Capone, F. v. American Heritage Federal Credit

J-A27023-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FELIX CAPONE IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant

v.

AMERICAN HERITAGE FEDERAL CREDIT
UNION

Appellee No. 25 EDA 2018

Appeal from the Order Entered November 20, 2017
In the Court of Common Pleas of Bucks County
Civil Division at No.: No. 2014-04724

BEFORE: BOWES, STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.: FILED MARCH 15, 2019

Appellant Felix Capone appeals from the November 20, 2017 order

entered in the Court of Common Pleas of Bucks County (“trial court”), which

granted Appellee American Heritage Federal Credit Union’s motion for

summary judgment and dismissed Appellant’s amended complaint. Upon

review, we affirm.

The facts and procedural history of this case are undisputed. As

recounted by the trial court:

In May of 2008, Appellant’s daughter, Jillian Moyer, opened
an account with Appellee and began the process of applying for a
loan. On May 28, 2008, Appellant transmitted a letter to Appellee
verifying that Moyer worked for him and her weekly salary. The
letter stated that Appellant was vice president and part owner of
a company named “Casualty Restoration and Construction
Management, Inc.” that Moyer was employed by this company
since April 2004, and that she was paid a gross weekly salary of
$1,250. Based on this letter, Appellee approved Moyer for a
J-A27023-18

$5,000 loan that listed Appellant as a co-signer. Appellant later
admitted in his disposition that the information contained in the
letter Appellant sent to Appellee regarding Moyer’s employment
was entirely false.

Appellee subsequently increased the line of credit three
times, through three separate agreements, to $11,000. The credit
line increase agreements contain the signature of “Felix J.
Capone”.

Moyer eventually defaulted on the loan. Moyer accepted a
“Request for Hardship Extension”, which also contained the
signature of “Felix J. Capone”. As of January 2013, Moyer was
still delinquent in repaying the amounts owed on the credit line.
Appellant alleges that at this time, Appellee began misapplying
payments Appellant had made on his car loan to Moyer’s loan.

Appellant contends that he had no knowledge of the credit
line increases, that he did not sign the increase, and that Moyer
forged his signature on the documents authorizing the increases.
On July 11, 2014, Appellant commenced this action, claiming a
violation of the Unfair Trade Practices and Consumer Protection
Law (“UTPCPL”)[, 73 P.S. § 201–1, et seq.], fraud, and breach of
contract. On July 21, 2014, Appellant filed an amended complaint.

On February 25, 2015, Appellant file[d] a motion for leave
to file a second amended complaint to include claims of a violation
of the Fair Credit Reporting Act, intentional infliction of mental and
emotional distress, negligent infliction of mental and emotional
distress, conversion, and intentional tort. On April 7, 2015,
Appellee filed a motion for summary judgment. On [September
1], 2015, th[e trial c]ourt denied Appellant’s motion for leave to
file a second amended complaint. Also[,] on [September 1],
2015, [the trial court] denied Appellee’s motion for summary
judgment without prejudice, permitting Appellee to refile upon
completion of discovery.

The parties continued to engage in discovery until June 5,
2017[,] when Appellee filed its second motion for summary
judgment. Appellee argued that summary judgment is
appropriate as to all three of Appellant’s claims. First, Appellee
contended that Appellant’s UTPCPL claim failed because he lacked
standing under the UTPCPL and that even if he had standing,
Appellant failed to prove the elements of justifiable reliance or
offer evidence of fraudulent or deceptive conduct. Second,

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J-A27023-18

Appellee argued that Appellant’s fraud claim failed because
Appellant did not provide any evidence of fraud. Finally, Appellee
contended that summary judgment was appropriate as to
Appellant’s breach of contract claim, because Appell[ant] lacked
standing and failed to offer evidence to establish the required
elements of the cause of action.

[The trial court] held oral argument on Appellee’s motion for
summary judgment on November 14, 2017. On November [20],
2017, [the trial court] granted Appellee’s motion for summary
judgment. On December 18, 2017, Appellant filed a notice of
appeal to the Superior Court of Pennsylvania. Following receipt of
the notice of appeal, [the trial court] directed Appellant [to file] a
concise statement of errors complained of on appeal on or before
January 5, 2018. [Appellant complied. In response, the trial court
issued a Pa.R.A.P. 1925(a) opinion.]

Trial Court Opinion, 1/24/18, at 1-3 (record citations and unnecessary

capitalizations omitted).

On appeal, Appellant raises four issues for our review.

[I.] Has the [trial] court abused its discretion and erred as a
matter of law by granting summary judgment in favor of a
financial institution accused of forgery and fraud by declaring
“forgery allegations ma[k]e proving the element of justifiable
reliance [by the consumer plaintiff] . . . under the UTPCPL
impossible”?

[II.] Has the court abused its discretion by granting summary
judgment in favor of movant financial institution thus dismissing
non-movant’s common law fraud claims where the record
unarguably shows movant’s loan officers participated in the fraud
and forgery on non-movant by bearing false witness to the forged
signature of Appellant on numerous loan documents?

[III.] Is the [trial] court’s finding that the non-movant’s breach of
contract claims “appears to be specific to [] subsequent
agreements . . . rather than to the original loan contract” a
deliberate disregard of record facts and therefore an abuse of
discretion?

[IV.] As a final order, now that the [trial] court order granting
summary judgment dismissed all claims in the action, was the

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J-A27023-18

interlocutory order of September 1, 2015 denying [Appellant’s]
motion for leave to file a second amended complaint for violation
of the Fair Credit Reporting Act, intentional and negligent infliction
of mental and emotional distress an error of law and an abuse of
discretion?

Appellant’s Brief at 7-10 (unnecessary capitalizations omitted).1, 2

We review a challenge to the entry of summary judgment as follows:

[We] may disturb the order of the trial court only where it is
established that the court committed an error of law or abused its
discretion. As with all questions of law, our review is plenary.

In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. See Pa.R.C.P. No. 1035.2. The rule
[provides] that where there is no genuine issue of material fact
____________________________________________

1Appellee argues Appellant failed to preserve his issues for our review because
he did not raise them before the trial court. Although Appellee is correct that
Appellant’s issues do not mirror the issues raised in his Pa.R.A.P. 1925(b)
statement, we nonetheless decline to find them waived. Appellant’s issues
appear to be subsumed by the issues raised in his Rule 1925(b) statement,
as quoted in the trial court’s Rule 1925(a) opinion. See Trial Court Opinion,
1/24/18, at 3-4.
2 Appellee aptly points out that Appellant’s brief includes and relies upon
documents, specifically the “Supplemental Record of Slaboda Deposition,” that
are outside of the certified record. Appellee’s Brief at 18. We agree. In Parr
v. Ford Motor Co., 109 A.3d 682 (Pa. Super. 2014), we explained:
[t]he law of Pennsylvania is well settled that matters which are
not of record cannot be considered on appeal. Thus, an appellate
court is limited to considering only the materials in the certified
record when resolving an issue. In this regard, our law is the
same in both the civil and criminal context because, under the
Pennsylvania Rules of Appellate Procedure, any document which
is not part of the officially certified record is deemed non-
existent—a deficiency which cannot be remedied merely by
including copies of the missing documents in a brief or in the
reproduced record.
Parr, 109 A.3d at 695 (internal citations omitted). As such, we may not
consider the Slaboda deposition Appellant relies upon on appeal.

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J-A27023-18

and the moving party is entitled to relief as a matter of law,
summary judgment may be entered. Where the nonmoving
party bears the burden of proof on an issue, he may not
merely rely on his pleadings or answers in order to survive
summary judgment. Failure of a non-moving party to
adduce sufficient evidence on an issue essential to his case
and on which he bears the burden of proof establishes the
entitlement of the moving party to judgment as a matter of
law. Lastly, we will review the record in the light most favorable
to the nonmoving party, and all doubts as to the existence of a
genuine issue of material fact must be resolved against the
moving party.

E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)

(citation omitted; brackets in original) (emphasis added).

After careful review of the record and the relevant case law, we conclude

that the trial court accurately and thoroughly addressed the merits of

Appellant’s claims. See Trial Court Opinion, 1/24/18, at 5-11. Appellant’s

UTPCPL claim fails because he did not offer any evidence to establish

justifiable reliance. See Kern v. Lehigh Valley Hosp., Inc., 108 A.3d 1282,

1289-90 (Pa. Super. 2015) (“[J]ustifiable reliance is an element of private

actions under Section 201-9.2 of the UTPCPL. As such, [the a]ppellant had to

demonstrate that he . . . justifiably relied on [the a]ppellee’s alleged violations

of the UTPCPL and, as a result of those alleged violations, suffered an

ascertainable loss.”). Appellant admitted that he had no knowledge of the

credit line increases, that he did not sign the increases, and that his signatures

on those increases were forgeries. Trial Court Opinion, 1/24/18, at 7.

Similarly, Appellant’s fraud claim lacks merit. Appellant failed to establish any

evidence that Appellee committed fraud sub judice. See id. at 7-8 (On the

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J-A27023-18

contrary, Appellant has “admitted that his daughter had herself forged his

signature on the documents in question.”). Moreover, Appellant cannot

establish a breach of contract because he emphatically denied signing the

documents relating to the credit line increases.3 Id. at 9 (“As Appellant

acknowledged that he did not sign these additional agreements, he could not

assert a breach of contract claim based on these increases[.]”). Finally, the

trial court did not abuse its discretion in denying Appellant’s motion for leave

to file a second amended complaint because the additional causes of action

Appellant sought to raise were time-barred.4 Id. at 9-11; see Shiflett v.

Lehigh Valley Health Network, Inc., 174 A.3d 1066, 1083 (Pa. Super.

2017) (“[i]t is axiomatic that a party may not plead a new cause of action in

an amended complaint when the new cause of action is barred by the

applicable statute of limitations at the time the amended complaint is filed”),

appeal granted in part, 191 A.3d 745 (Pa. 2018). Accordingly, we affirm

the trial court’s November 20, 2017 order granting Appellee’s summary

____________________________________________

3 Although we decline to find waiver, we note with disapproval that Appellant
failed to develop his third issue on appeal. See Pa.R.A.P. 2119; see also
Umbelina v. Adams, 34 A.3d 151, 161 (Pa. Super. 2011) (stating “where an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful fashion
capable of review, that claim is waived[]”) (citation omitted), appeal denied,
47 A.3d 848 (Pa. 2012).
4 TCPF Ltd. P’ship v. Skatell, 976 A.2d 571, 574 (Pa. Super. 2009) (noting
that we apply an abuse of discretion standard of review to cases challenging
a trial court’s denial a motion to amend).

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J-A27023-18

judgment motion. We further direct that a copy of the trial court’s January

24, 2018 opinion be attached to any future filings in this case.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/15/19

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 Circulated 02/27/2019 01:48 PM

IN TIIE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CIVIL DMSION

FELIX CAPONE

v. No. 2014-04724

AMERICAN HERITAGE FEDERAL
CREDIT UNION

.. � __ _..
OPINION

Felix Capone (hereinafter "Appeµantj appeals from this Court's November 17. 2017

Order granting American Heritage Federal Credit Union's (hereinafter "Appellee") Motion for

Summary Judgment and the September 1, 2015 Order denying Appellant's Motion for Leave to

File a Second Amended Complaint. Pursuant to Pennsylvania Rule of Appellate Procedure

l 92S(a), this Court files this Opinion in support of its ruling.

L FACTUAL AND PROCEDURAL HISTORY

In May of 2008. Appcllant•s daughter, Jillian Moyer, opened an account with Appellce and

began the process of applying for a loan. On May 28, 2008, Appellant transmitted a letter to

Appellee verifying that Moyer worked for him and her weekly salary. See Exhibit A to

Defendant's Motion for Summary Judgment. The letter stated that Appellant was vice president

and part owner �fa company named "Casualty Restoration and Construction Management, Inc",

that Moyer was employed by this company since April 2004, and that she was paid a gross weekly

salary of $1,250. See kt. Based on this letter. Appellce approved Moyer for a $5,000 loan that

listed Appellant as a co-signer. &a Plaintiff's Amended Complamt ft 6, 7. Appellant later
admitted in his deposition that the infonnation contained fn the letter Appellant sent to AppeUee

regarding Moyer's employment was entirely false. N.T. 12/18/1 S, p. 192:7-207:3.

1

THIS ORDER/JUDGMENT WAS DOCKETED AND SENT ON 01/24/2018 PURSUANT TO PA. R. C. P. 236.
 Appellee subsequently increased the line of credit three times, through three separate

agreements, to $11,000. Id. at fl 11 • 13. The credit line increase agreements contain the signature

of"Felix J. Capone". See Exhibits D-0 to Defendant's Motion for Summary Judgment,

Moyer eventually defaulted on the loan. Id. at 1 16. Moyer accepted a "Request for

Hardship Extension", which also contained the signature of"Felix J. Capone". See Exhibit H to

Defendant's Motion for Summary Judgment. As of January 2013, Moyer was still delinquent in

repaying the amounts owed on the credit line. Appellant alleges that at this time, Appellce began

misapplying payments Appellant had made on his car loan to Moyer's loan. Jg,

Appellant contends that he had no knowledge of the credit line increases, that be did not

sign the increases, and that Moyer forged his signature on the documents authorizing the increases.

See N.T. 12/18/15,
.
p. 58:18-21, 59:7-11; 89-91; 222:7-12.
. On July 11, 20�4, Appellant

commenced this action, claiming a violation of the Unfair Trade Practices and Consu�er

Protection Law (UTPCPL), Fraud, and Breach of Contract. On July 21, 20 J 4, Appellant filed an

amended complaint

On February 25, 2015, Appellant file a motion for leave to file a Second Amended

Complaint to include claims of a violation of the Fair Credit Reporting Act, Intentional Infliction .

of Mental and Emotional Distress, Negligent Infliction of Mental and Emotional Distress,

Conversion, and Intentional Tort. On April 7, 2015, Appellee filed a motion for summary

judgment. On August 31, 2015, this Court denied Appellant's Motion for Leave to File a Second

Amended Complaint. Also on August 31, 2015, the Court denied Appellee's Motion for Summary

Judgment without prejudice, permitting Appellee to refile upon completion of discovery.

The parties continued to engage in discovery until June 5, 2017 when Appellee filed its

second Motion for Summary Judgment Appellee argued that summary judgment is appropriate

2
as to all three of Appellant's claims. First, Appellee contended that Appellant's UTPCPL claim

failed because he lacked standing under the UfPCPL, and that even if he had standing, Appellant

failed to prove the elements of justifiable reliance or offer evidence of fraudulent or deceptive

conduct Second, Appellee argued that Appellant's fraud claim failed because Appellant did not

provide any evidence of fraud. Finally, Appellee contended that summary judgment was

appropriate as to Appellant's breach of contract claim, because Appellee lacked standing and failed

to offer evidence to establish the required elements of the cause of action.

This Court held oral argument on Appellee's Motion for Summary Judgment on November

14, 2017. On November 17, 2017, the Court granted Appellee's Motion for Summary Judgment.

On December 18, 2017, Appellant filed a notice of appeal to the Superior Court of Pennsylvania.

Following receipt of the Notice of Appeal, this Court directed Appellant filed a concise statement

of errors complained of on appeal on or before January 5, 20 J 8.

II. STATEMENT OF ERRORS COMPLAINED OF ON APPEAL

On January 3, 2018, in accordance with Pennsylvania Rule of Appellate Procedure

1925(b), Appellant filed his Statement of Errors Complained of on Appeal, set forth verbatim

herein:

l. If the Court granted Defendant [sic] Summary Judgment and dismissed Plaintiffs
Amended Complaint based on a bias against consumers end in favor of fmancial
institutions, then the Court abused its discretion and erred as a matter of law, and
in violation of the Unfair Trade Practices Act and Consumer Protection Law,
which is supposed to be "liberally construed to effectuate the legislative goal of
consumer protection." Commonwealth of Pennsylvania, Actin& by Attorney
General Thomas W. Corbett. Jr. v. Snydq. 977 A.2d 28, 33 (Pa. Cmwlth. 2009)
(citing Commonwealth v. Percudani. 844 A.2d 35 (Pa. Cmwlth. 2004)).
2. If the Court granted Defendant's Motion because the Court decided that the many
different signatures on loan documents purporting ta be Plaintiff's signatures are
genuine, and NOT forgeries as Plaintiff claims, then the Court erred as a matter of
Jaw and abused its discretion by deciding genuine issues of material fact (forgery
and fraud) contrary to the summary judgment standard.

3
 3. If the Court granted Defendant's Motion �cause the Court decided that Plaintiff
somehow authorized forgery by [American Heritage Federal Credit Union] loan
I
officers and/or his daughter, then the Court erred as a matter of law and abused its
discretion by deciding genuine issues of material fact contrary to the summary
judgment standard.
4. If the Court granted Defendant's Motion because the Court decided that
[American Heritage Federal Credit Union] 6fficers, directors, and employees did
NOT know, and/or, should NOT have known that Plaintiff's name was forged on
loan documents, then the Court decided genuine issues of material fact contrary to
the summary judgment standard.
S. If the Court granted Defendant [sic] summary judgment based on the
determination that [American Heritage Federa! Credit Union] issued any loans at
all to Jill Moyer based on an employment .Jerilication letter, then the Court erred
as a matter of law and contrary to the summary judgment standard by deciding
genuine issues of material fact; namely, w}\ether [American Heritage Federal
Credit Union] actually and/or reasonably relied on the letter to approve any, all, or
some of the loans to Moyer.
6. Because the Court Order granting swnmary judgment and dismissing Plaintiff's
Amended Complaint is a final order, the September 1, 2015 interlocutory order
denying Plaintiff's February 25, 2015 "Motion for Leave to File a Second
Amended Complaint" is now subject to re�iew as. an abuse of discretion and error
of Jaw by the Court erroneously denying Plaintiff's right to amend pleadings that
are sufficient to satisfy pleadings standards1 alleging Violation of the Fair Credit
Reporting Act 15 U.S.C. 1 168ls-2(b), IntJntional and Negligent Infliction of
Mental and Emotional Distress, Conversion, and Intentional Tort while
incorporating the existing pleadings in Plaintiff's
I
Amended Complaint.
7. The Court',s denial of Plaintiff's Motion for Leave to File a Second Amended
Complaint (alleging Violation of the Fair Credit Reporting Act 15 U.S.C. 1
1681 s-2(b), Intentional and Negligent Infliction of Mental and Emotional
Distress) given the substance and timing of the February 25, 2015 Motion
pertaining to applicable statutes of limitations, is an error of law and an abuse of
•
di scretion. I
: ·
Ill. DISCUSSION

Appellant offers several different arguments n:garding the grant of the Motion for

Summary Judgment because Appellant contends that the Court gave no indication for the reasons

for the Court's decision.' The Court will not address these arguments because they address issues

I
Whllo the Court did not offer its reasoning for &ranting AppcUoo's Motion for Summary Judgment in
writing. the Court repeatedly expressed its concern during orallargumont that Appellant did not offer
sufficient evidence to support his claims end overcome the M�on for Summary Judgment. despite
having several years• worth of discovery. In response. Appellant argued that somo discovery is missing
4
that were not taken into consideration by this Court in making its decision. Rather, this Court will

discuss the Court's reasoning for granting Appcllee's Motion for Summary Judgment The Court

wi!l then address its reasoning for denying Appellant's Motion for Leave to File a Second

Amended Complaint.

fil1.MMARY JUDGMENT
Summary judgment may only be granted where there is no genuine issue as to any material

fact and the moving party is entitled to judgment as a matter of law. See Pa.R.C.P. 1035.2. When

reviewing a motion for summary judgment, the record must be read 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. Marks y, Tasman, 589 A.2d 205, 206 (Pa. 1991). "In

opposing a motion for summary judgment, the non-moving party must demonstrate that there is a

genuine issue for trial." Davis y. Resources for Human Development. Inc.� 770 A2d 353, 357

(Pa. Super. Ct 1991 ). The non-moving party may not "merely rely on his pleadings or answers to

survive summary judgment" Krauss v. Trane U.S. Inc,. 104 A.3d 556, 563 (Pa. Super. 2014)
(citation omitted). A reviewing court may disturb the trial court's grant of summary judgment if

the court has committed an error oflaw or abused its discretion. See Toy v. Metropolitan Life Ins.

Qb 928 A.2d 186 (Pa. 2007).

1. UTPCPL
I •

In Count One of Appellant's Amended Complaint, Appellant alleges that Appellee violated

the UTPCPL. Appellee moved for summary judgment on this claim, arguing that Appellant lacked

and alleged that Appellee refused to comply with discovery requests and/or was lying about the existence
of particular materials. The Court questioned why lf Appellant believes Appellee has failed to comply
with discovery, he did not file the proper discovery motions. Appellant did not provide a reason for his
failure to do so.
5
standing under the UTPCPL, and that, even if Appellant bad standing, Appellant could not satisfy

the justifiable reliance element or the ascertainable loss element of a UTPCPL claim.

The UTPCPL provides a private right of action for "(ajny person who purchases ... goods
\
or services primarily for personal, family or household purposes and thereby suffers any

ascertainable loss of money or property" resulting from the seller's unfair or deceptive practices.

73 P.S. § 201-9.2(a). Section Four of the UTPCPL includes a catch-all provision, providing that

"any other fraudulent or deceptive conduct which creates a likelihood of confusion or of

misunderstanding" is an unfair or deceptive practice. 73 P.S. § 201-2(4Xxxi).

To succeed under the catch-all provision, the plaintiff must satisfy the elements of

common-law fraud or otherwise allege deceptive conduct. Hunt v. US Toba�o Co., 538 F.3d 217,

219 (3d Cir. 2008). A claim for deceptive conduct requires: {l) a plaintiff allege facts

demonstrating a deceptive act; (2) justifiable reliance; and (3) the justifiable reliance caused

ascertainable loss. � Montanez y, HSBC Mortg. Corp •• 876 F. Supp. 2d 504, 519 (E.D .Pa. 2012).

This Court found that because Appellant's claims are not related only to the credit line

increase agreements, Appellant likely had standing under the lITPCPL, as he co-signed the

original loan. However, this Court also found that summary judgment was nonetheless appropriate

because Appellant failed to satisfy the elements of a UTPCPL claim, as Appellant's forgery

allegations made proving the element of justifiable reliance to sustain a claim under the UTPCPL

impossible. Even assuming arguendo that the alleged forgeries constituted in themselves
. .

sufficient fraud or deception to meet the standard of a lITPCPL claim, there bas been no evidence

presented to this Court which demonstrates that Appellant actually, much less justifiably. relied

upon these alleged forgeries to his detriment. The facts of this case may be compared to Faber v.

Wells Fargo Bank. 2015 WL 1636967 (E.D. Pa. Apr. 13, 2015), in which a plaintiff's UTPCPL

6
claim against a bank was dismissed where the claim was based upon allegedly forged signatures;

in that case, the District Court found that the alleged forgery was insufficient to fulfill the required

element of justified reliance. Similarly, Appellant has failed to show any justifiable detrimental

reliance on his part to any conduct by Appellee. I� by his own admission, Appellant had no

knowledge of the credit line increases made by Moyer, did not sign said increases, and maintains

that the signatures made to authorize these increases were forgeries. See N.T. 12/18/15, p.58:18-

21, 59:7-11; 89-91; 222:7-12. This Court cannot understand how an individual who so strongly

disavows any connection to the authorization of these credit line increases could also have relied

on them to his own detriment.

2. Common Law F);agd

This Court further found that swnmary judgment was appropriate because Appellant not

provided any evidence proving that Appellee had committed common law fraud. To establish a

fraud claim, a plaintiff must plead with specificity: ( 1) a representation; (2) which is material to

the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether

it is true or false; (4) with the intent of misleading another into relying on it; (5)justifiable reliance

on the representation; and (6) the resulting injury was proximately caused by the reliance. Youndt

Y, First Nat'l Bank of Pon Allegany. 868 A.2d 539, 545 (Pa. Super. 2005). A misrepresentation
is material to the transaction � ban� only if the representation is such that, had it not been

misrepresented, the transaction would not have been consummated. Sevin v. Kclshaw, 611 A.2d

1232, 1237 (Pa. Super. lm).

In this case, Appellant has failed to offer any evidence to show that fraud occurred.

Although Appellant has asserted that the alleged forgeries were completed by employees of

Appellee, Appellant has not provided evidence to the same, beyond vague catch-all statements that

7
these employees "either forged (Appellant's signature], knew each other forged, or knew Jill

Moyer forged" the signature on these documents. See Plaintiff Felix Capone's Response to

Defendant American Heritage Federal Credit Union's Memorandum in Support of Defendant's

Motion for Summary Judgment, sn/17, 1 11. Moreover, Appellant has also admitted that his

daughter had herself forged his signature on the documents in question. Thus, if Appellant's only

evidence of fraud is his forged signature, it seems that this issue has previously been admitted by

Appellant to be his daughter's doing, and that no evidence has been offered by Appellant to

indicate that Appellee's employees participated in the forgeries or misrepresented any information

to him. Moreover, again, Appellant's reliance on these supposed misrepresentations is extremely

suspect, as he himself has stated multiple times that he was unaware of the alleged forgeries and

did not approve of them. Accordingly, Appellant has failed to meet the standard of common law

fraud and summary judgment was appropriate on this claim.

3. Breach of Contract
Finally, this Court found summary judgment appropriate concerning Appellant's breach of

contract claim. It is well-established that three elements are necessary to plead a cause of action

for breach of contract: ( J) the existence of a contract, including its essential terms, (2) a breach of

the contract; and, (3) resultant damages. Meyer, Darragh. Buckler. Bebenek & &k. P.L.L.C. y.
Law Firm of Malone Middleman, P,C., 137 A.3d 1247, 1258 (Pa. 2016). A plaintiff has no
standing to sue for breach of contract if the plaintiff is neither a signatory to, nor a third party

beneficiary of, the contract: See Ouy v. Liederbach, 459 A.2d 744 (Pa. 1983)t BDOP. Inc. v. Ind,
Mortg. Co .• 2004 WL 960013, at 4 (CCP Philadelphia County 2004).
In th.is case, Appellant has failed to establish the required elements of breach of contract.

Appellant's claim for breach of contract appears to be specific to the subsequent agreements for

8
credit line increases forged by Plaintiff's daughter, rather than to the original loan contract, and in

fact Appellant vigorously denies Appellee's characterization of the case as concerning all credit

line increases. See Plaintiff Felix Capone's Response to Defendant American Heritage Federal

Credit Union's Memorandum in Support of Defendant's Motioq for Swnmary Judgment, 8n/l 7,

1 11. Appellant has also, and equally emphatically, denied that he did not sign these documents

and alleged that the signatures on these credit line increases were forgeries. As Appellant

acknowledged that he did not sign these additional agreements, he could not assert a breach of

contract claim based on these increases, since by his own admission he entered into only one

agreement with Appellee. Thus, this Court found no basis to deny summary judgment to Appellee

based on a breach of contract claim by Appellant.

AMENDED COMPLAINT
In his Motion for Leave to File Second Amended Complaint, Appellant requested this

Court's Leave to add the following causes of action to his Complaint: violation of the Fair Credit

Reporting Act", Intentional Infliction of Mental and Emotional Distress, Negligent Infliction of

Mental and Emotional Distress, Conversion, and Intentional Tort. As a basis for � motion,

Appellant claimed that facts came to light during discovery which warranted adding these

additional causes of action to the Complaint.

"An action to enforce any liability created under this subchapter may be brought in any

appropriate United States district court, without regard to the amount in controversy, or in any
. .
other court of competent jurisdiction, not later than the earlier of . . . 2 years after the date of

discovery by the plaintiff of the violation that is the basis for such liability'. 1 S U.S.C.A. § 1681 p.

"The following actions and proceedings must be commenced within two years ... An action for

:i IS U.S.C. § 1681 et teq.

9
taking, detaining or injwing personal property, including actions for specific recovery thereof ...

[and] [a]ny other action or proceeding to recover damages for injury to person or property which

is founded on negligent, intentional, or otherwise tortious conduct or any other action or

proceeding sounding in trespass, including deceit or fraud, except an action or proceeding subject

to another limitation specified in this subchapter". 42 Pa. Stat. and Cons. Stat. Ann. § 5524(3), (7).

In this case, these additional causes of action arc undoubtedly time barred. Each of the

proposed causes of action have a two-year statute of limitations, as demonstrated above. In the

Amended Complaint, Appellant states that he became aware of the conduct underlying this action

in January 2013. � Amended Complaint 114. Thus, the statute of limitations would run for all

these proposed causes of action in January 2015. AppeU�t did not even seek leave to file a Second

Amended Complaint until February 25, 2015, past the statutory bar. Accordingly, the proposed

causes of action were time barred and this Court correctly denied Appellant leave to file a Second

Amended Complaint.

To the extent that Appellant relies upon the discovery rule to extend the statute of

limitations, Appellant's reliance is misplaced. "The discovery rule is a judicially created device

that tolls the running of the applicable statute of limitations until that point when the plaintiff

knows or reasonably should know: (l) that he has been injured; and (2) that his injury has been

caused by another party's conduct." K.A.R. v. T.O.L.• 107 A.3d 770, 779 (Pa. Supet. 2014)

( citation omitted). "The commencement of the limitations period is grounded on 'inquiry notice'

that is tied to 'actual or constructive knowledge of at least some form of significant harm and: of a

factual cause linked to another's conduct, without the necessity of notice of the fuU extent of the

injury, the fact of actual negligence, or precise cause.?' lg. at 779-80. "For the statute of limitations

to run, a plaintiff need not know the 'exact nature' of his injury, as long as it objectively appears

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 that the plaintiff is reasonably charged with the knowledge that he has an injury caused by

another." Klein v. Commerce Enex&Y, Inc,. 256 F. Supp. 3d 563, 590 (W.D. Pa. 2017).

In this case, Appellant asserts that since he discovered additional alleged wrongdoing by

Appellee during discovery in 1 anuary 201 S, the statute of limitations of these proposed causes of

action did not begin to run until that day. However, it is evident by Appellant's own filings that

Appellant was aware of the injuries he alleged before January 2015. Appellant's Amended

I Complaint, which details Appellant's allegations against Appellee, was filed in July 2014, half a

year before Appellant supposedly learned new information in discovery. By July 2014, then,

Appellant already knew of the injuries he alleged; by the Appellant's own admission, the

information he purported to have learned in January 2015 only deepened and changed his

knowledge of Appellee's supposed wrongdoing. See Motion for Leave to File Second Amended

Complaint fl 4-5. Thus, the two-year statute of limitations for these proposed causes of actions

began to nm as soon as Appellant had the knowledge he pleaded he had in July 2014, and any

further information he learned would not have changed the date at which the statute of limitations

ran. Accordingly, this Court found that there was no basis to allow Appellant to file a Second

Amended Petition.

IV. CONCLUSION

For the foregoing reasons, this Court perceives that the issues of which Appellant has

complained in this appeal are without merit

BY THE COURT:

.-?: rtis:rd�
JEFFREY L. FINLEY, P.J.

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