J-A02015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FULTON BANK, N.A.                                 IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

PAUL A. SANDQUIST, PATRICIA A.
ZWAAN, BARRY L. SPEVAK AND
DOWNEY SPEVAK, & ASSOCIATES, LTD.

                            Appellee                  No. 2306 EDA 2016


                       Appeal from the Order June 1, 2016
                In the Court of Common Pleas of Chester County
                     Civil Division at No(s): 2016-01908-TT


BEFORE: OTT, J., RANSOM, J., and FITZGERALD, J.*

CONCURRING AND DISSENTING MEMORANDUM BY RANSOM, J.:

FILED SEPTEMBER 27, 2017

        I concur with the Majority regarding the reversal of the dismissal of

the negligent misrepresentation claim and with the affirmance of the

dismissal of the negligence per se claim. However, because I would reverse

the trial court’s order dismissing Appellant’s claim of fraud, I respectfully

dissent.

        This is an appeal from an order sustaining preliminary objections on

the basis of a demurrer. In such a case,

        [w]hen an appellate court rules on whether preliminary
        objections in the nature of a demurrer were properly sustained,
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      the standard of review is de novo and the scope of review is
      plenary. The court may sustain preliminary objections only
      when, based on the facts pleaded, it is clear and free from doubt
      that the complainant will be unable to prove facts legally
      sufficient to establish a right to relief. For the purpose of
      evaluating the legal sufficiency of the challenged pleading, the
      court must accept as true all well-pleaded, material, and
      relevant facts alleged in the complaint and every inference that
      is fairly deducible from those facts.

Mazur v. Trinity Area Sch. Dist., 961 A.2d 96, 101 (Pa. 2008) (internal

citations omitted). “If any doubt exists as to whether a demurrer should be

sustained, it should be resolved in favor of overruling the preliminary

objections.” Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011).

      To plead a viable claim of fraud, a plaintiff must demonstrate: “(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.”       See Eigen v. Textron Lycoming

Reciprocating Engine Div., 874 A.2d 1179, 1185 (Pa. Super. 2005);

DeArmitt v. N.Y. Life Ins. Co., 73 A.3d 578, 591 (Pa. Super. 2013).

      Here, the trial court concluded that 1) Appellant’s allegations were not

pleaded with sufficient specificity and 2) the company’s financial officer, not

Accountants, presented this false information to Appellant. Accordingly, the

court concluded that Appellant was unable to sustain a viable claim for

fraud. The Majority adopts this view wholesale, and, in so doing, affords the




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trial court unwarranted deference.   See Mazur, 961 A.2d at 101 (setting

forth our de novo review).

         On the contrary, I find that Appellant pleaded specifically that

Accountants knowingly drafted statements misrepresenting the company’s

accounts receivable, thus inflating the value of company assets and further

misrepresenting the financial stability of the company. While it may be true

that the company officer delivered the misleading documents, they were, at

least in part, created by Accountants.     Accountants knew the information

was false and/or misleading and that Appellant would rely on the false

information in determining whether to extend the company credit and debt

financing.    Appellant specifically pleaded the other relevant elements of

fraud.

         Accordingly, based upon the facts pleaded, the court improperly

sustained the objections and dismissed Appellant’s fraud complaint.     See

Mazur, 961 A.2d at 101; Feingold, 15 A.3d at 941. Thus, I would reverse

the trial court’s order.




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