Kepner, F. v. Kepner, T.

J-S57029-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FRANKLIN E. KEPNER JR. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
TINE KEPNER S/K/A ANN KEPNER
Appellee No. 835 EDA 2015
Appeal from the Order Dated February 5, 2015
In the Court of Common Pleas of Monroe County
Civil Division at No(s): 6943 CV 2014
BEFORE: MUNDY, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 18, 2015
Franklin E. Kepner, Jr. (“Husband”), appeals from the order entered
February 5, 2015, in the Monroe County Court of Common Pleas, granting
the preliminary objections filed by Tine Kepner s/k/a/ Ann Kepner (“Wife”),
and dismissing Husband’s complaint.1 On appeal, Husband contends the
trial court erred in dismissing his claims for fraudulent misrepresentation and
intentional interference with contractual relations. In response, Wife argues
this appeal is frivolous and vexatious, and requests counsel fees pursuant to
Pa.R.A.P. 2744. For the reasons below, we affirm the order of the trial
court and deny Wife’s request for counsel fees.
____________________________________________
1
Husband and Wife were once married, but have been divorced since 2008.
See Trial Court Opinion, 2/5/2015, at 2.
J-S57029-15
The facts underlying Husband’s claims are summarized by the trial
court as follows:
In October, 2013, [Husband] was allegedly contacted by
an individual from Diversified Adjustment Services stating that
[Husband] had an overdue bill with Verizon and that the bill,
totaling $129.46, was for services utilized at [Husband] and
[Wife’s] previous marital residence in Berwick, Pa. [Husband]
believes [Wife] put this bill in [his] name even though [he] did
not use any of the services and he had vacated the marital
residence over four years earlier. [Husband] is allegedly
attempting to obtain a copy of the bill, but has not been able to
do so at this time. He states the bill was sent to [Wife] on March
10, 2012; that the bill was not paid by [Wife]; that the bill was
placed in his name; and that harm has been caused to his credit.
[Husband] seeks $2,500 in unspecified damages and $50,000 in
punitive damages. …
[Husband] also alleges that [he] and [Wife] owned real
estate together in Berwick, PA and that they had agreed to sell
the land to a mutual friend by the name of Wade Perry in August
2011. [Husband] states that based on this representation, Mr.
Perry had the property subdivided. [Wife] then allegedly refused
to follow through with the agreement to sell until May 2013. As
a result of this delay, [Husband] alleges he was no longer able to
represent Mr. Perry in the transaction. [Husband] alleges [Wife]
finally agreed to sell the real estate and they closed the deal on
May 20, 2013. [Husband] alleges that, as a result of [Wife’s]
actions, he lost legal fees in the amount of $2,500. [Husband]
also seeks $50,000 in punitive damages. …
Trial Court Opinion, 2/9/2015, at 2-3.
Husband initiated this action by filing a complaint in August of 2014.
In response to Wife’s preliminary objections, Husband filed an amended
complaint on October 23, 2014. The amended complaint set forth two
causes of action; the first for fraud, based on the delinquent Verizon bill, and
the second, for breach of contract and/or intentional interference with
-2-
J-S57029-15
contractual relations, based on the delay in the sale of the real estate. On
November 12, 2014, Wife filed preliminary objections in the nature of a
demurrer to the amended complaint. Thereafter, on February 5, 2015, the
trial court entered an order granting Wife’s preliminary objections and
dismissing Husband’s amended complaint. This timely appeal follows.2
Both of Husband’s issues on appeal challenge the trial court’s order
granting Wife’s preliminary objections in the nature of a demurrer. Our
review of such a claim is well-established.
A preliminary objection in the nature of a demurrer is properly
granted where the contested pleading is legally insufficient.
Cardenas v. Schober, 783 A.2d 317, 321 (Pa.Super.2001)
(citing Pa.R.C.P. 1028(a)(4)). “Preliminary objections in the
nature of a demurrer require the court to resolve the issues
solely on the basis of the pleadings; no testimony or other
evidence outside of the complaint may be considered to dispose
of the legal issues presented by the demurrer.” Id. at 321-22(citation omitted). All material facts set forth in the pleading and
all inferences reasonably deducible therefrom must be admitted
as true. Id. at 321.
In determining whether the trial court properly sustained
preliminary objections, the appellate court must examine
the averments in the complaint, together with the
documents and exhibits attached thereto, in order to
evaluate the sufficiency of the facts averred. The impetus
of our inquiry is to determine the legal sufficiency of the
complaint and whether the pleading would permit recovery
if ultimately proven. This Court will reverse the trial
____________________________________________
2
On March 12, 2015, the trial court ordered Husband to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Husband complied with the court’s directive, and filed a concise statement
on April 2, 2015.
-3-
J-S57029-15
court’s decision regarding preliminary objections only
where there has been an error of law or abuse of
discretion. When sustaining the trial court’s ruling will
result in the denial of claim or a dismissal of suit,
preliminary objections will be sustained only where the
case is free and clear of doubt.
Brosovic v. Nationwide Mutual Insurance Co., 841 A.2d
1071, 1073 (Pa.Super.2004) (citation omitted).
Hess v. Fox Rothschild, LLP, 925 A.2d 798, 805-806 (Pa. Super. 2007)
(emphasis added), appeal denied, 945 A.2d 171 (Pa. 2008).
First, Husband asserts the trial court erred in determining he failed to
plead sufficient facts to establish a claim for fraudulent misrepresentation
with respect to the delinquent Verizon bill.
To state a claim for fraudulent misrepresentation, a plaintiff must set
forth the following elements in his complaint:
(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.
Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999) (citations omitted).
Averments of fraud in a complaint must be pled with particularity. Pa.R.C.P.
1019(b). See Presbyterian Medical Center v. Budd, 832 A.2d 1066,
1073 (Pa. Super. 2003) (affirming order sustaining preliminary objections to
-4-
J-S57029-15
complaint when plaintiff failed to “establish every element of its fraud claim
with sufficient particularity.”)
Here, Husband argues he set forth sufficient facts to support a claim
for fraudulent misrepresentation. Specifically, Husband asserts he pled in
his complaint: (1) Wife made a false representation to Verizon claiming that
the delinquent bill was his; (2) the representation was material to the
transaction, and Wife made it with knowledge of its falsity; (3) Verizon was
misled by the representation because the bill was placed in his name; and
(4) Husband’s credit was “ruined” as a result. Husband’s Brief at 9.
The trial court concluded, however, that Husband failed to plead
sufficient facts to support his claim. The court opined:
[Husband] has failed to state any specific representation
made by [Wife] which would be sufficient to sustain an allegation
of fraud. [Husband] has cited no specific representation made
by [Wife], other than he ([Husband]) determined the bill was
placed in his name by [Wife] without his consent. There are no
specific allegations of a representation made to Verizon, intent of
[Wife], or reliance by Verizon on any representation.
[Husband’s] allegation that he received a phone call from an
individual who stated that there is an overdue Verizon bill from
[Husband] and [Wife’s] previous marital residence is not
sufficient to support a claim of fraud against [Wife]. [Husband]
has expressed opinions and inferences unsupported by the
allegations set forth in the Amended Complaint. On the facts
alleged, [Husband] cannot sustain an action for Intentional
Misrepresentation/Fraud.
Trial Court Opinion, 2/9/2015, at 4 (emphasis supplied).
We agree with the conclusion of the trial court. In Paragraph 13 of the
Amended Complaint, Husband avers:
-5-
J-S57029-15
Upon further inquiry, [Husband] determined that the [] bill had
been placed in his name by [Wife] even though [Husband] had
not utilized any of the services nor had he consented to having
the bill placed in his name.
Amended Complaint, 10/23/2014, at ¶ 13. This is his only averment as to
how the Verizon bill was placed in his name. However, Husband failed to set
forth any specific misrepresentation Wife made to Verizon with the intent to
mislead the company, nor did he aver Verizon justifiably relied on Wife’s
“misrepresentation.” See Pa.R.C.P. 1019(b) (fraud averments must be pled
with particularity). Therefore, we agree Husband failed to state a claim for
fraudulent misrepresentation.
Next, Husband argues the trial court misinterpreted his second claim
as a cause of action for breach of contract, when, in actuality, he asserted a
claim for intentional interference with contractual relations. Further,
Husband asserts he pled sufficient facts to support such a claim, and the
court erred in dismissing his amended complaint.
Both the trial court and Wife characterize Husband’s second cause of
action as one for breach of contract to sell real property. See Trial Court
Opinion, 2/9/2015, at 4; Wife’s Brief at 5. The court found Husband failed to
establish a breach of contract claim because: (1) Husband neglected to
attach a copy of the contract to his complaint; (2) Husband did not
demonstrate how Wife breached the contract, since the property was
eventually sold to the buyer; and (3) Husband failed to aver “specific
information showing he suffered actual damages” other than his speculative
assertion that the buyer intended to hire Husband to represent him in the
-6-
J-S57029-15
sale.3 See Trial Court Opinion, 2/9/2015, at 5-6. We find no reason to
disagree.
However, Husband does not challenge this finding on appeal. Rather,
he contends the court misinterpreted his cause of action, which, he claims,
was in actuality a claim for intentional interference with contractual
relations. Husband asserts that he made the following averments in his
Amended Complaint:
[Wife] originally agreed to sell the land to one Wade Perry who
was [Husband’s] client. She then, for no reason except to injure
[Husband], refused to perform the contract which she had
originally agreed to perform. As a result, Wade Perry went to
another attorney to perform the transaction. [Husband] was
thus injured.
Husband’s Brief at 10-11. See also Amended Complaint, 10/23/2014, at ¶¶
26, 28, 32, 34, 35. Based on these allegations, he contends he set forth a
proper claim for intentional interference with contractual relations.
To state a cause of action for intentional interference with contractual
relations, a plaintiff must prove:
(1) the existence of a contractual, or prospective
contractual relation between the complainant and a third
party;
____________________________________________
3
Indeed, as the trial court notes in its opinion, “[i]t is apparent from
[Husband’s] allegations that at the very least, a conflict of interest existed
which prevented his representation [of the buyer].” Trial Court Opinion,
2/9/2015, at 6 n.2.
-7-
J-S57029-15
(2) purposeful action on the part of the defendant,
specifically intended to harm the existing relation, or to
prevent a prospective relation from occurring;
(3) the absence of privilege or justification on the part of
the defendant; and
(4) the occasioning of actual legal damage as a result of
the defendant’s conduct.
Reading Radio, Inc. v. Fink, 833 A.2d 199, 211 (Pa. Super. 2003)
(citation omitted), appeal denied, 847 A.2d 1287 (Pa. 2004). Further,
[a] critical element of the tort is a current contractual
relationship between the plaintiff and another. Therefore, a
cause of action will not stand unless there has been some act by
the defendant which served to deprive the plaintiff of some
benefit to which he was entitled by contract.
Al Hamilton Contracting Co. v. Cowder, 644 A.2d 188, 191 (Pa. Super.
1994).
While we agree Husband’s amended complaint purports to set forth a
cause of action for intentional interference with contractual relations, we
conclude this claim fails. Notably, Husband does not specify the contractual
relationship he had with Perry. He simply avers Perry was his “friend and
client.” Amended Complaint, 10/23/2014, at ¶ 26. Without any details
regarding his alleged agreement with Perry, Husband is unable to
demonstrate how Wife interfered with that contract, or what damages he
suffered as a result of her actions. His allegation that he “lost fees”
amounting to $2,500 is purely speculative. See id. at ¶ 35. Accordingly,
Husband failed to present sufficient facts in his amended complaint to
support a claim for intentional interference with contractual relations.
-8-
J-S57029-15
Therefore, we conclude the trial court properly granted Wife’s preliminary
objections and dismissed Husband’s complaint.
In addition to Husband’s issues on appeal, Wife requests this Court
award her counsel fees pursuant to Pa.R.A.P. 2744.
Rule 2744 provides, in relevant part:
In addition to other costs allowable by general rule or Act of
Assembly, an appellate court may award as further costs
damages as may be just, including
(1) a reasonable counsel fee …
if it determines that an appeal is frivolous or taken solely for
delay or that the conduct of the participant against whom costs
are to be imposed is dilatory, obdurate or vexatious. …
Pa.R.A.P. 2744. This Court has explained that an appeal is frivolous “where
it lacks any basis in law or fact; simply because an appeal lacks merit does
not make it frivolous.” Geiger v. Rouse, 715 A.2d 454, 458 (Pa. Super.
1998) (citation omitted). See Rohm & Haas Co. v. Lin, 992 A.2d 132, 151
(Pa. Super. 2010) (declining to award counsel fees pursuant to Rule 2744
when appellants “refer[red] to both facts and case law in support of their
arguments” that trial court rulings were improper). Further, although the
term “vexatious” is not defined in the statute, this Court has defined the
term, albeit in another context, “a legal strategy ‘without sufficient ground in
either law or in fact and ... serv[ing] the sole purpose of causing
annoyance.’” Pietrini Corp. v. Agate Const. Co., 901 A.2d 1050, 1053
(Pa. Super. 2006) (defining “vexatious” conduct with regard to counsel fees
under the Prompt Pay Act, 62 Pa.C.S. § 3935).
-9-
J-S57029-15
While we sympathize with Wife’s frustration in defending a lawsuit that
appears to have been filed by a disgruntled ex-spouse who happens to be an
attorney, we decline to award counsel fees at this time. Husband’s issues on
appeal, while clearly meritless, do not lack any basis in law or fact. Indeed,
as noted above, we agree with Husband’s contention that the trial court
misinterpreted the nature of his cause of action for intentional interference
with contractual relations. Moreover, we cannot conclude with certainty that
Husband’s decision to appeal the trial court’s ruling was vexatious, and Wife
does not offer any evidence to the contrary besides her mere allegations.
Nevertheless, we caution Husband that the claims raised herein come
dangerously close to the frivolous and vexatious standard in Rule 2744.
Order affirmed. Request for imposition of counsel fees denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2015
- 10 -