J-A07023-15


                             2015 PA Super 195

EUGENE R. YENCHI AND RUTH I.                  IN THE SUPERIOR COURT OF
YENCHI, HUSBAND AND WIFE                            PENNSYLVANIA

                        Appellants

                   v.

AMERIPRISE FINANCIAL, INC.,
AMERIPRISE FINANCIAL SERVICES,
INC., RIVERSOURCE LIFE INSURANCE
COMPANY AND BRYAN GREGORY
HOLLAND

                        Appellees                 No. 753 WDA 2014


              Appeal from the Judgment Entered May 5, 2014
             In the Court of Common Pleas of Allegheny County
                    Civil Division at No(s): GD 01-006610


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

OPINION BY BENDER, P.J.E.:                  FILED SEPTEMBER 15, 2015

     Eugene R. Yenchi and Ruth I. Yenchi (the Yenchis or Appellants)

appeal from the judgment entered May 5, 2014, following a trial that

resulted in a favorable verdict for Appellees, Ameriprise Financial, Inc.,

Ameriprise Financial Services, Inc., Riversource Life Insurance Company,

and Bryan Gregory Holland.     Essentially, the Yenchis challenge allegedly

improper sales practices by Appellees, which induced them to purchase life

insurance.   In our view, where the offer to sell an insurance product is

premised upon the results of an allegedly independent financial analysis, a
J-A07023-15


question of fact may arise regarding whether the financial analyst/insurance

salesperson incurs a fiduciary duty.

      This conclusion requires a rather complicated disposition. Initially, we

reverse in part the summary judgment entered by the trial court in favor of

Appellees. The trial court’s decision on summary judgment formed the basis

of   evidentiary    decisions    affecting   the     Yenchis’   remaining   claims.

Accordingly, we vacate the judgment entered and remand for a new trial on

those claims.      For clarity on remand, we affirm two of the trial court’s

rulings.    Thus, we affirm in part, reverse in part, vacate the judgment

entered and remand.

      In 1995, Mr. Holland contacted the Yenchis, identified himself as a

financial advisor from American Express, and offered to perform a financial

analysis on their behalf. The Yenchis met with Mr. Holland at his office in

December 1995, and agreed to purchase a financial analysis for $350.00.

The Yenchis discussed their current financial status with Mr. Holland,

providing    him   information   regarding   their    employment,    savings   and

insurance coverage.     Thereafter, Mr. Holland presented the Yenchis with a

detailed, financial management proposal, including several recommendations

to better prepare for their retirement.

      One recommendation from the proposal entailed consolidation of the

Yenchis’ several life insurance policies into a single, universal life insurance




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J-A07023-15


policy from IDS Life Insurance (IDS).1               Mr. Holland represented to the

Yenchis that they could use the cash value of their pre-existing policies to

finance a new, single policy, and that the premiums required would never

increase and would cease after eleven years.                In June 1996, the Yenchis

followed this recommendation; cash-surrendered several policies; and used

the proceeds to help finance the purchase of a new policy in Mr. Yenchi’s

name.       The policy provided an initial death benefit of $100,000.00,

decreasing at regular intervals, and included a $25,000.00 rider for 20 years

for Mrs. Yenchi. The premium for the policy was to be $240.00 per month.

       Mr. Holland also recommended that the Yenchis purchase a deferred,

variable annuity from IDS to prepare for Mrs. Yenchi’s retirement. According

to Mr. Holland, the annuity would mature when Mrs. Yenchi reached age

sixty-five, at which point, she would receive a monthly check.                   In March

1997, the Yenchis followed this recommendation.                 In order to finance the

purchase of the annuity, the Yenchis cash-surrendered their remaining life

insurance policies and further agreed to deposit $75.00 per month into the

annuity fund.

       In   2000,    the   Yenchis     had     the   life   insurance   policy   reviewed

independently.      Following this review, they learned that the policy was

underfunded, that their premiums would never cease, and that, in fact, their
____________________________________________


1
  During the course of this litigation, IDS became known as RiverSource Life
Insurance Company.



                                           -3-
J-A07023-15


premiums would increase. At some point, the Yenchis also learned that the

annuity purchased in 1997 would not mature until 2025, when Mrs. Yenchi

will be eighty-four years old (not sixty-five). Moreover, the Yenchis learned

that any early withdrawals from the annuity fund would incur penalty

charges.

        The Yenchis commenced this lawsuit in April 2001.2 Thereafter, they

filed a complaint in November 2003, alleging negligent misrepresentation,

fraudulent    misrepresentation,       violation   of   the   Unfair   Trade   Practices

Consumer Protection Law (UTPCPL),3 bad faith, breach of fiduciary duty, and

negligent supervision.

        In June 2011, Appellees filed a motion for summary judgment, inter

alia, contending that the Yenchis could not establish a fiduciary relationship

as a matter of law. Appellees’ Motion for Summary Judgment, 06/03/2011,

at 4; see also Appellees’ Memorandum of Law in Support of Motion for

Summary Judgment, 06/03/2011, at 24-28.                  The trial court agreed and




____________________________________________


2
 The Yenchis opted out of two, class action lawsuits filed against American
Express Financial Advisors. See Benacquisto v. Am. Express Fin. Corp.,
et al., No. CIV. 00-1980 (D. Minn.); In re: Am. Express Fin. Advisors
Sec. Litig., No. 1:04-CV-01773 (S.D.N.Y.).
3
    73 P.S. §§ 201-1 – 201-9.3.




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J-A07023-15


dismissed the claim for breach of fiduciary duty.        See Trial Court Order,

03/25/2013.4

       Prior to trial, the Yenchis voluntarily dismissed their claim for negligent

misrepresentation.      Trial commenced in January 2014.      Thereafter, a jury

returned a verdict in favor of Appellees on the claim of fraudulent

misrepresentation, whereas the trial court found in favor of Appellees on the

UTPCPL claim. The Yenchis timely filed post-trial motions for relief that were

denied by the trial court, see Trial Court Order, 04/14/2014; timely

appealed from the judgment entered; and filed a court-ordered Pa.R.A.P.

1925(b) statement. The trial court issued responsive memoranda.

       The Yenchis raise the following issues on appeal:

       [1.] [Whether] the trial court err[ed] in partially granting
       [Appellees’] motion for summary judgment by dismissing
       [Appellants’] fiduciary duty claim[;]

       [2.] [Whether] the trial court err[ed] by entering an order
       denying [Appellants’] “global” motion to compel discovery
       concerning production of documents responsive to [Appellants’]
       request regarding management’s knowledge and awareness of
       planning, design[,] and use of financial planning services as a
       tool for deceptive life insurance sales, and the knowledge of
       sales problems with universal life insurance policies[;]

       [3] [Whether] the trial court err[ed] by granting [Appellees’]
       motions in limine based on the dismissal of [Appellants’]
       fiduciary duty claim and thereby limiting the introduction of
       evidence of fraudulent misrepresentation at trial[;]
____________________________________________


4
  Without analysis accompanying its March 2013 decision, the trial court
granted Appellees’ motion in part, dismissing all counts as to the annuity, as
well as counts IV, V, and VI as to the life insurance. See id.



                                           -5-
J-A07023-15



      [4] [Whether] it was reversible error for the trial court[] to
      decide the UTPCPL claim using the pre-amended 1996 version of
      the statute[; and]

      [5] [Whether] the trial court err[ed] by entering an order
      striking all of [Appellants’] voir dire questions without amending
      the questions.

Appellants’ Brief at 5 (internal capitalization modified).

      In their first issue, the Yenchis contend that the trial court erred when

it dismissed their claim for breach of fiduciary duty on Appellees’ motion for

summary judgment.

      Our scope of review of an order granting summary judgment is
      plenary.   We apply the same standard as the trial court,
      reviewing all the evidence of record to determine whether there
      exists a genuine issue of material fact. 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. Only where there is no
      genuine issue as to any material fact and it is clear that the
      moving party is entitled to a judgment as a matter of law will
      summary judgment be entered.

      Motions for summary judgment necessarily and directly implicate
      the plaintiff's proof of the elements of his cause of action. Thus,
      a record that supports summary judgment will either (1) show
      the material facts are undisputed or (2) contain insufficient
      evidence of facts to make out a prima facie cause of action or
      defense and, therefore, there is no issue to be submitted to the
      fact-finder. Upon appellate review, we are not bound by the trial
      court's conclusions of law, but may reach our own conclusions.
      The appellate court may disturb the trial court's order only upon
      an error of law or an abuse of discretion.

DeArmitt v. N.Y. Life Ins. Co., 73 A.3d 578, 585-586 (Pa. Super. 2013)

(internal    citations   and   quotation   marks   omitted;   some   punctuation

modified).

                                       -6-
J-A07023-15


     Further background on Appellees’ motion will be helpful. Their precise

contention before the trial court was that “[t]here was no fiduciary

relationship as a matter of law.” Appellees’ Motion for Summary Judgment,

06/03/2011,   at   4.   In   support   of   this   contention,   Appellees   first

characterized their relationship with the Yenchis merely as one between the

seller and purchaser of insurance. See Appellees’ Memorandum of Law in

Support of Motion for Summary Judgment, 06/03/2011, at 24.             As such,

Appellees thereafter argued that no confidential relationship could arise,

absent evidence that the Yenchis ceded decision-making authority to Mr.

Holland.   Id. at 24-25 (citing in support Ihnat v. Pover, 1999 WL

34788321 (Pa. Com. Pl. Feb. 1, 1999) (Wettick, J.)).

     In response, the Yenchis identified evidence supporting their basic

contentions that Appellees presented themselves as financial experts, who

conducted a financial analysis on their behalf (in exchange for payment) that

resulted in a financial management proposal.           See, e.g., Appellants’

Response to Motion for Summary Judgment (Response), 02/06/2013, at 3-

4. The Yenchis conceded that elements of this proposal included both the

purchase of new life insurance, see id. at 4-7, and the purchase of the

annuity, see id. at 7-9. However, according to the Yenchis, because they

paid Mr. Holland to provide investment-planning advice, their relationship




                                    -7-
J-A07023-15


was not merely a typical relationship between insurer and insured, and a

confidential relationship arose.5 Id. at 20.

       The trial court rejected the Yenchis’ argument. Relying on its previous

rulings, the court concluded that “the relationship between the seller of

insurance and the purchaser of insurance should not be characterized as a

fiduciary relationship,” absent those “instances in which the policyholder

authorized the agent to make decisions on behalf of the policyholder.” Trial

Court 1925(a) Memorandum (Wettick, J.), 07/25/2014, at 2 (citing in

support its prior decisions in Ihnat v. Pover).       The court rejected any

material difference in the factual basis offered by the Yenchis, specifically

discounting a potential distinction based on Appellees’ alleged role as

financial advisors. Id. at 2-3.

       With this background in mind, we turn to the law that informs our

decision. Typically, the purchase of insurance is considered an arm’s-length

transaction, in which the insurer incurs no fiduciary duty apart from those
____________________________________________


5
  As noted by Appellees, at the summary judgment stage of this case, the
Yenchis relied solely upon Appellees’ alleged role as financial experts to
establish a question of fact regarding whether a confidential relationship
arose between themselves and Mr. Holland. Despite the plenary scope of
our review, we may not consider additional evidence suggested by the
Yenchis on appeal, some of which was not introduced until trial. See, e.g.,
Appellants’ Brief at 19 (citing trial testimony and exhibits); see also
Pa.R.C.P. 1035.3 (providing that an adverse party may not rest on the
pleadings, but must identify “issues of fact arising from evidence in the
record” or “evidence in the record establishing facts essential to the cause of
action”). Nevertheless, this observation shall not be understood to preclude
the introduction of this evidence upon remand.



                                           -8-
J-A07023-15


that may be defined in the contract for insurance. See, e.g., Willow Inn,

Inc. v. Public Serv. Mut. Ins. Co., 399 F.3d 224, 235-236 (3d Cir. 2005)

(recognizing Pennsylvania policy that parties act at arm’s-length when

negotiating insurance contracts)); see also Wisniski v. Brown & Brown

Ins. Co., 906 A.2d 571, 578-79 (Pa. Super. 2006) (presuming that “for the

great majority of [insurance] broker-client interactions, the relationship will

not be so extremely one-sided as to be confidential”).

      However, we are aware of no binding precedent that would preclude

the recognition of a confidential relationship merely because the parties

conduct an insurance transaction. Previously, where this Court has declined

to recognize a confidential relationship in the context of an arm’s-length,

commercial contract, we have stopped short of prohibiting such recognition

in all cases. See, e.g., eToll, Inc. v. Elias/Savion Adver., Inc., 811 A.2d

10, 22-23 (Pa. Super. 2002) (properly limiting recognition of a confidential

relationship to those cases in which “the relationship goes beyond mere

reliance on superior skill”) (emphasis in original).   Indeed, this Court has

previously recognized that “[o]f course, it is possible for a[n] [insurance]

broker to enter into a confidential relationship with a client.” Wisniski, 906

A.2d at 578 n.3; see also Paone v. Dean Witter Reynolds, Inc., 789

A.2d 221, 226 (Pa. Super. 2001) (relying upon the trial court’s finding that a

confidential relationship arose between an investor and his broker), appeal

denied, 808 A.2d 572 (Pa. 2002).


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J-A07023-15


      This is sensible. Apart from a few relationships deemed confidential as

a matter of law, it has long been the standard in Pennsylvania that whether

a confidential relationship has arisen poses a question of fact:

      “The general test for determining the existence of [a
      confidential] relationship is whether it is clear that the parties did
      not deal on equal terms.” Frowen v. Blank, 425 A.2d 412, 416
      (Pa. 1981). A confidential relationship was defined in Brooks v.
      Conston, 51 A.2d 684 (Pa. 1947), as follows:

         Confidential relation is any relation existing between
         parties to a transaction wherein one of the parties is bound
         to act with the utmost good faith for the benefit of the
         other party and can take no advantage to himself from his
         acts relating to the interest of the other party[.] Leedom
         v. Palmer, 117 A. 410 (Pa. 1922); Harrison v. Welsh,
         145 A. 507 (Pa. 1929); [In re] Null's Estate, 153 A. 137
         (Pa. 1930). This Court has recently defined confidential
         relationship in Drob v. Jaffe, 41 A.2d 407 (Pa. 1945). Mr.
         Justice Horace Stern said, [] “... a confidential relationship
         is not limited to any particular association of parties but
         exists wherever one occupies toward another such a
         position of advisor or counsellor as reasonably to inspire
         confidence that he will act in good faith for the other's
         interest[.]”    That case was cited with approval in
         Hamberg v. Barsky et al., 50 A.2d 345 (Pa. 1947), and
         in Shook v. Bergstrasser, 51 A.2d 681 (Pa. 1947). See
         also: McCown v. Fraser, 192 A. 674 (Pa. 1937);
         Metzger v. Metzger, 14 A.2d 285 (Pa. 1940); [In re
         Stewart’s Estate], 47 A.2d 204 (Pa. 1946); [In re
         Dichter’s Estate], 47 A.2d 691 (Pa. 1946).

      Id. at 688. A confidential relationship “is not confined to any
      specific association of the parties; it is one wherein a party is
      bound to act for the benefit of another, and can take no
      advantage to himself. It appears when the circumstances make
      it certain the parties do not deal on equal terms, but, on the one
      side there is an overmastering influence, or, on the other,
      weakness, dependence or trust, justifiably reposed[.]” Leedom,
      117 A. at 411. In some cases, as between trustee and cestui
      que trust, guardian and ward, attorney and client, and principal
      and agent, the existence of a confidential relationship is a matter

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J-A07023-15


      of law. In others, as between parent and child or brother and
      sister, the existence of a confidential relationship is an issue of
      fact to be established by the evidence. Null's Estate, 153 A. at
      139. Accord: Peoples First Nat’l Bank & Trust Co. v.
      Ratajski, 160 A.2d 451 (Pa. 1960).             Although the mere
      existence of kinship does not, of itself, give rise to a confidential
      relation, it is a factor to be considered. See: Moyer v. Moyer,
      51 A.2d 708, 709 (Pa. 1947); Null's Estate, supra. See
      generally: Peoples First National Bank and Trust Co. v.
      Ratajski, supra (uncle and niece); Hamberg v. Barksy, 50
      A.2d 345 (Pa. 1947); Drob v. Jaffe, 41 A.2d 407 (Pa. 1945).

In re Estate of Mihm, 497 A.2d 612, 615 (Pa. Super. 1985) (internal

citations reformatted; some punctuation modified; footnote omitted); see

also Biddle v. Johnsonbaugh, 664 A.2d 159, 162 (Pa. Super. 1995)

(“[T]he existence of a confidential relationship is a question of fact to be

established by the evidence.”).       Thus, the existence of a confidential

relationship requires a fact-sensitive inquiry not to be disposed rigidly as a

matter of law.   See Basile v. H & R Block, Inc., 777 A.2d 95, 101 (Pa.

Super. 2001) (“The concept of a confidential relationship cannot be reduced

to a catalogue of specific circumstances, invariably falling to the left or right

of a definitional line.”) (quoting In re Estate of Scott, 316 A.2d 883, 885

(Pa. 1974)).

      According to the trial court, a confidential relationship may not arise in

the context of an insurance transaction absent evidence that the insured has

ceded decision-making authority to the insurer.       See Trial Court 1925(a)

Memorandum (Wettick, J.), 07/25/2014, at 2.           In our view, the court’s

exclusionary rule is flawed in two respects. First, its focus on the nature of


                                     - 11 -
J-A07023-15


the transaction eliminates wholesale an entire category of commercial

relationships without properly accounting for the fact-sensitive inquiry

required by our case law.     Clearly, a motivating factor in this dispute was

Mr. Holland’s recommendation that the Yenchis consolidate their several, life

insurance policies into a single policy, brokered by him and ultimately

discovered to be underfunded.     However, the Yenchis claim a confidential

relationship arose with Mr. Holland, prior to their purchase of life insurance,

when they agreed to purchase what they believed was independent, financial

planning advice.   It is significant that Mr. Holland cultivated a relationship

with the Yenchis first as a financial advisor, not an insurance salesperson.

That this advice resulted in their purchase of life insurance products from

Appellees is not determinative of the nature of their relationship.

      Second, the court’s requirement that there be evidence an insured

ceded decision-making authority to the insurer is too rigid.          Evidence

supporting a confidential relationship must reveal an “over-mastering

influence,” not absolute or overt control. Basile, 777 A.2d at 101 (emphasis

added).    A plaintiff may also establish a confidential relationship by

demonstrating “weakness, dependence or trust, justifiably reposed.”        Id.

Clearly, this standard, too, can be met with evidence less absolute than a

complete cession of decision-making authority.        For example, here, the

Yenchis contend their dependence upon Mr. Holland arose because he

promoted his services as a financial advisor and they paid him to develop a


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J-A07023-15


comprehensive, objective, financial plan.            Thus, according to the Yenchis,

their trust was justifiably reposed.           A proper analysis of these facts must

include some measure of flexibility not present in the trial court’s rule.

       Appellees presented a narrow claim for summary judgment on the

Yenchis’ fiduciary claim. The court’s application of a flawed rule of law and

failure to conduct a proper analysis renders its decision an abuse of

discretion.   Accordingly, we reverse the trial court on this ground.         To be

clear, we do not hold that evidence of Appellees’ purported positions as

financial advisors is sufficient by itself to establish a confidential relationship.

The law in this regard is not yet well developed, and the record in this case

remains incomplete.6 Rather, we merely reject the trial court’s formulation


____________________________________________


6
  We have examined precedent from other states, cited favorably by the
Yenchis, that considered similar situations in which an insurance agent or
broker endeavored to provide financial services beyond insurance. These
cases offer little substantive analysis supportive of their argument. See,
e.g., Negrete v. Fid. & Guar. Life Ins. Co., 444 F.Supp.2d 998, 1004
(C.D.Cal. 2006) (based on preliminary, procedural standards, denying a
motion to dismiss plaintiff’s fiduciary claim where defendant insurer
purportedly served as a financial advisor to insured); Murphy v. Kuhn, 90
N.Y.2d 266, 272 (1997) (recognizing in dicta that an insurance agent may
incur additional responsibilities where he “receives compensation for
consultation apart from payment of the premiums”). We do not find them
persuasive. Other case cited simply do not support the premise for which
Appellants cite them or are clearly inapposite. See, e.g, Vucinich v. Paine,
Webber, Jackson & Curtis, Inc., 803 F.2d 454, 460-61 (9th Cir. 1986)
(holding, pursuant to Section 10(b) of the Securities Exchange Act, that an
investment advisor incurred “a duty to explain the nature of short selling”
securities); Robinson v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
337 F.Supp. 107, 111-12 (N.D.Ala. 1971) (rejecting any fiduciary duty in the
(Footnote Continued Next Page)


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J-A07023-15


of an exclusionary rule as sufficient to account for the fact-sensitive inquiry

required.

       In their second issue, the Yenchis contend that the trial court erred

when it denied their motion to compel Appellees’ production of certain

documents demonstrating their allegedly improper sales practices.                  The

procedural background to this issue is complex.                 Essentially, when this

litigation commenced, it was one of twenty-nine cases brought against IDS

and/or      American     Express     Financial      Advisors   in   Allegheny   County,

Pennsylvania.    In April 2010, one of those cases, Boehm v. Ameriprise

Fin., Inc., GD-01-008289 (C.C.P. of Allegheny Cnty.), was designated the

lead case for the production of “global” discovery and for resolution of

discovery issues.        See Appellants’ Motion for Clarification of Rule 1925

Memorandum Dated July 25, 2014 (Motion for Clarification), 07/30/2014, at

2-3.

       In December 2012, the Boehm plaintiffs filed a motion to compel

production of documents “regarding the decision making process and

management[’]s awareness of the use of deceptive sales practices.” Motion

for Clarification, Exhibit 2 (“Plaintiff’s Second Motion to Compel …”), at ¶ 10.

The Boehm trial court denied the motion.                 See Motion for Clarification,

                       _______________________
(Footnote Continued)

context of a broker-client relationship absent a “special relationship of trust
and confidence” or a contractual obligation).




                                           - 14 -
J-A07023-15


Exhibit 4 (“Order of Court,” 12/27/2012). The record does not reveal any

further action.     Thus, we cannot say with certainty whether the Boehm

plaintiffs pursued reconsideration or appellate review of the court’s order.

       Nevertheless, it is clear that the Yenchis did not seek relief from the

Boehm court order before the trial court in this case, nor did they otherwise

attempt to secure the documents requested in the Boehm motion to

compel. The earliest this issue appears in the record for this case is when

the Yenchis filed their Pa.R.A.P. 1925(b) statement. Our law is clear:

       On appeal the Superior Court will not consider a claim which was
       not called to the trial court's attention at a time when any error
       committed could have been corrected. In this jurisdiction ... one
       must object to errors, improprieties or irregularities at the
       earliest possible stage of the adjudicatory process to afford the
       jurist hearing the case the first occasion to remedy the wrong
       and possibly avoid an unnecessary appeal to complain of the
       matter.

Thompson v. Thompson, 963 A.2d 474, 475-76 (Pa. Super. 2008); see

also Pa.R.A.P. 302(a) (“Issue not raised in the lower court are waived and

cannot be raised for the first time on appeal.”).    Accordingly, this claim is

waived.7

____________________________________________


7
  Absent waiver, the Yenchis’ claim is without merit. According to the
Yenchis, the requested corporate sales practices documents were relevant to
prove fraudulent conduct, citing in support Lesoon v. Metropolitan Life
Ins. Co., 898 A.2d 620 (Pa. Super. 2006). However, the Lesoon court
concluded that this evidence was not “relevant to any material issue at trial
except punitive damages.” Id. at 634 (emphasis added). Here the jury
rejected the Yenchi’s claim for fraud. Accordingly, the disputed evidence
was not relevant.
(Footnote Continued Next Page)


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J-A07023-15


      In their third issue, the Yenchis contend the trial court erred when it

granted Appellees’ motions in limine, which sought to preclude certain

evidence related to the suitability of the insurance policy sold to the Yenchis.

The trial court based its decision upon the prior dismissal of the Yenchis’

fiduciary claim.8

      [O]ur standard of review of a trial court's decision to admit or
      exclude evidence is well-settled[.] When we review a trial court
      ruling on admission of evidence, we must acknowledge that
      decisions on admissibility are within the sound discretion of the
      trial court and will not be overturned absent an abuse of
      discretion or misapplication of law. In addition, for a ruling on
      evidence to constitute reversible error, it must have been
      harmful or prejudicial to the complaining party. An abuse of
      discretion is not merely an error of judgment, but if in reaching a
      conclusion the law is overridden or misapplied, or the judgment
      exercised is manifestly unreasonable, or the result of partiality,
      prejudice, bias or ill-will, as shown by the evidence or the
      record, discretion is abused.

Stumpf v. Nye, 950 A.2d 1032, 1035-36 (Pa. Super. 2008) (internal

quotation marks omitted; formatting modified).       “A party suffers prejudice

when the trial court’s error could have affected the verdict.” Reott v. Asia

Trend, Inc., 7 A.3d 830, 839 (Pa. Super. 2010).

      The trial court does not dispute the basis of its decision:

      The [] claim of error … does not appear to assert direct error by
      the undersigned.     The undersigned’s ruling with respect to
                       _______________________
(Footnote Continued)


8
  Appellees filed a Motion in Limine Regarding Financial Plans (01/23/2014)
and a Motion in Limine to Exclude [Expert] Testimony of Deborah Senn
(01/23/2014).




                                           - 16 -
J-A07023-15


       motions in limine were a function of prior orders and decisions of
       other jurists resulting in the dismissal of [Appellants’] fiduciary
       duty claim. … As the undersigned is bound by the prior
       determinations of a coequal judge with respect to the dismissal
       of [Appellants’] fiduciary duty claim, it was not error to grant
       [Appellees’] motions in limine based upon the prior dismissal of
       such claims.

Trial Court 1925(a) Memorandum (Colville, J.), 06/12/2014, at 2.

       We have reversed the trial court’s decision regarding the Yenchis’

fiduciary duty claim.        Accordingly, we vacate the court’s disposition of

Appellees’ motions in limine as a clear error of law. Moreover, the exclusion

of this evidence could have affected the verdict in the Yenchis’ trial of their

fraudulent misrepresentation and UTPCPL claims.9 Accordingly, absent legal

____________________________________________


9
   To state a claim for common law fraud, the plaintiff must show: (1) a
representation; (2) material to the transaction at issue; (3) made falsely,
with either knowledge or reckless disregard of its falsity; (4) with the intent
to misleading another person or inducing justifiable reliance; and (5) an
injury caused by the reliance. See Bennett v. A.T. Masterpiece Homes
at Broadsprings, LLC, 40 A.3d 145, 152 n.5 (Pa. Super. 2012) (citing
Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999)).               “[F]raud must be
established by clear and convincing evidence and rests with the party
alleging it.” Rohm & Haas Co. v. Continental Cas. Co., 781 A.2d 1172,
1179 (Pa. 2001). However, “fraud can rarely if ever be shown by direct
proof.    It must necessarily be largely inferred from the surrounding
circumstances.”    Id.   Thus, latitude is afforded the fraud plaintiff in
presenting evidence. See id.; see also Snayberger v. Fahl, 45 A. 1065,
1067 (Pa. 1900).

In light of the procedural complexities of this case, we further note that the
Yenchis did not challenge the trial court’s dismissal of their claim for fraud
regarding the 1997 annuity. Indeed, during the summary judgment stage of
this litigation, the Yenchis expressly limited their fraud claim in the following
manner:

(Footnote Continued Next Page)


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support for its exclusion, we grant the Yenchis’ request for a new trial on

these claims. Upon remand, the trial court may revisit the issues raised in

the motions in limine.

      In their fourth issue, the Yenchis contend that the court committed

reversible error when it applied the pre-amendment version of the UTPCPL.

Statutory interpretation presents a question of law.    Snead v. Soc’y for

Prevention of Cruelty to Animals of Pa., 985 A.2d 909, 912 (Pa. 2009).

Thus, our standard of review is de novo, and our scope of review is plenary.

Id.

      The relevant UTPCPL statutory language, 73 P.S. § 201-2(4), was

amended on December 4, 1996, with an effective date of February 2, 1997.

In particular, Section 201-2(4)(xxi), which is the UTPCPL’s so-called catchall

provision, was amended to prohibit one from “engaging in any other

fraudulent or deceptive conduct which creates a likelihood of confusion or

misunderstanding.” Id. Previously, “deceptive conduct” was not included in

the UTPCPL catchall provision.


                       _______________________
(Footnote Continued)

   In other words, in the instant case, [the Yenchis] alleged that by
   providing a contract which provided for an increasing cost of
   insurance, and not the fixed premium which [Appellees] represented
   to be an element of the contract that [the Yenchis were] entering into,
   [Appellees] fraudulently and in violation of the UTPCPL omitted an
   essential and material element of the agreed upon contract.

Appellants’ Response at 17.



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       “This Court applies current statutory law until the Legislature repeals

or amends it.” Commonwealth v. Thomas, 51 A.3d 255, 260 (Pa. 2012).

Section 1926 of the Statutory Construction Act provides that “[n]o statute

shall be construed to be retroactive unless clearly and manifestly so

intended by the General Assembly.” 1 Pa.C.S. § 1926.         Thus, there is a

presumption against the retroactive effect of statutes. Thomas, 51 A.3d at

260.

       However,

       [c]ase law provides … that legislation concerning purely
       procedural matters, not substantive matters, may be applied to
       litigation existing at the time of passage as well as litigation
       commenced after its passage. As a general rule, substantive law
       is that part of the law which creates, defines and regulates
       rights, while procedural laws are those that address methods by
       which rights are enforced.

Commonwealth v. Estman, 868 A.2d 1210, 1212 (Pa. Super. 2005)

(internal citations and quotation marks omitted).

       The amended language of Section 201-2(4)(xxi) created a new,

substantive cause of action based upon “deceptive conduct.”      Absent from

the amendment is any clear indication of the Legislature’s intent for its

retroactive application. Accordingly, we may not construe it so. Thomas;

Estman.




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        Here, the allegedly deceptive practices that support the Yenchis’

UTPCPL claim all occurred prior to August 1996.10           Accordingly, their

contention is without merit, and the pre-amended version of the UTPCPL

controls.

        In their fifth issue, the Yenchis contend the trial court erred when it

struck five proposed voir dire questions. The proposed questions were:

        1. What do you need to know in order to decide if an insurance
        company cheated someone in the sale of a life insurance policy?

        2. Why do you believe life insurance companies advertise that
        people should trust their advice?

        3. Should a company be able to make money cheating people?

        4. If a person catches a company cheating them, and somehow
        after a number of years gets their money back, who should get
        the profit of interest made on the money while the company held
        it?

        5. If a company or its agents cheats someone out of their
        money, what do you feel should be done to stop them from ever
        doing this again?

See Trial Court 1925(a) Memorandum (Folino, J.), 09/03/2014, at 3-5.

        According to the Yenchis, the trial court was required to amend the

language of the proposed voir dire into a form acceptable to the Court, citing

in support Commonwealth v. Davis, 422 A.2d 671, 673 (Pa. Super. 1980)

(en banc) (holding that a trial court “should not totally reject an entire line

of otherwise relevant inquiry,” but should “mold [an impermissibly broad
____________________________________________


10
     The IDS Life Insurance policy was issued on August 15, 1996.



                                          - 20 -
J-A07023-15


question] into an acceptably limited form”).       The Yenchis’ contention is

without merit.

      The following standard applies:

      The sole purpose of voir dire examination is to secure a fair,
      competent and impartial jury. To achieve this purpose, general
      questions should be permitted so that it can be determined
      whether any of the veniremen have a direct or even a contingent
      interest in the outcome of the litigation or the parties involved.
      The scope and extent of voir dire examination is within the
      sound discretion of the trial court and the trial court's rulings
      thereon will not be disturbed absent a clear abuse of that
      discretion.

Capoferri v. Children’s Hosp. of Phila., 893 A.2d 133, 138 (Pa. Super.

2006) (some punctuation modified).

      Here, the trial court examined each of the proposed questions.       See

Trial Court 1925(a) Memorandum (Folino, J.), 09/03/2014, at 3-6. Following

its review, the court determined that the proposed questions were not

designed to address potential bias of jurors, but rather to ask potential

jurors what they thought the law should be, or to glean what evidence

potential jurors would find persuasive.        We agree that this type of

questioning is inappropriate.   See, e.g., Commonwealth v. Manley, 985

A.2d 256, 264 (Pa. Super. 2009) (rejecting “hypothetical questions designed

to disclose a juror's present impression or opinion as to what his decision will




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likely be under certain facts which may be developed in the trial of the

case”). Accordingly, we discern no abuse of the trial court’s discretion.11

       For the above reasons, we reverse the summary judgment entered by

the trial court in favor of Appellees regarding the Yenchis’ claim for breach of

fiduciary duty. Moreover, we vacate the judgment entered and remand for a

new trial on their fraudulent misrepresentation and UTPCPL claims. Finally,

we discern no error of law in the court’s determination that the pre-amended

version of the UTPCPL applies to the Yenchis’ claims and no abuse of the

court’s discretion in rejecting their proposed voir dire questions. Thus, we

affirm the court on those grounds.

       Judgment vacated. Case remanded. Jurisdiction relinquished.

       Judge Mundy joins this opinion.

       Judge Lazarus files a concurring and dissenting opinion.




____________________________________________


11
   The Yenchis further contend that they were denied an opportunity to
amend their questions. There is no evidence that the Yenchis sought leave
to amend. We deem the matter waived. See Pa.R.A.P. 302(a).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2015




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