1726 Cherry Street Partnership v. Bell Atlantic Properties, Inc.

JOHNSON, Judge,

concurring.

I readily concur in so much of my distinguished colleague’s Opinion as finds continuing validity in the parol evidence rule and in that rule’s preclusion of evidence of allegedly fraudulent misrepresentations made during negotiations leading to written agreements. I find myself unable to agree with my colleague’s view that Pennsylvania law should be modified to permit admission of parol evidence of fraud in the inducement rather than limit the admission of such evidence to fraud in the execution.

As Judge Beck recognizes, the most distinguished trial court entered judgment for Bell Atlantic Properties, Inc., as a matter of law, based upon the parol evidence rule alone. We are not faced with Bell Atlantic being shielded from its own fraud, since the trial court was not required to reach that issue. Had the trial court been required to confront the credibility issues, it might very well have found that the Lopatins’ testimony was less than credible, in which case the allegation of fraud would have collapsed.

Moreover, I am concerned that we would allude to the Restatement (Second) of Contracts § 214, to which no mention or citation has previously been made by either this Court or our state supreme court. I do not understand my colleague to be adopting that section through this Court’s Opinion in this case, and I do not believe the facts have been presented, nor a record developed, that would support an argument for such adoption.