Monday, November 28, 2011

Fraudulent Concealment Claim Addressed in Lackawanna County Court of Common Pleas

In an Opinion that he handed down on November 7, 2011, in the case of Ruby v. Southwest Credit Systems, L.P., No. 11 - CV - 3462  (C.P. Lack. Co. Nov. 7, 2011 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed the parameters of a claim claim for fraudulent concealment.

In this case, the Plaintiff sued Southwest Credit Systems, L.P. for alleged violations of the Telephone Consumer Protection Act on the grounds that the Defendant repeatedly called his cell phone via an automatic dialing device.

The Defendant, Southwest Credit Systems, filed an Answer to the Complaint along with a Counterclaim for "Fraud-Intentional Non-Disclosure."  The Defendant admitted that it made a number of calls to a cell phone number provided to it by a debtor but that when the Defendant spoke to the Plaintiff on the phone, the Plaintiff did not advise the Defendant that he was not the person who owed money on the account.  As such, the Defendant asserted that the Plaintiff, by virtue of his failure to advise the Defendant that they had the wrong number or person, was precluded from recovering under the terms of the Telephone Consumer Protection Act.

Due to this non-disclosure by the Plaintiff, the Defendant also sought in its Counterclaim to recover its defense costs under an allegation of fraud on the part of the Plaintiff.  The Defendant asserted that the Plaintiff had intentionally misled the Defendant and that the Defendant relied upon the alleged misrepresentation by the Plaintiff.  The allegations in the pleadings were that the Plaintiff simply asked the name of the caller and hung up on the Defendant.

The case came before the court on preliminary objections in the nature of a demurrer filed by the Plaintiff to the fraud Counterclaim asserted by the Defendant.  The Plaintiff asserted that mere silence on his part can not be actionable under Pennsylvania law as fraudulent activity unless the silent party has a duty to speak.

This Opinion provides a detailed review of the law pertaining to civil fraud, fraudulent misrepresentations, and fraudulent concealment claims.

After a review of this law, the Defendant's Counterclaim was ultimately dismissed by Judge Nealon based upon his finding that, although the deliberate concealment of a material fact can constitute fraud under Pennsylvania law, mere silence cannot support a fraud claim unless the party had a duty to speak.

Since there was no statutory, contractual or common law basis to support any claim that the Plaintiff had a duty to speak in this case and advise the Defendant that they were calling the wrong person, Judge Nealon  dismissed the counterclaim for fraud in this action.

Anyone desiring a copy of this case may contact me at

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