J-A12022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL P. GRIMM AND IEVA GRIMM,                IN THE SUPERIOR COURT OF
HUSBAND AND WIFE                                      PENNSYLVANIA

                         Appellants

                    v.

JOSEPH A. GRAPPONE

                                                    No. 1384 WDA 2016


               Appeal from the Order Entered August 17, 2016
                in the Court of Common Pleas of Blair County
                    Civil Division at No(s): 2013 GN 2161


BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                               FILED JULY 6, 2017

      Appellants, Michael P. Grimm and Ieva Grimm, appeal from the order

of August 17, 2016, granting summary judgment in favor of Appellee Joseph

A. Grappone.    At issue is the March 5, 2014 order sustaining Appellee’s

preliminary objections and dismissing counts one and four of Appellants’

complaint with prejudice. After careful review, we affirm.

      On July 24, 2013, Appellants instituted this action by filing a complaint

raising counts of misrepresentation, professional negligence, breach of

fiduciary duty/conflict of interest, and unfair trade practices. See Complaint,

7/24/13, at ¶¶ 1-47. The complaint arose from Appellants’ September 2012

agreement to purchase residential property.       Id. at ¶ 4.    The property

abutted a wooded lot to the west.      Id. at ¶¶ 7-8.     Prior to settlement,

Appellants requested that Appellee represent them “in their purchase,” and
J-A12022-17



Appellee agreed, though no written agreement was signed. See Complaint,

7/24/13, at ¶ 5-6.     The Complaint does not specify the breadth of the

alleged agreement for representation.

       Unbeknownst to Appellants, Appellee owned an interest in the real

estate development company which owned the wooded lot. Id. at ¶¶ 7-9.

When Appellants inquired whether the lot would be developed, Appellee

assured them there would be no significant development.          Id. at ¶¶ 8-9.

Appellants took title to the property in October 2012.         Id. at ¶ 12.    In

January 2013, Appellants were informed that the adjacent lot was to be

developed for commercial use, including several buildings, artificial lighting,

and parking lots. Id. at ¶¶ 12-13.

       Appellee filed preliminary objections to the complaint, arguing that

each of the theories of recovery were based upon duties allegedly owed by

Appellee to Appellants through an alleged attorney-client relationship. See

Preliminary Objections, 9/13/13, at ¶¶ 4-6. Appellee contended that count

one,   “misrepresentation,”   was    duplicative   of   Appellants’   count   four

professional malpractice claim and barred by the gist of the action doctrine.

Id. at ¶ 9. Further, Appellee contended that the Unfair Trade Practices and

Consumer Protection Law (“UTPCPL”), 73 P.S. § 201-1 et seq., does not

apply to attorney misconduct. Id. at ¶ 21-22.

       Appellants filed an answer in opposition, arguing that they had pleaded

sufficient facts in both counts to establish distinct legal duties with two

distinct standards of care. See Answer to Preliminary Objections, 11/14/13,

                                      -2-
J-A12022-17



at 1-4. Essentially, Appellants claimed that Appellee had a professional duty

of care and an additional, independent duty to avoid making material

misrepresentations.       Id. at 5.   Further, Appellants argued the gist of the

action doctrine did not bar their claims as both claims sounded in tort, not in

contract. Id. at 6.

         In March 2014, following oral argument, the court sustained Appellee’s

preliminary objections and dismissed counts one and four with prejudice.

Appellee filed an answer and new matter to the complaint; Appellants filed a

reply.     In January 2016, Appellee filed a motion for summary judgment.

Appellants filed an answer in opposition.       Following oral argument on the

motion, the court granted summary judgment on the remaining counts in

favor of Appellee.

         Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.           As Appellants sought to

challenge only the March 4, 2014 order, the court relied upon its previous

opinion and did not issue an opinion pursuant to Pa.R.A.P. 1925(a).

         On appeal, Appellant raises a single issue for our review:

         Did the [t]rial [c]ourt err as a matter of law in sustaining
         [Appellee’s] preliminary objection in the nature of a demurrer to
         Count I of [Appellants’] complaint alleging misrepresentation,
         based on the court’s finding that it was duplicative of
         [Appellants’] professional negligence claim and therefore barred
         by the gist of the action doctrine?

Appellant’s Brief at 5.




                                        -3-
J-A12022-17



      Our scope and standard of review in examining a challenge to an order

sustaining preliminary objections are as follows:

      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. 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, and this Court will reverse the trial court’s decision
      regarding preliminary objections only where there has been an
      error of law or abuse of discretion.

Rambo v. Greene, 906 A.2d 1232, 1235 (Pa. Super. 2006) (internal

citations and quotations omitted).

      Appellants claim that the trial court erred in sustaining Appellee’s

preliminary objection, because they have properly pleaded all elements

necessary to maintain a cause of action for misrepresentation.                See

Appellant’s Brief at 9-11. Further, they contend the claim is not duplicative

of the professional negligence claim because each claim involves a distinct

duty. See Appellant’s Brief at 9, 11-15. Finally, Appellants contend that the

gist of the action doctrine does not apply to the claims at issue in this case

as they sound in tort, not in contract. See Appellant’s Brief at 9, 15-16.

      To plead a claim of negligent misrepresentation, a plaintiff must aver

facts to establish:

      (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.

                                      -4-
J-A12022-17



Bortz v. Noon, 729 A.2d 555, 561 (Pa. 1999) (internal citations omitted).

The speaker need not know his words are untrue, but must have “failed to

make a reasonable investigation of the truth of these words. Moreover, like

any action in negligence, there must be an existence of a duty owed by one

party to another.” Id.

       The complaint averred that Appellee misrepresented to Appellants that

the property would not be altered; that Appellee should have known of the

falsity of this statement; and that Appellants justifiably relied upon the

misrepresentation. Further, Appellants averred that they suffered damages

as a result of said misrepresentation.            However, the complaint did not

identify a duty owed to Appellants.              In their response to Appellee’s

preliminary objections, Appellants attempt to distinguish the duty required of

an attorney from the duty required to establish a prima facie case for

negligent    misrepresentation.         See    Plaintiffs’   Brief   in   Opposition   to

Defendant’s Preliminary Objections, at 5.          However, beyond asserting that

Appellee had “an independent duty to [Appellants] to avoid material

misrepresentations,” Appellants identify no duty owed to them. Accordingly,

they did not plead a cause of action for negligent misrepresentation, and the

court did not err in granting Appellee’s preliminary objections. See Bortz,

729 A.2d at 561; see also Rambo, 906 A.2d at 1235.1

____________________________________________


1
  This Court may affirm the decision of the trial court if it is correct on any
grounds. See Lilliquist v. Copes–Vulcan, Inc., 21 A.3d 1233, 1235 (Pa.
(Footnote Continued Next Page)


                                           -5-
J-A12022-17



      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2017




                       _______________________
(Footnote Continued)

Super. 2011). Our disposition of this issue renders Appellants’ remaining
issues moot. However, we would also note that the gist of the action
doctrine was not properly applied in the instant matter.

Generally, the gist of the action doctrine is “designed to maintain the
conceptual distinction between breach of contract claims and tort claims . . .
[and to preclude] plaintiffs from re-casting ordinary breach of contract
claims into tort claims.” See eToll, Inc. v. Elias/Savion, 811 A.2d 10, 14
(Pa. Super. 2002). Here, Appellants attempted to bring claims for negligent
misrepresentation, a tort, and professional negligence, a tort. See Bortz,
729 A.2d at 560-61; see also Wells Fargo Bank v. Feretti, 935 A.2d 565,
570 (Pa. Super. 2007) (noting that an action for legal malpractice may be
brought in contract or tort, but an action for legal malpractice based upon
professional negligence is a tort).

We decline to adopt the analysis of lower court, or its reliance on Itskowitz
v. White and Williams, May Term 2003, No. 2926 (Phila. Ct. Com. Pl.
2005).



                                            -6-
