Kotarja v. Aberra – Pa.Superior – 4-16-24 – non-precedential ***
https://www.pacourts.us/assets/opinions/Superior/out/J-A03021-23m%20-%20106072503281132164.pdf?cb=1
Breach of contract
Three elements are necessary to plead properly a cause of action for breach of contract: (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages. Additionally, it is axiomatic that a contract may be manifest orally, in writing, or as an inference from the acts and conduct of the parties.
Burlington Coat Factory of Pennsylvania, LLC v. Grace Const. Mgmt. Co., LLC, 126 A.3d 1010, 1018 (Pa. Super. 2015) (internal citation, indentation, and brackets omitted). This Court has also provided:
A written contract which is not for the sale of goods may be modified orally, even when the written contract provides that modifications may only be made in writing. An agreement that prohibits non-written modification may be modified by subsequent oral agreement if the parties’ conduct clearly shows the intent to waive the requirement that the amendments be made in writing. An oral contract modifying a prior written contract, however, must be proved by clear, precise and convincing evidence.
Somerset Cmty. Hosp. v. Allan B. Mitchell & Associates, Inc., 685 A.2d 141, 146 (Pa. Super. 1996) (internal citations omitted).
Fraudulent misrepresentation:
In order to prove fraud[,] the following elements must be shown: (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.
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[I]n real estate transactions, fraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose. Fraud is a generic term used to describe anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture.
Milliken v. Jacono, 60 A.3d 133, 140 (Pa. Super. 2012) (en banc) (internal citations and indentation omitted). Under “common law fraud[,] a seller of real estate is only liable for failing to reveal objective material defects.” Id. at 141.
Gist of the action doctrine
Generally, the gist of the action doctrine is “designed to maintain the conceptual distinction between breach of contract claims and tort claims . . .[and] precludes plaintiffs from re-casting ordinary breach of contract claims into a tort claim.” Mirizio v. Joseph, 4 A.3d 1073, 1079 (Pa. Super. 2010). As our Supreme Court held, following its thorough analysis, in Bruno v. Erie Ins. Co., the “nature of the duty alleged” is the “critical determinative factor in determining whether the claim is truly one in tort or for breach of contract.” 106 A.3d 48, 111-12 (Pa. 2014). Contractual duty is based in terms created between the contracting parties and involves “a specific promise to do something that a party would not ordinarily have been obligated to do but for the existence of the contract.” Id. at 112. A duty based in tort, however, involves an individual’s broader social responsibility to others and exists regardless of the contract between the parties. See id. The factual allegations averred are of “paramount importance” in the analysis and determination; and, crucially, “the mere existence of a contract between two parties does not, ipso facto, classify a claim . . . for injury or loss suffered as the result of actions by the other party in performing the contract as one for breach of contract.” Id. at 112-114. A claim is predicated in tort where the contract “is regarded merely as the vehicle, or mechanism, which established the relationship between the parties.” Id. at 114. Further:
In real estate transactions, fraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose. Fraud is a generic term used Kotarja v. Aberra – Pa.Superior – 4-16-24 – non-precedential ***
https://www.pacourts.us/assets/opinions/Superior/out/J-A03021-23m%20-%20106072503281132164.pdf?cb=1
Breach of contract
Three elements are necessary to plead properly a cause of action for breach of contract: (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages. Additionally, it is axiomatic that a contract may be manifest orally, in writing, or as an inference from the acts and conduct of the parties.
Burlington Coat Factory of Pennsylvania, LLC v. Grace Const. Mgmt. Co., LLC, 126 A.3d 1010, 1018 (Pa. Super. 2015) (internal citation, indentation, and brackets omitted). This Court has also provided:
A written contract which is not for the sale of goods may be modified orally, even when the written contract provides that modifications may only be made in writing. An agreement that prohibits non-written modification may be modified by subsequent oral agreement if the parties’ conduct clearly shows the intent to waive the requirement that the amendments be made in writing. An oral contract modifying a prior written contract, however, must be proved by clear, precise and convincing evidence.
Somerset Cmty. Hosp. v. Allan B. Mitchell & Associates, Inc., 685 A.2d 141, 146 (Pa. Super. 1996) (internal citations omitted).
Fraudulent misrepresentation:
In order to prove fraud[,] the following elements must be shown: (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.
****
[I]n real estate transactions, fraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose. Fraud is a generic term used to describe anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture.
Milliken v. Jacono, 60 A.3d 133, 140 (Pa. Super. 2012) (en banc) (internal citations and indentation omitted). Under “common law fraud[,] a seller of real estate is only liable for failing to reveal objective material defects.” Id. at 141.
Gist of the action doctrine
Generally, the gist of the action doctrine is “designed to maintain the conceptual distinction between breach of contract claims and tort claims . . .[and] precludes plaintiffs from re-casting ordinary breach of contract claims into a tort claim.” Mirizio v. Joseph, 4 A.3d 1073, 1079 (Pa. Super. 2010). As our Supreme Court held, following its thorough analysis, in Bruno v. Erie Ins. Co., the “nature of the duty alleged” is the “critical determinative factor in determining whether the claim is truly one in tort or for breach of contract.” 106 A.3d 48, 111-12 (Pa. 2014). Contractual duty is based in terms created between the contracting parties and involves “a specific promise to do something that a party would not ordinarily have been obligated to do but for the existence of the contract.” Id. at 112. A duty based in tort, however, involves an individual’s broader social responsibility to others and exists regardless of the contract between the parties. See id. The factual allegations averred are of “paramount importance” in the analysis and determination; and, crucially, “the mere existence of a contract between two parties does not, ipso facto, classify a claim . . . for injury or loss suffered as the result of actions by the other party in performing the contract as one for breach of contract.” Id. at 112-114. A claim is predicated in tort where the contract “is regarded merely as the vehicle, or mechanism, which established the relationship between the parties.” Id. at 114. Further:
In real estate transactions, fraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose. Fraud is a generic term used to describe anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or
gesture. Youndt v. First Nat’l Bank of Port Allegany, 868 A.2d 539, 545 (Pa. Super. 2005).
Where misrepresentations induce a party to enter into a contract, this Court has held that the gist of the action is in tort, and the contract is collateral. See Mirizio, 4 A.3d at 1087; Knight, 81 A.3d at 951; Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 719 (Pa. Super. 2005). As
Superior Court – citing non-precedential opinions
https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/210/chapter65/s65.37.html&d=reduce
B. Non-precedential decisions filed after May 1, 2019, may be cited for their persuasive value, pursuant to Pa.R.A.P. 126(b).
