Notwithstanding the particularity requirement, malice, intent, knowledge and
other conditions of the mind may be averred generally. Pa.R.C.P. 1019(b).
B. VARIOUS THEORIES OF FRAUD UNDER STATE LAW
1. General Definition
Fraud embraces a wide variety of actionable wrongs and is accomplished through
a wide variety of conduct. See Matter of Estate of Evasew, 526 Pa. 98, 584 A.2d 910 (1990
Generally, fraud is practiced when there is a deception of another to his damage. 16 P.L.E.
Fraud § 1 (1959). Fraud consists of anything calculated to deceive, whether by single act or
combination, or by suppression of truth, or a suggestion of what is false, either by direct
falsehood or by innuendo, by speech or sentence, word of mouth, or look or gesture, and may be
made up by any artifice by which a person is deceived to his disadvantage. Summ. Pa. Jur. 2d
Torts § 16:1 (1991).
2. Traditional Fraud
Under Pennsylvania law the following elements must be pled and proven in an
action to establish a claim for common law fraud:
(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, and
(5) damages to the recipient as the proximate result.
A representation is fraudulently uttered if the maker knows of its falsity when
uttering it, or, in other words, knows the matter to be otherwise than as represented. Neuman v.
Corn Exchange National Bank & Trust Co., 356 Pa. 442, 51 A.2d 759 (1947); Woodward v.
Dietrich, 378 Pa. Super. 111, 548 A.2d 301 (1988).
It is unnecessary that the person defrauded be the one who was specifically
intended by the maker of the misrepresentation to rely thereon, so long as that person’s reliance
was reasonably foreseeable
3. Reckless Misrepresentations
The reckless assertion of a fact in conscious ignorance of its truth or falsity
amounts to actionable fraud. Rodgers v. Prudential Insurance Co. of America, 803 F. Supp.
1025 (M.D. Pa. 1992), aff’d 998 F.2d 1004 (3d Cir. 1993); In re Berringer, 125 B.R. 444 (W.D.
Pa. 1991); Cashdollar v. Mercy Hospital of Pittsburgh, 406 Pa. Super. ,606, 595 A.2d ,70 (1991);
Adams v. Euliano, 299 Pa. Super. 348, 445 A.2d 788 (1982).
4. Innocent Misrepresentations
Fraud may be established even where there is an innocently made
misrepresentation so long as it relates to a matter material to the transaction involved. LaCourse
v. Kiesel, 366 Pa. 385, 77 A.2d 877 (1951); Boyle v. Odell, 413 Pa. Super. 562, 605 A.2d 1260
(1992). “If the misrepresentation is innocently made, then it is actionable only if it relates to a
matter material to the transaction involved; while if the misrepresentation is knowingly made, or
-involves a non-privileged failure to disclose, materiality is not requisite to the action.” Smith v.
Renaut, 387 Pa. Super. 299, 564 A.2d 188 (1989); Mancini v. Morrow, 312 Pa. Super. 192, 458
A.2d 580 (1983). Pleading the materiality of the misrepresentation substitutes for pleading the
fraudulent utterance thereof.
5. Concealment
Fraudulent concealment is simply a type of fraudulent misrepresentation, the
concealment substituting for false words. Mancini v. Morrow, 312 Pa. Super. 192, 458 A.2d 580
(1983) (“active concealment of defects known to be material to a purchaser is legally equivalent
to affirmative misrepresentation”) (citations omitted) (sellers of house fraudulently concealed
6. Silence
Mere silence is not fraud if there is no duty to speak. Wilson v. Donegal Mutual
Insurance Co., 410 Pa. Super. 31, 598 A.2d 1310 (1991); Smith v. Renaut, 387 Pa. Super. 299,
564 A.2d 188 (1989). An exception to the rule that mere silence is not fraud exists when
circumstances impose upon a person the duty to speak and he deliberately remains silent. Scaife
Co. v. Rockwell-Standard Corp., 446 Pa. 280, 285 A.2d 451 (1971), cert. denied, 407 U.S. 920
(1972).
To constitute actionable fraud, the nondisclosure of information must be
intentional and must relate to information which is material to the transaction. Roberts v. Estate
of Barbagallo, 366 Pa. Super. 559, 531 A.2d 1125 (1987). Where the omitted information is not
material to the transaction, there is no fraud. Sevin v. Kelshaw, 417 Pa. Super. 1, 611 A.2d
1232 (1992). Of course, where a party knows of a dangerous and latent defect, such information
is material and he has an affirmative duty to disclose that information. Quashnock v. Frost, 299
Pa. Super. 9, 445 A.2d 121 (1982) (termite infestation of house). However, where the alleged
defects are neither dangerous nor latent, but, in fact, are easily discoverable, there is no duty to
speak. Gozon v. Henderson-Dewey & Associates, Inc., 312 Pa. Super. 242, 458 A.2d 605 (1983)
(cracks in a swimming pool).