v. Noon, 729 A.2d 555, 561 (Pa. 1999) (citation
omitted).

                                          - 11 -
J-A12021-18


     represented to Plaintiff Donna L. Snyder that the size of the
     Property was 9.3 acres.

     18. The Agreement of Sale entered into by the parties represents
     that the Property is “...two parcels totalling 9.3 acres of land plus
     buildings.”

     19. At the time of the purchase of the Property, [Venezia]
     affirmatively represented, both orally and in writing, that the
     Property consisted of 9.3 acres of land.

     20. [Venezia] knew that their representations that the Property
     was 9.3 acres in size were false and intended that [Perkins] would
     be induced by these false misrepresentations to execute an
     Agreement of Sale for the purchase of the Property and to proceed
     to closing on said Agreement of Sale.

     21. [Venezia] knew that the size of the Property was a material
     fact in the transaction described in this Complaint and the[y] were
     obligated to disclose the true facts regarding the size of the
     Property but intentionally misrepresented and/or deliberately
     concealed the true quantity of land.

     22. [Perkins] believed and reasonably relied upon [Venezia’s]
     misrepresentations as to the size of the Property and proceeded
     to purchase the Property from [Venezia] for the amount of Nine
     Hundred Sixty Thousand Dollars ($960,000.00). A true and
     correct copy of the Deed to the Property is attached hereto,
     incorporated herein and marked as Exhibit “C”.

     23. [Perkins] took possession of the Property and commenced
     use as headquarters of TP Trailers, Inc.

     24. After making inspections of the land, [Perkins] had a survey
     performed which revealed that the Property was only 7.6 acres in
     size, not the 9.3 acres previously falsely represented by [Venezia].

                                      …

     27. [Venezia], by knowingly and intentionally making false
     representations of material facts about the Property, to wit,
     fraudulent misrepresentations as to the size of the Property, and
     by engaging in the deliberate concealment of material facts,
     induced [Perkins] to execute an Agreement of Sale for the

                                    - 12 -
J-A12021-18


      purchase of the Property and to proceed to closing on said
      Agreement of Sale.

      28. [Venezia] acted with the intentions that [Perkins] would rely
      on said misrepresentations or concealments of material facts
      regarding the size of the Property in executing an Agreement of
      Sale to purchase the Property and in proceeding to closing on said
      Agreement of Sale.

      29.     [Venezia’s] misrepresentations and/or concealments
      concerned presently existing facts which are material to the
      decision of [Perkins] to execute an Agreement of Sale[] to
      purchase the Property and to proceed to closing on said
      Agreement of Sale.

      30.     [Venezia], by their intentional misrepresentations and
      deliberate and fraudulent concealments of material facts, induced
      [Perkins] to execute an Agreement of Sale to purchase the
      Property, to proceed to closing on said Agreement of Sale and
      lulled [Perkins] into thinking they had not been defrauded.

      31.       [Perkins]    justifiably relied   upon     [Venezia’s]
      misrepresentations and/or concealments of material facts in
      concluding that the Property was 9.3 acres in size and executed
      the Agreement of Sale and proceeded to closing on said
      Agreement of Sale.

      32.   [Perkins] have been injured as a proximate cause of
      [Venezia’s] fraudulent misrepresentations and concealments of
      material facts in that they purchased property materially different
      from that which was represented to them, to wit, the size of the
      Property is significantly smaller than was represented to them.

Amended Complaint, 5/10/2007, at 4-7. Based on allegations set forth in

their amended complaint, Perkins asserts their claims for fraudulent and

negligent misrepresentation sound in tort and implicate a social duty not to

affirmatively mislead or advise without a factual basis. Perkins’ Brief at 34.

Lastly, Perkins states:




                                    - 13 -
J-A12021-18


     the essence of Perkins’ claims, at every stage of this litigation, has
     been and will continue to be that Venezia knew or should have
     known that the property is 7.6 acres, knew the size of the property
     was material the transaction, but nevertheless misrepresented the
     size of the property as 9.3 acres in order to induce Perkins to
     purchase the property for $960,000.          The duties allegedly
     breached are ones of fair-dealing and honesty; overarching
     societal duties.

Id. at 37-38.

     With respect to the “gist of the action” doctrine, we note:

     Where ... a tort claim arises from an initial contractual
     relationship, tort recovery is permitted:

        In general, courts are cautious about permitting tort
        recovery based on contractual breaches. In keeping with
        this principle, this Court has recognized the “gist of the
        action” doctrine, which operates to preclude a plaintiff from
        re-casting ordinary breach of contract claims into tort
        claims.

Egan v. USI Mid-Atlantic, Inc., 92 A.3d 1, 18 (Pa. Super. 2014) (citation

omitted). As explained in Reardon v. Allegheny College, 926 A.2d 477 (Pa.

Super. 2007), appeal denied, 947 A.2d 738 (Pa. 2008):

     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;
     [or] 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.




                                    - 14 -
J-A12021-18


Reardon, 926 A.2d at 486-87 (internal citation and quotations omitted);

accord Hart v. Arnold, 884 A.2d 316, 339-340 (Pa. Super. 2005), appeal

denied, 897 A.2d 458 (Pa. 2006).

     More recently, a panel of this Court opined:

     To determine whether a complaint sounds a claim in contract or
     in negligence, courts in Pennsylvania have used an evolving
     doctrine known as the “gist of the action” doctrine. See Bruno
     v. Erie Ins. Co., 630 Pa. 79, 106 A.3d 48, 61-62 (Pa. 2014); Zell
     v. Arnold, 2 Pen. & W. 292 (Pa. 1830); Homey v. Nixon, 213
     Pa. 20, 61 A. 1088 (Pa. 1905); Bash v. Bell Tel., 411 Pa. Super.
     347, 601 A.2d 825 (Pa. Super. 1992); eToll Inc. v. Elias/Savion
     Adver., 2002 PA Super 347, 811 A.2d 10 (Pa. Super. 2002). In
     Bruno, the Supreme Court articulated the legal principles a court
     must use to determine the gist of the action doctrine, stating that
     a court must make a duty-based inquiry to determine whether the
     claim is in tort or contract:

        The substance of the allegations comprising a claim in a
        plaintiff’s complaint are of paramount importance, and,
        thus, the mere labeling by the plaintiff of a claim as being
        in tort, e.g., for negligence, is not controlling. If the facts
        of a particular claim establish that the duty breached is one
        created by the parties by the terms of their contract — i.e.,
        a specific promise to do something that a party would not
        ordinarily have been obligated to do but for the existence of
        the contract — then the claim is to be viewed as one for
        breach of contract. If, however, the facts establish that the
        claim involves the defendant’s violation of a broader social
        duty owed to all individuals, which is imposed by the law of
        torts and, hence, exists regardless of the contract, then it
        must be regarded as a tort.

     Bruno, 106 A.3d at 68. Thus, if the claim offered is for a breach
     of a specific promise in the contract, then the claim will lie in
     contract[,] as the duty of the parties are purely contractual.
     However, if the claim is not based on the specific contractual
     promise, but rather on a duty that is owed independent of any
     contractual promises, then the claim will lie in tort, even if the
     parties’ relationship originates from the contract.


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J-A12021-18


Kelly Sys., Inc. v. Leonard S. Fiore, Inc., __ A.3d __, 2018 PA Super 393,

¶¶ 11-12 [1714 WDA 2017] (Pa. Super. Oct. 31, 2018).

     Here, the trial court found the following:

     At bar, the court determined that the duties between the parties
     arise from the terms of the negotiated contract between the
     parties. As indicated on the record,

        THE COURT: I want to get back to you. If the contract says
        you are selling 9.6 acres of land---

        MR. GARNER: 9.3

        THE COURT: 9.3 and there is only 7.6, How is that not a
        breach of contract?

        MR. GARNER: It’s not.

        THE COURT: If I say, I am selling you ten widgets, and I
        only give you six widgets, is that a breach of contract? I
        only convey six, you accept them, and move on, my contract
        said ten.

        MR. GARNER: I guess under the way you are posing it, you
        could consider that a breach.

     (Notes of Testimony 5/31/17, pgs. 110-11)

     Thus, the court determined that the action arose from the contract
     between the parties; the duties between the parties were created
     and grounded in the contract itself; the liability stemmed from the
     contract; and any tort claims duplicated the contract claim. The
     gist of the Plaintiffs’ claim/action was that the Defendants failed
     to deliver property 9.3 acres in size as promised in the Agreement
     of Sale.

Trial Court Opinion, 11/22/2017, at 5-6.

     Upon review, we agree with the trial court’s analysis. We find Hart,

supra, instructive in this matter.    In Hart, the case involved a contract


                                     - 16 -
J-A12021-18


between the two sets of adjacent property owners, where the plaintiff-seller

agreed to deed approximately 55 acres of land to the defendant-purchasers

in exchange for construction of a dam to create a lake, to be completed by

the defendant-purchasers, which would, among other things, enhance the

value of plaintiff-seller’s remaining land.    Hart, 884 A.2d at 322-323.

However, the same year the contract was signed, it became obvious the

required permits for the lake were no longer valid, which affected the ability

of defendant-purchasers to build the lake to the size and depth as

contemplated by the parties. Id. The defendant-purchasers then attempted

to get permission to build a lake as large as originally planned but did not

notify the plaintiff-seller. Id. Their efforts were unsuccessful, and they had

to reduce the size of the lake, which adversely affected the value of plaintiff-

seller’s property more than the defendant-purchasers.         Id. at 324.      In

determining plaintiff-seller’s fraud in the performance cause of action was

barred by the gist of the action doctrine, a panel of this Court determined:

      [Plaintiff-seller’s] claims of fraud in the performance of the
      contract are integrally related to his breach of contract claims.
      The performance duties arose solely from the contract between
      the parties and were created and grounded in the contract itself.
      Further, these claims essentially duplicate [Plaintiff-seller’s]
      breach of contract claim and the success of his fraud-in-the-
      performance claims is wholly dependent on the terms of a
      contract. Thus, [Plaintiff-seller’s] fraud in the performance claims
      are barred under the gist of the action doctrine, because they are
      collateral to the contract, which is the main cause of action.

Hart, 884 A.2d at 341 (citations omitted).




                                     - 17 -
J-A12021-18


      Turning to the present matter, it is quite evident that Perkins’ claims

arise from its contractual relationship it had with Venezia, as there was a

“specific promise” to deliver the property at issue, totaling 9.3 acres, and

Venezia failed to do so. Bruno, 106 A.3d at 68. The facts do not establish

that Venezia committed a “violation of a broader social duty owed to all

individuals, which is imposed by the law of torts and, hence, exists regardless

of the contract[.]” Id. Like Hart, the “performance duties arose solely from

the contract between the parties and were created and grounded in the

contract itself.” Hart, 884 A.2d at 341. Moreover, significantly, with respect

to Perkins’ fraudulent and negligent misrepresentation claims, Perkins did not

conduct their own independent confirmation of the acreage. The Agreement

of Sale included an addendum, which permitted Perkins to conduct due

diligence for 90 days, including obtaining a survey of the property. Perkins,

however, failed to act within those 90 days, or even before settlement.

Therefore, we find Perkins’ claim is properly viewed as an action on the

contract, and their allegations of fraudulent and negligent misrepresentation

are barred by the gist-of-the-action doctrine. Furthermore, the court did not

err and/or abuse its discretion in granting summary judgment on the claim as

there was no genuine issue of any material fact as to a necessary element of

the cause of action. Accordingly, Perkins’ second claim fails.

      Next, Perkins claim the court’s dismissal of their fraud-in-the-

inducement claim based on the parol evidence rule constituted both an error


                                    - 18 -
J-A12021-18


of   law   and   abuse   of   discretion   because   the   rule   does   not   bar

misrepresentations contained in the agreement itself, and the consistent oral

misrepresentations would not be presented to vary, modify or supersede the

agreement. See Perkins’ Brief at 38. Specifically, they argue:

      Venezia misrepresented the size of the property at least four
      times; twice orally prior to executing the Agreement, once in the
      initial Agreement, and once again in the agreement’s Addendum.
      Consequently, regardless of the admissibility of the oral
      statements, the written Agreement and Addendum contain the
      misrepresentations.     Namely, both the Agreement and the
      Addendum mis[re]present the size of the property as 9.3 acres,
      without qualification.

            The misrepresentations contained in the agreement are
      beyond the reach of the parol evidence rule, and are sufficient to
      allow a jury to find in favor of Perkins with respect to the relevant
      elements of their fraud -in -the -inducement claim. As a result,
      the parol evidence rule cannot possibl[y] serve to preclude “any
      and all evidence related” to the fraud-in-the-inducement claim,
      and entitle Venezia to summary judgment on that claim.

            Furthermore, the parol evidence rule cannot serve to
      preclude Venezias’ oral misrepresentations because those
      statements would not be entered into evidence to “vary, modify,
      or supersede” the terms of the agreement.             Those oral
      misrepresentations are wholly consistent with the terms of the
      contract which also misrepresent the size of the property as 9.3
      acres, without qualification. The statements do not change in any
      way the misrepresentations contained in the agreement. Instead,
      the statements would be offered for reasons including but not
      limited to demonstrating to the jury the scope of the fraud, and
      would be relevant to Perkins’ claim for punitive damages as they
      help establish a pattern of misrepresentation and thus the
      outrageousness of Venezias’ conduct.

             Lastly, the contract itself does not bar the introduction of
      the oral misrepresentations because the integration clause states
      in relevant part:




                                      - 19 -
J-A12021-18


              In entering into this Agreement, [Perkins] has not
        relied upon any representations, claims ... made by
        [Venezia], Agents, or their employees unless expressly
        incorporated or stated in this Agreement.

     See R.R. at 309 (emphasis added).

Id. at 42-43 (some citations omitted).

     We are guided by the following:

     [F]raud-in-the-inducement claims are commonly barred if the
     contract at issue is fully integrated. [Blumenstock v. Gibson,
     811 A.2d 1029, 1035 (Pa. Super. 2002)]. The rationale for this
     rule of law is “that a party cannot justifiably rely upon prior oral
     representations” and then sign a contract containing terms that
     refute the alleged prior oral representations. Id. at 1036. Thus,
     when “prior fraudulent oral misrepresentations are alleged
     regarding a subject that was specifically dealt with in a written
     contract, the party alleging such representations must, under the
     parol evidence rule, also aver that the representations were
     fraudulently or by accident or mistake omitted from the integrated
     written contract.” HCB Contractors v. Liberty Place Hotel
     Associates, 539 Pa. 395, 398, 652 A.2d 1278, 1279 (1995). “To
     require less would make a mockery of the parol evidence rule
     because all a party would have to do to avoid, modify or nullify [a
     contract] would be to aver that false representations were
     ‘fraudulently’ made.” Nicolella v. Palmer, 432 Pa. 502, 507, 248
     A.2d 20, 23 (1968).

     In other words,

        parol evidence of prior representations is inadmissible as to
        a matter covered by the written agreement with an
        integration clause, unless the parties agreed that those
        representations would be added to the written agreement
        but they were omitted because of fraud, accident or
        mistake. This situation is commonly referred to as “fraud in
        the execution” [as] the party proffering the evidence
        contends that he executed the agreement because he was
        defrauded by being led to believe that the documents
        contained terms that were actually omitted therefrom.




                                    - 20 -
J-A12021-18


       Blumenstock, supra at 1036 (internal citations omitted). “The
       effect of an integration clause is to make the parol evidence rule
       particularly applicable. Thus the written contract, if unambiguous,
       must be held to express all of the negotiations, conversations, and
       agreements made prior to its execution, and neither oral
       testimony, nor prior written agreements, or other writings, are
       admissible to explain or vary the terms of the contract.” 1726
       CherryStreet Partnership by 1726 Cherry Street Corp. v.
       Bell AtlanticProperties, Inc., 439 Pa. Super. 141, 653 A. 2d.
       663, 665 (Pa. Super. 1995), appeal denied, 544 Pa. 647, 664 A.2d
       976 (1995).

Hart, 884 A.2d at 340-341.6

       Here, the parties’ Agreement of Sale provided the following:

       17. REPRESENTATIONS:

       (A) In entering into this Agreement, Buyer has not relied upon any
       representations, claims, advertising, promotional activities,
       brochures or plans of any kind made by Seller, Agents or their
       employees unless expressly incorporated or stated in this
       Agreement:

       (B) It is understood that Buyer has inspected the property, or
       hereby waives the right to do so, and has agreed to purchase it in
       its present condition. Buyer acknowledges that the Agents have
       not made an independent examination or or determination of the
       structural soundness of the property, the age or condition of the
       components, environmental conditions, the permitted uses, or of
       conditions existing in the locale where the property is situated;
       nor have they made a mechanical inspection of any of the systems
       contained therein.

       (C) It is further understood that this agreement contains
       the whole agreement between Seller and Buyer and there
       are     no    other    terms,   obligations,  covenants,
       representations, statements or conditions, oral or
       otherwise of any kind whatsoever concerning this sale.
       Furthermore, this agreement shall not be altered,
____________________________________________


6 See also Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425 (Pa.
2004); Youndt v. First Nat'l Bank, 868 A.2d 539 (Pa. Super. 2005).

                                          - 21 -
J-A12021-18


      amended, changed or modified except in writing executed
      by the parties.

Agreement of Sale, 1/17/2001, at 2 (emphasis added).

      Based on the agreement, the trial court determined:

      [T]he fraudulent inducement claim was independently precluded
      due to the integration clause that the parties included in their
      contract. Section 17(C) of the parties’ contract indicated that the
      Agreement encompassed the whole agreement between the Seller
      and [t]he Buyer and that there were no other terms, obligations,
      covenants, representations, statements or conditions, oral or
      otherwise of any kind whatsoever concerning the sale.
      (Agreement of Sale, Page 2, Section 17(C))[.] Of note, the
      contract was drafted by [Perkins’] agent; [Venezia] was
      unrepresented in the transaction. Based upon Section 17(C),
      [Perkins was] precluded from bringing in any evidence of the
      acreage of the property other than that which was included in the
      Agreement itself. [Perkins] drafted and then signed an Agreement
      and Addendum, containing an integration clause which clearly
      stated that the document encompassed the entire agreement
      between the parties. Based upon the same, the court properly
      determined that [Perkins] were precluded from arguing otherwise.

Trial Court Opinion, 11/22/2017, at 6-7 (emphasis removed).

      Consistent with the analysis set forth in Hart, and the integration clause

provided in the Agreement of Sale, there is no reason to disturb the trial

court’s dismissal of Perkins’ fraud-in-the-inducement claims, and their

argument does not persuade us otherwise. The contract explicitly states that

no such representations are included in its terms. Accordingly, Perkins’ final

argument fails. Therefore, we conclude the trial court did not err in granting

Venezia’s motion in limine and motion for summary judgment with respect to

this claim.

      Order affirmed.

                                    - 22 -
J-A12021-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/18




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