author: KELLY, Judge: OLSZEWSKI, Judge,

text:
    548 A.2d 301
    Paul WOODWARD and Patricia Woodward, Husband and Wife, Appellants, v. Raymond DIETRICH and Dorothy Dietrich, Husband and Wife, and Harry L. Smith, t/a R & D Excavating and R & D Tree Service, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1988.
    Filed Sept. 26, 1988.

      David F. Megnin, Kittaning, for appellants.
    John P. Lydon, Pittsburgh, for appellees.
    Before OLSZEWSKI, TAMILIA and KELLY, JJ.
   KELLY, Judge:

In this case we are called upon to determine whether a party may be held liable for damages proximately resulting from a person’s reasonable reliance on fraudulent misrepresentations, despite the fact that such a person had no privity with the party making the misrepresentations and was not specifically intended to rely on the misrepresentations, when the reliance was nonetheless specially foreseeable. We find that such a cause of action may be recognized so long as under the particular circumstances of the case presented the liability to be recognized is not indefinite as to amount, duration or class of prospective plaintiffs.

Appellants, Paul and Patricia Woodward (Woodwards), appeal from the order granting the preliminary objections in the nature of a demurrer made by the appellee, Harry L. Smith, t/a R & D Excavating Service (Smith), dismissing appellants’ amended complaint as to Smith (separate counts against Raymond and Dorothy Dietrich (Dietrichs) were unaffected by the order). We reverse the order of the trial court, and reinstate the complaint against Smith.

I.

An order granting preliminary objections in the nature of a demurrer is final and appealable. See McKinney v. State Farm Mutual Automobile Insurance Co., 295 Pa.Super. 319, 441 A.2d 1252 (1982). Our standard of review was set forth in Vattimo v. Lower Bucks Hosp., Inc., 502 Pa. 241, 465 A.2d 1231 (1983) as follows:

All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true [for the purpose of this review.] The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.

502 Pa. at 244, 465 A.2d at 1232-33 (citations omitted); see also Mahoney v. Furches, 503 Pa. 60, 66, 468 A.2d 458, 461-62 (1983). In reviewing the grant of a demurrer we are not bound by the inferences drawn by the trial court nor are we bound by its conclusions of law. See Drug House Inc. v. Keystone Bank, 272 Pa.Super. 130, 132, 414 A.2d 704, 705 (1979). Moreover, the novelty of a claim or theory, alone, does not compel affirmance of a demurrer. See Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); Papieves v. Lawrence, 437 Pa. 373, 376-77, 263 A.2d 118, 120 (1970).

II.

On June 27, 1986, the Woodwards filed a civil complaint against Smith and the Dietrichs alleging causes of action for intentional, negligent and/or unintentional misrepresentations and breach of warranty. The Woodwards alleged that their basement had been flooded and damaged two years after they purchased their home from the Dietrichs because either or both of the defendants (the Dietrichs or Smith) had fraudulently misrepresented and concealed the fact that the grey water sewage sewer connection had not been completed by Smith in the manner indicated in the township records and communicated to the Woodwards by the Dietrichs during their negotiations relating to their purchase of the Dietrichs’ residence. Because this pleading was later amended, it is unnecessary for us to review the specific averments made therein.

Preliminary objections in the nature of a demurrer were filed by Smith on November 12, 1986, and a brief in support of the objections was filed on December 2, 1986. In his brief, Smith summarized the grounds of his preliminary objections as follows:

Defendant Smith has filed these Preliminary Objections in the nature of a demurrer to the Complaint alleging that the plaintiffs have failed to state facts constituting a cause of action against him because:

1. The facts as stated establish that defendant Smith owed no duty to the plaintiffs which he could have violated;

2. Plaintiffs have not alleged a cause of action for fraud or fraudulent misrepresentation;

3. The Complaint does not state the material facts upon which the cause of action is based;

4. No facts establishing causation between the harm suffered by the plaintiffs and any breach by the defendant is shown; and

5. The plaintiffs are not in privity with defendant Smith. (Smith’s Brief 12/2/86 at 3; R.R. at 53a).

The Woodwards’ Answer to the preliminary objections was filed December 8, 1986, and a brief in opposition to the objections was filed December 23, 1986. The Woodwards responded that the complaint averred that the damages alleged were incurred as the result of Smith’s camouflaged non-installation of the proper sewer connections and the Dietrichs’ subsequent intentional or negligent misrepresentations to the Woodwards concerning the sewer connections. The Woodwards further responded that a legal basis for a cause of action against Smith existed, “under Restatement of Torts, 2d, Sections 531, 532, 533, 536, the logic of Mill-Mar, Inc. v. Statham, 278 Pa.Super. 296, 420 A.2d 548 (1980), and well-established general case law regarding fraud____” (Woodwards’ Brief 12/23/86 at 6).

On January 23, 1987, the trial court granted Smith’s preliminary objections and gave the Woodwards leave to file an amended complaint within twenty (20) days. In response to a request for clarification by the Woodwards’ attorney on January 26, 1987, the trial court wrote a letter to the parties dated January 27, 1987, which explained:

The intent of my Order was to dismiss the Complaint as to Smith on the theory of liability which you had asserted. I held that there could be no liability to the Plaintiffs by Smith inasmuch as there was no contractual relationship between them, no privity, and that the section of the Restatement which you cited was inapplicable. “ At your request, I granted leave to file an amended complaint on the chance that you had some other theory of liability. If you’re simply reasserting the same type of liability, I would suggest that the same Preliminary Objections will be filed, and the same Order from this Court will be entered. In other words, unless you have some other theory of liability, I would not suggest filing an amended Complaint as to Smith.

(Trial Court Letter 12/27/87; R.R. at 108a, 116a).

The Woodwards filed their amended complaint on February 11, 1987. Because it is from the demurrer to that pleading that appeal is taken, close review of the averments of the amended complaint (under the standard cited in Part I, supra) is required. The averments of the amended complaint and reasonable inferences derivable therefrom allege the following factual scenario.

The regulations of the Municipal Authority of Allegheny County require the disposal of all “black water” and “gray water” sewage through the Municipal Authority’s sanitary sewer system. (Amended Complaint at I, 6; R.R. at 80a). In September of 1978 an inspector for the Municipal Authority prepared a sketch of the lateral sewer lines which the Dietrichs were to install to connect their home to the sanitary sewer system. (Amended Complaint at I, 5; Exhibit 2; R.R. at 80a, 94a). On April 17, 1979, the Dietrichs were given notice that they were required to acquire a permit, to complete the connection of the house to the sewer system in accordance with the Municipal Authority’s sketch and applicable regulations, and to begin using the sanitary sewer system within sixty (60) days. (Amended Complaint I, 5; Exhibits 3 & 4; R.R. at 79a-90a, 95a-97a).

By April 30, 1979, the Dietrichs had contracted with Smith to make the sewer connection for them and had secured the necessary permit to begin work on the connections. (Amended Complaint at I, 5, 7; Exhibit 4; R.R. at 80a, 97a). Smith completed his work in May or June of 1979 and was paid in full by the Dietrichs. (Amended Complaint at I, 7; Exhibit 5; R.R. at 80a, 98a).

Smith did not, however, complete the connections in accordance with the Municipal Authority’s sketch, which required two sewer lines, one for “black water” sewage produced by the commodes and another for the “gray water” sewage produce by all the other plumbing fixtures in the house. Rather, Smith installed only the black water sewage connection line, and left the gray water sewage line connected to the existing terra cotta sewer. In order to camouflage his non-installation of the gray water connection line, Smith installed a standpipe and a clean-out pipe in the old terra cotta line. (Amended Complaint at I, 7; R.R. at 80a-81a).

Smith contacted the Municipal Authority on behalf of the Dietrichs and sought approval of the sewer connections. Though Municipal Authority regulations required that connections be left uncovered until they were inspected, Smith’s work may or may not have been properly inspected. In either case, Smith improperly gained approval of work which was not in accordance with the Municipal Authority’s connection sketch. Approval was given orally and noted in the Municipal Authority’s records. (Amended Complaint at 1, 8; R.R. at 81a).

On August 8, 1983, the Woodwards purchased the Dietrichs’ residence. (Amended Complaint at I, 4; R.R. at 79a). Prior to purchasing the Dietrichs’ residence, the Wood-wards specifically asked the Dietrichs about the sewer system. The Dietrichs assured the Woodwards that the sewer system was in compliance with Municipal Authority requirements and provided the Woodwards with various documents which purported to establish that the sewer connections had been installed in accordance with the sketch drawn by the Municipal Authority’s inspector. (Amended Complaint at I, 9; Exhibits 2-5; R.R. at 81a-82a, 94a-98a). The Woodwards relied upon the Dietrichs’ representations regarding the condition of the sewer connections, the approval of the connections by the Municipal Authority, and the skill, competence, and integrity of Smith. (Amended Complaint at I, 10; R.R. at 82a).

In July 1985, a clogged drain caused basement flooding in the Woodwards’ residence on two occasions resulting in $2,165.00 worth of property damage. Following the second incident, the Woodwards excavated a portion of the gray water sewage line and thereby discovered Smith’s camouflaged non-installation of the gray water sewage connection line. The flooding had been caused by blockage in the old terra cotta sewer line, thus, was proximately caused by the failure to install the gray water sewage connection to the sanitary sewer system. (Amended Complaint at I, 11-12; R.R. at 82a-83a).

The Woodwards expended $2,024.09 to properly connect the gray water sewage line to the sanitary sewer system, and also expended 289 hours of personal labor worth $15.00 per hour. From the time they purchased the house to the time they finally connected the gray water sewage line to the sanitary sewer the Woodwards paid $823.24 for sewer services which they did not fully enjoy as the result of the lack of a gray water sewage connection. (Amended Complaint at I, 12; R.R. at 83a).

Because the pleading of the theory of liability is critical to our disposition of this appeal, we set forth that portion of the amended complaint verbatim:

13. Smith intentionally worked a fraud on Wood-wards, who, as the subsequent owners and occupants of the residence, were members of the class of persons whom he had reason to expect would act in reliance on his misrepresentations. This fraud was worked, inter alia, by Smith’s camouflaging the non-installation of the ‘gray water’ lateral sewer line, by his role in securing approval of the lateral sewer line installation which did not include connection of the ‘gray water’ sewer line to the sanitary sewer main line, which approval was filed with the records of the Municipal Authority as required by its ordinances and regulations and by his participation in, if not orchestration of, the scheme set forth in paragraphs 1 through 12. Furthermore, in the event that Dietrichs were, in fact, unaware of the actual manner of Smith’s installation of the lateral sewer lines, Smith misrepresented to Dietrichs, as well as the Municipal Authority, the actual manner of his installation of the lateral sewers, and he had reason to know that his misrepresentations to Dietrichs and the Municipal Authority regarding his camoflaged [sic] non-installation of the ‘gray water’ lateral sewer line and his improper obtaining of Municipal Authority approval would in substance be repeated to the subsequent owners and occupants of the residence who would act in reliance thereon.

(Amended Complaint at I, 13; R.R. at 84a). The Wood-wards seek compensatory and exemplary damages in excess of $10,000, together with an award for counsel fees and costs.

Preliminary objections in the nature of a demurrer were again filed by Smith on March 5, 1987, and a brief in support of the objections was filed March 19, 1987. Smith argued that the amended complaint did not meet the objections raised to the prior complaint and therefore the demurrer should again be sustained based upon the “law of the case” as embodied in the trial court’s letter explaining the grant of the prior demurrer.

The Woodwards filed their answer to the objections on March 23, 1987, and a brief in opposition to the objections on May 22, 1987. The Woodwards responded that the amended complaint met the prior objections and properly stated a valid cause of action against Smith. The Wood-wards’ brief simply incorporated by reference its prior brief.

The preliminary objections were sustained on May 26, 1987. The opinion of the trial court explained the grant of the demurrer to the amended complaint as follows:

The Defendant, Harry L. Smith, t/a R & D Excavating and R & D Tree Service (hereinafter ‘Smith’) constructed a sewer system in a residence then owned by Raymond Dietrich and Dorothy Dietrich, his wife. Subsequently, Dietrichs sold the property to the Plaintiffs. Plaintiffs had no contract with Smith, no privity with him, and were not the owners of the property at the time Smith performed his work, all according to the Complaint. The contention of the Plaintiffs is that Smith committed a fraud upon Dietrichs and any subsequent owners of the property, since he knew, or should have known, that Dietrichs would some day convey the property to others. In the Amended Complaint, paragraph 13 states ‘Smith intentionally worked a fraud on Woodwards, who, as the subsequent owners and occupants of the residence, were members of the class of persons whom he had reason to expect would act in reliance on his misrepresentations.’ Counsel for plaintiffs cites Mill-Mar, Inc. v. Statham, 278 Pa.Super. 296, 420 A.2d 548 (1980) and Section 552 of the Reinstatement of Torts 2d.
This Court is still of the opinion that the Amended Complaint fails to set forth facts to bring the matter within the ambit of Section 552 of the Reinstatement or the Mill-Mar holding. Section 552 makes it clear that the liability established therein is limited to loss suffered by the person whose benefit and guidance the Defendant intends to supply the information or knows that the recipient intends to supply it and the loss suffered must come through reliance upon the information in a transaction that the Defendant intends the information to influence or knows that the recipient so intends the information to influence. In the present case there are no allegations that the Defendant Smith provided the information for the Plaintiffs’ benefit and guidance or that he knew Defendant Dietrichs would supply the information to the Plaintiffs. Further, there is no allegation that Smith provided the information in a transaction that he intended this information to influence, namely the sale from Dietrichs to Woodwards.
Accordingly, the Amended Complaint is still defective, and must be dismissed as to Defendant Smith.

(Trial Ct.Op. at 1-2; R.R. at 125a-126a). The Woodwards filed a timely notice of appeal, the issues have been briefed and argued, and the matter is now properly before us for disposition.

III.

Fraud consists of 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. See Frowen v. Blank, 498 Pa. 137, 143, 425 A.2d 412, 415 (1981); In re Thorne’s Estate 344 Pa. 503, 511 n. 2, 25 A.2d 811, 816 n. 2 (1942). Traditionally, in order to state a cause of action for fraud, the plaintiff was required to establish:

(1) a misrepresentation;

(2) a fraudulent utterance thereof;

(3) an intention by the maker that the recipient will thereby be induced to act;

(4) justifiable reliance by the recipient upon the misrepresentation;

(5) damage to the recipient as the proximate result. See Pittsburgh Nat’l Bank v. Larson, 352 Pa.Super. 250, 507 A.2d 867 (1986), quoting Delahanty v. First Pennsylvania Bank, 318 Pa.Super. 90, 108, 464 A.2d 1243, 1252 (1983).

The Woodwards have alleged that the non-installation of the gray water sewer connection was fraudulently concealed by Smith, and that both the Dietrichs and Smith were responsible for misrepresentations made by the Dietrichs at the time the Woodwards bought the house from the Dietrichs. The Woodwards have also alleged that they reasonably relied on the misrepresentations made relating to the sewers in purchasing the Dietrichs’ house and that they incurred substantial damages proximately caused by the concealed non-installation of the gray water sewage sewer connection. We find that the Woodwards have made sufficient averments with respect to the first, second, and fifth elements of fraud to withstand demurrer.

The trial court, however, construed the Woodwards’ complaint as attempting to state a cause of action against Smith for negligent misrepresentation under Restatement of Torts 2d Section 552. The trial court found that the Woodwards’ complaint against Smith was deficient in that it had failed to allege that Smith intended to cause the Woodwards to rely on his concealment of the non-installation of the gray water sewer connection and the misrepresentations made to others relating thereto. We cannot agree with the trial court’s characterization of appellant’s theory of liability. Moreover, we find that the trial court’s mischaracterization of the Woodwards’ theory of liability resulted in the application of an incorrect standard in determining whether the pleadings alleged a valid cause of action.

A.

Initially we note that the trial court is incorrect in stating that, “Counsel for plaintiffs cites Mill-Mar, Inc. v. Statham, 278 Pa.Super. 296, 420 A.2d 548 (1980) and Section 552 of the Restatement of Torts 2d,” in support of its claim against Smith. (Trial Ct.Op. at 2). Careful review of the record reveals that Woodwards’ counsel never cited Section 552. Rather, counsel specifically argued Smith’s misrepresentation and concealment of his non-installation of the gray water sewage sewer connection line was done knowingly and intentionally and that, “under Restatement of Torts, 2d, Sections 531, 532, 533, 536, the logic of Mill-Mar, Inc. v. Statham, 278 Pa.Super. 296, 420 A.2d 548 (1980), and well-established general case law regarding fraud, there is a clear legal basis for Woodwards’ claim against Smith.” (Woodwards’ Brief 12/23/86 at 6).

The error in the trial court’s characterization of the Woodwards’ theory of liability is significant. Restatement of Torts 2d, Section 552 provides:

§ 552. Information Negligently Supplied for the Guidance of Others
(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.
(3) The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them.

(Emphasis added). Seizing upon the limitations on liability expressed in subsection 2, the trial court reasoned that the Woodwards’ complaint against Smith was deficient.

We need not determine whether the trial court’s application of sub-section 2 to the pleadings was correct, because we find that Section 552 as a whole does not apply. The Woodwards’ complaint unequivocally asserted a claim against Smith for “fraudulent” rather than “negligent” misrepresentation. The Woodwards assert that Smith’s concealment of the non-installation and subsequent misrepresentations to governmental authorities (and possibly the Dietrichs) could not have been anything but knowing and intentional. (Woodwards’ Brief 12/23/86 at 3). Section 552 applies only to claims of negligent misrepresentations and not fraudulent misrepresentation; hence, the trial court’s reliance on the limits on liability expressed in sub-section 2 of Section 552 was misplaced.

B.

The Woodwards cited, as authority for their theory of Smith’s liability, Restatement of Torts 2d Sections 531, 532, 533 and 536. Section 531 provides:

§ 531. General Rule
One who makes a fraudulent misrepresentation is subject to liability to the persons or class of persons whom he intends or has reason to expect to act or to refrain from action in reliance upon the misrepresentation, for pecuniary loss suffered by them through their justifiable reliance in the type of transaction in which he intends or has reason to expect their conduct to be influenced. Caveat:
The Institute expressed no opinion on whether the liability of the maker of a fraudulent representation may extend beyond the rule stated in this Section to other persons or other types of transactions, if reliance upon the representation in acting or in refraining from action may reasonably be foreseen.

(Emphasis added). The comments to this section explain that when the misrepresentation is fraudulent rather than negligent the scope of liability is expanded to include not only those “intended” to rely on the deceit but also those whom the party making the misrepresentation has special “reason to expect” may reasonably rely on the misrepresentation, which may include a large group or class of persons such as “all prospective buyers.”

The Woodwards argued that the foregoing Sections supported their claim against Smith in that:

Smith and Dietrichs had a contract regarding installation of the lateral sewer lines for the residence which Dietrichs later contracted with Woodwards for sale thereof. It is manifestly impossible that, when approval of the installation was secured, Smith was unaware of either the condition of the lateral sewer line, including the camouflage of the new stand pipe and clean-out pipe in the old terra cotta line, or the regulations of the Municipal Authority governing such installations. What is not clear at this point in the litigation is whether Dietrichs were witting or unwitting parties to the secondary fraud worked upon the Municipal Authority in securing approval of the camouflaged non-installation of the ‘gray water’ lateral sewers, but there is no question that misinformation regarding the condition of the lateral sewer was recorded with the Municipal Authority.
If Dietrichs were witting participants, then clearly Dietrichs and Smith were both part of the conspiracy to defraud, and the actions of Dietrichs in furtherance of that conspiracy must be charged against Smith. If Dietrichs were unwitting participants, there is absolutely no legitimate rationale why Smith, the perpetrator of an intentional fraud, should be insulated from liability for the resulting injury because Dietrichs did not discover Smith’s fraud before they sold it to Woodwards.
It is the case that Smith and Woodwards were not in strict privity; however, the importance of privity has been steadily eroded. Clearly, Woodwards, the subsequent owners of the residence, were within the foreseeable class of persons who would be injured by Smith’s camouflaged non-installation of the lateral sewer lines for that residence. Moreover, information regarding the installation of sewer systems recorded with the Municipal Authority was clearly required, and Smith was a party to the recording of the misinformation upon which Woodwards relied to their pecuniary loss.

(Woodwards’ Brief 12/23/86 at 3-4; R.R. at 70a-71a). (Emphasis added).

The Woodwards’ complaint against Smith was not based upon Restatement of Torts 2d Section 552. Consequently, we must reject the trial court’s reasons for sustaining Smith’s demurrer.

IV.

Though we have rejected the trial court’s reasons for sustaining the demurrer, we have not yet answered the question of whether the Woodwards have stated a valid cause of action for fraudulent misrepresentation against Smith. We find that resolution of this question requires a two part analysis: first, we must determine the degree of foreseeable and reasonable reliance alleged, and then we must decide whether liability for fraudulent misrepresentation may be predicated upon such foreseeable reasonable reliance.

A.

The Woodwards have alleged that their reliance was reasonable and specially foreseeable.

The Woodwards allege that they actually relied on misrepresentations relating to the concealed grey water sewage sewer connections. This is a sufficient allegation of “reasonable” reliance. Sewer connections are subterranean fixtures which materially affect the value of a home. They are expected to have an extended useful lifetime. Though they are important to any prospective home buyer, sewer connections are not by their nature open to inspection. Instead, prospective home buyers must ordinarily rely upon representations made by the sellers and any confirmatory documentation available. See Wolfe v. Arrott, 109 Pa. 473, 1 A. 333 (1885) (lessee reasonably relied to his detriment on misrepresentations made by the landlord regarding the conditions of the sewers and drains and was permitted to recover damages resulting from the reliance); Mancini v. Morrow, 312 Pa.Super. 192, 458 A.2d 580 (1983); Shane v. Hoffman, 227 Pa.Super. 176, 324 A.2d 532 (1974): generally Annotation, Fraud Predicated Upon Vendor’s Misrepresentation or Concealment of Danger or Possibility of Flooding or Other Unfavorable Water Conditions, 90 ALR 3d 568 (1979 & 1987 Supp.); Annotation, Real Estate Broker’s Liability to Purchaser for Misrepresentation or Non-disclosure of Physical Defects of Property Sold, 46 ALR 4th 546 (1986 & 1987 Supp.).

The Woodwards alleged that as potential subsequent purchasers their reliance was specially foreseeable. In our present mobile society, estates in land are transferred freely and regularly. Thus, while Smith may not have known that the Dietrichs would sell their home, the possibility of such a sale during the useful lifetime of a sewer connection was certainly quite foreseeable. Cf. Barnhouse v. City of Pinole, 133 Cal.App.3d 171, 193, 183 Cal.Rptr. 881, 894 (1982) (the sale of a home to a subsequent purchaser was certainly foreseeable); Terlinde v. Neely, 275 S.C. 395, 271 S.E.2d 768, 770 (1980) (the sale of a home to a subsequent purchaser was clearly foreseeable). If, as alleged, Smith had concealed the non-installation of the grey water sewage connection from the Dietrichs, Smith would have had special reason to foresee that any subsequent purchaser would be unaware of the material latent defect Smith allegedly concealed.

Moreover, the Woodwards alleged that Smith, either with or without the Dietrichs’ knowledge, made misrepresentations to the Municipal Authorities relating to the non-installation of the gray water sewage sewer connections. The Woodwards contend that the documents generated by Smith’s alleged fraudulent procurement of governmental approval of the concealed non-installation of the gray water sewage sewer connection would also increase the foreseeability of a subsequent purchaser’s reliance upon the misrepresentations relating to the concealed non-installation of the sewer connection. See Handy v. Beck, 282 Or. 653, 581 P.2d 68 (1978) (the fraudulent procurement of governmental approval of water well seals and casings, which had concealed defects, supported finding of special foreseeability under Restatement of Torts 2d § 536).

Based upon reasonable inferences derivable from the pleadings, we conclude that the Woodwards’ have alleged specially foreseeable reasonable reliance upon Smith’s misrepresentations.

B.

Next, we must consider whether a contractor may be held liable for damages caused by the fraudulent concealment of the non-installation of grey-water sewage sewer connections and misrepresentations incurred by a subsequent purchaser of the home despite the absence of privity or specific intent by the contractor to induce the subsequent purchaser’s reliance, if the subsequent purchasers reliance was nonetheless specially foreseeable. Upon review of the relevant case law, we are persuaded that contractor may be held liable under the facts alleged in the instant case. Our reasoning follows.

1.

The traditional scope of liability for misrepresentation was explained by the Professor Cooley in 1880 as follows:

Who may rely upon the Misrepresentations. No one has a right to accept and rely upon the representations of others but those to influence whose action they were made. If everyone might take up and act upon any assertion he heard made or saw in print as one made for him to act upon, and the truth of which was warranted by the assertor, the ordinary conversation of business and of society would become unsafe, and the customary publication of current news, or supposed news, would only be made under the most serious pecuniary responsibility.

Cooley on Torts, at 493-94 (1880). (Emphasis added). See also Reed, Derry v. Peek and Negligence, 8 J. Legal History 64 (1987) (tracing the history and development of the common law action for deceit/misrepresentation). In 1923, Justice Simpson summarized Pennsylvania law on this issue as follows:

‘The false statement must have been made for the purpose of being acted upon either by the person to whom it was made, or by some third person who it can be reasonably said was within the contemplation of defendant and to whom the statement was intended to be communicated. Representations made for a different purpose, or intended for persons other than plaintiff cannot be made the basis of an action of deceit’: 20 Cyc. 35. ‘It is well settled that where a false statement is made to the public at large for the purpose of influencing the action of any individual to whom it may be communicated, any person acting in reliance upon it and thereby sustaining injury may maintain an action against the person who made it, and that in such case it is not necessary that there should be an intent to defraud any particular person; but in such cases the representation must of course have been intended for the public’; 20 Cyc. 81-2.

Gillespie v. Hunt, 276 Pa. 119, 126-27, 119 A. 815 (1923). (Emphasis added). Though the language “who it can be said was reasonably within the contemplation of the defendant” is comparable to the “reason to expect” language of Restatement of Torts 2d, Section 531, that language is clearly restricted by the subsequent qualifying phrase, “and to whom the statement was intended to be communicated.” The intent requirement in Gillespie is obviously more restrictive than the “reason to expect” requirement of Section 531.

We note, however, that privity between the plaintiff and defendant was not required to maintain an action for deceit under the traditional standard. See e.g. Jamestown Iron & Metal Co. v. Knofsky, 291 Pa. 60, 139 A. 611 (1927) (one who makes false statements to another intending to induce them to give credit to a third person is liable for deceit, despite an absence of privity between those parties); Rheem v. The Naugatuck Wheel Co., 33 Pa. 358 (1859) (same); See also Sacks v. Schimmel, 3 Pa.Super. 426 (1897) (wife could sue landlord for deceit where misrepresentations were made to husband and wife and landlord knew husband and wife were to operate joint business on the property, even though only the husband signed the lease). From 1927 to the present, however, appellate courts in Pennsylvania have not had occasion to apply or reconsider the scope of liability for fraudulent misrepresentation as it relates to third parties.

2.

The absence of more recent case law is significant in light of the considerable change which has occurred in this area of the law in the intervening years. The changes are summarized in Prosser and Keaton on the Law of Torts, Ch. 18, § 107 at 743-45 (5th ed. 1984) as follows:

Once the intent to mislead is established, troublesome questions arise as to the persons to whom the representer will be liable.
In the leading English case of Peek v. Gurney, [6 Eng & Ir.App. 377 (L.R.1873) ] in which the directors of a corporation issued a prospectus for the purpose of inducing the public to purchase stock from the company itself, it was held that there was no liability to an investor who bought his stock on the market from a stockholder. The court limited responsibility to those whom the defendants had desired to influence, in the manner which had occasioned the damage.
The doctrine of transferred intent, which has been applied in the case of personal violence intended for one person which injures another, was thus rejected in the case of misrepresentation, for the obvious reason of policy that the class of persons who may conceivably learn of a misstatement and be influenced by it is so enormous that an impossible burden, likely to be out of all proportion to the fault involved, might be cast upon anyone who makes a false assertion.
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The limitation thus imposed must, however, be qualified to a considerable extent. The class of persons whom the speaker desires to influence may of course be a very large one, as where he publishes a statement in a newspaper intending to reach a whole class of purchasers or investors, or furnished information to a credit agency in the expectation that it will be passed on to those with whom he may deal, or where a manufacturer advertises his goods to possible consumers. A statement may be intended to be directed to others in addition to the immediate recipient, as where an auditor’s report is prepared to be exhibited to the plaintiff, or information is given to a promoter for the purpose of inducing action by the corporation to be formed.
But apart from such cases, there is a very definite tendency to depart from the old position, and to extend liability to those whom there is no desire to influence, but whose reliance upon the representation there is some special reason to anticipate. This has been almost a matter of necessity where the representation is embodied in a document, such as a negotiable instrument, a bill of lading, a deed, or a stock certificate, or even an article of commerce of a kind customarily relied upon by third persons; and likewise, of course, where a statute enacted for the protection of a particular class of persons requires the information to be published or filed. Beyond this, the same result sometimes has been reached by finding that that was ‘intended’ which was merely specially foreseeable; and in a few cases by holding outright that it is enough that the defendant should have contemplated the plaintiff’s reliance. The limitation to a ‘desire ’ to influence the plaintiff seems clearly too narrow, and there is much merit in the contention that, while the defendant is not required to investigate or otherwise guard against the possibility that his statement may come in to the hands of strangers and affect their conduct, his responsibility should at least extend to those who might reasonably be expected to assume from appearances that the representation was intended to reach them

(Footnotes collecting cases and authorities omitted) (emphasis added). See also Prosser, Misrepresentation and Third Persons, 19 Yand.L.R. 231, 231-55 (1966). As noted supra, the Restatement of Torts 2d adopts the expanded scope of liability discussed above. See Restatement of Torts 2d §§ 531, 532, 533, & 536.

3.

May we embrace the expanded scope of liability for fraudulent misrepresentation set forth in Restatement of Torts 2d, despite the restrictive holding in Gillespie v. Hunt, supra? The doctrine of stare decisis has been cogently described as follows:

A deliberate or solemn decision of a court or judge, made after argument on a question of law fairly arising in a case, and necessary to its determination, is an authority, or binding precedent, in the same court or in other courts of equal or lower rank, in subsequent cases where ‘the very point’ is again in controversy; but the degree of authority belonging to such a precedent depends, of necessity, on its agreement with the spirit of the times or the judgment of subsequent tribunals upon its correctness as a statement of the existing or actual law, and the compulsion or exigency of the doctrine is, in the last analysis, moral and intellectual, rather, than arbitrary or inflexible.

Chamberlain, Stare Decisis at 19 (1885), cited in Von Moschicker, Stare Decisis, Res Judicata, and Other Selected Essays, at 1 (1929). (Emphasis added). If the restrictive rule of Gillespie had been considered or applied in recent years we would have no choice but to abide by the law as announced in that case, regardless of our views as to the wisdom of that decision. The doctrine of stare decisis and appropriate deference to the superior authority of our Supreme Court would dictate such action. However, for the past sixty years no appellate cases in Pennsylvania have addressed this issue.

We find that the authority of Gillespie has been erroded by time, by the persuasive criticism of .its limitations by other courts and commentators, and by the spirit of the times. Nonetheless, we would remain reluctant to exceed the bounds of a decision of our Supreme Court even as old and as questionable as Gillespie, if it were not for the fact that subsequent Pennsylvania Supreme Court decisions in analogous cases convince us that Gillespie remains precedent because of the lack of an appropriate opportunity to reconsider Gillespie, and not a lack of inclination to do so.

Under our early case law, a contractor’s liability for defects in the construction was limited to the persons in direct privity with the contractor; the contractor was fully absolved from liability to third persons for injuries caused by even latent1' defects upon delivery and acceptance of possession of the realty. See e.g. Congregation v. Smith, 163 Pa. 561, 30 A. 279 (1894) (contractor not liable to property owner for damages caused by latent defects in sewer lines installed on property owner’s property, as municipality had resumed possession of the sewers); Curtin v. Somerset, 140 Pa. 70, 21 A. 244 (1891) (contractor not liable to guest for injuries resulting from the collapse of a porch caused by the contractor’s gross departures from building specifications in the construction contract, as hotel had resumed possession and accepted the work). The rationale for the privity requirement in negligent construction cases, set forth in Curtin v. Somerset, was virtually the same as that given for the intent requirement in deceit actions by Professor Cooley, i.e. that without the privity or intent requirements indefinite liability disproportionate to fault could result, and that legitimate business interests would be jeopardized by the threat of such liability. Compare Curtin v. Somerset, supra, 140 Pa. at 78-80, 21 A. 244, and Cooley on Torts, supra, at 493-94.

The privity requirement of earlier caselaw was first eroded and then fully abandoned by our Supreme Court. In Grodstein v. McGiven, 303 Pa. 555, 154 A. 794 (1931), the Court recognized a general exception to the strict privity rule for those whom the contractor should expect, that in the natural course of things, would also be brought into contact with or use the defective article or structure. In Grodstein, damages for injuries sustained by a wife, caused by a defective porch railing installed by the contractor for her husband, were deemed to be recoverable even though there was no privity between the wife and the contractor. Cf Sacks v. Schimmel, supra.

In Foley v. Pittsburgh-Des-Moines Co., 363 Pa. 1, 68 A.2d 517 (1949) our Supreme Court explained:

In Pennsylvania the earlier cases (Curtin v. Somerset, ...), adopted the then prevailing doctrine, but, if not actually overruled, they have at least been discarded as the controlling authorities and all the more recent cases in this Commonwealth have followed the principles proclaimed in MacPherson v. Buick Motor Co. [217 N.Y. 382, 111 N.E. 1050 (1931) ], Grodstein v. McGivern, [supra ], ...

363 Pa. at 31-32, 68 A.2d 517 (citations omitted). In response to the defendant’s argument that the principles of MacPherson applied only to chattels and not to realty, our Supreme Court stated succinctly, [tjhere is no logical basis for such a distinction____” 363 Pa. at 34-35, 68 A.2d 517.

In Prost v. Caldwell Store, Inc., 409 Pa. 421, 187 A.2d 273 (1963), our Supreme Court explained further:

The proposition contended for by the additional defendant was at one time the law of the land, but it has disappeared with the horse and buggy and the rule that a husband is authorized to beat his wife with a stick no bigger than the thickness of his finger. ...
* 5{S }¡! jj« Sic if
No longer, when the consequences of negligence can be foreseen, does liability grow out of contract.
Where a builder creates a hazard which without the need of a prophetic telescope, proclaims potential injury to the public, he may not plead immunity from liability for resulting damage on the basis that his responsibility ceased with the insertion of the last bolt and the driving of the final nail.

409 Pa. at 427-429, 187 A.2d at 276-77.

Finally, in DeTillo v. Carlyn Construction, Inc., 416 Pa. 469, 206 A.2d 376 (1965), our Supreme Court held that a homeowner could sue the contractor, as well as the developer and the municipality, for damages alleged to have been caused by defective sewers installed by the contractor for the developer which were to have been inspected by the municipality. In rejecting a defense by the contractor based upon the absence of privity, our Supreme Court stated:

The next point raised by the appellant, D. Carapelluci Company, is that the storm sewer was installed while the developer, Carlyn Construction, Inc., owned the lot; therefore, there could be no trespass by the developer or his contractor. Even though the point is well taken, the plaintiff need not rely on a trespass to establish negligence on the part of the contractor. It has long been the law that when it is obvious to a contractor that a third party would, necessarily in the course of events, be brought into contact with or would use the defective construction, then the contractor will be liable for injuries sustained by a third person caused by the negligence of the contractor.

416 Pa. at 472, 206 A.2d at 378. (Emphasis added). Our Supreme Court has held that a contractor may be held liable for damages caused by the negligent installation of sewers despite the absence of privity between the contractor and the homeowner. Ought liability be less certain when damages arise from fraudulent non-installation rather than negligent installation? We think not.

4.

In Mill-Mar v. Statham, supra, this Court held that liability for negligent misrepresentation could be recognized in particular cases despite the absence of privity. 278 Pa.Superior Ct. at 302, 420 A.2d at 550-51. This Court emphasized, however, that:

Such cases must be decided individually, each, on its own facts. Particular care must be taken that what is being sought is not, in the words of Justice Cardozo, ‘liability in an indeterminate amount, for an indeterminate time to an indeterminate class.’ Ultramares Corp. v. Touche, 255 N.Y. 170, 178, 174 N.E. 441, 444 (1931).

278 Pa.Superior Ct. at 302, 420 A.2d at 551. We find that this portion of the holding in Mill-Mar applies equally, if not more so, to cases which involve fraudulent rather than negligent misrepresentation. Cf. Baxt, The Liability of Accountants and Auditors for Negligent Statements in Company Accounts, 36 M.L.R. 42 (1973) (discussing limits of liability for negligent misrepresentation under English law, noting similarities to the approach taken by Justice Cardozo in Ultramares Corp. v. Touche, supra).

Assuming that the Dietrichs were not parties to the alleged fraudulent conduct by Smith, recognition of the Woodwards’ cause of action against Smith would merely allow the right to recover for damages proximately caused by the fraudulent misrepresentations and concealed non-installation to pass from the seller to the buyer when subsequent transfer of the property substituted a new victim for the original victim of the undiscovered fraud. Cf. Barnhouse v. City of Pinole, supra. Under the facts alleged, only the identity of the victim was affected by the sale of the property by the Detrichs; the amount, duration, and class of persons to whom Smith was alleged to be liable for damages remained the same.

Other jurisdictions have recognized liability for fraudulent misrepresentation under similar circumstances. See Mills v. Cosmopolitan Ins. Agency, Inc., 424 A.2d 43, 49 (D.C.App.1980) (collecting federal cases which adopted Restatement of Torts Section 531 and comment c); Barnhouse v. City of Pinole, supra (subsequent purchaser could sue developer for fraudulent concealment of failure to correct soil subsidence problems in accordance with the approved correction plan, despite the absence of contract privity); Handy v. Beck, supra (subsequent purchaser could sue well driller who fraudulently concealed defects in the well casings and seals from government officials and the previous owner, despite the absence of contract privity); Baxt, supra, 36 M.L.R. at 43, 54-55 (arguing that liability for negligent misrepresentations in documents filed as public financial records ought to be recognized as to persons who actually viewed the records, relied upon them, and suffered damages proximately caused by the reasonable reliance). If, as alleged, the Dietrichs were not aware of Smith’s alleged fraudulent camouflaged non-installation of grey water sewage sewer connection, we can see no reason why the Dietrichs’ sale of the home to the Woodwards should absolve Smith from liability for damages proximately caused by such fraud. When fraud creates or conceals a latent defect, transfer of the defective chattel or realty to an innocent third party should not absolve the wrongdoer from liability for damages caused by that undiscovered fraud. Thus, we find that this theory of liability was improperly rejected by the trial court.

V.

The Woodwards contend alternatively that the Dietrichs and Smith conspired together to conceal the non-installation of the grey water sewage sewer connection. The Woodwards allege that the Dietrichs made fraudulent misrepresentations regarding the sewers upon which the Wood-wards were specifically intended to rely; such intent meets even the restrictive test of Gillespie, supra. If Smith acted in concert with the Dietrichs, Smith would be liable for the misrepresentations made by the Dietrichs as an accomplice or co-conspirator (joint-tortfeasor). Thus, we conclude that this alternate theory of liability was also improperly rejected by the trial court.

CONCLUSION

Based upon the foregoing, the order sustaining Smith’s demurrer is vacated, the complaint against Smith is reinstated and the case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

OLSZEWSKI, J., files concurring statement.

OLSZEWSKI, Judge,

concurring:

I concur in the result of this case. I believe that the matter of whether or not Gillespie v. Hunt, 276 Pa. 119, 119 A. 815 (1923), should be overruled is a matter for our Supreme Court and not this Court as an intermediate appellate court.

      . We note that on September 9, 1986, default judgment was taken against Smith. This judgment was opened by order dated October 20, 1986. Though contested in the trial court on procedural grounds, no appeal was taken from the order opening the default judgment. We express no opinion as to the propriety of the order opening judgment.

      . The Woodwards aver that the clogged drain could not be relieved by use of a mechanical snake, an electric eel or pressurized water.

      . The Woodwards also aver that they have incurred unspecified but significant counsel fees and have suffered great aggravation and trauma. No dollar amounts are specified in the pleadings for these damages.

      . The remainder of the amended complaint is not particularly relevant to the disposition of this appeal. We note that it asserts claims against the Dietrichs based upon the above averments for intentional misrepresentation, negligent misrepresentation, unintentional misrepresentation and breach of warranty.

      . A "negligent" misrepresentation is a misrepresentation which arises from a want of "reasonable care or competence in obtaining or communicating information," as opposed to a "fraudulent" misrepresentation which involves either a "knowing" or a "reckless" communication of a misrepresentation. Compare Restatement of Torts 2d Section 526 and Restatement of Torts 2d Section 552. Though the Woodwards characterize Smith's actions as "intentional” misrepresentation, we find that the Woodwards claim is actually that Smith made "fraudulent" misrepresentations. A misrepresentation is unquestionably "fraudulent” when the representer knows that the matter is not as it is represented to be, which is precisely what the Woodwards allege Smith has done. See Restatement of Torts 2d, Section 526(a) and Comment (c). Reference to "intent” in this context would confuse the scienter and scope of liability questions. For this reason we will use the Restatement terminology throughout.

      . We note that while Mill-Mar, Inc., supra, involved a negligent misrepresentation claim under Section 552, we do not construe the Woodwards’ reference to “the logic of Mill-Mar, Inc.,” to imply characterization of the Woodwards’ claim as arising under Section 552. Rather, we interpret the reference as relating only to the general discussion of the erosion of the privity requirement in Mill-Mar, Inc., 278 Pa.Superior Ct. at 299-300, 420 A.2d at 550-51.

      . A result is deemed to be “intended” if “the actor either acts with the desire to cause it, or acts believing that there is a substantial certainty that the result would follow from his conduct.” Restatement of Torts 2d, Section 531, comment c.

      . "Reason to expect” is defined in Restatement of Torts 2d Section 531, Comment d as follows:
      d. 'Reason to expect.' One has reason to expect a result if he has information from which a reasonable man would conclude that the result will follow or would govern his conduct upon the assumption that it will do so.
      In order for the maker of a fraudulent misrepresentation to have reason to expect that it will reach third persons and influence their conduct it is not enough that he recognizes, or as a reasonable man should recognize, the risk that it may be communicated to them and they may act upon it____
      Virtually any misrepresentation is capable of being transmitted or repeated to third persons, and if sufficiently convincing may create an obvious risk that they may act in reliance upon it. (See Illustrations 1 to 3, above). This risk is not enough for the liability covered in this Section. The maker of the misrepresentation must have information that would lead a reasonable man to conclude that there is an especial likelihood that it will reach those persons and will influence their conduct. There must be something in the situation known to the maker that would lead a reasonable man to govern his conduct on the assumption that this will occur. If he has the information, the maker is subject to liability under the rule stated here.
      (Emphasis added). Sections 532 and 536, cited by the Woodwards, are particular illustrations of the special foreseeability rule. Of the two sections, Section 536 is the more applicable to the instant case. The written documents upon which the Woodwards base the special foreseeability of their reliance were not "muniments of title” or "similar commercial documents” (Section 532); however, at least some of those documents (Exhibits 2-4; R.R. at 94a-97a) were generated pursuant to local ordinances and arguably fall within the scope of Section 536 which provides:
      § 536. Information Required by Statute
      If a statute requires information to be furnished, filed, recorded or published for the protection of a particular class of persons, one who makes a fraudulent misrepresentation in so doing is subject to liability to the persons for pecuniary loss suffered through their justifiable reliance upon the misrepresentation in a transaction of the kind in which the statute is intended to protect them.
      Comment h to this section states that, "[tjhe rule stated in this Section includes administrative regulations and other governmental orders issued pursuant to a statute.”

      . Comment (e) provides in pertinent part:
      e. Class of persons. The maker may have reason to expect that his misrepresentation will reach any of a class of persons, although he does not know the identity of the person whom it will reach or indeed of any individual in the class____

        The class may include a rather large group, such as potential sellers, buyers, creditors, lenders or investors, or others who may be expected to enter into dealings in reliance upon the misrepresentations.
      (Emphasis added). Section 533, also cited by the Woodwards is a special application of this rule. Section 533 provides in pertinent part:
      § 533. Representation Made to a Third Person
      The maker of a fraudulent misrepresentation is subject to liability for pecuniary loss to another who acts in justifiable reliance upon it if the misrepresentation, although not made directly to the other, is made to a third person and the maker intends or has reason to expect that its term will be repeated or its substance communicated to the other, and that it will influence his conduct in the transaction or type of transaction involved.

      Caveat:
      The Institute expresses no opinion on whether the liability of the maker of a fraudulent representation may extend beyond the rule stated in this Section to other persons or other types of transactions, if reliance upon the representation in acting or refraining from action may reasonably be foreseen.

      . We do not imply adoption of Restatement of Torts 2d Sections 531, 532, 533 and 536 in all possible circumstances. Though the basic principles espoused in those sections appear sound, we nonetheless remain of the opinion that each case must be decided on its own facts, and that care must be given to ensure that the liability sought is not indeterminate as to amount, duration, or class.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    548 A.2d 316
    Donald W. BUTTON and John N. Button, Appellants, v. Geraldine BUTTON.
    Superior Court of Pennsylvania.
    Argued Aug. 16, 1988.
    Filed Sept. 29, 1988.

      Gregory P. Sesler, Erie, for appellants.
    Donald W. Grieshober, Erie, for appellee.
    Before CAVANAUGH, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

On this appeal, we are asked to reconsider the rule regarding the partition of property held as tenants by the entireties, as first set forth in Vento v. Vento, 256 Pa.Super. 91, 389 A.2d 615 (1978), and as later extended in Clingerman v. Sadowski, 335 Pa.Super. 514, 485 A.2d 11 (1984). Appellants urge us to further extend the rule to permit the estate of a deceased spouse to accept a constructive offer for the severance of joint property, based upon egregious circumstances.

Because we find that appellants have been barred by the doctrine of res judicata from further pursuing their claim for relief, we decline to review the state of the law since Vento in this area, and affirm the trial court’s order sustaining preliminary objections.

Donald W. Button and John N. Button, the sons of Wayne H. Button, deceased, (Sons), filed the present action in the Erie County Court of Common Pleas at No. 2123-A-1987 on June 2, 1987. The complaint seeks an accounting of the assets of Geraldine Button, the Sons’ stepmother, an assignment of funds to the estate of the deceased father, an injunction against the stepmother preventing dissipation of alleged estate assets, and an order compelling the administration of the deceased father’s estate.

On June 22, 1987, preliminary objections were filed on behalf of the defendant stepmother, including a demurrer, as authorized by Pa.R.C.P. 1017(b)(4). The preliminary objections also contain, in Paragraph 4, a claim of res judicata, based upon an alleged prior action at Erie County Court of Common Pleas No. 89-Equity-1986.

Of course, res judicata must be raised as new matter, Pa.R.C.P. 1030, and may not be raised in preliminary objections. Pa.R.C.P. 1017(b). Callery v. Blythe Township Municipal Authority, 432 Pa. 307, 243 A.2d 385 (1968). This applies to actions in equity. Pa.R.C.P. 1501.

Rather than file a preliminary objection to Paragraph 4 of defendant’s preliminary objection, the Sons filed an “Answer”, setting forth uncertified allegations of fact concerning the earlier adjudication at No. 89-Equity-1986. By so doing, the Sons waived the right to object to the defendant stepmother’s form of pleading. Duquesne Slag Products Company v. Lench, 490 Pa. 102, 105, 415 A.2d 53, 54 (1980).

We begin our analysis by emphasizing that an appellate court may consider only facts which have been duly certified in the records on appeal. Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974). Pa.R. A.P. 1921. In order to expedite disposition of this appeal, we requested, and received, the certified record from the first case, Button v. Button, No. 89-Equity-1986.

For the defense of res judicata to prevail, it is necessary that between the previous action and the present action there be identity in the thing sued on, identity of the cause of action, identity of the persons and parties to the action, and identity of the quality or capacity of the parties suing or sued. Duquesne Slag Products, supra 490 Pa. at 105, 415 A.2d at 55. Moreover, there must be finality to the judgment rendered in the first case. While an order sustaining preliminary objections and dismissing a party as defendant or dismissing the complaint may become res judicata upon exhaustion or expiration of appeal, US. National Bank in Johnstown v. Johnson, 506 Pa. 622, 629, 487 A.2d 809, 813 (1985) a decree which merely sustains the preliminary objections without dismissing the complaint is interlocutory and is not res judicata as to like issues subsequently raised in proceedings between the parties. Ahrens v. Goldstein, 376 Pa. 114, 121, 102 A.2d 164, 167 (1954).

Our examination of the original records in Erie County cases No. 89-Equity-1986 and No. 2123-A-1987 satisfies us that the necessary identities for the application of the doctrine of res judicata are, in fact, present. The prayers for relief in both cases are identical, seeking an accounting, assignment of funds to the decedent’s estate, an injunction to prevent the defendant from disposing of any of the decedent’s assets, and an order compelling administration of the decedent’s estate. The plaintiffs and the defendant are identical in both actions, both as to the names and as to the capacity in which the parties sue or were sued.

Although the second cause of áction incorporates a second count, alleging the existence of a 1984 AMC Eagle automobile, we do not find that this in any way enlarges either the thing sued upon, that is, the decedent’s estate, nor the cause of action. In both actions, the Sons seek to recover what they allege to be the rightful property of their deceased father.

Having found the necessary identities as to the thing sued on, the cause of action, and the parties to the action as required by Duquesne Slag Products, there remains the issue of the finality of judgment in the first case, at No. 89-Equity-1986, There, the trial court sustained the preliminary objections on January 6,1987. The Sons then filed a Motion for Post-Trial Relief. Without approving the propriety of the attempted filing of a post-trial motion following an order sustaining preliminary objections, we note that the motion was denied on January 29, 1987.

Thereafter, the Sons filed a Notice of Appeal on February 6, 1987, and a Praecipe for Judgment (against themselves) on February 9, 1987. The official docket entries are clear that judgment was entered, by the Prothonotary, in favor of the defendant, and against the plaintiffs, the Sons, on February 9, 1987.

Our review of the proceedings thereafter in this court compels a conclusion that the judgment entered on February 9,1987 is, in fact, final. A Motion to Quash Appeal was filed at Superior Court docket No. 232 Pittsburgh, 1987 on March 10, 1987 alleging, inter alia, that the appeal from the order entered January 6, 1987 was untimely. Before the motion was decided, appellants filed a Voluntary Discontinuance of the appeal, thereby rendering both the order of January 6,1987 and the judgment entered in favor of the defendant on February 9, 1987 final.

Although we recognized, above, that a decree which merely sustains the preliminary objections without dismissing the complaint is interlocutory, see Ahrens v. Goldstein, supra, we are here faced with a situation where the parties against whom the objections were sustained proceeded to have judgment entered at, or near, the time when the appeal was taken and against themselves. We have no difficulty, therefore, in accepting the subsequent voluntary withdrawal of the appeal at No. 232 Pittsburgh 1987 as finally terminating the action filed at No. 89-Equity-1986 along with the cause of action and the thing sued on therein.

Since we conclude that the most distinguished trial judge, the Honorable George Levin, correctly ruled that appellants’ second suit was barred by the doctrine of res judicata, we must leave for another day the review and reconsideration of the rule concerning partition of property held by the entireties.

The order of December 3, 1987 sustaining preliminary objections is affirmed.


author: MONTGOMERY, Judge:

text:
    548 A.2d 319
    JEANNETTE PAPER COMPANY, Appellee, v. LONGVIEW FIBRE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 12, 1988.
    Filed Sept. 26, 1988.

      Michael J. Betts, Pittsburgh, for appellant.
    Charles P. Falk, Pittsburgh, for appellee.

      Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This appeal arises from a judgment entered after a jury verdict which awarded the Plaintiff-Appellee, Jeannette Paper Company, the sum of $244,000.00 in compensatory damages and $500,000.00 in punitive damages, against the Defendant-Appellant, Longview Fibre Company. This verdict was based upon claims of breach of contract and tortious interference with contractual relations asserted by Jeannette against Longview. Numerous arguments are raised on this appeal by Longview.

Longview contends, on several grounds, that the trial court erred in not granting it judgment notwithstanding the verdict. Further, the Appellant maintains that the trial court committed reversible error in refusing to grant it a new trial. It is well-established that on an appeal from the refusal of the trial court to enter judgment for the appellant non obstante veredicto, the sole duty of the appellate court is to decide whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every favorable inference reasonably to be drawn from the evidence. Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980). A judgment notwithstanding the verdict may be entered only in a clear case. Sperrazza v. Cambridge Mutual Fire Insurance Company, 313 Pa.Super. 60, 459 A.2d 409 (1983). Further, a judgment n.o.v. should not be entered in cases where evidence is conflicting upon a material fact, Burg v. Aberman, 183 Pa.Super. 1, 128 A.2d 179 (1956), and is proper only in circumstances where the facts are such that no two reasonable persons would fail to agree that the verdict was improper. Buck v. Scott Township, 325 Pa.Super. 148, 472 A.2d 691 (1984). The appellate court, in considering a motion for judgment n.o.v., is required to consider the evidence, together with all reasonable inferences therefrom, in the light most favorable to the verdict winner. Claytor v. Durham, 273 Pa.Super. 571, 417 A.2d 1196 (1980). In such a review, all testimony and inferences unfavorable to the verdict winner must be rejected. Smith v. Kravitz, 173 Pa.Super. 11, 93 A.2d 889 (1953). With regard to an appeal challenging the grant or refusal of a new trial, the appellate court will not reverse the trial court’s action in the absence of an abuse of discretion or an error of law which controlled the outcome of the case. Allison v. Snelling & Snelling, Inc., 425 Pa. 519, 229 A.2d 861 (1967). Mindful of such standards, we must review the pertinent facts established by the record in this case.

The record establishes that as of 1983, Plaintiff Jeannette Paper Company had been a broker of various types of industrial paper, for over 30 years. The principal product it brokered was a particular type of paper known as interleaving paper. Jeannette’s most significant customer for such paper, for approximately 20 years, had been Allegheny Ludlum Steel Corporation. Allegheny Ludlum, a stainless steel producer headquartered in Pittsburgh, Pennsylvania, maintained a facility at West Leechburg, Pennsylvania, which used the interleaving paper to protect stainless steel coils from abrasion. Over the years prior to 1983, Allegheny Ludlum had secured so-called “southern” interleaving paper for use at that facility by purchases through Jeannette, which acted as the broker for several different manufacturers of that type of paper.

None of the paper manufacturers who supplied such a product to Allegheny Ludlum through Jeannette had any written brokerage contracts with Jeannette, and none had ever attempted to sell directly to Allegheny Ludlum. Each had paid Jeannette a 5% commission on sales to Allegheny Ludlum, and Jeannette presented evidence that a 5% commission was the standard in the industry for such brokerage arrangements for such products. At the time of the matters complained of in this action, Jeannette was the broker for the manufacturers providing all of the interleaving paper purchased by Allegheny Ludlum.

Allegheny Ludlum had not expressed dissatisfaction with the services provided by Jeannette, but had problems with the southern interleaving paper produced by one of the manufacturers for which Jeannette was serving as a broker. Accordingly, Jeannette deemed it appropriate to begin to search for another supplier of such interleaving paper.

On October 13, 1983, Norman Berger, the President of Jeannette, wrote to the Defendant-Appellant, Longview Fibre Company, to inquire about Longview’s interest in producing this type of interleaving paper, and identified Jeannette as a broker in the sales of such a product to customers in the stainless steel and aluminum industries. In the letter, which was addressed to R.P. Wollenberg, President of Longview, Berger detailed Jeannette’s long experience as a broker for such interleaving paper. By letter dated April 18, 1983,. Longview advised Jeannette that Longview’s Vice-President of Paper Sales, Donald C. Stibich, would be in touch with Jeannette in due course in response to its October 13, 1983 letter.

Later in October, 1983, Stibich telephoned Jeannette and spoke with Mr. Berger. During that telephone conversation, Stibich expressed an interest in producing and marketing the interleaving paper. Berger asked whether Long-view would be agreeable to using it as a broker in order to market the product. Stibich confirmed that Longview had marketed its products through brokers in the past and said that employment of Jeannette as a broker would depend on what Jeannette could “bring to the party.” In response, Berger told Stibich that Jeannette could provide numerous services and benefits to Longview in such a brokerage arrangement. Among the advantages expressed by Berger included Jeannette’s extensive experience in the supply of such paper to the stainless steel industries, Jeannette’s extensive knowledge of the requirements and specifications of the paper required by that industry, its awareness of industry customers, their personnel and procedures, Jeannette’s ability to respond to and resolve complaints raised by customers, without the need for intercession by the manufacturer or its technical staff, Jeannette’s unlimited line of credit and ability to discount suppliers’ bills, and Jeannette’s willingness to pay Longview’s bill when the interleaving product would be shipped, regardless of the time when the product was received or paid for by the customer.

At the conclusion of this recitation of benefits which Jeannette could provide, Stibich, according to testimony by Berger, responded, “It’s very impressive. What you offer is impressive, and I would say we have a fit.” Berger then stated that he was pleased that there was a “fit”, and that there was a “deal” between the parties. He then advised Stibich that the first account that would be approached, which was the largest, and the one he thought they could sell Longview interleaving paper to first, would be Allegheny Ludlum: He then turned the telephone over to Peter Neft, the Vice-President of Jeannette. Neft supplied Stibich with detailed information concerning interleaving in general, Allegheny Ludlum’s particular requirements for this product, names of competitors, pricing information, and more about Jeannette’s functions as a broker. They specifically discussed Jeannette acting as a broker for interleaving paper for Allegheny Ludlum, which would be produced by Longview. At the conclusion of the discussion, Stibich expressed that the matters related by Neft sounded good, and arrangements were made for Neft to send samples of the paper, specification sheets, and other information to Longview. After the conversation, Neft sent the samples and information which had been discussed between the parties.

Both Berger and Neft testified that during their telephone discussion with Stibich, they repeatedly referred to Jeannette’s commission rate of 5%. Further, in Neft’s discussion concerning the price of the paper, he stated that it was a specific dollar amount, less the 5% commission.

After the telephone discussion between Jeannette and Longview, and the transmittal by Jeannette of samples and detailed information concerning the interleaving paper currently being purchased and accepted by Allegheny Ludlum, Longview conducted a credit investigation of Jeannette. Thereafter, it opened a line of credit for Jeannette in its records. Internal Longview documents referenced Jeannette as an established credit customer. By letter dated November 22, 1983, Stibich advised Jeannette that Long-view’s east coast sales representative, Bruce Boyer, would be in communication with Jeannette. However, Boyer failed to communicate with Jeannette, and Jeannette thereafter made several unsuccessful attempts to reach Boyer by telephone, at the number provided by Stibich. The telephone number was not correct. After its attempts to reach him by telephone failed, Jeannette sent a letter dated December 6, 1983, asking Boyer to call Jeannette.

Prior to receiving any response from Boyer, however, it was discovered by Jeannette that Longview had contacted Allegheny Ludlum directly and obtained an order for interleaving paper of the type which Jeannette had discussed with Longview. Immediately upon learning this information, Berger called Stibich about the information. Stibich denied having any knowledge of Mr. Boyer having taken any order from Allegheny Ludlum. Stibich claimed, in any event, that Jeannette had not advised Longview that Allegheny Ludlum was a potential customer for the product, but rather, he asserted that Longview had become aware of Allegheny Ludlum through other sources. In fact, Stibich asserted that Jeannette had never even mentioned Allegheny Ludlum as a customer of Jeannette before that time.

The record shows that an order, dated December 5, 1983, was placed by Allegheny Ludlum directly with Longview, for 44,000 pounds of interleaving paper for delivery to Allegheny Ludlum’s West Leechburg plant. The price for the paper was $550.00 per ton, essentially the same price which had been discussed by Berger in his conversation with Stibich in October, 1983. This represented Longview's first sale of interleaving paper to any customer, at any location, within Longview’s 57 year history as a paper manufacturer. It is noteworthy that Boyer, the sales representative for Longview who obtained the order from Allegheny Ludlum, had served in a sales capacity with Long-view since 1971. Since that initial order, Longview continued to supply the same plant with the same type of interleaving paper, in significant quantities, on a monthly basis. It was anticipated that sales would continue at the same level, if not increase, in the future. As of the time of the trial, Longview’s interleaving sales totaled $4,880,810.00, strictly limited to Allegheny Ludlum. Since the date of the beginning of sales by Longview directly to Allegheny Ludlum, Jeannette suffered a significant drop in the volume of interleaving paper sold to Allegheny Ludlum for use at its West Leechburg plant. It appears that none of the particular type of interleaving paper sold to Allegheny Ludlum by Longview is being sold by Jeannette through a brokerage arrangement with any other supplier. The particular southern paper being manufactured and sold by Longview to Allegheny Ludlum is consistent with the samples and specifications which were provided to Longview by Jeannette in October, 1983.

The record shows evidence of attempts by Longview to eliminate or change evidence relating to the existence of an agreement with Jeannette for the brokerage of interleaving paper. After Longview’s San Francisco office had opened the line of credit for Jeannette, recognizing it as a Long-view customer, and sent information to Boyer regarding this, Boyer returned the information with instructions to not publish any reference to Jeannette Paper. Stibich testified that he agreed with Boyer’s suggestion that Jeannette be removed from Longview’s internal list of established credit customers, and such removal took place. Further, while Longview attempted at trial to create an impression that it had engaged in a comprehensive investigation of the interleaving paper market prior to its discussions with Jeannette, and that Longview secured Allegheny Ludlum as a customer independently of Jeannette, it is undisputed that none of the Longview representatives ever mentioned such investigation, or Allegheny Ludlum as a potential customer, in any of the communications of discussions with Jeannette which took place before Longview obtained an order from Allegheny Ludlum in early December, 1983. Longview did not reasonably document any particular date when it purportedly began any investigation of the interleaving paper market, independent of the contract by Jeannette. After denying several times during his testimony that Jeannette had provided Longview with the identity of Allegheny Ludlum as a customer, during the October, 1983 telephone conversation he had with Berger, and then Neft, Longview Vice-President Stibich ultimately admitted on cross-examination that Allegheny Ludlum’s existence as a potential customer was first brought to Longview’s attention during that telephone discussion with the Jeannette representatives.

Based upon the evidence presented, the jury rendered a verdict to the Plaintiff in the amount of $244,000.00, as compensatory damages, representing the 5% commission on the sales of interleaving paper by Longview to Allegheny Ludlum which occurred up to the date of the trial. Further, the jury awarded Jeannette punitive damages against Long-view, in the amount of $500,000.00. Defendant Longview filed motions for post-trial relief in the form of judgment n.o.v., and for a new trial. Such motions were denied by the trial court. We shall now discuss, seriatum, the various arguments raised by Longview on the instant appeal.

First, Longview contends that judgment n.o.v. should have been entered in its favor, because of the absence of mutual assent to essential terms of an agreement between the parties. In essence, Longview maintains that there was no meeting of the minds between it and Jeannette concerning a brokerage agreement between them. In support of that position, Longview points out that several details of such an arrangement were not negotiated or agreed upon, including the price which Jeannette would pay for the paper, the amount of discount or commission Jeannette would receive, the circumstances under which such rates or amounts could be changed, when and how Jeannette could make payment, possession and warehousing of the paper, and other details.

Under common-law contract principles, an agreement may not be held to fail for vagueness if the parties intended to form a contract and there is a reasonably certain basis for giving an appropriate remedy. Greene v. Oliver Realty, Inc., 363 Pa.Super. 534, 526 A.2d 1192 (1987). We find that under the evidence presented in the instant case, and reasonable inferences to be drawn therefrom, the jury had justification for concluding that Jeannette and Longview discussed and agreed to all of the essential terms of a brokerage relationship, during the October, 1983 telephone conversation between Stibich and Berger, and then Stibich and Neft. Further, the jury had ample evidence to find that Longview through Stibich, expressly agreed to utilize Jeannette as its broker for purposes of marketing interleaving paper to Allegheny Ludlum and to other customers in the industry. It was understood that Jeannette’s commission on such sales would be 5%, which was the standard in the industry. The correspondence between the parties prior to that conversation, the disclosure to Stibich of Jeannette’s most important customer for the product, and the delivery of samples and specifications to Longview by Jeannette contributed further support for the conclusion that the parties had agreed on a brokerage arrangement during the telephone conversation. Longview’s subsequent establishment of Jeannette as a credit customer on its books, and unsuccessful later attempts to erase the evidence of such conduct only add further weight to the determination that an agreement was reached between the parties for a brokerage arrangement. The lack of a writing is not meaningful with regard to the question of whether or not there was an enforceable agreement, in view of the evidence that Jeannette’s brokerage arrangements, during thirty years in that industry, were never in writing.

The lack of some details did not operate to preclude a finding that a contractual relationship existed between the parties. Our courts are constantly confronted with disputes between parties to a contract who have failed to provide in detail for every aspect of the relationship between them. The lack of detail in such circumstances does not prevent one from determining that there is still a binding agreement between them. In the instant case, we conclude that the jury had sufficient evidence of a contract, and that vagueness as to some terms was not so overwhelming that it voided the basic understanding which was found to exist between the parties. Accordingly, we reject the contention by Longview that indefiniteness of the agreement between it and Jeannette precluded any relief to Jeannette in this case.

Next, Longview asserts that the judgment of the trial court should be reversed, and judgment n.o.v. should have been entered in its favor, because the alleged contract was unenforceable due to an absence of consideration. More specifically, the Appellant maintains that Jeannette made no promises and suffered no bargain-for detriment, which would have furnished consideration for the alleged contract. In support of its position, Longview refers to the case of Utility Appliance Corp. v. Kuhns, 393 Pa. 414, 143 A.2d 35 (1958).

In the Utility Appliance case, a distributor maintained that a manufacturer had breached an oral contract for the exclusive sale and distribution of the manufacturer’s products. The Supreme Court held that judgment n.o.v. should have been granted in favor of the manufacturer because of the absence of any consideration furnished by the distributor. In reaching this conclusion, the Court pointed out, inter alia, that the distributor did not promise to invest time, money or effort to promote the sale of the manufacturer’s product, and that the distributor was under no duty to purchase any of the manufacturer’s product.

The decision in the Utility Appliance case does not provide support for the position of Longview in this case, for the record reveals that Jeannette offered various promises, unlike the distributor involved in the Utility Appliance case. Jeannette assured Longview that Jeannette would be able to supply its expertise to identify potential purchasers of the interleaving paper which it had proposed that Longview would supply. Such expertise had been developed through Jeannette’s long experience and contacts it had made in the industry. It offered to share its valuable knowledge concerning the particular needs of such customers, and introduce Longview’s paper to them. Further, Jeannette promised to entertain such customers at its own expense, and to service the accounts by handling customer problems or complaints, without the necessity of any involvement by Longview or its employees. Such entertainment and servicing would have involved costs for Jeannette, and produced savings for Longview. Most importantly, Jeannette offered to guarantee payment on all orders, so as to eliminate any risk to Longview arising from a lack of payments or a delay in payments by any customers. In view of such assurances, we reject the argument by Long-view that there was a lack of evidence of promises from the Plaintiff which would comprise consideration in the asserted brokerage agreement between the parties.

The Appellant further contends that the trial court should have granted it judgment n.o.v. because the asserted contract was unenforceable under the Statute of Frauds. The Statute of Frauds cited by Longview appears in Article Two of the Uniform Commercial Code and provides that a contract for the sale of goods for the price of $500.00 or more is not enforceable unless there is some writing sufficient to indicate that a contract has been made between the parties. See 13 Pa. C.S.A. § 2201(a). However, it is clear that Article Two of the Code applies to transactions involving the sale of goods from one party to another, rather than to agreements for services. See 13 Pa.C.S.A. § 2102.

The understanding which the jury could have justifiably found to exist between Longview and Jeannette was for the former to employ the services of the latter as a broker. It was not an agreement calling for the sale of any particular amount of any paper or other goods from the manufacturer to Jeannette. Rather, it was an understanding that Jeannette would provide services to the manufacturer in return for a 5% commission on any goods sold through such a brokerage arrangement. The Statute of Frauds does not require that such an agreement be in writing to be enforceable. Therefore, we must reject the claim that the trial court erred in refusing to grant judgment n.o.v. to Long-view based upon the lack of a written agreement between the parties.

Longview next argues that judgment non obstante veredicto should have been entered in its favor by the trial court as to Jeannette’s claim of intentional interference with prospective contractual relations. The Appellant argues that Jeannette failed to prove any of the elements of that tort.

In the case of Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 208, 412 A.2d 466, 471 (1979), relying upon its earlier discussion of the issue in Glenn v. Point Park College, 441 Pa. 474, 479-80, 272 A.2d 895, 898 (1971), the Supreme Court set forth the following four elements which must appear in order to establish a cause of action for intentional interference with prospective contractual relations:

(1) a prospective contractual relation;

(2) the purpose or intent to harm the plaintiff by preventing the relation from occurring;

(3) the absence of privilege or justification on the part of the defendant; and

(4) the occasioning of actual damage resulting from the defendant’s conduct.

We find that all four elements were established in the proof submitted by the Plaintiff in the instant case. First, the Plaintiff submitted sufficient evidence of a prospective contractual relation. That term is difficult to define precisely. In Thompson Coal Company v. Pike Coal Company, supra, 488 Pa. at 208, 412 A.2d at 471, the Supreme Court said, “It is something less than a contractual right, something more than a mere hope.” In Glenn v. Point Park College, supra, 441 Pa. at 480-81, 272 A.2d at 898-99, the Court described this element as not a certainty, but more like a reasonable likelihood or probability. In this case, Jeannette was not able to prove with certainty that it would have continued to enjoy a contractual relationship with Allegheny Ludlum. However, it certainly satisfied the burden of showing that there was a reasonable likelihood or probability of such an uninterrupted relationship if it had been able to continue to provide the same type of interleaving paper as it had in the past, without the interference of Longview’s direct sales efforts. In that regard, the evidence established that Jeannette had dealt with the specialty steel producer for many years, on behalf of several different manufacturers, selling the same type of interleaving paper. There was no evidence whatsoever to indicate that Allegheny Ludlum would have severed that relationship, had Jeannette begun to offer it the interleaving paper manufactured by Longview, which Allegheny Ludlum found to be satisfactory for its needs. Thus, the element of a prospective contractual relation was established.

The other elements of the cause of action of intentional interference with a prospective contractual relationship were also present. The Defendant’s purpose or intent to harm the Plaintiff, by preventing the relation from occurring, was obvious. By selling directly to Allegheny Ludlum, without Jeannette’s involvement as a broker, Longview cost Jeannette, and saved for itself, the 5% brokerage commission which Jeannette would have earned on such sales. There was certainly no privilege or justification on the part of Longview for such financial harm to the Plaintiff. The only intention Longview could have entertained, under these facts, was to eliminate Jeannette as a broker in sales of the southern interleaving paper to Allegheny Ludlum, and to gain the full profits in such business for itself. Finally, the element of actual damage resulting from Long-view’s conduct was evident. Jeannette was denied a 5% commission on all of the interleaving paper sold by Long-view to Allegheny Ludlum.

Consequently, we conclude that there was ample evidence for the jury to properly find that the Defendant tortiously interferred with the Plaintiff’s prospective contractual relationship with Allegheny Ludlum. Therefore, there was no error in the trial court’s denial of Longview’s request for judgment n.o.v. as to that aspect of the Plaintiff’s case. An award of damages grounded upon the tortious interference contentions of the Plaintiff was justified.

We next turn to the assertions by Longview that a new trial should have been granted because of alleged errors in the trial court’s charge to the jury. In support of this argument, the Appellant cites 13 different purported areas of error in the charge. These include asserted mistakes in the instructions which were given, as well as in the trial court’s failure or refusal to include certain matters in its charge. Within the 13 major areas of alleged error raised by the Appellant are included numerous sub-groups of purported mistakes in the instructions by the trial court. Some portions of the charge challenged by the Appellant cover several pages of transcript. In making this blunderbuss attack on the charge of the trial court, the Appellant has not favored us with citation to any case precedent or other authority as support for its assertions of error.

Any detailed recitation of the Appellant’s individual claims of error regarding the instructions to the jury would result in an opinion many times the length of this one. In short, none of the contentions raised by the Appellant concerning the charge of the trial court merit such a detailed analysis. Suffice it to state that we have reviewed the charge in its entirety, and find no justification for a new trial, nor any basic, fundamental, or prejudicial error. See Segriff v. Johnston, 402 Pa. 109, 166 A.2d 496 (1960), cert. denied 366 U.S. 941, 81 S.Ct. 1669, 6 L.Ed.2d 851 (1961) on the scope of review in such circumstances. Therefore, we reject the Appellant’s argument that the trial court erred in refusing to grant it a new trial because of claimed errors in the jury instructions.

Finally, the Appellant contends that the trial court improperly refused to strike the award of punitive damages against it in this case. In support of that position, it points out that punitive damages are appropriate to punish and deter only extreme behavior, and, even in the rare instances in which they are justified, are subject to strict control by the court. In support of this position, it cites Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985), in which that view was expressed by Justice Hutchinson, with one other Justice concurring and four Justices concurring in the result. Further, citing Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984) and Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963), Longview pointed out that punitive damages should be imposed only when the conduct of the defendant is malicious, wanton, reckless, willful or oppressive.

In our opinion, the record in this case adequately established malicious, willful and egregious conduct by Longview that comprised both a breach of contract and an intentional interference with prospective contractual relationships between Jeannette and Allegheny Ludlum. Not only did the evidence show that Longview had breached its agreement to allow Jeannette to act as its broker, but it also made it. evident that it used the information and samples Jeannette supplied to it, in furtherance of that contractual relationship, to steal Jeannette’s principal customer. It did so with the knowledge that such actions would have a severe adverse financial impact upon Jeannette, while operating to its own pecuniary benefit. It thereafter sought to hide its dishonesty and lack of reasonable business ethics in the transaction by efforts to eliminate evidence of both its relationship with the Plaintiff, and its reliance upon the information supplied by Jeannette which led to its direct sales to Allegheny Ludlum. In all of these circumstances, we conclude that a basis for an award of punitive damages was established. The conduct of Longview was undoubtedly malicious, willful, and egregious. Accordingly, we find no merit in Longview’s final claim of error.

The Judgment of the trial court is hereby affirmed.

      , As discussed infra in this Opinion, the contract in issue in this case is not governed by the Uniform Commercial Code, as it involves an agreement for a brokerage arrangement, and not an agreement for the sale of goods per se. However, even assuming that the Code applied in this case, the same rule would apply. See 13 Pa.C.S. § 2204(c), which provides, in pertinent part: "Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably • certain basis for giving an appropriate remedy.”

      . While the author of this Opinion has had grave reservations about the excessive amounts of punitive damages which have been awarded in other cases, it is important to note that the Appellant’s challenge in the instant case is not directed toward the amount of the punitive damage verdict rendered by the jury. Longview only contends that it was inappropriate that any punitive damages be awarded. Accordingly, we do not address the amount of punitive damages determined to be appropriate by the jury in the case, as that issue is not presented for our review.