HomeMy WebLinkAbout2018-11186 (2)
PAUL R. REISINGER and : IN THE COURT OF COMMON PLEAS OF
ANN H. REISINGER, husband : CUMBERLAND COUNTY, PENNSYLVANIA
and wife, :
Plaintiffs :
: CIVIL ACTION
v. :
:
TRI-COUNTY ABSTRACT :
SERVICES, FIRST AMERICAN :
TITLE INSURANCE :
COMPANY and STRAUB & :
ASSOCIATES REAL ESTATE :
GROUP, INC. :
Defendants : NO. 2018-11186 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TRI-COUNTY
ABSTRACT SERVICES TO PLAINTIFFS’ AMENDED COMPLAINT
BEFORE PLACEY, J., and OLER, S.J.
OPINION and ORDER OF COURT
OLER, S.J., March 27, 2019.
For disposition in this civil action involving a real estate transaction in which a
third party allegedly stole part of Plaintiffs’ intended purchase money by assuming the
identity of an employee of Defendant abstract company and thereby misdirecting a wire
transfer from Plaintiffs are Defendant’s preliminary objections to Plaintiffs’ amended
complaint. Defendant’s preliminary objections are in the form of a demurrer to a count in
the amended complaint claiming a violation of Pennsylvania’s Unfair Trade Practices and
Consumer Protection Law.
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Defendant’s preliminary objections were argued on February 15, 2019. For the
reasons stated in this opinion, Defendant’s demurrer will be granted.
1
Although the matter listed for argument was Defendant’s preliminary objections to Plaintiffs’ original
complaint, the parties briefed and argued Defendants’ preliminary objections to Plaintiffs’ amended
complaint.
1
STATEMENT OF FACTS
The facts alleged in Plaintiffs’ five-count amended complaint may be summarized,
for present purposes, as follows: In February of 2018, Plaintiffs Paul R. Reisinger and
Ann H. Reisinger entered into an agreement of sale to purchase a home in Cumberland
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County, financed in part by cash from Plaintiffs. Plaintiffs’ real estate agent in the
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transaction was Defendant Straub & Associates Real Estate Group, Inc.
Defendant Tri-County Abstract Services, an agent of Defendant First American
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Title Insurance Company, was retained to perform title insurance and settlement services
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on behalf of Plaintiffs. In this regard, “\[t\]he oral understanding of the agreement
between Tri-County and the Plaintiffs was that Tri-County would provide the services
related to escrow and settlement services, and that Plaintiffs would pay Tri-County for
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such services.” “Plaintiffs wanted to pay \[the aforesaid cash amount\] by a certified bank
check, but were told by Defendant Tri-County that they would only accept payment by
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way of a wire transfer.”
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Settlement for the real estate transaction was scheduled for September 18, 2018.
Prior to settlement, however, several events occurred that facilitated the theft referred to
above.
Assuming the identity of an employee of Defendant Tri-County Abstract Services
named Christina Heisey, a third party, whose identity is unknown, obtained the e-mail
address of Plaintiff Paul R. Reisinger through an employee of Defendant Straub &
2
Plaintiffs’ Amended Complaint, ¶¶6, 9, filed December 26, 2018 (hereinafter Plaintiffs’ Amended
Complaint, ¶__).
3
Plaintiffs’ Amended Complaint, ¶7.
4
Plaintiffs’ Amended Complaint, ¶4.
5
Plaintiffs’ Amended Complaint, ¶10.
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Plaintiffs’ Amended Complaint, ¶10.
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Plaintiffs’ Amended Complaint, ¶11.
8
Plaintiffs’ Amended Complaint, ¶8.
2
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Associates Real Estate Group, Inc. The address was provided without any inquiry by the
employee “as to the reason for the individual requesting the e-mail address or verifying
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that the request had indeed come from Tri-County Abstract Services.”
Having, in addition, illicitly gained access to the e-mail system of Defendant Tri-
County Abstract Services, the third party purporting to be Christina Heisey e-mailed
Plaintiff Paul R. Reisinger “with two attachments containing \[an estimate of the\] closing
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costs . . . and wire instructions.” On September 14, 2018, the mortgagee advised
Plaintiff Paul R. Reisinger by e-mail, with a copy to Ms. Heisey, of the “expected” final
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number of $398,395.20 for the wire transfer, and on September 17, 2018, the plaintiff
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executed the wire transfer pursuant to the fraudulent wire instructions, e-mailing a copy
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of the transfer cover sheet to Ms. Heisey.
When asked by the mortgagee to advise when Defendant Tri-County Abstract
Services received the funds, Ms. Heisey discovered that her company’s bank had not
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received them. She also realized, in retrospect, that she had never provided wire
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instructions to Plaintiffs. In this regard, it is suggested that she should have realized
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earlier that fraud might be afoot in the absence of this advice on her part.
Although Plaintiffs were able to retrieve a portion of the misdirected money, an
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amount of $95,568.00 was not recovered.
9
Plaintiffs’ Amended Complaint, ¶13.
10
Plaintiffs’ Amended Complaint, ¶14.
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Plaintiffs’ Amended Complaint, ¶17.
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Plaintiff’s Amended Complaint, ¶20.
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Plaintiffs’ Amended Complaint, ¶22.
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Plaintiffs’ Amended Complaint, ¶23.
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Plaintiffs’ Amended Complaint, ¶25.
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Plaintiffs’ Amended Complaint, ¶27.
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Plaintiffs’ Amended Complaint, ¶21.
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Plaintiffs’ Amended Complaint, ¶¶31, 33.
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Count I of Plaintiffs’ amended complaint against Defendant Tri-County Abstract
Services sounds in negligence. Count II against this defendant alleges a violation of
Pennsylvania’s Unfair Trade Practices and Consumer Protection Law. In this regard, the
pleading asserts:
41. Defendant induced the Plaintiffs to enter into an oral contract by fraudulent
means, causing a likelihood of confusion and/or misunderstanding as to the approval or
certification of their services or that they are of a particular standard, quality or grade,
including, but not limited to, making the false representation that they are an industry
providing innovative products and services in adhering to the highest standards of
financial stability and professional responsibility.
42. Defendant’s misrepresentations were made willfully and knowingly with an
intent to deceive Plaintiffs and to obtain their business.
43. Defendant’s pattern and practice of holding itself out as having expertise and
the innovative products consumers need, as well as adhering to the highest standards of
financial stability and professional responsibility is an unfair practice because consumers
such as the Plaintiffs should not be misled an defrauded against the public interest or
otherwise result in harm to the public interest.
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44. Defendant has violated the unfairness predicate of the Act.
In its demurrer to Count II of Plaintiffs’ amended complaint, Defendant Tri-
County Abstract Services argues that Plaintiffs have “failed to allege any facts to
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establish a legally cognizable claim under the UTPCPL.” Plaintiffs counter that the
“catch-all” provision of the act proscribes deceptive conduct in the form of conduct that
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“ha\[s\] the tendency or capacity to deceive.”
DISCUSSION
Statement of law. “\[W\]hen \[a\] complaint shows on its fac\[e\] that the claim is
devoid of merit, \[a\] demurrer should be sustained.” Clouser v. Shamokin Packing Co.,
240 Pa. Super. 268, 274, 361 A.2d 836, 840 (1976); see Greenberg v. Aetna Ins. Co., 427
Pa. 511, 235 A.2d 576 (1967).
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Plaintiffs’ Amended Complaint, ¶¶41-44.
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Defendant, Tri-County Abstract Services’ Preliminary Objections to Plaintiffs’ Amended Complaint,
¶19, filed January 15, 2019.
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Plaintiffs’ Memorandum in Opposition to the Preliminary Objections of Defendant Tri-County Abstract
Services, at 2, filed February 8, 2019.
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“The purpose of \[Pennsylvania’s Unfair Trade Practices and Consumer Protection
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Law\] is to protect the public from unfair or deceptive business practices.” DeArmitt v.
New York Life Ins. Co., 2013 PA Super 161, ¶__, 73 A.3d 578, 591. \[T\]he statute’s
underlying foundation is fraud prevention.” Commonwealth v. Monumental Properties,
459 Pa. 450, 459, 329 A.2d 812, 816 (1974). However, under a “catch-all” provision of
the act, it encompasses “any deceptive conduct, ‘which creates a likelihood of confusion
or misunderstanding,’ . . . whether committed intentionally (as in fraudulent
misrepresentation), carelessly (as in negligent misrepresentation), or with the u\[t\]most
care (as in strict liability).” Gregg v. Ameriprise Financial, Inc., 2018 PA Super 252, ¶__,
195 A.3d 930, 939. A prerequisite to recovery under the act is detrimental reliance by the
plaintiff on the deceptive conduct. Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479,
501, 854 A.2d 425, 438 (2004).
Damages for a violation of the Unfair Trade Practices and Consumer Protection
Law can be significant.
\[T\]he trial “court may, in its discretion, award up to three times the actual damages
sustained . . . and may provide such additional relief as it deems necessary or proper. The
court may award to the plaintiff, in addition to other relief provided . . . , costs and
reasonable attorney fees.”
Gregg v. Ameriprise Financial Inc., 2018 PA Super 252, ¶__, 195 A.3d 930, 940-41; see 73 P.S. §201-
9.2.
Application of law to facts. In the present case, a fair reading of Plaintiffs’
amended complaint would support the proposition that Defendant Tri-
County Abstract Services fell victim to the same criminal enterprise that defrauded
Plaintiffs, and may have been negligent in doing so to the detriment of Plaintiffs. It would
not, however, in the court’s view support the proposition that Plaintiffs’ loss was the
result of fraud or deceptive conduct committed by Defendant itself within the meaning of
the Unfair Trade Practices and Consumer Protection Law or consistent with its purpose.
Accordingly, the following order will be entered:
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73 P.S. §§201-1 et seq.
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ORDER OF COURT
AND NOW, this day of March, 2019, upon consideration of Defendant, Tri-
County Abstract Services’ Preliminary Objections to Plaintiffs’ Amended Complaint,
following oral argument held on February 15, 2019, and for the reasons stated in the
accompanying opinion, Defendant’s preliminary objection in the nature of a demurrer to
Count II (Violation of the Pennsylvania Unfair Trade Practices and Consumer Protection
Law) of Plaintiffs’ Amended Complaint is granted, Count II of the amended complaint is
dismissed, and Defendant is afforded a period of 20 days from the date of this order to
file an answer to the balance of the amended complaint.
BY THE COURT,
__________________
J. Wesley Oler, Jr., S.J.
Richard H. Wix, Esq.
WIX, WENGER & WEIDNER
4705 Duke Street
Harrisburg, PA 17109-3041
Attorney for Plaintiffs
Lara K. Bream, Esq.
David J. Shannon, Esq.
MARSHALL DENNEHEY WARNER
COLEMAN & GOGGIN
Suite 201
100 Corporate Center Drive
Camp Hill, PA 17011
Attorneys for Defendant Tri-County
Abstract Services
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Veronica N. Range, Esq.
David B. Dowling, Esq.
Bruce J. Warshawsky, Esq.
CUNNINGHAM, CHERNICOFF & WARSHAWSKY, P.C.
2320 North Second Street
P.O. Box 60457
Harrisburg, PA 17106-0457
Attorneys for Defendant Straub & Associates
Real Estate Group, Inc.
Francis X. Riley, III, Esq.
Saul Ewing Arnstein & Lehr LLP
Suite 4000
650 College Road East
Princeton, NJ 08540
and
Cory S. Winter, Esq.
Saul Ewing Arnstein & Lehr L.L.P.
th
7 Floor
nd
2 North 2 Street
Harrisburg, PA 17101d
Attorneys for Defendant First American
Title Insurance Company
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