J-A02015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FULTON BANK, N.A. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
PAUL A. SANDQUIST, PATRICIA A.
ZWAAN, BARRY L. SPEVAK AND
DOWNEY SPEVAK, & ASSOCIATES, LTD.
Appellee No. 2306 EDA 2016
Appeal from the Order June 1, 2016
In the Court of Common Pleas of Chester County
Civil Division at No(s): 2016-01908-TT
BEFORE: OTT, J., RANSOM, J., and FITZGERALD, J.*
CONCURRING AND DISSENTING MEMORANDUM BY RANSOM, J.:
FILED SEPTEMBER 27, 2017
I concur with the Majority regarding the reversal of the dismissal of
the negligent misrepresentation claim and with the affirmance of the
dismissal of the negligence per se claim. However, because I would reverse
the trial court’s order dismissing Appellant’s claim of fraud, I respectfully
dissent.
This is an appeal from an order sustaining preliminary objections on
the basis of a demurrer. In such a case,
[w]hen an appellate court rules on whether preliminary
objections in the nature of a demurrer were properly sustained,
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-A02015-17
the standard of review is de novo and the scope of review is
plenary. The court may sustain preliminary objections only
when, based on the facts pleaded, it is clear and free from doubt
that the complainant will be unable to prove facts legally
sufficient to establish a right to relief. For the purpose of
evaluating the legal sufficiency of the challenged pleading, the
court must accept as true all well-pleaded, material, and
relevant facts alleged in the complaint and every inference that
is fairly deducible from those facts.
Mazur v. Trinity Area Sch. Dist., 961 A.2d 96, 101 (Pa. 2008) (internal
citations omitted). “If any doubt exists as to whether a demurrer should be
sustained, it should be resolved in favor of overruling the preliminary
objections.” Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011).
To plead a viable claim of fraud, a plaintiff must demonstrate: “(1) a
representation; (2) which is material to the transaction at hand; (3) made
falsely, with knowledge of its falsity or recklessness as to whether it is true
or false; (4) with the intent of misleading another into relying on it; (5)
justifiable reliance on the misrepresentation; and (6) the resulting injury was
proximately caused by the reliance.” See Eigen v. Textron Lycoming
Reciprocating Engine Div., 874 A.2d 1179, 1185 (Pa. Super. 2005);
DeArmitt v. N.Y. Life Ins. Co., 73 A.3d 578, 591 (Pa. Super. 2013).
Here, the trial court concluded that 1) Appellant’s allegations were not
pleaded with sufficient specificity and 2) the company’s financial officer, not
Accountants, presented this false information to Appellant. Accordingly, the
court concluded that Appellant was unable to sustain a viable claim for
fraud. The Majority adopts this view wholesale, and, in so doing, affords the
-2-
J-A02015-17
trial court unwarranted deference. See Mazur, 961 A.2d at 101 (setting
forth our de novo review).
On the contrary, I find that Appellant pleaded specifically that
Accountants knowingly drafted statements misrepresenting the company’s
accounts receivable, thus inflating the value of company assets and further
misrepresenting the financial stability of the company. While it may be true
that the company officer delivered the misleading documents, they were, at
least in part, created by Accountants. Accountants knew the information
was false and/or misleading and that Appellant would rely on the false
information in determining whether to extend the company credit and debt
financing. Appellant specifically pleaded the other relevant elements of
fraud.
Accordingly, based upon the facts pleaded, the court improperly
sustained the objections and dismissed Appellant’s fraud complaint. See
Mazur, 961 A.2d at 101; Feingold, 15 A.3d at 941. Thus, I would reverse
the trial court’s order.
-3-