J   -A03011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FRANK MARANO AND DONALD MARANO                     1   IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                              Appellants

                       v.

FULTON BANK, N.A., D/B/A FULTON
FINANCIAL ADVISORS AND FULTON
FINANCIAL ADVISORS, N.A.

                              Appellee                         No. 812 MDA 2016


                    Appeal from the Order Entered April 26, 2016
                 In the Court of Common Pleas of Lancaster County
                        Civil Division at No(s): CI -15-02499


BEFORE:     LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                                     FILED APRIL 04, 2017

        Frank Marano and Donald Marano (collectively, "Plaintiffs/Maranos")

appeal from the order, entered in the Court of Common Pleas of Lancaster

County, granting Appellees, Fulton            Bank, N.A.       (d/b/a Fulton Financial
Advisors)    and     Fulton    Financial   Advisors,   N.A.,    ("Defendants/Fulton"),

summary judgment on their counterclaims, entering judgment in the amount

of $300,151.04, plus accrued interest, against Frank Marano, and in the

amount of $720,279.08, plus accrued interest, against Donald Marano,

awarding Fulton attorneys' fees and costs, and dismissing, with prejudice,

Plaintiffs' complaint in its entirety. After careful review, we affirm.

        The Maranos became employees of Fulton on December 15, 2008;

they were hired as financial consultants for the bank.              In connection with
J   -A03011-17



their employment, they entered into and executed offer letters (letters), new

hire bonus letter (bonus letters), promissory notes (notes), non -solicitation

and     confidentiality      agreements     (agreements),       and   financial   advisor

agreements (advisor agreements) (collectively, "employment documents")

with Fulton.           The employment documents did         not contain integration

clauses.    As set forth in     their bonus letters and notes, Fulton loaned Frank
Marano $554,125 and Donald Marano $1,329,746                -   representing the value

of Plaintiffs' last twelve months of commissions earned at their prior

employer, Wachovia.1           Fulton agreed to repay the debt by reducing and

ultimately eliminating the note balance over the course of Plaintiffs'

employment.2

        On August 22,         2013, Plaintiffs terminated their employment with

Fulton without notice.         At the time of their termination, the Maranos had

failed to pay the balance due under the notes.                  On August 22, 2014,

Plaintiffs filed   a   complaint against Fulton alleging six counts, including fraud,

negligent misrepresentation, breach of contract, promissory estoppel, unjust


1  Prior to the fall of 2008, the Maranos were licensed securities and
investment brokers at Wachovia.

2 According to the Maranos, financial advisors typically execute promissory
notes with their employers in which a bank, like Fulton, "would pay bonuses
to the Maranos, the Maranos would conditionally agree to repay the bonuses
as set forth in the promissory notes, but [the bank] would progressively
reduce and ultimately eliminate the balance owing on the promissory notes
during the course of the Maranos' employment with [the bank]." See
Maranos' Complaint, 8/22/13, at 7.


                                           -2
J   -A03011-17



enrichment, and declaratory judgment.                      Fulton filed preliminary objections

based on improper venue and the case was transferred from Montgomery

County to Lancaster County due to                  a    forum selection clause in the parties'

promissory notes.           Fulton filed an answer and counterclaims for breach of

the promissory notes and unjust enrichment.

        On October 15, 2015,                  Fulton filed    a   summary judgment motion;

Plaintiffs filed     a   response to the motion.             The court held oral argument on

the motion, after which it requested further briefing by the parties on the

issue of "completeness" of           a    contract. On April 26, 2016, the court entered

an order      granting Fulton's summary judgment motion, dismissing the

Plaintiffs' complaint, granting Fulton attorneys' fees and costs and awarding

judgment      in   favor of Fulton       in   the amount of $300,151.04 (as against Frank

Marano) and in the amount of $720,279.08 (as against Donald Marano).

        Plaintiffs filed    a   timely notice of appeal and court -ordered Pa.R.A.P.

1925(b) concise statement of matters complained of on appeal in which they

raise the following issues for our consideration:

        (1)    The Honorable Lower Court erred in application of relevant
               law to the issues of "fraud in the inducement" and "fraud"
               raised in [the Plaintiffs'] complaint.
        (2)    The Honorable Lower Court erred by granting Fulton's
               Motion for Summary Judgment and Dismissal when there
               existed genuine issues of fact and issues of law set forth in
                   [the Plainiffs'] Complaint.
        (3)    The Honorable Lower Court erred in granting Summary
               Judgment and Dismissal as to Count II[, negligent
                   misrepresentation of the Plaintiffs' complaint].


                                                   -3
J   -A03011-17


        (4)   The Honorable Lower Court erred in granting Summary
              Judgment and Dismissal as to Count III[, breach of
              contract,] of [the Plaintiffs'] Complaint.
        (5)   The Honorable Lower Court erred in entering Summary
              Judgment and Dismissal as to Count IV[, promissory
              estoppel,] of [the Plaintiffs'] Complaint.
        (6)   The Honorable Lower Court erred in entering Summary
              Judgment and Dismissal on Count V[, unjust enrichment,]
              of [the Plainiffs'] Complaint.
        (7)   The Honorable Lower Court erred in entering Summary
              Judgment and Dismissal as to Count VI[, declaratory
              relief,] of [the Plaintiff's] Complaint.
        (8)   The Honorable Lower Court erred in entering Summary
              Judgment on the Motion of Fulton on the promissory notes.
        Our standard of review in cases of summary judgment is well -settled.

This court will only reverse the trial court's entry of summary judgment

where there was an abuse of discretion or an error of law.           Merriweather    v.

Philadelphia Newspapers, Inc., 684 A.2d 137, 140                    (Pa. Super. 1996).

Summary judgment           is   proper when the pleadings, depositions, answers to

interrogatories, admissions on file, and affidavits demonstrate that there

exists no genuine issue of material fact and the moving party is entitled to

judgment as      a   matter of law. Pa.R.C.P. 1035.2. In determining whether to

grant summary judgment             a   trial court must resolve all doubts against the

moving party and examine the record in             a   light most favorable to the non-

moving party.        Id.
        Plaintiffs contend that in order to persuade them to leave their prior

employer, Wachovia, and accept employment at Fulton, Defendants told

them that Fulton was in the process of building an investment and securities


                                             -4
J   -A03011-17



business that would soon be the leader in the banking and financial services

industry.         Plaintiffs also assert that they told Fulton that their income was

substantially dependent upon referrals of bank customers with significant

assets, and that they would not leave Wachovia unless Fulton could assure

them that they would continue to receive           a   continuing and growing flow of

referrals from Fulton's bank customers. In order to induce them to work at

Fulton, Plaintiffs claim that Defendants represented they would "provide the

significant referrals when [Plaintiffs] commenced employment and on [a]

continuing basis thereafter." Plaintiffs' Brief, at 10.

        It   is   well established that:

             Where the parties, without any fraud or mistake, have
             deliberately put their engagements in writing, the law
             declares the writing to be not only the best, but the only,
             evidence of their agreement. All preliminary negotiations,
             conversations and verbal agreements are merged in and
             superseded by the subsequent written contract and unless
             fraud, accident or mistake be averred, the writing
             constitutes the agreement between the parties, and its
             terms and agreements cannot be added to nor subtracted
             from by parol evidence.
              Gianni v. Russell & Co., H 126 A. 791, 792 ([Pa.] 1924)
              (citations omitted); see also Scott v. Bryn Mawr Arms,
             Inc.,  H 312 A.2d 592, 594 ([Pa.] 1973). Therefore, for the
             parol evidence rule to apply, there must be a writing that
             represents the "entire contract between the parties."
             Gianni, 126 A. at 792. To determine whether or not a
             writing is the parties' entire contract, the writing must be
             looked at and "if it appears to be a contract complete
             within itself, couched in such terms as import a complete
             legal obligation without any uncertainty as to the object or
             extent of the [parties'] engagement, it is conclusively
             presumed that [the writing represents] the whole
             engagement of the parties[.]" Id. An integration clause

                                           - 5 -
J   -A03011-17


          which states that a writing is meant to represent the
          parties' entire agreement is also a clear sign that the
          writing is meant to be just that and thereby expresses all
          of the      parties' negotiations,    conversations, and
          agreements made prior to its execution. See HCB
          Contractors[ v. Liberty Place Hotel Assoc.], 652 A.2d
          [1278,] 1280 [(Pa. 1994)].
          Once    a writing is determined to be the parties' entire
          contract, the parol evidence rule applies and evidence of
          any previous oral or written negotiations or agreements
          involving the same subject matter as the contract is
          almost always inadmissible to explain or vary the terms of
          the contract. See Bardwell v. Willis Co., [] 100 A.2d
          102, 104 ([Pa.] 1953)[.] One exception to this general
          rule is that parol evidence may be introduced to vary a
          writing meant to be the parties' entire contract where a
          party avers that a term was omitted from the contract
          because of fraud, accident, or mistake.            See HCB
          Contractors, 652 A.2d at 1279; Bardwell, 100 A.2d at
          104. In addition, where a term in the parties' contract is
          ambiguous, "parol evidence is admissible to explain or
          clarify or resolve the ambiguity, irrespective of whether the
          ambiguity is created by the language of the instrument or
          by extrinsic or collateral circumstances." Estate of Herr,
          [] 161 A.2d 32, 34 ([Pa.] 1960); see also Waldman v.
          Shoemaker, [] 80 A.2d 776, 778 ([Pa.] 1951).

PNC Bank v. Bluestream Tech.,         Inc.,     14 A.3d 831, 841-42 (Pa. Super.

2010) (headnotes, footnotes and some citations omitted).

        Moreover, while "[a]n integration clause stating the parties intend the

writing to represent their entire agreement          is a   clear sign the writing

expresses all of the parties' negotiations, conversations and agreements

made prior to its execution,"   DeArmitt   v.   New York Life Ins. Co.,    73 A.3d

at 589-90 (Pa. Super. 2013), its absence does not automatically subject the

written agreement to parol evidence.       Kehr Packages v. Fidelity Bank,


                                      -6
J   -A03011-17



N.A., 710 A.2d 1169, 1173 (Pa. Super. 1998). Rather,             in   the absence of an

integration clause,   a   court must examine the text of the parties' agreement

to determine its completeness.      Id.
        In its Pa.R.A.P. 1925(a) opinion, the trial court found:          (1) the clear

and unambiguous terms of the employment documents set forth the critical

conditions of the parties' employment relationship which embodied the full

intent of the parties and, thus, constituted       a    fully integrated contract; (2)

the parol evidence rule applies and any of the parties' prior oral or written

negotiations, including claims of fraudulent statements made by Fulton,

were inadmissible; (3) the Maranos did not produce evidence to prove fraud

in     the   inducement      or   execution;      (4)     the   Maranos'      negligent

misrepresentation claim cannot be based upon unfulfilled promises to do

acts in the future; (5) equitable theories of promissory estoppel and unjust

enrichment cannot succeed where written agreements between the parties

exist; (6) clear and unambiguous language of promissory notes and bonus

letters set forth that Fulton agreed to pay amounts required to be repaid by

the Maranos while they remained employed by Fulton and that upon

termination from Fulton, the Maranos agreed to repay all unpaid amounts

under the notes; (7) the Maranos admitted that they agreed to and signed

all the employment documents, including the offer letters, upon their

commencement of employment with Fulton; (8) that when they terminated

their employment with Fulton in August 2013, the Maranos had failed to pay

outstanding balances and interest due under the notes; and (9) any issue

                                          - 7 -
J   -A03011-17



relating to proper interest3 to be charged on and any agreed -upon set-off

against the principal balance of the promissory notes is properly raised at         a

future damages hearing.

         After reviewing the parties' briefs, the certified record, issues raised on

appeal, and relevant case law, we conclude that the trial court opinion,

authored by the Honorable David        L.   Ashworth, cogently addresses the issues

raised     on   appeal   by the Maranos.         We, therefore,   rely upon Judge

Ashworth's decision in affirming the trial court's grant of summary judgment

in   favor of Fulton.       The parties are directed to attach    a   copy of Judge

Ashworth's decision in the event of further proceedings in the matter.

         Order affirmed.4



3 Specifically, the Maranos base this claim on the provision in the parties'
bonus letters indicating that "while the Promissory Note remains
outstanding, in any calendar year that [the Maranos] generate a $100,000
increase in [their] recurring gross dealer concession ("GDC")        above
                                                                        .   .   .


[their] previous calendar year's recurring GDC, [Fulton] will make an
additional payment on the Promissory Note equal to 13.33% of the original
loan balance of the Promissory Note[.]" New Hire Bonus Letter, 12/17/08,
at 2.
4
   In their reply brief, the Maranos claim that the trial court incorrectly
concluded that the documents constituted a fully integrated contract
between the parties. Specifically, they refer to the fact that the parties'
promissory notes stated that "[n]either this letter, nor the existence of the
New Hire Bonus, constitutes a contract of employment." We find this
argument unpersuasive. See Huegel v. Mifflin Construction Co., 796
A.2d 350 (Pa. Super. 2002) (where several instruments are made part of
single transaction, they will be read together and each construed with
reference to the other even if instruments executed at different times and do
not in terms refer to each other). Moreover, it is "well settled in this
(Footnote Continued Next Page)


                                            -8
J   -A03011-17


Judgment Entered.




J    seph D. Seletyn,
Prothonotary


Date: 4/4/2017




(Footnote Continued)

Commonwealth that the parol evidence rule applies to the obligations set
forth in a promissory note [and that t]he limitation or enlargement of any of
its provisions by an alleged oral agreement that varies, modifies, or destroys
the terms of the instrument is prohibited by the parol evidence rule." Gitt v.
Myers, 417 A.2d 664 (Pa. Super. 1979). Compare Rose v. Food Fair
Stores, Inc., 262 A.2d 851, 853 (Pa. 1970) ("purpose of parole evidence
rule is   .   'to preserve the integrity of written agreements by refusing to
              .   .


permit the contracting parties to attempt to alter the import of their contract
through the use of contemporaneous [or prior] oral declarations.')
(emphasis added) with LeDonne v. Kessler, 389 A.2d 1123, 1127 n.4 (Pa.
Super. 1978) ("parol evidence rule, generally speaking, does not apply to
receipts, letters, statements or books of account and other writings which do
not purport to be a complete contract or vest or extinguish a legal right.").


                                     -9
                                                                             Circulated 03/10/2017 11:36 AM




IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                          CIVIL ACTION


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                           OPINION SUR PA.R.A.P. 1925(b)                                                     0



BY:   ASHWORTH,       J., JULY 15, 2016


       Frank Marano and Donald Marano (the Maranos) have filed a direct appeal to

the Superior Court of Pennsylvania from this Court's Order of April 26, 2016, granting

the Motion for Summary Judgment filed by Fulton Bank, N.A., d/b/a Fulton Financial

Advisors, and Fulton Financial Advisors, Inc. (Fulton), dismissing the Maranos'

Complaint with prejudice in its entirety, entering judgment in favor of Fulton on the

Counterclaims against Frank Marano in the amount of $300, 151.04 plus accrued

interest, and against Donald Marano in the amount of $720,279.08 plus accrued

interest, and awarding Fulton its attorneys' fees and costs.   This Opinion is written·

pursuant to Rule 1925(a) of Pennsylvania Rules of Appellate Procedure, and for the

following reasons, this Court requests that this appeal be denied.




                                          1060a
I.     Procedural and Factual Background


       Since this Court's decision went against the Maranos' favor, and because this is

a summary judgment matter, I will accept only those relevant paragraphs from the

statement of facts presented by Fulton which were either "admitted" to by the Maranos

or conceded to be "not in controversy":

       5.    On December 15, 2008, the Maranos joined {Fulton] from
             Wachovia Securities. See FINRA Broker Check Report,
             attached as Exhibit "A."
      6.     In connection with the commencement of the Maranos'
             employment with [Fulton] ... , on December 17, 2008, they
             each acknowledged, entered into and executed 'New Hire
             Bonus Letters' and Promissory Notes with [Fulton]. See
             Complaint at  1m 23-24; see also [Fulton] Answer with New
             Matter and Counterclaims, attached as Exhibit "B" at Exhibits
             "C-D" and "H-1".
      7.     They also entered into and executed Offer Letters,
             Nonsolicitation and Confidentiality Agreements, and Financial
             Advisor Agreements. See executed Offer Letters, attached
             as Exhibit "C" and Exhibit "B" at Exhibits ''E-F" and "J-K".

      9.     As set forth in the New Hire Bonus Letters and the Notes,
             Frank and Donald Marano each received loans in the amounts
             of $554, 125 and $1,329,746, respectively. Id. at 1J 93 and at
             Exhibits "D" and "I".

       11.   Pursuant to the Notes, Frank Marano was to make quarterly
             payments of $13,853.12 plus interest over a period of 10 years
             and Donald Marano was to make quarterly payments of
             $33,243.65 plus interest over the same period. Id. at Exhibits
             "D" and "I" at 1J 1 (b).

       13.   Under the Notes, an 'event of default' includes the failure to
             pay any installment of principal and/or interest or any other
             amount due within five days after payment is due. Id. at
             Exhibits "D" and "I" at ,i 6(a).
       14.   At any time after the occurrence of an event of default, [Fulton]
             may, without notice or demand, declare the entire unpaid
             principal balance of the Notes Immediately due and owing. Id.
             at Exhibits "D" and "I" at 1J 7.

                                            2




                                          1061a
       15.    Any costs or attorneys' fees incurred by [Fulton] in connection
              with any action under the Notes are recoverable from the
              Maranos. Id. at Exhibits "D" and "I" at 1J 8.
       16.    By executing and delivering the Notes, the Maranos agreed to
              all of the terms and conditions of the Notes. Id. at 1J 100. It is
              admitted that the Maranos agreed to and executed the Notes.
              See Complaint at 1J 28.

       21.    Subsequent to entering into the Notes, acknowledging the terms
              of the New Hire Bonus Letters, and executing the Offer Letters,
              Nonsolicitation Agreements and Financial Advisor Agreements,
              [Fulton] provided Frank Marano and Donald Marano with the
              loans in the amounts of $554,125 and $1,329,746, respectively.
              See Exhibit "B" at 1I 104.
       22.    Almost five years later, on August 22, 2013, the Maranos
              terminated their employment with [Fulton] without notice and
              immediately began new employment with [Morgan Stanley],
              where they each received another substantial up front loan in
              the amount of $766,350. Id. at 11105;see also Exhibit "A" and
              the Maranos' Promissory Notes with [Morgan Stanley), attached
              hereto as Exhibit "D."

       25.    To date, the Maranos have failed to repay any of the amounts
              due under the Notes .... Id. at 1J 108.

Fulton Motion for Summary Judgment at      ,m 5-7, 9, 11, 13-16, 21-22, 25.   At the time of

their resignations, the outstanding principal balance owed by Frank Marano was

$300, 151.04, and the outstanding principal balance owed by Donald Marano was

$720,279.08. ld., Exhibit "B" at 1{ 109. As the Notes provide, interest accrued on the

unpaid principal balance at a rate of interest per year equal to the mid-term applicable

federal rate of interest as of December 17, 2008. Id., Exhibits "D" and "I" at     1m 1(a) and
7.

       On August 22, 2014, exactly one year after resigning from Fulton, the Maranos

filed a Complaint in Montgomery County alleging claims for fraud, negligent

misrepresentation, breach of contract, promissory estoppel, unjust enrichment and


                                             3




                                          1062a
declaratory judgment, and seeking release from all obligations under the Promissory

Notes. Fulton filed Preliminary Objections based on improper venue due to the

existence of a forum selection clause contained in the Notes, requiring all actions

arising out of or related to the Notes to be brought in Lancaster County. On December

4, 2013, the Montgomery County Court sustained the Objections. The Maranos

appealed the decision to the Superior Court. On October 29, 2014, the Superior Court

affirmed the trial court decision.

       On March 11, 2015; the case was transferred to Lancaster County. Fulton filed

an Answer with New Matter and Counterclaims for breach of the Promissory Notes and

unjust enrichment. After the pleadings were closed, Fulton filed a motion for summary

judgment on October 15, 2015, claiming it was entitled to judgment as a matter of law

on its Counterclaims for breach of the Promissory Notes and unjust enrichment to

recover the amounts due pursuant to the Notes, and the Maranos' claims contained in

their Complaint fail as a matter of law. The Maranos filed a response to the motion on

December 4, 2015, claiming they made a sufficient showing to establish an existence of

the essential elements of their case demonstrating genuine issues of material fact to be

submitted to a jury. Briefs were filed by the parties, and oral argument of counsel was

heard. Supplemental briefs were requested to address the question of what constitutes

a "complete" agreement for purposes of determining whether a contract is integrated.

       By Order dated April 26, 2016, Fulton's motion for summary judgment on the

Counterclaims against the Maranos for breach of the Promissory Notes was granted as

I found there was no genuine issue of material fact in dispute and Fulton was entitled to

judgment as a matter of law on the Counterclaim for breach of the Promissory Notes. It

                                             4




                                          1063a
was further ordered that the Maranos1 Complaint was dismissed with prejudice in its

entirety.

        The Maranos filed a timely appeal from this Order. Pursuant to my directive, the

Maranos identified the following issues on appeal: '(1) the trial court erred by granting

the motion for summary judgment as to Count I ("fraud in the inducement" and

"fraudulent misrepresentations"); (2) the trial court erred in concluding that (a) parol

evidence was not admissible to supplement the content of written documents presented

by Fulton in support of their motion for summary judgment, and (b) the documents

executed by the Maranos constituted a complete integrated agreement barring the

application of the parol evidence rule to the claims set forth in Count I; (3) the trial court

erred in granting summary judgment as to Count JI (negligent misrepresentation);        (4)

the trial court erred in granting summary judgment as to Count Ill (breach of contract);

(5) the trial court erred in granting summary judgment as to Count IV (promissory

estoppel); (6) the trial court erred in granting summary judgment as to Count V (unjust

enrichment); (7) the trial court erred in granting summary judgment as to Count VI

(request for declaratory relief); and (8) the trial court erred in granting summary

judgment on the Promissory Notes.


II.    Summary Judgment Standard of Review


       The purpose of the summary judgment rule is to eliminate cases prior to trial

where a party cannot make out a claim or defense after relevant discovery has been

completed.   Miller v. Sacred Heart Hospital, 753 A.2d 829,. 833 (Pa. Super. 2000).

Summary judgment is properly granted as a matter of law

                                              5




                                           1064a
      (1)    whenever there is no genuine issue of any material fact as to a
             necessary element of the cause of action or defense which could
             be established by additional discovery or expert report, or
       (2)   if, after the completion of discovery relevant to the motion ... , an
             adverse party who will bear the burden of proof at trial has failed
             to produce evidence of facts essential to the cause of action or
             defense which in a jury trial would require the issues to be
             submitted to a jury.

Pa. R.C.P. 1035.2. The adverse party who bears the burden of proof at trial must come

forward with evidence essential to preserve his or her cause of action. ld., Note. If

such a party fails to produce such essential evidence, the moving party is entitled to

judgment as a matter of law. Grandelli v. Methodist Hospital, 777 A.2d 1138, 1143-

44 (Pa. Super. 2001). However, "[the court] will 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." Evans v. Sodexho, 946

A.2d 733, 738 (Pa. Super. 2008) (quotation omitted).

       In reviewing a trial court's grant of summary judgment, the Superior Court is

guided by the following scope and standard of review:

       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 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.

                                             6




                                          1065a
Reinoso v. Heritage Warminster SPE LLC1 108 A.3d 80, 84 (Pa. Super. 2015) (en

bane) (citation omitted). See a/so Smith v. Township of Richmond, 623 Pa. 209,

221, 82 A.3d 407, 415 (2013).


                                       .•'
Ill.   Discussion


       A.    Judgment as a Matter of Law on Fulton's Claim for Breach of the
             Promissory Notes


       I will address the Maranos' last issue first: was it error for me to grant summary

judgment on Fulton's Counterclaim for breach of the Promissory Notes. Under

Pennsylvania law. to recover for breach of a promissory note, a plaintiff must establish:

(1) the existence of a promissory note signed by the party from whom payment is

sought; and (2) that the defendant failed to make the payments called for by the terms

of the note. McGuire Performance Solutions, Inc. v. Massengill, 904 A.2d 971, 973-

74 (Pa. Super. 2006). It is undisputed and admitted by the Maranos that they agreed to

and executed the Notes, and that they failed to pay the outstanding balances and

interest due on the Notes, See Complaint at ,I 28 (" ... the Maranos agreed to the

New Hire Bonus letters, executed the Promissory Notes, and commenced employment

with [Fulton] on or about December 2008"); Maranos' Admissions or Controverting of

Fulton's Allegations of Fact as to Fulton's Motion for Summary Judgment at ,I 25

(" ... admitted ... that monies have not been repaid under the Promissory Notes").

       The Maranos claimed, however, that they were fraudulently induced into

executing the Promissory Notes and New Hire Bonus Letters due to alleged oral


                                               7




                                             1066a
representations made by Fulton to take certain actions in the future. See Maranos'

Admissions or Controverting of Fulton's Allegations of Fact as to Fulton's Motion for

Summary Judgment at ,J 31. To establish their claim, the Maranos argued that,

because of the absence of an integration clause in the contracts, they could introduce

evidence of these oral representations made by Fulton regarding the Notes and/or the

Maranos' employment.       I rejected the Maranos' argument and ruled that such evidence

of pre-contractual oral statements allegedly made by Fulton would fail under the parol

evidence rule.' Thus, the issue on appeal is whether the parol evidence rule precluded             ,

me from considering extrinsic evidence to the relevant documents.

       In Toy v. Metropolitan Life Ins. Co., 593 Pa. 20, 928 A.2d 186 (2007), our

Supreme Court explained the parol evidence rule. In particular, the Court held that

       where the parties, without any fraud or mistake, have deliberately
       put their engagements in writing, the law declares the writing to be
       not only the best, but the only evidence of their agreement[;] that
       [a]II preliminary negotiations, conversations and verbal agreements
       are merged in and superseded by the subsequent written contract[;]
       and that unless fraud, accident, or mistake be averred, the writing
       constitutes the agreement between the parties, and its terms cannot
       be added to nor subtracted from by parol evidence.

ld. at 49, 928 A.2d at 204 (quotation marks and citation omitted). The Supreme Court

has further explained when the parol evidence rule should be applied:

       [F]or the parol evidence rule to apply, there must be a writing that
       represents the 'entire contract between the parties.' To determine
       whether or not a writing is the parties' entire contract, the writing


       1"The
              applicability and effect of the parol evidence rule are properly considered in the
context of a motion for summary judgment, and similarly, a motion for judgment on the
pleadings." Jay Fulkroad & Sons, Inc. V. Leitzel, 2015 WL 7431215, *4 (Pa. Super., Mar. 31,
2015) (citing Coal Operators Casualty Co. v. Charles T. Easterby & Co., 440 Pa. 218, 221,
269 A.2d 671, 672-73 (1970)).

                                                8




                                             1067a
       must be looked at and 'if it appears to be a contract complete within
       itself, couched in such terms as import a complete legal obligation
       without any uncertainty as to the object or extent of the [parties']
       engagement, it is conclusively presumed that [the writing represents]
                                                  1
       the whole engagement of the parties ....

       Once a writing is determined to be the parties' entire contract-the
       parol evidence rule applies and evidence of any previous oral or
       written negotiations or agreements involving the same subject matter
       as the contract is almost always lnadmlssible to explain or vary the
       terms of the contract. One exception to this general rule is that pare!
       evidence may be introduced to vary a writing meant to be the parties'
       entire contract where a party avers that a term was omitted from the
       contract because of fraud, accident, or mistake.

Yocca v. Pittsburgh Steelers         Sports, lnc., 578 Pa. 479, 498, 854 A.2d 425, 436-37

(2004).

        Initially, the court must determine as a question of law whether a writing is the

entire contract between the parties so that the parol evidence rule applies. Haagen v.

Patton, 193 Pa. Super. 186, 191, 164 A.2d 331 353 (1960). In the instant case, the

Promissory Notes and New Hire Bonus Letters do not contain integration clauses."




        2While  integration is presumed if the agreement includes an integration clause, "its
absence does not automatically subject the written agreement to parol evidence." Kehr
Packages, Inc. v. Fidelity Bank, N.A., 710 A.2d 1169, 1173 (Pa. Super.1998) (citing
International Milling Co. v. Hachmeister lnc., 380 Pa. 407, 417, 110A.2d 186, 191 (1955)
(holding that "the presence of an integration clause cannot invest a writing with any greater
sanctity than the writing merits .... '')). "Rather, in the absence of an integration clause, the court
'must examine the text [of the agreement] to determine its completeness."' Id. at 1173-74
(quoting Henry v. First Federal Savings & Loan Assoc., 313 Pa. Super. 128, 136, 459 A.2d
772, 776 (1983) (affirming summary judgment and finding evidence of alleged prior oral
representations were barred by the parol evidence rule upon finding that even In absence of
integration clause, written loan agreement was complete as to such matters); citing Gemini
Equipment Co. v. Pennsy Supply, Inc., 407 Pa. Super. 404, 595 A.2d 1211 (1991) (barring
evidence of alleged contemporaneous oral agreement to vary terms of written agreement;
despite absence of integration clause, the writing was fully integrated since it unamblguously
detailed the parties' rights and obligations)).

                                                    9




                                                 1068a
Therefore, I had to determine whether these writings were the integrated, final and

complete expression of the parties' agreement. See Kehr, 710 A.2d at 1173-74.

       In my analysis, I considered the following relevant documents executed by the

parties: the December 10, 2008 Offer Letters3; the Promissory Notes; the New Hire

Bonus Letters; and the Non-Solicitation and Confidentiality Agreements.4 The Maranos

claimed that "such documents, even read together, do not represent all of the terms of

the Maranos' employment."       Maranos' Memorandum in Opposition to Motion for

Summary Judgment at 8. I, however, found that these four sets of documents, as well

as the other agreements/policies     incorporated therein, set out the critical terms of the

parties' agreement as outlined by Fulton:

       The Offer Letters provide that the Maranos' entitlement to commissions,
       other compensation and benefits are covered by [Fulton's) Advisor
       Compensation Plan ... , [Fulton's] policies in effect at the time and the
       normal benefits programs available to [Fulton]. (Fulton's] Advisor
       Compensation Plan sets forth the calculation of the Maranos'
       compensation, including provisions regarding: 1) qualifying grid
       production; 2) requirements for deferred compensation; 3) expense
       account allowances; 4) the Maranos' titles; 5) the error policy; 6) the
       minimum draw; 7) grid rate adjustments; 8) mutual fund trailers; 9)
       timing of trailer revenue; 10) timing of gross revenues on fee-based
       accounts; 11) trusUinsurance; 12) institutional accounts; 13) employee
       terminations; and 14) direct business.
              The Offer Letters also contain provisions governing: 1) the

       3The
             Maranos argued that the terms contained in the Offer Letters were simply an
"offer" and were not incorporated into any subsequent written contract. Maranos' Memorandum
in Opposition to Motion for Summary Judgment at 8. To the contrary, the Maranos accepted the
offers by signing the Offer Letters, thereby making the terms contained in the Offer Letters their
terms of employment. See Fulton's Supplemental Brief, Exhibit "A".
       40ur
             Superior Court has long stated that "[w)here several instruments are made as part
of one transaction they will be read together, and each will be construed with reference to the
other; and this is so although the instruments may have been executed at different times and
do not in terms refer to each other." Huegel v. Mifflin Construction Co., 796 A.2d 350, 354-
55 (Pa. Super. 2002) (quoting Neville v. Scott, 182 Pa. Super. 448, 127 A.2d 755, 757 (1957)).

                                                10




                                             1069a
                The Offer Letters also contain provisions governing: 1) the
        calculation of the Maranos' compensation for their first year of
        employment; 2) the Maranos' work schedule; 3) branch assignments;
       4) transitional bonuses (which specifically incorporate the Promissory
        Notes); 5) entitlement to additional bonuses; 6) licenses and registration
        regulatory requirements, policies and procedures; 7) arbitration; 8) the
        agreements regarding employment of the Maranos' team; 9) COBRA
        provisions; 10) other miscellaneous terms of the Maranos' employment.
        Importantly, the Offer Letters also specifically incorporate and enclose
       the Nonsolicitation and Confidentiality Agreements.
                The December 17, 2008 New Hire Bonus Letters spell out the
       specific terms of the Mara nos' New Hire Bonus and specifically
        incorporate and attach the Promissory Notes and the Nonsolicitation
       and Confidentiality Agreements.
                The Promissory Notes address all critical terms of the parties'
       agreement regarding the Notes, as they contain provisions regarding:
        1) payment of principal and interest; 2) prepayment of principal; 3)
       payment of installment principal and interest; 4) application of payments;
       5) late charges; 6) events of default; 7) remedies upon default; 8) costs
       and attorneys' fees; 9) the Maranos' waivers; 10) {Fulton's] waivers; and
        11) other miscellaneous terms, including that the Notes cannot be
       amended unless in writing. It is undisputed that the Notes were not
       amended in writing.
                Finally, the Nonsolicitation and Confidentiality Agreements set
       forth the parties' agreement regarding the Maranos' obligations to not
       disclose confidential information, including the definition of same, and to
       not solicit certain customers for certain periods of time after termination
       of their employment, as well as the remedies for any breaches of these
       Agreements.

Fulton's Supplemental Brief in Support of Motion for Summary Judgment at 5-6

(citations to record omitted).

       Given the extent of the critical and material terms detailing the parties'

employment rights and obligations as set forth in these numerous writings, the

Mara nos' contention that "[n]ecessary terms such as compensation, duties, place of

employment, work hours, vacations and general expectations of performance are not

addressed in any written contract executed by the Maranos" (Maranos' Memorandum in

Opposition to Motion for Summary Judgment at 8) is baseless and disingenuous.

                                             11




                                           1070a
Moreover, the suggestion that "the 'Wachovia Model'5 was an essential term to be

included in a written employment agreement" between the parties and that the omission

of this term renders their agreement incomplete is also meritless. The very absence of

this term in the various writings suggests that an agreement was never reached as to

Fulton's obligation to implement this exact banking model and referral process. In fact,

the Offer Letters specifically state that Fulton makes no guarantee about the Maranos'

book of business, ability to produce business or value of their book of business. See

Motion for Summary Judgment, Exhibit "C" at ,r 3.

       Based on this record, I concluded that the terms and conditions of the parties'

employment relationship were reduced to various writings, which were clear and

unambiguous, and which embodied the full intent of the parties, thus, creating a fully

integrated contract. Accordingly, the parol evidence rules applies and any evidence of

any previous oral or written negotiations or agreements involving the same subject

matter as is contained in these documents is generally inadmissible.

       One exception to this general rule is that "parol evidence may be introduced to

vary a writing meant to be the parties' entire contract where a party avers that a term

was omitted from the contract because of fraud, accident, or mistake." Yocca, 578 Pa.

at 498, 854 A.2d at 437. Here, the Maranos contend that they were fraudulently

induced to enter into the New Hire Bonus Letters and Promissory Notes due to alleged


       5According
                    to the Maranos, "Wachovia Bank had developed a banking model which
historically was a successful model which resulted in Financial Advisors being placed in one or
more branches of Wachovia Bank and acting as Financial Advisors for the sale of securities or
other products to customers of Wachovia Bank." Maranos' Memorandum in Opposition to
Motion for Summary Judgment at 4-5. This model is now known as the "Wachovia Bank
Model." Id.

                                               12




                                            1071a
oral misrepresentations   made by Fulton to take certain actions in the future.

Specifically, the Maranos claim that they were induced to agree to the terms of the New

Hire Bonus Letters and to execute the Promissory Notes as a result of Fulton's alleged

promises to: (1) provide referrals from bank customers in the future; (2) "create and

aggressively grow an investment and securities business that would be a leader in the

industry"; and (3) obtain the necessary expertise and personnel to accomplish these

goals in the future. See Complaint at   ,m 9-12.
        With regard to the fraud exception to the parol evidence rule, our Supreme Court

stated in Toy, supra, that the Court

        has restricted the exception to allegations of fraud in the execution
        of a contract, and has ref used to apply the exception to allegations
        of fraud in the inducement of a contract. We stated that 'while parol
        evidence may be introduced based on a party's claim that there was
        fraud in the execution of a contract, i.e., that a term was fraudulently
        omitted from the contract, parol evidence may not be admitted based
        on a claim that there was fraud in the inducement of the contract,
        i.e., that an opposing party made false representations that induced
        the complaining party to agree to the contract.'
        [Toy, 593 Pa. at 49, 928 A.2d] at 204-205, quoting Yocca, 854 A.2d
        at 437 n. 26 (citations omitted)). 'This is so because in the fraud in
        the execution context, the allegation is that the written agreement is
        not the expression of the parties' true and complete contractual intent
        inasmuch as terms that were agreed to by the parties were omitted
        from that writing through fraud.' Id. at 206 n. 24. '[W)hen fraud in the
        execution is alleged, representations made prior to contract formation
        are not considered superseded and disclaimed by a fully integrated
        written agreement, as they are when fraud in the inducement is
        asserted.' Id. at 206~207.

Boehm v. Riversource Life Ins. Co., 117 A.3d 308, 326 (Pa. Super. 2015) (emphasis

in original).




                                             13




                                           1072a
      Thus, under the well-settled principles embodied in the parol evidence rule, the

Mara nos are precluded from raising the defense of fraudulent inducement.      Further,

they made no showing of fraud in the execution. Therefore, it was proper to disregard

any eviaence other than the executed documents identified above, which are clear and

unambiguous, and constitute the parties' entire, integrated agreement.

      With respect to Fulton's Counterclaim, the Promissory Notes and New Hire

Bonus Letters contain clear and unambiguous language and are reasonably

susceptible of only one meaning - Fulton agreed to pay the amounts required to be

repaid by the Maranos pursuant to the Notes while the Maranos remained employed by

Fulton and upon termination of the Maranos' employment with Fulton, the Maranos

became responsible for repayment of all unpaid amounts under the Notes. See Fulton

Motion for Summary Judgment at Exhibit "B" at Exhibits "C" and "H";    see also
Complaint at   im 25-26.   The Maranos admit that they (1) "agreed to the New Hire

Bonus letters, executed the promissory notes, and commenced employment with

[Fulton]," (2) terminated their employment with Fulton on August 22, 2013, and (3) have

failed to pay the outstanding balances and interest due under the Notes.    See

Complaint at   ,i,r 28, 53; Maranos' Admissions or Controverting of Fulton's Allegations of

Fact as to Fulton's Motion for Summary Judgment at     ,I 25.

      As there was no genuine issue of material fact as to the existence of the

Promissory Notes signed by the Maranos, and the Maranos' subsequent breach of

those Notes, Fulton was entitled to judgment as a matter of law and the Maranos were




                                             14




                                           1073a
 required to pay the full outstanding principal and accrued interest, as well as Fulton's

 attorneys' fees, as required by the Notes.6


        8.     Judgment as a Matter of Law on the Maranos' Claims Alleged in the
               Complainl


        In their Complaint, the Maranos allege claims for "fraud in the inducement" and

"fraudulent misrepresentations"    (Count I), negligent misrepresentation (Count II),

breach of contract (Count Ill), promissory estoppal (Count IV), unjust enrichment (Count

V), and declaratory relief (Count VJ). Based on the undisputed facts of record, these

claims fail as a matter of law.

        In Count I, the Maranos allege fraud in the inducement and fraudulent

misrepresentations   related to alleged statements made by Fulton to the Maranos, both

prior to their employment and after their employment. A claim of negligent

misrepresentation based upon the same alleged statements is made in Count II of the

Maranos' Complaint. These alleged statements by Fulton to (1) provide referrals from

bank customers in the future, (2) "create and aggressively grow an investment and

securities business that would be a leader in the industry," and (3) obtain the necessary

expertise and personnel to accomplish these goals in the future (see Cornplalnt at        ,m 9-
12), relate to future intentions. It is well-settled in Pennsylvania that the breach of   a



       6The
            Maranos argue on appeal that there existed genuine issues of material fact as to
the amount of interest charged by Fulton to Appellants under the Promissory Notes. See
Statement of Errors at 1J 8. The amount of interest due under the Promissory Notes would have
been addressed in the assessment of damages hearing that was scheduled in this case. Such
damages need not be submitted to a jury for determination.

                                               15




                                           1074a
promise to do something in the future is not actionable in fraud. Ira G. Steffy & Son,

Inc. v. Citizens Bank of Pennsylvania, 7 A.3d 278, 290 (Pa. Super. 2010).

       Likewise, claims for negligent misrepresentation must be based on

misrepresentations regarding present facts, not unfulfilled promises to do acts in the

future. See Bennett v. Itochu International, Inc., 682 F.Supp.2d 469, 480-81 (E.D.

Pa. 2010) ("At the time that a statement is made regarding what the speaker intends to

do in the future, the speaker either intends at the moment to take the action he is

promising or not. The speaker cannot be negligent as to his future intentions.").7

Consequently, an allegation that a defendant eventually failed to keep a promise is

insufficient to support a claim for negligent misrepresentation. The alleged

misrepresentations identified by the Maranos were promissory in nature and related to

future events as opposed to present representations of existing facts and, thus, were

insufficient to support a claim for fraudulent and negligent misrepresentation.




       7Although
                   Pennsylvania case law is somewhat sparse on the specific question of
whether a negligent misrepresentation claim may be based on a future event, the overwhelming
weight of authority from jurisdictions that have explicitly decided the issue is that such claims
cannot state a cause of action for negligent misrepresentation. See, for example, McAlister v.
Citibank, 171 Ariz. 207, 215, 829 P.2d 1253, 1261 (App. 1992); Stockton Mortgage, Inc. v,
Tope, 183 Cal.Rptr.3d 186, 203, 233 Cal.App.4th 437, 458 (2014); High Country Movin' Inc.
v. U.S. West Direct ce., 839 P.2d 469, 471 (Colo.App. 1992); Bithoney v. Fulton-DeKalb
Hospital, 313 Ga.App. 335, 343, 721 S.E.2d 577, 583-84 (2011); Abazari v. Rosalind
Franklin University, 396 Ill.Dec. 611, 620, 40 N.E.3d 264, 273 (2015); Spragins v. Sunburst
Bank, 605 So.2d 777, 780 (Miss. 1992); Massie v, Colvin, 373 S.W.3d 469, 472 (Mo.App.S.O.
2012); WLW Realty Partners, LLC v, Continental Partners VIII, LLC, 381 Mont. 333, 340,
360 P.3d 1112, 1116-17 (2015); Sheth v. New York Life Insurance Co., 709 N.Y.S.2d 74, 75
(N.Y.App.Div. 2000); Kondrat v, Morris, 118 Ohio App.3d 198, 207, 692 N.E.2d 246, 251-52
(1997); Fields v, Melrose Ltd. Partnership, 312 S.C. 102, 105, 439 S.E.2d 283, 285 (Ct.App.
1993); BCY Water Supply Corp. v. Residential Investments, lnc., 170 S.W.3d 596, 603
(Tex.App.~Tyler 2005); Chestnut v. Goodman, 59 V.1. 467, 476-77 (2013).

                                               16




                                            1075a
       The Maranos further argue on appeal that it was error to dismiss their claim for

breach of contract related to an alleged series of oral agreements between them and

Fulton. See Statement of Errors at   114.   As set forth above, this claim fails as a matter

of law due to the existence of clear and unambiguous executed contracts that

constituted the parties' entire, integrated employment agreement. The parol evidence

rule bars the Maranos from alleging oral representations to modify the terms of that

agreement.

       Lastly, the Maranos' alternative theories of promissory estoppel and unjust

enrichment also fail as a matter of law because written agreements between the parties

exist. In Pennsylvania, promissory estoppal is an equitable remedy to be applied only

in the absence of a contract. Crouse v. Cyclops Industries, 560 Pa. 394, 402-03, 745

A.2d 606, 610 (2000). Similarly, "the quasi-contract theor[y] of ... unjust enrichment,

by definition, impl[ies] that no valid and enforceable written contract exists between the

parties." Shafer Electric & Construction v. Mantia, 67 A.3d 8, 13 (Pa. Super. 2013).

As the relationship between the parties in the instant case is founded upon'

unambiguous, clear and written agreements, the Maranos' theories of promissory

estoppel and unjust enrichment fail as a matter of law.


IV.    Conclusion


       For the reasons set forth above, it is respectfully requested that the appeal of

Frank and Donald Marano be denied.

      Accordingly, I enter the following:



                                              17




                                            1076a
 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                           CIVIL ACTION
                                                                         .   ~
                                                                                   • --0

FRANK MARANO and DONALD
MARANO
                                                                                 r--t
                                                                                      ;.tJ
                                                                                      0
                                                                                 :c,. ::c     '-
                                                                                                 -
                                                                                                 ~
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                                                                                                         ~
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                                                                                                         rr,
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                v.                                     No. Cl-15-02499       (/)~
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                                                                             .
                                                                             ("f)-<..'
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                                                                                             :?i        z
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                                                                                    (,':          0
FULTON BANK, N.A., d/b/a FULTON
FINANCIAL ADVISORS and FULTON                                                .~o
                                                                               ..,
                                                                               ~n
                                                                                             (.,.)


FINANCIAL ADVISORS, INC.                                                          ,.,,c»     0         f'T1
                                                                                                       c:,


                                       ORDER


      AND NOW, this 15th day of July, 2016, the Court hereby submits this Opinion

pursuant to Rule 1925(a) of the Pennsylvania   Rules of Appellate Procedure.




ATTEST~



Copies to:   Arthur C. Koski, Esquire, 101 North Federal Highway, Suite 602, Boca
                    Raton, FL 33432
             Joseph A. Dougherty, Esquire, Buchanan Ingersoll & Rooney, PC, Two
                    Liberty Place, 50 South 16lh Street, Suite 3200, Philadelphia, PA
                     19102

                                                          NOTICE OF ENTRY OF ORDER OR DECREE
                                                          PURSUANT TO PA. R.C.P. NO: 236
                                                          NOTIFICATION. THF. ATTACHED DOCUMENT
                                                          HAS BEEN FILED IN THIS CASE
                                                          PROTHONOTAAY OF LANCASTER CO PA
                                                          DATE:
                                                               7-( ~i (p                                      ·,


                                        1077a
