J. A03037/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


BOKF, N.A. D/B/A BANK OF OKLAHOMA, :              IN THE SUPERIOR COURT OF
                                   :                   PENNSYLVANIA
                     Appellant     :
                                   :
                v.                 :
                                   :
FNB OF PENNSYLVANIA, FORMERLY      :
KNOWN AS GUARANTY BANK, NA         :
                                   :
                     Appellee      :              No. 772 MDA 2014

                      Appeal from the Order April 21, 2014
                In the Court of Common Pleas of Luzerne County
                        Civil Division No(s).: 12737-2011

BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 27, 2015

        Appellant, BOKF, N.A., doing business as Bank of Oklahoma, appeals

from the order granting the preliminary objections in the form of a demurrer

raised by Appellee, FNB of Pennsylvania, formerly known as Guaranty Bank,

N.A. Appellant contends the trial court should have permitted it to proceed

on its theories of equitable subrogation and unjust enrichment. We affirm.

        We adopt the facts and procedural history set forth by the trial court’s

decision. See Trial Ct. Op., 9/8/14, at 1-4. We add that the court’s October

2, 2013 order permitted Appellant to file an interlocutory appeal.       Order,

10/2/13.     Appellant filed a petition for permission to file an interlocutory

appeal with the trial court on October 31, 2013. On April 21, 2014, before

*
    Former Justice specially assigned to the Superior Court.
J. A03037/15


the trial court ruled on Appellant’s petition, the parties filed a joint motion

for entry of final order permitting Appellant to withdraw the remaining claim

in its complaint. The trial court entered an order on April 21, 2014, which

granted the parties’ joint motion and resolved all outstanding claims. Order,

4/21/14.     Appellant timely appealed on May 5, 2014, and timely filed a

court-ordered Pa.R.A.P. 1925(b) statement.

      Appellant raises the following issues:

           Did the trial court improperly determine that [Appellant]
           had acted carelessly with regard to the failure to discover
           [Appellee’s] loan?

           Did the trial court improperly determine that [Appellant]
           acted as [sic] “volunteer” when entering into [Appellant’s]
           second loan?

           Did the trial court improperly determine that [Appellee]
           would be prejudiced if [Appellant] was found to be entitled
           to equitable subrogation?

           Did the trial court improperly determine that [Appellant]
           was not entitled to seek a claim under the theory of unjust
           enrichment?

Appellant’s Brief at 4.

      We summarize Appellant’s arguments for all of its issues.      Appellant

contends it did not act carelessly or imprudently by issuing the Second Loan.

Appellant states that the borrowers did not disclose the FNB loan and a title

report similarly did not identify any lien from the FNB loan.    It insists the

trial court should not impute the conduct of third parties to it.    Appellant

maintains that by refinancing the First Loan, it was not a “volunteer.”      It



                                      -2-
J. A03037/15


avers that FNB would not be prejudiced by any equitable subrogation.

Lastly, Appellant opines the trial court should have permitted its claim for

unjust enrichment. Appellant, we hold, is due no relief.

     Our standard of review follows:

        An appellate court should affirm an order of a trial court . .
        . sustaining preliminary objections in the nature of a
        demurrer where, when all well-pleaded material facts set
        forth in the complaint and all inferences fairly deducible
        from those facts are accepted as true, the plaintiff is not
        entitled to relief. The court need not, however, accept any
        of the complaint’s conclusions of law or argumentative
        allegations.     Where a doubt exists as to whether a
        demurrer should be sustained, this doubt should be
        resolved in favor of overruling it.

Krentz v. Consol. Rail Corp., 910 A.2d 20, 26 (Pa. 2006) (citations and

punctuation marks omitted).     “We will reverse a trial court’s decision to

sustain preliminary objections only if the trial court has committed an error

of law or an abuse of discretion.” Lerner v. Lerner, 954 A.2d 1229, 1234

(Pa. Super. 2008) (citation omitted).

        A demurrer is an assertion that a complaint does not set
        forth a cause of action or a claim on which relief can be
        granted. A demurrer by a defendant admits all relevant
        facts sufficiently pleaded in the complaint and all
        inferences fairly deducible therefrom, but not conclusions
        of law or unjustified inferences. In ruling on a demurrer,
        the court may consider only such matters as arise out of
        the complaint itself; it cannot supply a fact missing in the
        complaint. Where the complaint fails to set forth a valid
        cause of action, a preliminary objection in the nature of a
        demurrer is properly sustained.

Id. at 1234-35 (citations omitted).




                                      -3-
J. A03037/15


      “Subrogation is defined as the substitution of one entity in the place of

another with reference to a lawful claim, demand, or right, so that the one

who is substituted succeeds to the rights of the other in relation to the debt

or claim, and its rights, remedies or securities.”     46 Pa. Law Encyclopedia

2d, Subrogation § 1 (2009) (emphasis added and footnote omitted); accord

Pub. Serv. Mut. Ins. Co. v. Kidder-Friedman, 743 A.2d 485, 488 (Pa.

Super. 1999); Molitoris v. Woods, 618 A.2d 985, 989 (Pa. Super. 1992);

Home Owners’ Loan Corp. v. Crouse, 30 A.2d 330, 331 (Pa. Super.

1943). The doctrine “is invoked to enable the person paying the debt to use

the original creditor’s remedies against the primary debtor.”         46 Pa. Law

Encyclopedia 2d, Subrogation § 2. Instantly, Appellant seeks to subrogate

itself, as its own Second Loan was used to repay its own First Loan.

Appellant is not substituting another entity—it seeks to substitute itself. By

definition, subrogation is unavailable to Appellant.          See 46 Pa. Law

Encyclopedia 2d, Subrogation § 1 (2009).

      Regardless, assuming Appellant can subrogate itself, after careful

review of the parties’ briefs, the record, and the decision of the Honorable

Lesa S. Gelb, we affirm based on the trial court’s opinion. See Trial Ct. Op.

at 6-8 (holding, inter alia, that Appellant failed to fulfill all four criteria for

equitable subrogation; and unjust enrichment was unavailable to Appellant).

We add that the instant case is analogous to First Com. Bank v. Heller,




                                       -4-
J. A03037/15


863 A.2d 1153 (Pa. Super. 2004). In Heller, a search of the public records

would have revealed three mortgages:

        1. Central Bank’s 1990 mortgage

        2. Mid-State’s 1995 mortgage

        3. First Commonwealth Bank’s 2000 mortgage

Id. at 1154. Ameriquest Mortgage Company overlooked the 2000 mortgage

and extended a mortgage in 2001 to Heller, which was used to pay off the

senior Central Bank and Mid-State mortgages.        Id.   Thus, the below

mortgages were of record:

        1. Mid-State’s 1995 mortgage [paid off but not closed]

        2. First Commonwealth Bank’s 2000 mortgage

        3. . . . Ameriquest Mortgage Company’s 2001 mortgage

Id. First Commonwealth Bank moved to foreclose on its 2000 mortgage and

Ameriquest moved to invoke equitable subrogation because its 2001

mortgage was used to repay the senior Central Bank and Mid-State

mortgages. Id. at 1156.

     The Heller Court held Ameriquest could not use equitable subrogation

to move its 2001 mortgage ahead of First Commonwealth Bank’s 2000

mortgage. Id. at 1158. The Heller Court reasoned that we are bound by

precedent rejecting equitable subrogation under these circumstances, i.e.,

permitting “a person who pays off an encumbrance to assume the same

priority position as the holder of the previous encumbrance.” Id. at 1156.



                                   -5-
J. A03037/15


Ameriquest, the Heller Court concluded, had a secured interest in the

property, albeit subordinate to First Commonwealth Bank’s mortgage, and

could still foreclosed but could not “assume the same priority position” as

Central Bank or Mid-State. Id. at 1156, 1160. Instantly, Appellant—akin to

Ameriquest—has moved to assume the same priority position of the holder

of the 1998 mortgage because its 2003 mortgage was used to repay the

1998 mortgage.      Cf. id.   Bound by Heller, we must similarly reject

Appellant’s attempt to invoke equitable subrogation.    Cf. id.   Accordingly,

after accepting as true all well-pleaded facts, we discern no abuse of

discretion or error of law by the trial court and thus affirm the order below.

See Lerner, 954 A.2d at 1234; Krentz, 910 A.2d at 26.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/27/2015




                                    -6-
                                                                                         Circulated 04/27/2015 02:43 PM




  BOKF, N.A. d/b/a BANK OF OKLAHOMA               IN THE COURT OF C01'v1MON PLEAS
                                                         OF LUZERNE COUNTY

                                Plaintiff               CIVIL ACTION--EQUITY
         v.

 FIRST NATIONAL BANK OF
 PENNSYLVANIA, formerly known as
 GUARANTY BANK, N.A.
                         Defendant                     NO: 12737 of2011




        NOW THIS       yv
                                            ORDER

                             day of September, 2014, the Division of Judicial
                                                                                                        ·-
                                                                                                        ~
                                                                                                         ·~

 Records/Prothonotary is ORDERED AND DIRECTED to mail a copy of this ORDER and

 attached OPINION to the parties/counsel ofrecord pursuant to Pa. R.C.P. 236 as well as file

and transmit the record to the Superior Court.



                                        BY THE COURT:




cc:

Thomas J. Mosca, Esquire
345 Pierce Street
Kingston, PA 18704

John M. Gallagher, Esquire
 Robert S. Sensky, Esquire
Laputka, Bayless, Ecker & Cohn, P.C.
1 S. Church Street, Suite 301
Hazleton, PA 18201
                                                   cw~,r~:z
                                                 1111 r~~i~11~~•11111
                                                               Filing ID: 1946798
                                                     2011-12737-0054 Order with Rule 236

                                                          Luzerne County Civil Records
                                                             9/8/2014 10:53:18 AM
                                                                                                               Circulated 04/27/2015 02:43 PM




  BOKF, N.A. d/b/a BANK OF OKLAHOMA                                     IN THE COURT OF COMMON PLEAS OF
                                                                                 LUZERNE COUNTY

                                              Plaintiff                        CIVIL ACTION--EQUITY
             v.

  FIRST NATIONAL BANK OF
  PENNSYLVANIA, formerly known as
  GUARANTY BANK, N.A.
                           Defendant                                          NO: 12737 of 2011


                                                            OPINION

             Bank of Oklahoma ("BOFK") brought this action against First National Bank of

 Pennsylvania        ("FNB") by filing a complaint on October 12, 2011. BOFK filed an

 amended complaint on January 31, 2012. On May 21, 2012, FNB filed preliminary

 objections to the amended complaint and on August 31, 2012 this Court granted the

 preliminary      objections and directed BOFK to file another amended complaint. BOFK

 filed their second amended complaint on January 28, 2013. Thereafter, FNB filed

preliminary       objections to the second amended complaint on March 28, 2013. This Court

granted the preliminary            objections on June 27, 2013 and on July 2, 2013 BOFK filed a

motion for reconsideration.              On July 24, 213, BOFK filed its motion for amendment                              of

interlocutory       order requesting that this Court amend its order to include a statement per

42 Pa.C.S. § 702(b)1 On August 22, 2013, the June 27, 2013 order was vacated and held




1
  (b) Interlocutory appeals by permission.--When a court or other government unit, in making an interlocutory order in a matter in
which its final order would be within the jurisdiction of an appellate court, shall be of the opinion that such order involves a


~:~: ::~:~~:~~%i~::::~~:~~       ~t=~:~:~r;!:t~~:hofntt:;1::~!~i~:::~'.so state,;,   :1\\';(';;,t~;iiiil1III
controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the




                                                                                                    Filing ID: 1946799_ .
                                                                                                2011-12737-0055     Opinion
                                                                                                                 Civil Records
                                                                                                LuzerneCounty      ·43 AM
                                                                                                    9/B/2014 1 o:54.
                                                                                  Circulated 04/27/2015 02:43 PM




     in abeyance until October 2, 2013 at which time the June 27, 2013 order was

     confirmed.2

              BOFK Second Amended Complaint set forth claims for equitable subrogation and

     unjust enrichment. Resource One CDC loaned money to Joseph and Ann Donnini

    (hereinafter referred to as the "Donninis") on or about March 26, 1998 in the amount of

    $211,000.00, which was assigned to BOFK on March 21, 1999 ("BOFK I" Loan"). This

    loan was secured by a mortgage against the Donninis residence with an address of 97 Old

    Ashley Road, Wilkes-Bane, Pennsylvania ("Property"). On or about December 27, 2000

    FNB made a $250,000.00 loan to Donninico, Inc., a Pennsylvania Corporation, and this

    loan was guaranteed by the Donninis who pledged a second position lien to FNB in their

    Property by way of a mortgage ("FNB Loan"). The FNB Loan was also secured by

    additional commercial property located at 507-509 South Main Street, Wilkes-Bane,

    Pennsylvania ("Commercial Property").


              On March 14, 2003 BOFK refinanced the BOFK I" Loan with the Donninis

     with a new loan in the amount of $205,300.00 ("BOFK 2nd Loan"). The Donninis did

     not represent to BOFK that they had pledged their Property to FNB nor do we know if

     they were asked that question. BOFK did require and received title insurance from

     Guarantee Title and Trust Company on the BOFK 2nd Loan, but did not select the title

    agent or the title company as the Donninis selected the title agent. The title insurance

    policy issued to BOFK for this loan unfortunately did not reveal the existence of the

    FNB mortgage against the Property. BOFK did not request a subordination agreement

    from FNB for the BOFK 2nd Loan to remain the first lien holder against the Property


2
    This allowed time for a mediation to take place but to no avail.

                                                                                                2
                                                                                  Circulated 04/27/2015 02:43 PM




  due to the fact that it was unaware of the FNB mortgage. The FNB commitment            letter

  does set forth and identify that it would have a second position lien against the Property.

          Guarantee Title & Trust Company issued the title insurance policy for the BOFK

 2nd Loan. BOFK made a claim under the lender's policy of title insurance due to the BOFK

 2nd Loan being a second position lien and not a first position lien as set forth in the policy

 when the Donninico, Inc failed to make payments under the BOFK 2nd loan. According to

 the representations made by counsel for BOFK at the June 20, 2013 hearing, Guarantee

 Title & Trust Company paid approximately $70,000.00 to BOFK under the lenders title

 policy due to the title
 claim.

          This Court granted the Preliminary Objections of the FNB based upon the

 submissions of the parties. The Commonwealth Court in Richardson v. Beard provides the

 guidelines for examining legal insufficiency of a pleading (demurrer) as follows:


           "In considering preliminary objections, we must consider as true all well-pleaded
          material facts set forth in the petition and all reasonable inferences that may be
          drawn from those facts. Sheffield v. Department of Corrections, 894 A.2d 836 (Pa.
          Commw. 2006). Preliminary objections will be sustained only where it is clear
          and.free.from doubt that the facts pleaded are legally insufficient to establish a
          right to relief Id. We need not accept as true conclusions oflaw, unwarranted
          inferences from facts, argumentative allegations, or expressions of opinion. Myers
          v. Ridge, 712 A.2d 791 (Pa. Commw. 1998)." (emphasis added). Richardson v.
          Beard 942 A.2d 911, 913 (Pa. Commw. 2008)

"Preliminary objections in the nature of a demurrer test the legal sufficiency of the

plaintiffs complaint.".Sexton v. FNC Bank 792 A.2d 602, 604 (Pa. Super. 2002) (citation

omitted), appeal denied, 572 Pa. 725, 814 A.2d 678 (2002). "The question presented by the

demurrer is whether, on the facts averred, the law says with certainty that no recovery is

possible." Mistick Inc. v. Northwestern National Casualty Company, 806 A.2d 39, 42 (Pa.


                                                                                                  3
                                                                              Circulated 04/27/2015 02:43 PM




Super. 2002). (citation omitted) "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." (citation omitted) Cooper v. Frankford Health Care System

Inc., 960 A.2d 134, 143 {Pa. Super. 2008). Any doubt as to the legal sufficiency of the

complaint should be resolved in favor of overruling the demurrer. Kane v. State Farm Fire

& Casualty Company, 841 A.2d 1038 Pa. Super. 2003).


          Equitable subrogation is one of two legal theories relied upon by the Plaintiffs.

 According to the Restatement, equitable subrogation is "an equitable remedy designed

 to avoid a person's receiving an unearned windfall at the expense of another."

 Restatement (Third) Of Property. Mortgages. § 7.6 (1997). Put more simply, equitable

 subrogation allows "a person who pays off an encumbrance to assume the same priority

 position as the holder of the previous encumbrance." First Commonwealth Bank v.

 Catharine Heller. 863 A.2d 1153, 1156 (PA. Super 2004) (quoting Houston v. Bank of

 America Fed. Say. Bank. 119 Nev. 485. 78 P.3d 71. 73 (2003)). The law of the land in

 Pennsylvania is Home Owners' Loan Corporation v. Crouse et al. 30 A.2d 330 (PA.

 Super 1943) and remains binding precedent on this Court with some distinctions from

 the Rest (3rd) of Property, Mortgages Section 7.6.

            According to Home Owners, the courts of equity will not relieve a party from

the consequences of an error due to his own ignorance or carelessness when there were

available means which would have enabled him to avoid the mistake if reasonable care

had been exercised." Id. at 332 (citing Felin v. Futcher, 51 Pa.Super. 233, 1912 WL 4727

(Pa.Super.1912)).



                                                                                              4
                                                                           Circulated 04/27/2015 02:43 PM




             In Home Owners, W. H. Mitchell acquired in 1909 title to a parcel of

 property upon which he subsequently built a house where he and his family resided.

 On April 29, 1925 the First Savings and Trust Company of Derry (the "Trust

 Company") entered a judgment against Mitchell and his wife, in the sum of $5,460,

 which was a first lien the property. This judgment was revived on March 19, 1930, in

 the sum of $4,880. On June 4, 1925, Homer Crouse caused a judgment in the sum of

 $682.50 to be entered against Mitchell, which was properly revived. Mitchell and his

 wife on March 8, 1934, filed with the Home Owners' Loan Corporation ("Home

 Owners") a written application for a loan for the purpose of paying the liens against

 their home. They set forth therein that their property was encumbered by a judgment,

 a first lien on the property, in favor of the trust company and there were also liens for

the 1932, 1933, and 1934 County, Township, and School taxes, but no reference was

made to the Crouse judgment and it appeared Home Owners had no knowledge of it.

On March 16, 1934, J. M. Nicholson caused a judgment to be entered against the

Mitchells in the sum of $113. The Trust Company, through its trustees and assignees

who, in the meantime, had been appointed pursuant to a plan of reorganization,

agreed to accept $3,958.66 in payment and satisfaction of its judgment and Nicholson

consented to postpone and subordinate his lien to the mortgage to be executed by the

Mitchells as security for a loan granted by Home Owners for $4, 193 .81. Home

Owners paid from the proceeds of this loan the Trust Company's judgment, which

was satisfied, and the taxes together with certain costs. In the early part of 1939

Home Owners learned of the existence of the Crouse judgment. A request was then

made that Crouse subordinate his lien to that of the Home Owner's mortgage, which



                                                                                         5
                                                                                   Circulated 04/27/2015 02:43 PM




      Crouse refused to do. The complainant      of Home Owners averred in part that Crouse

      was unjustly enriched at its expense.    The Pennsylvania      Superior Court held" [i]f the

      appellant was unaware of the Crouse judgment it was not due to the fault of Crouse. It

      can be attributed only to its own negligence in failing to search or discover what

      clearly appeared on the public records." 30 A.2d 334. It went on to hold that Crouse

     had a superior lien position than that of Home Owners.

           In order to be successful under a cause of action for equitable subrogation, the

     Pennsylvania Superior Court in 1313466 Ontario. Inc. v. Carr, 2008 PA.Super. 135, 954

     A.2d 1 (2008) held that four criteria must be met. The criteria are:


                     1. The claimant paid the creditor to protect its own interest;

                     2.   The claimant did not act as a volunteer;

                     3. The claimant was not primarily liable for the debt; and

                     4.   Allowing subrogation will not cause injustice to the rights of others.


        BOFK pleaded that with respect to the first criteria that it acted to protect its own

commercial interests by making the 2nd loan to the Donninis. It then argued that it was not a

stranger to the property and was not a volunteer in light of already having made its first loan

to the Donninis; and thus meets the second criteria. Clearly the Donninis are the only parties

liable for the Debt of the BOFK 2nd Loan with regard to the third criteria. With respect to the

fourth criteria, BOFK argues that since FNB was originally in a second position when it

made its loan, and by putting the BOFK 2nd loan as the first position lien it will not deprive

FNB of its rights.


        BOFK fails to meet three of the four criteria required for an equitable subrogation

claim to survive preliminary objections. BOFK admits that it made the second loan to

                                                                                                   6
                                                                                 Circulated 04/27/2015 02:43 PM




  protect its own commercial interests which in and of itself was a voluntary act of BOFK for

  its own benefit. The type of equities the Courts contemplate for equitable subrogation are

  more like that in the most recent case ofln re: Estate of Richard Devoe, deceased, appeal of

  James B. Mooney 74 A.3d 264 (PA Super. 2013). In that case the Trial Court found that

  James Mooney, a domestic partner of the deceased acted as a volunteer when he executed a

 mortgage in favor of a lender so he could retain a property he had a half interest in, and he

 was not entitled to equitable subrogation; the Superior Court said that was an abuse of

 discretion. The Appellate Court found Mooney had no choice but to pay the debt on the

 estate in order to protect his own interest in the residue, therefore he was not a volunteer. In

 the case herein using the analysis in James B. Mooney's appeal with regard to criteria two

 (in which claimant did not act as a volunteer) the second loan BOKF was indeed a

 voluntary act by the bank. It did not have to make the second loan to the Donninis but it

 chose to make the loan, ergo the BOFK     2nd   Loan was made voluntarily by BOFK. In

 addition the proceeds from the Second BOFK Loan were used to pay the First BOFK Loan,

so it did not involve a new or additional credit. Furthermore, BOFK obtained title

insurance, which it did to protect its interest from exactly the type of issue in which it faced

itself with the Donninis.

        At the time FNB made its loan, it knew it was going have a second position lien;

however, that does not strip FNB of its rights under the law as it is in Pennsylvania. BOFK

relied on to its detriment the title search of Guarantee Title & Trust Company, which failed

to disclose the FNB mortgage. Had Guarantee Title & Trust Company not been faced with

financial distress it would have paid BOFK the balance due and owing under the BOFK           2nd


Loan. BOFK acknowledged at the June 20, 2013 hearing that it was paid approximately

$70,000.00 from the title insurance policy. Had Guarantee Title & Trust Company had the

financial ability to pay the entire claim; BOKF would not have instituted this action.

                                                                                                 7
                                                                                   Circulated 04/27/2015 02:43 PM




  Allowing equitable subrogation to take place in this case, would cause injustice to FNB who

  issued its loan as a second position mortgage based upon the amount of the BOFK First

 Loan. The First BOKF Loan was satisfied, which per statute, placed FNB in a first position

 due to the Second BOFK Loan being recorded after the FNB Loan. Without requesting or

 obtaining a subrogation agreement from FNB, BOFK's Second Loan cannot be placed ahead

 of FNB's Loan because of an error in a title search. The FNB Loan was properly ofrecord

 in the Office of the Recorder of Deeds of Luzerne County prior to the BOFK Second Loan

 and thus the facts in this matter are very similar to those in the Home Owners case whereby

 the Superior Court held in favor Crouse, who was in substantially the same situation as FNB

 in this matter.

         BOKF also refers briefly to unjustly enrichment. The elements of unjust enrichment

 include 1) benefits conferred on defendant by plaintiff2) appreciation of such benefits by

defendant; and 3) acceptance and retention of such benefits under such circumstances that it

would be inequitable for defendant to retain benefit without payment of value. The application of

unjust enrichment is dependent on the particular factual circumstances of the case. Mitchell v.

Moore, 792 A.2d 1200, page (Pa. Super 1999). In this case this Court would reiterate that the law

of equitable subrogation with these facts does not allow for unjust enrichment in that under Home

Owners the Courts of equity will not relieve a party of the consequences of an error due to his

ignorance and carelessness. The FNB loan was overlooked by the title search but it was available

to be found.


        BOKF fails to meet the requirements for a claim for equitable subrogation; therefore

its second claim under unjust enrichment is moot because it is dependent upon the equitable

subrogation theory and cannot proceed in its absence in this case. Based upon the foregoing

the Preliminary Objections of the Defendant are sustained.




                                                                                                  8
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      By the Court:
               I
           /




 ;/
;/




                                      9
