J-S57029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FRANKLIN E. KEPNER JR.                              IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellant

                       v.

TINE KEPNER S/K/A ANN KEPNER

                            Appellee                    No. 835 EDA 2015


                 Appeal from the Order Dated February 5, 2015
                In the Court of Common Pleas of Monroe County
                      Civil Division at No(s): 6943 CV 2014


BEFORE: MUNDY, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                             FILED NOVEMBER 18, 2015

       Franklin E. Kepner, Jr. (“Husband”), appeals from the order entered

February 5, 2015, in the Monroe County Court of Common Pleas, granting

the preliminary objections filed by Tine Kepner s/k/a/ Ann Kepner (“Wife”),

and dismissing Husband’s complaint.1           On appeal, Husband contends the

trial court erred in dismissing his claims for fraudulent misrepresentation and

intentional interference with contractual relations. In response, Wife argues

this appeal is frivolous and vexatious, and requests counsel fees pursuant to

Pa.R.A.P. 2744.        For the reasons below, we affirm the order of the trial

court and deny Wife’s request for counsel fees.

____________________________________________


1
 Husband and Wife were once married, but have been divorced since 2008.
See Trial Court Opinion, 2/5/2015, at 2.
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      The facts underlying Husband’s claims are summarized by the trial

court as follows:

             In October, 2013, [Husband] was allegedly contacted by
      an individual from Diversified Adjustment Services stating that
      [Husband] had an overdue bill with Verizon and that the bill,
      totaling $129.46, was for services utilized at [Husband] and
      [Wife’s] previous marital residence in Berwick, Pa. [Husband]
      believes [Wife] put this bill in [his] name even though [he] did
      not use any of the services and he had vacated the marital
      residence over four years earlier.        [Husband] is allegedly
      attempting to obtain a copy of the bill, but has not been able to
      do so at this time. He states the bill was sent to [Wife] on March
      10, 2012; that the bill was not paid by [Wife]; that the bill was
      placed in his name; and that harm has been caused to his credit.
      [Husband] seeks $2,500 in unspecified damages and $50,000 in
      punitive damages. …

             [Husband] also alleges that [he] and [Wife] owned real
      estate together in Berwick, PA and that they had agreed to sell
      the land to a mutual friend by the name of Wade Perry in August
      2011. [Husband] states that based on this representation, Mr.
      Perry had the property subdivided. [Wife] then allegedly refused
      to follow through with the agreement to sell until May 2013. As
      a result of this delay, [Husband] alleges he was no longer able to
      represent Mr. Perry in the transaction. [Husband] alleges [Wife]
      finally agreed to sell the real estate and they closed the deal on
      May 20, 2013. [Husband] alleges that, as a result of [Wife’s]
      actions, he lost legal fees in the amount of $2,500. [Husband]
      also seeks $50,000 in punitive damages. …

Trial Court Opinion, 2/9/2015, at 2-3.

      Husband initiated this action by filing a complaint in August of 2014.

In response to Wife’s preliminary objections, Husband filed an amended

complaint on October 23, 2014.        The amended complaint set forth two

causes of action; the first for fraud, based on the delinquent Verizon bill, and

the second, for breach of contract and/or intentional interference with



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contractual relations, based on the delay in the sale of the real estate. On

November 12, 2014, Wife filed preliminary objections in the nature of a

demurrer to the amended complaint. Thereafter, on February 5, 2015, the

trial court entered an order granting Wife’s preliminary objections and

dismissing Husband’s amended complaint. This timely appeal follows.2

       Both of Husband’s issues on appeal challenge the trial court’s order

granting Wife’s preliminary objections in the nature of a demurrer.           Our

review of such a claim is well-established.

       A preliminary objection in the nature of a demurrer is properly
       granted where the contested pleading is legally insufficient.
       Cardenas v. Schober, 783 A.2d 317, 321 (Pa.Super.2001)
       (citing Pa.R.C.P. 1028(a)(4)). “Preliminary objections in the
       nature of a demurrer require the court to resolve the issues
       solely on the basis of the pleadings; no testimony or other
       evidence outside of the complaint may be considered to dispose
       of the legal issues presented by the demurrer.” Id. at 321-22
       (citation omitted). All material facts set forth in the pleading and
       all inferences reasonably deducible therefrom must be admitted
       as true. Id. at 321.

          In determining whether the trial court properly sustained
          preliminary objections, the appellate court must examine
          the averments in the complaint, together with the
          documents and exhibits attached thereto, in order to
          evaluate the sufficiency of the facts averred. The impetus
          of our inquiry is to determine the legal sufficiency of the
          complaint and whether the pleading would permit recovery
          if ultimately proven. This Court will reverse the trial
____________________________________________


2
  On March 12, 2015, the trial court ordered Husband to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Husband complied with the court’s directive, and filed a concise statement
on April 2, 2015.




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           court’s decision regarding preliminary objections only
           where there has been an error of law or abuse of
           discretion. When sustaining the trial court’s ruling will
           result in the denial of claim or a dismissal of suit,
           preliminary objections will be sustained only where the
           case is free and clear of doubt.

      Brosovic v. Nationwide Mutual Insurance Co., 841 A.2d
      1071, 1073 (Pa.Super.2004) (citation omitted).

Hess v. Fox Rothschild, LLP, 925 A.2d 798, 805-806 (Pa. Super. 2007)

(emphasis added), appeal denied, 945 A.2d 171 (Pa. 2008).

      First, Husband asserts the trial court erred in determining he failed to

plead sufficient facts to establish a claim for fraudulent misrepresentation

with respect to the delinquent Verizon bill.

      To state a claim for fraudulent misrepresentation, a plaintiff must set

forth the following elements in his complaint:

      (1) A representation;

      (2) which is material to the transaction at hand;

      (3) made falsely, with knowledge of its falsity or recklessness as
      to whether it is true or false;

      (4) with the intent of misleading another into relying on it;

      (5) justifiable reliance on the misrepresentation; and,

      (6) the resulting injury was proximately caused by the reliance.

Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999) (citations omitted).

Averments of fraud in a complaint must be pled with particularity. Pa.R.C.P.

1019(b).     See Presbyterian Medical Center v. Budd, 832 A.2d 1066,

1073 (Pa. Super. 2003) (affirming order sustaining preliminary objections to




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complaint when plaintiff failed to “establish every element of its fraud claim

with sufficient particularity.”)

      Here, Husband argues he set forth sufficient facts to support a claim

for fraudulent misrepresentation.   Specifically, Husband asserts he pled in

his complaint: (1) Wife made a false representation to Verizon claiming that

the delinquent bill was his; (2) the representation was material to the

transaction, and Wife made it with knowledge of its falsity; (3) Verizon was

misled by the representation because the bill was placed in his name; and

(4) Husband’s credit was “ruined” as a result. Husband’s Brief at 9.

      The trial court concluded, however, that Husband failed to plead

sufficient facts to support his claim. The court opined:

      [Husband] has failed to state any specific representation
      made by [Wife] which would be sufficient to sustain an allegation
      of fraud. [Husband] has cited no specific representation made
      by [Wife], other than he ([Husband]) determined the bill was
      placed in his name by [Wife] without his consent. There are no
      specific allegations of a representation made to Verizon, intent of
      [Wife], or reliance by Verizon on any representation.
      [Husband’s] allegation that he received a phone call from an
      individual who stated that there is an overdue Verizon bill from
      [Husband] and [Wife’s] previous marital residence is not
      sufficient to support a claim of fraud against [Wife]. [Husband]
      has expressed opinions and inferences unsupported by the
      allegations set forth in the Amended Complaint. On the facts
      alleged, [Husband] cannot sustain an action for Intentional
      Misrepresentation/Fraud.

Trial Court Opinion, 2/9/2015, at 4 (emphasis supplied).

      We agree with the conclusion of the trial court. In Paragraph 13 of the

Amended Complaint, Husband avers:



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      Upon further inquiry, [Husband] determined that the [] bill had
      been placed in his name by [Wife] even though [Husband] had
      not utilized any of the services nor had he consented to having
      the bill placed in his name.

Amended Complaint, 10/23/2014, at ¶ 13. This is his only averment as to

how the Verizon bill was placed in his name. However, Husband failed to set

forth any specific misrepresentation Wife made to Verizon with the intent to

mislead the company, nor did he aver Verizon justifiably relied on Wife’s

“misrepresentation.” See Pa.R.C.P. 1019(b) (fraud averments must be pled

with particularity). Therefore, we agree Husband failed to state a claim for

fraudulent misrepresentation.

      Next, Husband argues the trial court misinterpreted his second claim

as a cause of action for breach of contract, when, in actuality, he asserted a

claim for intentional interference with contractual relations.       Further,

Husband asserts he pled sufficient facts to support such a claim, and the

court erred in dismissing his amended complaint.

      Both the trial court and Wife characterize Husband’s second cause of

action as one for breach of contract to sell real property.   See Trial Court

Opinion, 2/9/2015, at 4; Wife’s Brief at 5. The court found Husband failed to

establish a breach of contract claim because:      (1) Husband neglected to

attach a copy of the contract to his complaint; (2) Husband did not

demonstrate how Wife breached the contract, since the property was

eventually sold to the buyer; and (3) Husband failed to aver “specific

information showing he suffered actual damages” other than his speculative

assertion that the buyer intended to hire Husband to represent him in the

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sale.3    See Trial Court Opinion, 2/9/2015, at 5-6.      We find no reason to

disagree.

         However, Husband does not challenge this finding on appeal. Rather,

he contends the court misinterpreted his cause of action, which, he claims,

was in actuality a claim for intentional interference with contractual

relations.    Husband asserts that he made the following averments in his

Amended Complaint:

         [Wife] originally agreed to sell the land to one Wade Perry who
         was [Husband’s] client. She then, for no reason except to injure
         [Husband], refused to perform the contract which she had
         originally agreed to perform. As a result, Wade Perry went to
         another attorney to perform the transaction. [Husband] was
         thus injured.

Husband’s Brief at 10-11. See also Amended Complaint, 10/23/2014, at ¶¶

26, 28, 32, 34, 35. Based on these allegations, he contends he set forth a

proper claim for intentional interference with contractual relations.

         To state a cause of action for intentional interference with contractual

relations, a plaintiff must prove:

            (1) the existence of a contractual, or prospective
            contractual relation between the complainant and a third
            party;

____________________________________________


3
  Indeed, as the trial court notes in its opinion, “[i]t is apparent from
[Husband’s] allegations that at the very least, a conflict of interest existed
which prevented his representation [of the buyer].” Trial Court Opinion,
2/9/2015, at 6 n.2.




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           (2) purposeful action on the part of the defendant,
           specifically intended to harm the existing relation, or to
           prevent a prospective relation from occurring;

           (3) the absence of privilege or justification on the part of
           the defendant; and

           (4) the occasioning of actual legal damage as a result of
           the defendant’s conduct.

Reading Radio, Inc. v. Fink, 833 A.2d 199, 211 (Pa. Super. 2003)

(citation omitted), appeal denied, 847 A.2d 1287 (Pa. 2004). Further,

      [a] critical element of the tort is a current contractual
      relationship between the plaintiff and another. Therefore, a
      cause of action will not stand unless there has been some act by
      the defendant which served to deprive the plaintiff of some
      benefit to which he was entitled by contract.

Al Hamilton Contracting Co. v. Cowder, 644 A.2d 188, 191 (Pa. Super.

1994).

      While we agree Husband’s amended complaint purports to set forth a

cause of action for intentional interference with contractual relations, we

conclude this claim fails. Notably, Husband does not specify the contractual

relationship he had with Perry. He simply avers Perry was his “friend and

client.”   Amended Complaint, 10/23/2014, at ¶ 26.           Without any details

regarding    his   alleged   agreement    with   Perry,   Husband   is   unable   to

demonstrate how Wife interfered with that contract, or what damages he

suffered as a result of her actions.           His allegation that he “lost fees”

amounting to $2,500 is purely speculative. See id. at ¶ 35. Accordingly,

Husband failed to present sufficient facts in his amended complaint to

support a claim for intentional interference with contractual relations.



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Therefore, we conclude the trial court properly granted Wife’s preliminary

objections and dismissed Husband’s complaint.

      In addition to Husband’s issues on appeal, Wife requests this Court

award her counsel fees pursuant to Pa.R.A.P. 2744.

      Rule 2744 provides, in relevant part:

      In addition to other costs allowable by general rule or Act of
      Assembly, an appellate court may award as further costs
      damages as may be just, including

      (1) a reasonable counsel fee …

      if it determines that an appeal is frivolous or taken solely for
      delay or that the conduct of the participant against whom costs
      are to be imposed is dilatory, obdurate or vexatious. …

Pa.R.A.P. 2744. This Court has explained that an appeal is frivolous “where

it lacks any basis in law or fact; simply because an appeal lacks merit does

not make it frivolous.”   Geiger v. Rouse, 715 A.2d 454, 458 (Pa. Super.

1998) (citation omitted). See Rohm & Haas Co. v. Lin, 992 A.2d 132, 151

(Pa. Super. 2010) (declining to award counsel fees pursuant to Rule 2744

when appellants “refer[red] to both facts and case law in support of their

arguments” that trial court rulings were improper).      Further, although the

term “vexatious” is not defined in the statute, this Court has defined the

term, albeit in another context, “a legal strategy ‘without sufficient ground in

either law or in fact and ... serv[ing] the sole purpose of causing

annoyance.’”   Pietrini Corp. v. Agate Const. Co., 901 A.2d 1050, 1053

(Pa. Super. 2006) (defining “vexatious” conduct with regard to counsel fees

under the Prompt Pay Act, 62 Pa.C.S. § 3935).


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     While we sympathize with Wife’s frustration in defending a lawsuit that

appears to have been filed by a disgruntled ex-spouse who happens to be an

attorney, we decline to award counsel fees at this time. Husband’s issues on

appeal, while clearly meritless, do not lack any basis in law or fact. Indeed,

as noted above, we agree with Husband’s contention that the trial court

misinterpreted the nature of his cause of action for intentional interference

with contractual relations. Moreover, we cannot conclude with certainty that

Husband’s decision to appeal the trial court’s ruling was vexatious, and Wife

does not offer any evidence to the contrary besides her mere allegations.

Nevertheless, we caution Husband that the claims raised herein come

dangerously close to the frivolous and vexatious standard in Rule 2744.

     Order affirmed. Request for imposition of counsel fees denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2015




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