J-E01003-16


                             2016 PA Super 169

LEM 2Q, LLC, LEM 2P, LLC, LEM REAL            IN THE SUPERIOR COURT OF
ESTATE MEZZANINE FUND, II, LP, LEM                  PENNSYLVANIA
REAL ESTATE MEZZANINE PARALLEL
FUND II, LP, LEM 2Q NEVADA, LLC, LEM
PARTNERS, II, LP, LEM 2P NEVADA LLC,
LEM PARTNERS II, LP

                        Appellants

                   v.

GUARANTY NATIONAL TITLE COMPANY,
FIDELITY NATIONAL TITLE INSURANCE
COMPANY, ROBERT J. VOEGEL, ROBERT
ROTHSTEIN AND JOSEPH P.
CACCIATORE

                        Appellees                 No. 3472 EDA 2014


             Appeal from the Order Entered November 6, 2014
           In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): 001398 July Term, 2010


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
        LAZARUS, J., MUNDY, J., OLSON, J., OTT, J., and STABILE, J.

OPINION BY LAZARUS, J.:                             FILED JULY 28, 2016

     LEM2Q, LLC, LEM 2P, LLC, LEM Real Estate Mezzanine Fund, II, LP,

LEM Real Estate Mezzanine Parallel Fund II, LP, LEM 2Q Nevada, LLC, LEM

Partners, II LP, and LEM 2P Nevada LLC (collectively “LEM”) appeal from the

order entered in the Court of Common Pleas of Philadelphia County granting

summary judgment in favor of Guaranty National Title Company, Robert J.

Voegel, Robert Rothstein, and Joseph P. Cacciatore (collectively “Guaranty
J-E01003-16



Appellees”) and Fidelity National Title Insurance Company (“Fidelity”). After

careful review, we affirm.

       LEM is the successor-in-interest of an entity that invested $3 million in

a company holding real property in Reno, Nevada, under a preferred equity

scheme. At all times relevant to this matter, Fidelity was a title insurance

company registered to conduct business in Pennsylvania.                  Guaranty

Appellees were based in Illinois and had the following roles. Guaranty

National Title Company (“Guaranty”) was a title assurance agent on behalf

of Fidelity, as indicated in an Issuing Agent Agreement (the “IAA”) between

the parties.1 Robert J. Voegel executed the IAA in his role as president of

Guaranty.     Robert R. Rothstein, Esquire, was a senior vice president of

Guaranty.     Joseph P. Cacciatore and Voegel were members of an entity

known as C&V Investments, LLC (“C&V”), a non-party to the instant action.

       In the Spring of 2007, C&V loaned funds to Russell M. Meusy, II, a real

estate investor, and his companies (collectively, the “Meusy Interests”). The

funds were used to facilitate Meusy’s purchase of a 234-unit property (the

“Property”), located in Reno, Nevada.            The loan transactions occurred in

Illinois; none of the loans was recorded with any public agency. Closing on


____________________________________________


1
  Fidelity and Guaranty entered into the IAA on May 1, 1999. The IAA
remained in effect at all times relevant to this action. Pursuant to the IAA,
Fidelity specifically appointed Guaranty to act as a title assurance agent in a
particular geographical area, which did not include Reno, Nevada.




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the Property occurred on May 11, 2007. Guaranty performed the duties of

settlement agent. The closing papers prepared by Guaranty did not disclose

that C&V had loaned funds to the Meusy Interests.

       After closing on the Property, the Meusy Interests approached LEM to

obtain additional funding. LEM reviewed the settlement papers prepared by

Guaranty at the Property closing of May 11, 2007, and decided to provide

funding to the Meusy Interests through a mezzanine loan.         On June 29,

2007, LEM invested $3 million in a company known as Manzanita Gate

Apartments Holdings, LLC (“Manzanita Holdings”), an entity formed by

Meusy to act as the indirect owner of the Property.2         LEM’s $3 million

investment in Manzanita Holdings provided the Meusy Interests with capital

and allowed LEM to acquire a preferred equity stake in Manzanita Holdings.

Pursuant to a closing escrow agreement, Guaranty performed the duties of

escrow agent and closing officer to the $3 million mezzanine loan.3    During

the closing, Guaranty did not disclose the existence of C&V’s prior

unrecorded loans to the Meusy Interests.         Shortly thereafter, the Meusy

____________________________________________


2
  At the time of the relevant transactions, Manzanita Gate Apartments
Holdings, LLC, had an indirect ownership interest in the Property, and
Manzanita Gate Investments, LLC, was the owner of the Property.
3
  As part of its duties, Guaranty was tasked with providing a date-down
endorsement to extend the coverage date of the title insurance policy issued
by Ticor Title Insurance Company (“Ticor”) to Manzanita Gate Investments,
LLC, until June 29, 2007. Among other things, the date-down endorsement
involved disclosing recorded encumbrances on the property.



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Interests defaulted on all their obligations, including payments on the C&V

loans and the mezzanine loan provided by LEM.

       LEM commenced the instant action in July 2007.          After a long and

convoluted procedural history, which included the filing of an amended

complaint in January of 2011,4 LEM filed a motion for summary judgment

against Guaranty, Voegel, Rothstein and Cacciatore.        This motion asserted

that Guaranty, as the escrow agent to the mezzanine loan transaction, had a

duty to disclose to LEM the existence of the unrecorded C&V loans to the

Meusy Interests. LEM asserted that if it had been informed of the existence

of the C&V loans, which it characterizes as “usurious,” it would have deemed

an investment in Manzanita Holdings too risky to pursue. Thus, LEM argued

that it would not have agreed to fund Manzanita Holdings and would not

have suffered the loss of its investment.

       LEM also filed a motion for summary judgment against Fidelity, as

principal of Guaranty.       LEM argued that Fidelity is liable for LEM’s losses
____________________________________________


4
   After the amended complaint was filed, Appellees filed preliminary
objections on forum non conveniens grounds. The trial court sustained the
preliminary objections without prejudice so that the claims could be brought
in either Illinois or Nevada. On appeal, this Court vacated and remanded the
matter, indicating that the appropriate procedure to transfer the matter to
another jurisdiction would be to file a petition pursuant to Pa.R.Civ.P.
1006(d). See LEM 2Q, LLC v. Guar. Nat. Titile [sic] Co., 60 A.3d 856
(Pa. Super. 2012) (unpublished memorandum). Thereafter, Appellees filed
petitions seeking dismissal of the amended complaint, again on forum non
conveniens grounds. However, the trial court found that sufficient contacts
existed with Philadelphia and denied the petitions. See Trial Court Order,
6/28/13; see also Trial Court Order, 8/9/13.



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under a theory of respondeat superior, based upon the terms of the IAA

between Fidelity and Guaranty.

       On July 21, 2014, Guaranty, Voegel, and Rothstein filed a cross-

motion for summary judgment against LEM. On the same day, Fidelity and

Cacciatore also filed respective cross-motions for summary judgment.

       The trial court denied LEM’s summary judgment motion and granted

each    of   Appellees’   summary   judgment    motions    in   an   order   and

memorandum dated November 6, 2014. LEM filed a timely notice of appeal,

raising the following issue:

       Did [Guaranty Appellees], the title agent for the June 29, 2007
       transaction between [LEM] and other entities for the purchase of
       a $3 million ownership interest in a business entity owning a
       property known as “Manzanita Gate,” have a duty to disclose to
       [LEM] inter alia the fact that [Appellees] “stood on both sides” of
       the “Manzanita Gate” transaction, and the existence of over $6
       million in unrecorded mortgages on the Manzanita Gate
       property, under settled Pennsylvania tort law setting forth a duty
       to disclose and precluding intentional concealment of those facts,
       such that both [Guaranty Appellees] and their principal Fidelity
       are now liable for their fraud in inducing [LEM] to consummate
       the Manzanita Gate transaction?

En Banc Brief of Appellants, at 2-3.

       We begin by noting our standard and scope of review of an order

granting summary judgment:

       Our scope of review is plenary, and our standard of review is the
       same as that applied by the trial court. Our Supreme Court has
       stated the applicable standard of review as follows: An appellate
       court may reverse the entry of a summary judgment only where
       it finds that the lower court erred in concluding that the matter
       presented no genuine issue as to any material fact and that it is
       clear that the moving party was entitled to a judgment as a


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       matter of law. In making this assessment, we view the record in
       the light most favorable to the non-moving party, and all doubts
       as to the existence of a genuine issue of material fact must be
       resolved against the moving party. As our inquiry involves
       solely questions of law, our review is de novo.

       Thus, our responsibility as an appellate court is to determine
       whether the record either establishes that the material facts are
       undisputed or contains insufficient evidence of facts to make out
       a prima facie cause of action, such that there is no issue to be
       decided by the fact-finder. If there is evidence that would allow
       a fact-finder to render a verdict in favor of the non-moving
       party, then summary judgment should be denied.

Reinoso v. Heritage Warminster SPE LLC, 108 A.3d 80, 84 (Pa. Super.

2015) (brackets omitted).

       LEM’s core assertion on appeal is that Guaranty had a duty to disclose

the unrecorded C&V loans to the Meusy Interests. Whether a duty exists is

a question of law, and the determination of “whether there has been a

neglect of such duty is generally for the jury.”   Emerich v. Philadelphia

Ctr. for Human Dev., Inc., 720 A.2d 1032, 1044 (Pa. 1998).5 Where no

affirmative duty of disclosure is owed, “mere silence does not constitute

fraud.” Sewak v. Lockhart, 699 A.2d 755, 759 (Pa. Super. 1997) (citing


____________________________________________


5
  We note that the trial court completed a choice of law analysis, and finding
that the outcome would not be affected regardless of which state’s law was
applied, determined that Pennsylvania law governs.          See Trial Court
Opinion, 11/6/14, at 5-9. This choice of law determination was not raised as
an issue on appeal by any of the parties. Where “choice of law is not an
issue properly presented for our consideration, we cannot discuss this issue
sua sponte.” Discount Drug Corp. v. Honeywell Protection Services,
Div. of Honeywell, Inc., 450 A.2d 49, 50 (Pa. Super. 1982). Thus,
Pennsylvania law is utilized in our analysis.



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Wilson v. Donegal Mut. Ins. Co., 598 A.2d 1310, 1316 (Pa. Super.

1991)).

     Instantly, the trial court determined that the parties’ closing escrow

agreement provides that Guaranty’s duties under the agreement are purely

administrative and no additional obligations are implied by the terms of the

agreement.    The trial court further determined that nothing within the

agreement could be construed to affirmatively require Appellees to disclose

unrecorded loans encumbering Manzanita Gate.          Thus, the trial court

concluded that Guaranty had no contractual duty to disclose the unrecorded

C&V loans to LEM. The trial court also determined that no duty of disclosure

arose in tort under the circumstances. We agree.

     As an initial matter, we note that LEM refers to Guaranty as a title

agent providing LEM with “title insurance protection” in relation to the June

29, 2007 loan transaction in which LEM invested in Manzanita Holdings. See

En Banc Brief of Appellants, at 10.       However, the record reveals that

Guaranty played no role as a title agent in the Manzanita Holdings

mezzanine loan transaction.      Rather, Guaranty’s role was limited to

performing escrow duties as provided in the closing escrow agreement.

     Significantly, LEM has assumed that the owner’s title insurance policy

provided LEM with title insurance coverage.    Manzanita Gate Investments,

LLC, was the owner of the property during the relevant time period and was




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the entity to which Ticor issued the title insurance policy.6 No evidence has

been presented to demonstrate that either Manzanita Gate Apartments

Holdings, LLC, the entity in which LEM invested, or LEM itself, had been

named as an insured or third-party beneficiary under the policy. See Hicks

v. Saboe, 555 A.2d 1241, 1243 (Pa. 1989) (“the duty of a title insurance

company runs only to its insured, not to third parties who are not party to

the contract”).     LEM also admits that it was not specifically insured as a

preferred equity investor.7         See Transcript of Jay J. Eisner Deposition,

____________________________________________


6
  Although the title insurance policy was underwritten by Ticor rather than
Fidelity, LEM attempts to assign liability to Fidelity based upon a Closing
Protection Letter (“CPL”) that was apparently erroneously issued by an
unknown individual at Guaranty. Regardless of the reason the CPL was
issued, the language on the face of the CPL indicates that it does not extend
coverage to LEM under the circumstances. The CPL indicates that it applies
“[w]hen the insurance of [Fidelity] is specified for [the party’s] protection”
where the party is “the lessor or purchaser of an interest in land or a lender
secured by a mortgage [or other security interest.]” See Closing Protection
Letter. Here, no insurance policy was underwritten by Fidelity, Guaranty
was not authorized by Fidelity to act as a title agent in Reno, Nevada, and
LEM did not obtain a direct interest in the property. Additionally, we note
that courts that have considered similar scenarios have determined that “the
issuance of a title insurance policy is generally necessary for liability to
ensue under a closing protection letter.” National Mortgage Warehouse,
LLC v. Bankers First Mortgage Co., 190 F. Supp. 2d 774, 783 (D. Md.
2002) (citing Fleet Mortgage Co. v. Lynts, 885 F. Supp. 1187 (E.D. Wis.
1995)).
7
  Endorsements for mezzanine lenders and preferred equity investors exist
and were available at the time of the transactions in this matter, but none
was obtained by LEM. Such endorsements are added to an owner’s policy,
such as the policy Manzanita Gate Investments, LLC, obtained in this matter.
The endorsements are intended to prevent imputation of the policy-holding
member’s knowledge to the lender or investor, since encumbrances that the
(Footnote Continued Next Page)


                                           -8-
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11/12/13, at 52-54.            Thus, LEM was not entitled to “title insurance

protection” under the policy, even if Guaranty were acting as a title agent in

the relevant transaction.

      Guaranty, as escrow agent, was merely responsible for performing

administrative duties in the transaction in which LEM invested in Manzanita

Gate Holdings. Indeed, “[the escrow agent] under an escrow agreement is

generally considered to be an agent (or trustee) for both parties – a special

agency whose authority must be strictly construed, and who is bound by the

terms of the escrow agreement.” Janson v. Cozen & O’Connor, 676 A.2d

242, 247 (Pa. Super. 1996) (citation omitted).

      Here, the closing escrow agreement states that Guaranty’s duties as

escrow agent “are only as herein specifically provided, and are purely

ministerial in nature. . . . This agreement sets forth all the obligations of

[Guaranty] with respect to any and all matters pertinent to the escrow

contemplated hereunder and no additional obligations of [Guaranty] shall be

implied.”   Closing Escrow Agreement, at 5-6.        Moreover, the date-down


                       _______________________
(Footnote Continued)

policy-holder has either agreed to or has knowledge of are exempted from
coverage under the typical title insurance policy. See John C. Murray, Title
Insurance for Mezzanine Financing Transactions (American Law
Institute Continuing Legal Education 2005). Imputation presents a risk to
the investor because, at least under Pennsylvania law, an LLC’s member’s
knowledge is imputed to other members.            See Moskowitz v. A.B.
Kirschbaum Co., 89 Pa. Super. 274, 276 (1926); 15 Pa.C.S. § 8324; 15
Pa.C.S. § 8904.



                                            -9-
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endorsement which Guaranty was obligated to provide under the escrow

agreement indicates that only items of record were to be disclosed. Thus,

Guaranty complied with respect to the plain meaning of the escrow

agreement regarding required disclosure.           Pursuant to the closing escrow

agreement, Guaranty did not and could not owe any other duties to LEM. 8

       LEM also asserts that the Guaranty Appellees had a duty arising in tort

to disclose the existence of the C&V loans. This argument is presented as a

____________________________________________


8
  LEM has argued that a Nevada case, Mark Properties, Inc. v. Nat’l Title
Co., 34 P.3d 587 (Nev. 2001), required Guaranty to disclose the unrecorded
C&V loans. The holding of Mark Properties requires an escrow agent to
disclose in instances where evidence of substantial fraud exists; it is a
narrow exception to Nevada’s general rule that an escrow agent’s duties are
limited to the instructions contained in the escrow agreement. The facts
involved an escrow agent who allegedly knew of a double escrow in which
two business parties breached their fiduciary duties to two other business
partners. A double escrow has been defined as follows:

       the broker or salesman purchases a principal’s property in the
       first escrow, and sells it to a third party at a profit in a second
       escrow without a full disclosure to both the principal and the
       third party. The escrows close at the same time and the broker
       or salesman thereby uses the proceeds from the sale in the
       second escrow to purchase his principal’s property. The broker
       or salesman receives a commission on the sale in the first
       escrow and a secret profit on the closing in the second escrow.

Alley v. Nevada Real Estate Div., 575 P.2d 1334, 1335 (Nev. 1978).
Because the facts of Mark Properties involved a known breach of fiduciary
duty between business partners, it is factually inapposite to the instant
matter, which involves two separate closings between multiple different
entities. Since Nevada law generally limits the duties of an escrow agent to
those specified in the escrow agreement, it is equivalent to Pennsylvania law
as applicable to the instant matter.




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fraudulent inducement claim based upon duties outlined in the Restatement

(First) of Torts § 5299 and Restatement (Second) of Torts §§ 550,10 551.11


____________________________________________


9
  Section 529, Representation Misleading Because Incomplete, was adopted
into Pennsylvania jurisprudence in Neuman v. Corn Exch. Nat. Bank &
Trust Co., 51 A.2d 759 (Pa. 1947).         Section 529 provides that “[a]
statement in a business transaction which, while stating the truth so far as it
goes, the maker knows or believes to be materially misleading because of
his failure to state qualifying matter is a fraudulent misrepresentation.”
Rest. 1st Torts § 529.
10
   Section 550, Liability for Fraudulent Concealment, provides that “[o]ne
party to a transaction who by concealment or other action intentionally
prevents the other from acquiring material information is subject to the
same liability to the other, for pecuniary loss as though he had stated the
nonexistence of the matter that the other was thus prevented from
discovering.” Rest. 2d Torts § 550.
11
     Section 551, Liability for Nondisclosure, provides:

        (1) One who fails to disclose to another a fact that he knows
        may justifiably induce the other to act or refrain from acting in a
        business transaction is subject to the same liability to the other
        as though he had represented the nonexistence of the matter
        that he has failed to disclose, if, but only if, he is under a duty to
        the other to exercise reasonable care to disclose the matter in
        question.

        (2) One party to a business transaction is under a duty to
        exercise reasonable care to disclose to the other before the
        transaction is consummated,

           (a) matters known to him that the other is entitled to know
           because of a fiduciary or other similar relation of trust and
           confidence between them; and

           (b) matters known to him that he knows to be necessary
           to prevent his partial or ambiguous statement of the facts
           from being misleading; and
(Footnote Continued Next Page)


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        The specific elements of fraud include the following:

        (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.

Youndt v. First Nat. Bank of Port Allegany, 868 A.2d 539, 545 (Pa.

Super. 2005) (discussing fraud claims premised on Rest. 2d Torts §§ 550,

551).      More specifically, a fraudulent inducement claim asserts that

“representations were fraudulently made and that ‘but for them’ [the party]

would never have entered into the agreement.”               Id. at 546 (quoting

Blumenstock v. Gibson, 811 A.2d 1029, 1036 (Pa. Super. 2002)).
                       _______________________
(Footnote Continued)

           (c) subsequently acquired information that he knows will
           make untrue or misleading a previous representation that
           when made was true or believed to be so; and

           (d) the falsity of a representation not made with the
           expectation that it would be acted upon, if he subsequently
           learns that the other is about to act in reliance upon it in a
           transaction with him; and

           (e) facts basic to the transaction, if he knows that the
           other is about to enter into it under a mistake as to them,
           and that the other, because of the relationship between
           them, the customs of the trade or other objective
           circumstances, would reasonably expect a disclosure of
           those facts.

Rest. 2d Torts § 551.



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       We note that in a transaction involving an escrow, two separate

contracts are consummated.           First, the parties agree to the terms of the

underlying contract.         Thereafter, because they have agreed to the

underlying contract, they enter into a separate agreement with the escrow

agent.     Indeed, the escrow agreement is “entirely separate” from the

underlying contract. Umani v. Reber, 155 A.2d 634, 637 (Pa. Super. 1959)

(quoting Angelcyk v. Angelcyk, 380 A.2d 753, 756 (Pa. 1951)).

       Instantly, the record is devoid of evidence of any representation by

Appellees to LEM other than information provided by Guaranty to fulfill its

duties as escrow agent for the mezzanine loan transaction.           Thus, LEM’s

decision to invest $3 million in mezzanine loan funds in the Meusy Interests,

which constitutes the “underlying contract” in this matter, was made

independently from Guaranty and the other Appellees. It is only logical that

Appellees would not have made representations to LEM regarding the

mezzanine loan transaction since none of the Appellees was a party to that

transaction. Indeed, LEM’s amended complaint supports the conclusion that

the Meusy Interests were responsible for LEM’s agreement to the mezzanine

loan terms.12     See Amended Complaint, 1/14/11, at ¶ 51 (stating Meusy
____________________________________________


12
    Because no facts of record indicate that Guaranty or any of the other
Appellees had any role in actually securing LEM’s investment, the fraud in
the inducement claim necessarily implicates an individual or entity within the
Meusy Interests as the party having a duty to disclose unrecorded
encumbrances to LEM. Significantly, neither Meusy nor any of the Meusy
Interests is a party to this action. We note that LEM included a claim of
(Footnote Continued Next Page)


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Interests “approached [LEM] to make a preferred equity investment in

Manzanita Gate”). Moreover, because LEM agreed to the underlying contract

without Appellees’ input, it cannot be said that LEM would not have done so

“but for” representations or omissions made by the Guaranty Appellees.

Blumenstock, supra.

      Additionally, none of the Restatement tort duties that LEM relies upon

could have been triggered with regard to the mezzanine loan transaction

since Guaranty was not a party to the transaction. Indeed, the Restatement

duties to disclose or provide complete information under Sections 529, 550,

and 551 apply only in the context of a business transaction between the

parties.   See nn. 9-11, supra.           Here, Guaranty was a party only to the

escrow and thus had no duties toward LEM in the mezzanine loan

transaction. In the separate escrow agreement contract, to which Guaranty

was a party, the agreement itself conclusively sets forth Guaranty’s duties

and must be strictly construed.13            See Closing Escrow Agreement, at 6

(“This Agreement sets forth all the obligations of Escrow Agent with respect

                       _______________________
(Footnote Continued)

conspiracy involving Appellees and the Meusy Interests in the amended
complaint but has abandoned that argument on appeal.
13
   Additionally, LEM has not addressed the fact that piercing the veil would
be required in order to require Guaranty to disclose the unrecorded loans of
a separate entity, C&V. LEM merely has stated that Voegel was the principal
of Guaranty and a partner in C&V.           While this fact demonstrates a
connection between the entities, LEM has provided no argument, legal
analysis, or evidence to show that the veil should be pierced.



                                           - 14 -
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to any and all matters pertinent to the escrow contemplated hereunder and

no additional obligations of Escrow Agent shall be implied from the terms of

this Agreement or any other Agreement.”); Janson, supra. Moreover, LEM

has admitted that Guaranty performed its duties in relation to the escrow

agreement. See Transcript of Jon S. Robins, Esquire, Deposition, 1/29/14,

at 81 (closing instructions from LEM’s counsel with respect to escrow

agreement were followed).

      Finally, we note that the claims against Fidelity in this matter are

predicated solely on the agency relationship between Fidelity and Guaranty,

as set forth in the IAA. No independent basis for liability on Fidelity’s part

exists. Instantly, because neither Guaranty nor any of the other Guaranty

Appellees has breached any duties to LEM, Fidelity cannot be liable as a

matter of law.

      For the foregoing reasons, we find that the material facts, which are

not disputed, demonstrate that Appellees had no duty to disclose the C&V

loans under either contract or tort law.     Thus, Appellees’ silence does not

constitute fraud. Sewak, supra. Because Appellees owed no duty to LEM

as a matter of law, the trial court properly entered summary judgment in

favor of Appellees.

      Order affirmed.

      This decision was reached prior to July 25, 2016, with Judge Mundy’s

participation.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2016




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