                               [J-102-2016] [MO: Donohue, J.]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                      WESTERN DISTRICT


EUGENE R. YENCHI AND RUTH               I.         :       No. 8 WAP 2016
YENCHI, HUSBAND AND WIFE,
                                                   :       Appeal from the Order of the Superior
                       Appellees                   :       Court entered September 15, 2015 at
                                                   :       No. 753 WDA 2014, vacating the
                                                   :       Judgment of the Court of Common
                v.                                 :       Pleas of Allegheny County entered May
                                                   :       5, 2014 at No. GD 01-006610, and
                                                   :       remanding.
AMERIPRISE FINANCIAL, INC.,
AMERIPRISE FINANCIAL SERVICES,                     :       ARGUED: November      1,   2016
INC., RIVERSOURCE LIFE INSURANCE
COMPANY AND BRYAN GREGORY
HOLLAND,

                       Appellants


                                      DISSENTING OPINION


JUSTICE TODD                                               DECIDED: JUNE 20, 2017
       I   dissent because, unlike the majority,       I   find there are sufficient indicators of a

fiduciary relationship between the Yenchis and Appellants to allow the Yenchis to avoid

summary judgment on their fiduciary duty claim.                For the following reasons,    I   would

affirm the Superior Court.

       As the majority recognizes, outside of the context of fiduciary duties imposed as

a matter of law, the existence of a confidential relationship is, first and foremost, a fact-

driven inquiry. See Basile     v.   H & R Block, Inc., 52 A.3d 1202, 1210 (Pa. 2012) (noting

"the 'intensely fact -specific' nature of this inquiry");      In re Estate of Scott, 316 A.2d 883,

885 (Pa. 1974) ("The concept of a confidential relationship cannot be reduced to a

catalogue of specific circumstances, invariably falling to the left or right of a definitional
line.    .   .    .   [E]ach case must be analyzed on its own facts."). Moreover, the majority cites

the governing test which we have reiterated for finding a confidential relationship: "[A]

confidential relationship 'appears when the circumstances make it certain the parties do

not deal on equal terms, but, on the one side there is an overmastering influence, or, on

the other, weakness, dependence or trust, justifiably reposed." Majority Opinion at 12

(quoting Frowen               v.       Blank, 425 A.2d 412, 416-17 (Pa. 1981)).       However, in applying

those principles, in my view, the majority gives insufficient heed to our admonition that

"it is           unhelpful to sharply deconstruct the generalized guidance [that definition]

attempted to provide." Basile, 52 A.3d at 1210.

                 In   this area, would avoid reliance on singular and categorical requirements such
                                   I




as "overmastering influence," "cedes their decision -making authority", or "surrender[ing]

substantial control." See Majority Opinion at 13, 14, 15, 17. Rather, as we did in Basile,

I   would emphasize the relational focus in discerning confidential relationships, which, in

one formulation, is simply this: the "essence of such a relationship is trust and reliance

on one side, and a corresponding opportunity to abuse that trust                        .   .   .   on the other."

Basile, 52 A.3d at 1210 (quoting Estate of Scott, 316 A.2d at 885) (internal quotation

marks omitted); see also Frowen, 425 A.2d at 416 ("The general test for determining the

existence of [a confidential] relationship is whether it is clear that the parties did not deal

on equal terms;" it is "not confined to any specific association of the parties" (internal

quotation marks omitted)); Brooks                     v.   Conston, 51 A.2d 684, 688 (Pa. 1947) ("a

confidential relationship is not limited to any particular association of parties but exists

wherever one occupies toward another such a position of advisor or counsellor as

reasonably to inspire confidence that he will act in good faith for the other's interest"

(internal quotation marks omitted)); Basile                  v.   H & R Block, Inc., 777 A.2d 95, 103 (Pa.

Super. 2001) ("The possibility of a confidential relationship cannot be excluded by a




                                            [J-102-2016] [MO: Donohue, J.]    -   2
concrete rule. So long as the requisite disparity is established between the parties'

positions in the relationship, and the inferior party places primary trust in the other's

counsel, a confidential relationship may be established."); see generally Deborah A.

DeMott, Breach of Fiduciary Duty: On Justifiable Expectations of Loyalty and Their

Consequences, 48 Ariz. L. Rev. 925, 936 (2006) ("The defining or determining criterion

should be whether the plaintiff (or claimed beneficiary of a fiduciary duty) would be

justified in expecting loyal conduct on the part of an actor and whether the actor's

conduct contravened that expectation.").

         Consistent with this view,        I   reject the majority's reliance on our statement in

Estate of Scott that "a business transaction may be the basis of a confidential

relationship only if one party surrenders substantial control over some portion of his

affairs to the other." Majority Opinion at 17 (quoting Estate of Scott, 316 A.2d at 886)

(emphasis added). This statement is arguably dicta' and, regardless, in my view, it is

insufficiently flexible to govern the fact -driven nature of a fiduciary relationship analysis.

         On the facts of this case,   I   conclude they present a closer question than does the

majority and, as a result, that summary judgment was improper.              I   find it significant that,

early in their relationship with Appellants, the Yenchis paid $350 for a "Financial


1   InEstate of Scott, this Court addressed whether the relationship between a brother
and sister was a confidential one, thereby allowing the sister to challenge the brother's
obtaining of her signature to create a joint bank account while she was in the hospital.
Although the brother defended his actions, in part, by noting that he had previously sold
his sister's car and some of her stock at her request, there was no question of a
business relationship between them. See Estate of Scott, 316 A.2d at 886. Thus, our
imposition of a strict surrender -of-control requirement to prove a confidential relationship
in business relations was entirely unnecessary to the disposition of that dispute between
siblings. Moreover, it was in tension with the Court's earlier statement that "[t]he
concept of a confidential relationship cannot be reduced to a catalogue of specific
circumstances, invariably falling to the left or right of a definitional line." Id. at 885.




                             [J-102-2016] [MO: Donohue, J.]         -   3
Management Proposal," which was prepared by Bryan Holland, identified on the cover

of the proposal as an "American Express financial advisor", and, on the third -page

"Important Message," identified as "your American Express financial advisor".    Exhibit   1




to Deposition of Eugene Yenchi, 12/2/09 (R.R. at 296a).       Except for the cover, each

page of the proposal was marked "Confidential." Id. Critically, the recommendations in

the proposal were the basis for the now -complained -of consolidation of the Yenchis' life

insurance policies in 1996.    In my   view, the fact that the Yenchis paid for financial

advice, independent of and prior to any decision to purchase life insurance products

from Appellants, suggests that their relationship was not simply an arms -length one

between customer and insurance agent, but that, for their money, they reasonably could

have expected some measure of fidelity to their interests from their self-proclaimed

"advisor."2

       Moreover, there are other indicators of a confidential relationship.       In   their

depositions, the Yenchis repeatedly indicated that they trusted Holland, and relied on

his superior expertise. See, e.g., Deposition of Eugene Yenchi, 12/2/09, at 29 (R.R. at

243a) CO: How is it that you decided where [your money] should be invested while it

was at American Express? A: [Holland] advised me to go into that."); id. at 119 (R.R. at

265a) ("I trusted Bryan for doing it"); id. at 145 (R.R. at 272a) ("we trusted him that he

knew the best"); Deposition of Ruth Yenchi, 12/2/09, at 37 (R.R. at 666a) ("Q: Did you

ask any questions about it of anyone, either someone from American Express or

anyone else? A: No. Bryan probably said something about it, but we had just figured

that Bryan knew the insurance more than we did."); id. at 49 (R.R. at 669a) ("He was

2 The majority seemingly discounts the solidity of Holland's advice, noting that he was a
"captive" financial advisor. Majority Opinion at 17. However, find nothing in the record
                                                                I



to suggest that there were, or that the Yenchis understood there to be, advisory
limitations on Holland because of his employment.




                           [J-102-2016] [MO: Donohue, J.] - 4
telling me basically what was on the pages, and he was my advisor and                                   I   took his

word."). At the relevant times, they stated he was the only financial advisor they ever

spoke with.       See, e.g., Deposition of Eugene Yenchi, 12/2/09, at 56 (R.R. at 249a);

Deposition of Ruth Yenchi, 12/2/09, at 37 (R.R. at 666a). Finally, they testified that they

signed documents prepared by Holland without reviewing them. See, e.g., Deposition of

Ruth Yenchi, 12/2/09, at 41 (R.R. at 667a) ("Q:            Would you have read this before you

signed it? A: Well, Bryan would have probably said this is to say that you got your

policy and then he would say you can sign it right here             .   .       .   .   That's the way most of     it

was done."); id. at 49 (R.R. at 669a) ("He was telling me basically what was on the

pages, and he was my advisor and took his word.").
                                             I




            Nevertheless,   I   recognize there are countervailing indicators as well.                            In

particular, the Yenchis never testified that the fee -based proposal was the basis for their

trust in Holland or Appellants, or that Holland ever stated that he was acting in their best

interests. Moreover, it appears that their trust in him had its limits, given that, as noted

by the majority, they declined to follow his advice at times. See Majority Opinion at 3,

17.        But, in my view, these conflicting indicators only highlight the factual dispute

concerning the existence of a fiduciary relationship. Finally, while                         I   recognize that we

have not heretofore found a confidential relationship in a comparable consumer context,

I   eschew categorical limitations and maintain that our focus should remain on the fact -

intensive nature of the inquiry. Accordingly, because           I   conclude there are outstanding

material factual disputes and that summary judgment was inappropriate as a matter of

law,   I    agree with the Superior Court that the trial court's order granting summary

judgment to Appellants on their fiduciary duty claim should be reversed.

            For these reasons, would affirm the order below.
                                 I




           Justice Wecht joins this dissenting opinion.




                                     [J-102-2016] [MO: Donohue, J.]         -       5
