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FOX ROTHSCHILD LLP
By: Adam G. Silverstein, Esquire Attorneys for Defendant,
Georgios K. Patsalosawvis, Esquire Wells Fargo Bank, N.A.
Attorney ID Nos. 70201/320783
2800 Kelly Road, Suite 200
Warrington, PA 18976
(215) 345-7500 (Office)
(215) 345-7507 (Facsimile
SHELLY CHAUNCEY, Guardian of the COURT OF COMMON PLEAS
ESTATE OF DEYONNA GARNETT, an OF DELAWARE COUNTY
Incapacitated Person,
Plaintiff CIVIL ACTION
V. Docket No: CV-2022-001599
WELLS FARGO BANK, N.A.
and
GUARDIAN SERVICES OF
PENNSYLVANIA
and
SENIOR CARE OF PENNSYLVANIA,
INC.
Defendants
MEMORANDUM OF LAW IN SUPPORT OF THE PRELIMINARY OBJECTIONS TO
PLAINTIFF’S COMPLAINT OF DEFENDANT, WELLS FARGO BANK, N.A.
Defendant, Wells Fargo Bank, N.A. (“Wells Fargo”), by and through its counsel, Fox
Rothschild LLP, hereby submits this Memorandum of Law in support of its Preliminarily
Objections to the Complaint filed by Plaintiff, Shelly Chauncey, Guardian of the Estate of
Deyonna Garnett, an incapacitated person (‘Plaintiff’), on or about March 8, 2022 (the
“Complaint’).
133470659.3
I. MATTER BEFORE THE COURT
Wells Fargo’s Preliminary Objections to Plaintiff's Complaint (the “Preliminary
Objections”) are currently before the Court for disposition. Plaintiff's Complaint must be
dismissed as a matter of law. In addition to failing to conform to the rules of court and law, the
Complaint fails to set forth any viable cause of action against Wells Fargo and/or is not within the
subject-matter jurisdiction of the Civil Division of this Honorable Court.
II. ISSUES PRESENTED
The Preliminary Objections present the following issues for disposition:
)) Should a preliminary objection»pursuant to Pa.R.Civ.P. 1028(a)(1) be sustained, and
Plaintiff's Complaint dismissed, when the Orphans’ Court has mandatory jurisdiction over
the subject-matter of the Complaint (i.e. the administration of an incapacitated person’s
guardianship and/or claims against applicable fiduciaries) pursuant to 20 Pa. C.S. § 711?
Suggest Answer: Yes.
2) Should preliminary objections pursuant to Pa.R.Civ.P. 1028(a)(2) and/or (3) be sustained,
and Plaintiffs Complaint dismissed, when the Complaint, inter alia, (i) is solely premised
upon general conclusory allegations, (ii) fails to allege or identify sufficient factual
support, and/or (iii) does not comply with the pleading requirements of the Pennsylvania
Rules of Civil Procedure, specifically including Pa.R.Civ.P. 1019(b), (f), (h), and (i)?
Suggest Answer: Yes.
3) Should preliminary objections pursuant to Pa.R.Civ.P. 1028(a)(4) be sustained, and
Plaintiff's Complaint dismissed, when the Complaint fails to plead and/or establish any
legally cognizable claim or cause of action as a matter of law?
Suggest Answer: Yes.
4) Should a preliminary objection pursuant to Pa.R.Civ.P. 1028(a)(5) be sustained, and
Plaintiff's Complaint dismissed, when the Complaint fails to include and/or name potential
defendants who are inextricably involved in, and/or whose conduct is the basis of, the
matters allegedly giving rise to the Complaint, such that, without their involvement and
joinder, the Court cannot completely resolve the controversy and render complete relief?
Suggest Answer: Yes.
5) Should a preliminary objection pursuant to Pa.R.Civ.P. 1028(a)(7) be sustained, and
Plaintiff's Complaint dismissed, when available and applicable statutory remedies under
the Probate, Estates and Fiduciaries Code (20 Pa. C.S. § 101, et seq.) have not been
exercised and/or exhausted?
Suggest Answer: Yes.
III. BACKGROUND — THE COMPLAINT
Plaintiff filed the Complaint in her capacity as Guardian of the Estate of Deyonna Garnett,
an incapacitated person (“Deyonna”). See a copy of the Complaint, attached to the Preliminary
Objections as Exhibit“1,” and cited as “the Complaint” herein.' The Complaint relates to the
administration of Deyonna’s guardianship, and only names Wells Fargo, Guardian Services of
Pennsylvania (“GSP”), and Senior Care of Pennsylvania, Inc. (“SCP”) as defendants (collectively,
the “Defendants”). See the Complaint.
Deyonna’s guardianship-related proceedings have been before the Orphans’ Court
Division of this Honorable Court, captioned as In re: Estate of Deyonna Garnett, an Incapacitated
Person, O.C. No. 449-1983 (the “Guardianship Proceedings”). From what can be discerned, the
Complaint relates to (1) Wells Fargo’s service as the Guardian of Deyonna’s Estate from on or
about February 2, 1999 until its Court-approved resignation and discharge on November 30, 2018
and/or (2) GSP’s and/or SCP’s service(s) as the Guardian(s) of Deyonna’s Estate from on or about
November 30, 2018 through August 18, 2021. Id.
Attached to the Complaint is a November 30, 2018 Adjudication of the Honorable Kevin
F. Kelly in the Guardianship Proceedings (the “Adjudication”), which: (1) recognizes that a First
and Final Account of Wells Fargo, as guardian of the Estate of Deyonna, was filed covering the
period of March 24, 1999 through July 31, 2018 (the “Account”) and called to Audit on November
! Wells Fargo was served with the Complaint on March 14, 2022. On March 31, 2022, Plaintiff's counsel provided
Wells Fargo a thirty-day extension until May 4, 2022 to file a responsive pleading to the Complaint.
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5, 2018; (2) confirms that “all [applicable] parties in interest [were provided] notice of the filing
of the Account, the Statement of Proposed Distribution, and of the time and place of the audit”;
(3) approves the Account and Statement of Proposed Distribution and grants Wells Fargo “leave
to make such assignments, transfers and acquittances as may be necessary to consummate the
same”; and (4) expressly discharges Wells Fargo “of any further liability of as such with respect
to the Estate of Deyonna Garnett.” See the Complaint at Exhibit “C” thereto. Also attached to
the Complaint are the following from the Guardianship Proceedings:
a. A February 2, 1999 Final Decree appointing (1) Althea Garnett and Laura Jane
Knox as the “plenary co-guardians of the person of Deyonna” and (2) First Union
National Bank as the guardian of Deyonna’s Estate, see the Complaint at Exhibit
“B” thereto;
A November 30, 2018 Final Decree approving Wells Fargo’s resignation as the
Guardian of Deyonna’s Estate, and appointing SCP as “successor Guardian of the
Estate of Deyonna,” see the Complaint at Exhibit “C’” thereto; and
An August 18, 2021 Decree (i) removing Althea as the Guardian of the Person of
Deyonna, (ii) removing GSP as the Guardian of the Estate of Deyonna, and (iii)
appointing Shelly Chauncy, Esq., as the new Guardian of the Estate of Deyonna,
see the Complaint at Exhibit “A” thereto.
GSP and/or SCP were appointed as the successor(s) Guardian(s) of Deyonna’s Estate following
Wells Fargo’s Court-approved resignation from that position. See the Complaint at {ff 12,5. The
Complaint alleges that there was an Order for Compromise Settlement issued on May 18, 1983 in
a legal action initiated on behalf
of Deyonna, but that it was not until February 2, 1999 that “Wells
Fargo (formerly First Union National Bank), obtained guardianship of the estate” of Deyonna. See
the Complaint at ff 8-11.
According to the Complaint, “Althea Garrett” is Deyonna’s mother, who was appointed as
a guardian of Deyonna’s person. See the Complaint at { 7. However, the Complaint also refers
to a “Deyonna Garrett,” an “Althea B. Barnett,” and “Althea Garnett.” Id. at fj 8, 11. Upon
information and belief, any references to “Garrett” and/or “Barnett” within the Complaint are
apparent typos for “Garnett,” and in referring to “Althea Garrett and/or “Althea Barnett,” Plaintiff
is referring to “Althea Garnett” (“Althea”), who was appointed as a co-guardian of Deyonna’s
person pursuant to the February 2, 1999 Final Decree attached to the Complaint as Exhibit “B.”
It is readily apparent that conduct and/or transactions relating to Althea form the basis of
the Complaint. See the Complaint at § 15. The Complaint solely references statutory duties of a
guardian(s) of the person found at 20 Pa. C.S. § 5521. See and compare the Complaint at 4 14
with 20 Pa. C.S. § 5521. However, the Complaint does not name Althea and/or Laura Jane Knox
(“Laura”), the “plenary co-guardians of the person of Deyonna” appointed per the February 2,
1999 Final Decree in the Guardianship Proceedings (attached to the Complaint as Exhibit “B”),
nor any current or former guardian(s) of the person(s) for Deyonna, as a defendant(s). See the
Complaint.
Despite the aforementioned inconsistencies and deficiencies, Plaintiff attempts to assert
“claims” for the following against “‘all Defendants” (collectively, the “Claims”):
1 Breach of Contract (Count I), see the Complaint at {| 17-25 (the “Breach of
Contract Claim”);
Negligence (Count II), id. at {J 26-28 (the “Negligence Claim”);
Breach of Fiduciary Duty (Count IID, id. at §] 29-32 (the “Breach of Fiduciary
Duty Claim”);
Fraud (Count IV), id. at §§] 33-36 (the “Fraud Claim”);
Breach of Implied Duty of Good Faith and Fair Dealing (Count V2), id. at §§] 37-
38 (the “Breach of Implied Contractual Duties Claim”); and
? This Count is mislabeled as a second Count IV within the Complaint, and is referred to as Count V herein. See the
Complaint at {§ 33-38.
6. Violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law
(Count VE), id. at 4] 39-43 (the “UTPCPL Claim”).
In support of the Claims, the Complaint generally concludes that “Defendants through their gross
negligence, recklessness or intentional misconduct, breached their duties to Deyonna Garrett
[sic].” Id. at § 15. However, the only “examples” of any alleged “negligence, recklessness or
intentional misconduct” provided within the Complaint are unexplained bare allegations, such as
that the “Defendants,” generally and collectively (collectively, the “Supporting Allegations”):
a, Failed “to prevent waste and misuse of funds by Deyonna’s mother Althea,” see the
Complaint at §15(a);
Released “funds from Deyonna’s account to Althea,” id. at 415(b);
Released “funds from Deyonna’s account to Althea [] despite knowing and/or
having reason to know that Althea [] was intentionally spending the money for her
own lifestyle instead of using the funds for the [sic] Deyonna’s care,” id. at 415(c);
Paid “fees, expenses and compensation to Althea [] for caring for Deyonna,” id. at
{IS@;
Paid “fees and expenses for health insurance coverage premiums, when Defendants
knew, or should have known, that those funds were not being used for health
insurance premiums,” id. at 415(e);
Failed “to confirm that [unspecified] insurance policy premium checks return from
[unspecified] health insurance companies, (due to termination of health coverage),
were deposited back into Deyonna’s accounts, and instead allow[ed] the returned
funds to be issued to Althea [] and deposited/cashed by [Althea], for her own uses,”
id. at {15(f);
g Paid “fees and expenses for medical care and maintenance, when Defendants knew,
or should have known, that those expenses should have been covered by health
insurance, (if same was in force and effect at the time of the medical expenses),”
id. at {15(g),
Failed “to file [unspecified] required tax returns,” id. at §15(h);
Authorized “Althea [] to purchase wheelchair accessible vehicles,” id. at {15(j);
3 This Count is mislabeled as Count V within the Complaint, and is referred to as Count VI herein. See the
Complaint at {j 33-43.
Failed “to investigate Althea[‘s] [] claims that expensive wheelchair accessible
vehicles were stolen or sold,” id. at 15(k);
Failed “to obtain compensation for the value of the stolen or sold vehicles from
Althea [] and/or from auto insurance companies,” id. at 15(1);
Allowed “Althea [] to obtain the value of the stolen or sold vehicles and thereafter
failed[ed] to require Althea deposit the funds received back into Deyonna’s
accounts,” id. at 15(m); and
Failed “to invest Deyonna’s funds, and/or a portion thereof, into [unspecified]
investment products which were not subject to financial market fluctuations,” id.
at J15(0).
The Claims, and the unexplained conclusory “basis” for them set forth within the
Complaint and the Supporting Allegations, are misplaced and fail as a matter of law. As such,
Wells Fargo preliminarily objects to the Complaint, and all of the Claims therein, which must be
dismissed.
IV. WELLS FARGO’S PRELIMINARY OBJECTIONS TO THE COMPLAINT
As filed, the Complaint is improper and must be dismissed. Specifically, the Complaint
must be dismissed pursuant to: (i) Pa.R.Civ.P. 1028(a)(1) for lack of subject-matter jurisdiction;
(ii) Pa.R.Civ.P. 1028(a)(2) and/or (3) given its conclusory nature and insufficient specificity, in
addition to its other failures to otherwise conform with the applicable law(s) and/or rules; (iii)
Pa.R.Civ.P. 1028(a)(4) for failure to plead a legally cognizable claim as a matter of law; (iv)
Pa.R.Civ.P. 1028(a)(5) for failure to join necessary parties; and/or (v) Pa.R.Civ.P. 1028(a)(7) for
failure to exercise or exhaust proper statutory remedies under the Probate, Estates and Fiduciaries
Code (20 Pa. C.S. § 101, et seq.) (the “PEF Code”).
A. The Complaint Must be Dismissed for Lack of Subject-Matter Jurisdiction Pursuant
to Pa.R.Civ.P. 1028(a)(1)
Initially, the Complaint must be dismissed for lack of subject-matter jurisdiction pursuant
to Pa.R.Civ.P. 1028(a)(1). Pa.R.Civ.P. 1028(a)(1) allows for preliminary objections on the ground
of “lack of jurisdiction over the subject matter of the action.” See Pa.R.Civ.P. 1028(a)(1).
The.Complaint is brought by Plaintiff in her capacity as the current Guardian of Deyonna’s
Estate, and exclusively relates to Deyonna’s guardianship. See the Complaint. More specifically,
the Complaint attempts to bring claims relating to Defendants’ respective service(s) as a former
guardian(s) of Deyonna’s Estate. Id. In other words, the Complaint solely relates to matters
involving Deyonna’s guardianship. Id. Moreover, the Complaint, particularly as it relates to Wells
Fargo, relates to matters that have already been addressed and resolved via the Guardianship
Proceedings and the Adjudication. See the Complaint at Exhibit “C” thereto.
Pursuant to statute, the Orphans’ Court Division of this Honorable Court has mandatory
subject-matter jurisdiction over matters relating to Deyonna’s guardianship, and specifically any
matters referenced within the Complaint. See 20 Pa. C.S. § 711(10), (12), (14); the Complaint.
The mandatory jurisdiction of the Orphans’ Court over matters pertaining to Deyonna’s
guardianship has already been established and recognized via the Guardianship Proceedings.
However, despite the mandatory subject-matter jurisdiction of the Orphans’ Court, the Complaint
was improperly filed with this Court’s Civil Division. See the Complaint. Pursuant to 20 Pa. C.S.
§ 711:
Except as provided in section 712 (relating to nonmandatory
exercise of jurisdiction through the orphans! court division) and
section 713 (relating to special provisions for Philadelphia County),
the jurisdiction of the court of common pleas over the following
shall be exercised through its orphans’ court division:
(10) Incapacitated persons’ estates.--The administration
and distribution of the real and personal property of the
estates of incapacitated persons, except where jurisdiction
thereof was acquired by the court of common pleas prior to
January 1, 1969 unless the president judge of such court
orders the jurisdiction of the estate to be exercised through
the orphans' court division.
(12) Fiduciaries.--The appointment, control, settlement of
the accounts of, removal and discharge of, and allowance to
and allocation of compensation among, all fiduciaries of
estates and trusts, jurisdiction of which is exercised through
the orphans’ court division, except that the register shall
continue to grant letters testamentary and of administration
to personal representatives as heretofore.
(14) Legacies, annuities and charges.--Proceedings for the
enforcement of legacies, annuities and charges placed on
real or personal property by will, inter vivos trust, or decree
of an orphans! court or orphans! court division or for the
discharge of the lien thereof.
20 Pa. C.S. § 711(10), (12), (14).
The Complaint and all of the Claims exclusively relate to and/or involve (i) the estate of
Deyonna, an incapacitated person, (ii) the former and/or current fiduciaries appointed as guardians
of Deyonna’s Estate and/or Person, and/or (iii) the Orphans’ Court’s prior decrees and
adjudications in the Guardianship Proceedings. See the Complaint. Accordingly, the Orphans’
Court Division, and not the Civil Division, of this Honorable Court has mandatory subject-matter
jurisdiction over the matters referenced within the Complaint pursuant to 20 Pa. C.S. § 711(10),
(12), and/or (14).4 Given the Civil Division’s lack of subject-matter jurisdiction over the
Complaint, the Complaint must be dismissed.
4 See Yocum v. Com. Nat. Bank of Pennsylvania, 46 A. 94, 94-96 (Pa. 1900) (“*The orphans' court has become a very
important part of our judicial system. The exclusiveness of its jurisdiction and the conclusiveness of its decrees have
been placed, by the acts of sembly and the deci: an
ns of this court, upon a foundation which cannot be shaken.””)
(quoting Whiteside v. Whit 20 Pa. 473, 474 (Pa. 1853)).
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B. The Complaint Must be Dismissed for Failure to Conform to Law or Rule of Court
and/or Insufficient Specificity Pursuant to Pa.R.Civ.P. 1028(a)(2) and/or (3)
The Complaint must also be dismissed for failure to confirm to law or rule of court and/or
insufficient specificity given its general, conclusory, and unspecified nature, and complete dearth
of supporting factual averments. Pa.R.Civ.P. 1028(a)(2) allows for preliminary objections for
“failure of a pleading to conform to law or rule of court,” and Pa.R.Civ.P. 1028(a)(3) provides for
preliminary objections due to “insufficient specificity in a pleading.” See Pa.R.Civ.P. 1028(a)(2)
and (3).
First, the Complaint is not pled with sufficient specificity to “give the defendant[s] notice
of what the plaintiff[’s] claim is and the grounds upon which it rests,” nor does it “formulate the
issues by summarizing th[e] facts essential to support the claim[s],” and it must therefore be
dismissed pursuant to Pa.R.Civ.P. 1028(a)(3). Sevin v. Kelshaw, 417 Pa. Super. 1, 7, 611 A.2d
1232, 1235 (Pa. Super. 1992); see the Complaint. As several examples of the Complaint’s
deficient specificity, the Complaint, inter alia:
Does not include any specific allegations of time and place with respect to any
alleged actions and/or inactions of the Defendants, see the Complaint;
Fails to differentiate between the Defendants and/or identify what particular actions
and/or inactions are being allegedly assigned to which of the Defendants, as well
as when and how any such alleged actions and/or inactions occurred, id.;
Baldly concludes that all of the Defendants have acted with “gross negligence,
recklessness or intentional misconduct,” without setting forth any specific facts
supporting or leading to this conclusion, id. at § 15;
Does not allege nor explain how and/or when with respect to any of the Supporting
Allegations and other averments within Paragraph 15, id.;
Generally alleges that all of the Defendants failed to “prevent waste and misuse of
funds by Deyonna’s mother Althea,” but fails to allege how and/or when, id.;
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Generally alleges that all of the Defendants failed “to file required tax returns,” but
does not specify which alleged required tax returns were not filed, id.;
g Generally alleges that all of the Defendants allowed “Deyonna’s funds to be
invested in, and remain in, non-FDIC insured investment products,” but does not
specify (1) what alleged “non-FDIC insured investment products” are being referred
to, (ii) when any such investment(s) was made, and/or (iii) which Defendant made
any such alleged investment(s), id.;
Generally alleges that all of the “Defendants concealed information regarding funds
they knew and/or should have known were wasted and misused and not returned to
Ms. Garnett’s accounts, instead of investigating the reasons for the waste and
correcting the errors and recovering the money,” but does not clearly identify (i)
which “Ms. Garnett” is being referred to, (ii) which Defendant is alleged to have
engaged in such,conduct, and/or (iii) when and how any such alleged conduct
occurred, id.at §.16;
Generally refers to alleged “contracts” between “Defendants” and “Ms. Garnett
and/or her Estate,” but does not (i) attach any such alleged “contract” or aver the
pertinent terms thereof, (ii) identify the date(s) of any such alleged “contracts,” (iii)
clearly identify which “Ms. Garnett” is being referred to, and/or (iv) plead any
specific averments allowing the Defendants to identify what purported “contracts”
are being referred to, id. at {§ 17-25; and
Provides no factual averments and/or explanations as to (i) how, (ii) who, and/or
(ili) when, with respect to all of the Claims and their respective “supporting”
averments, and instead exclusively relies on general conclusory statements and
conclusions of law, id.at ff] 15-16, 17-43.
Second, even assuming arguendo that the Complaint is properly filed with the Civil
Division, the Complaint fails to comply with several unavoidable requirements of the Pennsylvania
Rules of Civil Procedure, and must accordingly be dismissed pursuant to Pa.R.Civ.P. 1028(a)(2).
Specifically, the Complaint, inter alia:
d. Fails to make averments of time, place, and/or items of special damage with
specificity as required by Pa.R.Civ.P. 1019(f);
e. Asserts a claim(s) based upon alleged breach(es) of unspecified alleged “contracts,”
but fails to (i) state whether any such alleged “contract(s)” is oral or written, (ii)
attach a copy of any such “contract(s),” and/or (ili) state that a copy of any such
“contract(s)” is unavailable, explain why, and set forth its substance, as required by
Pa.R.Civ.P. 1019(h) and (i); and
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f. Fails to make the averments of “fraud” therein with any particularity, as required
by Pa.R.Civ.P. 1019(b).
See Pa.R.Civ.P. 1019(b), (f), (h), and (i); the Complaint. Accordingly, given its extensive
deficiencies in both form and substance, the Complaint must be dismissed pursuant to Pa.R.Civ.P.
1028(a)(2) and/or (3).
C.._ The Complaint Fails to Plead a Cognizable Claim(s) and Must be Dismissed for Legal
Insufficiency (Demurrer) Pursuant to Pa.R.Civ.P. 1028(a)(4)
The Complaint further fails to sufficiently plead and/or establish any of the Claims as a
matter of law, and must accordingly be dismissed pursuant to Pa.R.Civ.P. 1028(a)(4) for legal
insufficiency (demurrer). See Pa.R.Ciy:P»1028(a)(4); the Complaint. “Pennsylvania is a fact-
pleading jurisdiction. A complaint must therefore not only give the defendant notice of what the
plaintiff[’s] claim is and the grounds upon which it rests, but itmust also formulate the issues by
summarizing those facts essential to support the claim.” Youndt y. First Nat. Bank of Port
Allegany, 868 A.2d 539, 544 (Pa. Super. 2005) (quoting Sevin v. Kelshaw, 611 A.2d 1232, 1235
(Pa. Super. 1992)). Preliminary objections in the nature of a demurrer are properly sustained
where, as here, a complaint fails to set forth a cause of action upon which relief may be granted.
Sinn v. Bird, 404 A.2d 672, 672 (Pa. 1979); Greenspan v. U.S. Auto Ass’n, 471 A.2d 856, 858
(Pa. Super. 1984). In determining such a preliminary objection, the Court must accept as true all
well-pleaded facts, but is not to accept as true unwarranted inferences from facts, conclusions of
law,> argumentative allegations, or opinions. See e.g. Hyam v. Upper Montgomery Joint Auth.
160 A.2d 539, 541 (Pa. 1960); Dorfman v. Pa. Soc. Servs. Union-Local 668 of the Serv. Employees
5 Here, the averments constituting the Claims are almost exclusively comprised of improper conclusions of law,
which must be disregarded for purposes of determining these preliminary objections. See Allegheny Cty. v. Com.,
490 A.2d 402, 408 (Pa. 1985) (“The pleader's conclusions or averments of law are not considered to be admitted as
true by a demurrer.”).
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Int’] Union, 752 A.2d 933, 936 (Pa. Commw. 2000); Small v. Horn, 722 A.2d 664, 668 (Pa. 1998).
Here, all of the Claims within the Complaint are legally insufficient, and the Court must therefore
strike and dismiss the Complaint in its entirety pursuant to Pa.R.Civ.P. 1028(a)(4).
a. The Breach of Contract Claim is Legally Insufficient and Must be Stricken and
Dismissed
The.Complaint fails to set forth a legally cognizable claim for breach of contract, and the
Breach of Contract Claim must therefore be stricken and dismissed. “A cause of action for breach
of contract must be established by pleading (1) the existence of a contract, including its essential
terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” CoreStates Bank.
N.A. v. Cutillo, 723 A.2d 1053, 1058(Pa. Super. 1999) (citing Gen. State Auth. v. Coleman Cable
& Wire Co., 365 A.2d 1347, 1349 (Pa. Commw. Ct. 1976)). “While not every term of a contract
must be stated in complete detail, every element must be specifically pleaded.” Id. (citing Snaith
vy. Snaith, 422 A.2d 1379, 1382 (Pa. Super. 1980)). Additionally, pursuant to Pa.R.Civ.P. 1019,
“Tw]hen any claim or defense is based upon an agreement, the pleading shall state specifically if
the agreement is oral or written” id “[w]hen any claim or defense is based upon a writing, the
pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is
not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth
the substance of the writing.” Pa.R.Civ.P. 1019(h) and (i) (emphasis added).
Here, as a matter of law, the Complaint falls short of pleading a viable claim for breach of
contract. See the Complaint. The Complaint does not identify nor attach any written agreement(s)
forming the alleged basis of the Breach of Contract Claim. Id. at {J 17-25; Pa.R.Civ.P. 1019(i).
Nor does the Complaint specify whether any purported contract(s) forming the alleged basis of the
Breach of Contract Claim was written or oral. Id. at {| 17-25; Pa.R.Civ.P. 1019(h). Moreover,
the Complaint does not identify nor plead:
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The existence of any specific purported contract(s) between Wells Fargo and
Plaintiff and/or Deyonna;
The essential terms of any alleged contract(s) between Wells Fargo and Plaintiff
and/or Deyonna;
The alleged existence and/or breach of any contractual duty between Wells Fargo
and Plaintiff and/or Deyonna; and/or
Any claimed specific damages resulting from the alleged breach of any purported
contract(s) between Wells Fargo and Plaintiff and/or Deyonna.
See the Complaint; CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. Ct. 1999)
(“A cause of action for breach of contract must be established by pleading (1) the existence of a
contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3)
resultant damages.”); see also Young v. Wetzel, 260 A.3d 281, 290-91 (Pa. Commw. Ct.),
publication ordered (July 8, 2021), appeal denied, 267 A.3d 479 (Pa. 2021). Instead, the Complaint
merely pleads and relies upon the general conclusion that the “Defendants breached their
[unspecified] contracts.” See the Complaint at 21-25.
In short, the Complaint fails to plead a sufficient claim for breach of contract as a matter
of law, and leaves the Defendants to guess what purported “contracts” the Breach of Contract
Claim is premised upon. See id. As such, the Breach of Contract Claim must be stricken from the
Complaint and dismissed.
b. The Negligence Claim is Legally Insufficient and Must be Stricken and
Dismissed
The Complaint also fails to plead an actionable claim for negligence, and the Negligence
Claim must be stricken and dismissed. “The elements necessary to plead an action in negligence
are: [(i)] the existence ofa duty or obligation recognized by law; [(ii)] a failure on the part of the
defendant to conform to that duty, or a breach thereof; [(iii)] a causal connection between the
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defendant's breach and the resulting injury; and [(iv)] actual loss or damage suffered by the
complainant.” Orner v. Mallick, 527 A.2d 521, 523 (Pa. 1987) (citations omitted).
Here, the Negligence Claim consists of two unexplained and unsupported conclusory
averments, and the Complaint otherwise lacks any pleaded facts establishing the necessary
elements of a claim for negligence. See the Complaint at {| 26-28. Specifically, in support of the
Negligence Claim, Plaintiff generally concludes that:
a. “Defendants owed a duty of care to take reasonable action to protect the assets of
Mrs, Garnett and prevent waste of her assets, because Defendants knew, or should
have known, that Ms. Garnett was relying on Defendants to act in her best
interests,” see the Complaint at §/ 27; and
“Defendants breached their duty of care to Ms. Garnett, and/or her Estate, by taking
unreasonable actions and by failing to act to protect her assets and instead acted in
an unreasonable manner by wasting Ms. Garnett’s funds on improper, unnecessary
and wasteful expenses, by failing to recover wasted funds, and by failing to properly
invest the funds,” see the Complaint at § 28.
However, the Complaint’s averments in “support” of the Negligence Claim do not provide
any factual basis for the general legal conclusions therein, which must be disregarded for purposes
of determining these preliminary objections. See the Complaint at 4] 26-28; Youndt, 868 A.2d at
544; see also, e.g. Hyam, 160 A.2d at 541; Dorfman, 752 A.2d at 936; Small, 722 A.2d at 688.
Specifically, with respect to the Negligence Claim, Plaintiff has failed to, inter alia, plead or
identify (i) how, when, and/or via who Wells Fargo allegedly failed “to conform” to any alleged
duty; (ii) any “actual loss or damage” allegedly suffered by Plaintiff and/or Deyonna; and/or (iii)
any “causal connection” between alleged conduct of Wells Fargo and any “actual loss or damage”
allegedly suffered by Plaintiff and/or Deyonna. Orner, 527 A.2d at 523; see the Complaint.
Plaintiff does not allege, and the Complaint does not contain, any specific facts establishing a
viable claim for negligence, and the Negligence Claim must therefore be stricken and dismissed.
See the Complaint.
15
C. The Breach of Fiduciary Duty Claim is Legally Insufficient and Must be Stricken
and Dismissed
The Complaint similarly fails to plead a cognizable claim for breach of fiduciary duty, and
the Breach of Fiduciary Duty Claim must accordingly be stricken and dismissed. To establish a
breach of fiduciary duty claim, a plaintiff must establish (i) “the existence of a fiduciary
relationship” with the defendant(s), (ii) that the defendant(s) “negligently or intentionally failed to
act in-good faith and solely for [the plaintiffs] benefit,” and (iii) that the plaintiff “suffered an
injury caused by [the defendant(s)’s] breach of his fiduciary duty.” Snyder v. Crusader Servicing
Corp., 231 A.3d 20, 31-32 (Pa. Super, 2020) (citations omitted).
Here, despite being directly contradicted by Plaintiff's other averments within the
Complaint and the Exhibits attached thereto, in support of the Breach of Fiduciary Duty Claim,
Plaintiff generally, and falsely, alleges that “[a]t all relevant times, [all of the] Defendants acted
as a fiduciary over Ms. Garnett’s assets.” See the Complaint at § 30. However, to the extent
Plaintiff is referring to the Defendants’ alleged respective service as the guardian of Deyonna’s
Estate, the Complaint and its attached Exhibits make clear that a// of the Defendants did not serve
in such a role “at all relevant[, yet unspecified,] times,” as the Complaint attaches (1) the
November 30, 2018 Adjudication in the Guardianship Proceedings, which approved the Account
and expressly discharged Wells Fargo ‘‘of any further liability . . . with respect to the Estate of
Deyonna Garnett” and (2) the November 30, 2018 Final Decree approving Wells Fargo’s
esignation as the Guardian of Deyonna’s Estate, and appointing SCP as “successor Guardian of
the Estate of Deyonna.” See the Complaint at Exhibit “C” thereto.
Additionally, with respect to the Breach of Fiduciary Duty Claim, Plaintiff has failed to,
inter alia, plead or specify (i) how, when, and/or via who Wells Fargo allegedly “negligently or
intentionally failed to act in good faith and solely for [the plaintiffs] benefit,” (ii) the existence of
16
an applicable fiduciary relationship between Wells Fargo and Plaintiff and/or Deyonna, and/or
(ii) any actual or specific injury purportedly caused by Wells Fargo’s alleged breach of fiduciary
duty. Snyder, 231 A.3d at 31-32; see the Complaint at {{f 29-32. As such, the Complaint does not
contain a viable claim for breach(es) of fiduciary duty against Wells Fargo as a matter of law. See
id.
Moreover, as set forth above, any claims relating to Deyonna, the Guardianship
Proceedings, and/or any alleged breaches of duty(ies) by persons alleged to have a fiduciary
relationship with Deyonna, specifically including the Breach of Fiduciary Duty Claim, must be
brought before the Orphans’ Court underits mandatory jurisdiction pursuant to 20 Pa. C.S. § 711.
See 20 Pa. C.S. § 711(10), (12), (14). Accordingly, for all of the foregoing reasons, the Breach of
Fiduciary Duty Claim must be stricken and dismissed from the Complaint.
d. The Fraud Claim is Legally Insufficient and Must be Stricken and Dismissed
The Fraud Claim also fails as a matter of law, and must be stricken and dismissed. The
Fraud Claim consists of a total of three (3) general, unspecified, and conclusory averments, all of
which can readily be set forth below, and are as follows:
a. “Defendant made misrepresentations which were fraudulent misrepresentations of
material fact, which included, statements that Deyonna’s funds needed to be spent
on unnecessary medical expenses, vehicles, payments to Ms. Garnett’s mother,
when she was not in her mother’s care and for health insurance payments which
were improperly made”;
“Those misrepresentations were relied upon by Deyonna and/or her representatives
and family members to the detriment of Deyonna’s assets”; and
“Plaintiff's reliance on Defendants’ misrepresentations were factual causes of the
harm, waste and damages suffered by Deyonna.”
See the Complaint at ff] 34-36.
17
“The elements of fraud, or intentional misrepresentation, are (1) a representation; (2) which
is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness
as to whether it is true or false; (4) with intent of misleading another into relying on it; (5) justifiable
reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the
reliance.” Presbyterian Med. Ctr. v. Budd, 832 A.2d 1066, 1072 (Pa. Super. 2003) (citing Gibbs
v. Ernst, 647 A.2d 882, 889 (Pa. 1994)). “In order to protect those against whom generalized and
unsupported fraud may be'levied, the Pennsylvania Rules of Civil Procedure require that fraud be
‘averred with particularity, 999 66 [t]hus, a party raising a claim of fraud must set forth in its pleadings
specific facts to support the alleged fraud.”Id. (quoting Pa.R.Civ.P. 1019(b)). Importantly, “every
element of [a] fraud claim [must be pled with] with sufficient particularity.” Id.
However, here, the Fraud Claim falls»egregiously short of the applicable pleading
requirements. See the Complaint at {J 34-36. The Fraud Claim is not pled with particularity and
is based upon general conclusory allegations of unspecified “misrepresentations.” Id. at {J 34-36;
Pa.R.Civ.P. 1019(b). The Complaint fails to identify, among other things, (i) the specific subject
and/or substance of any alleged misrepresentation(s), (ii) who and or which of the Defendants
made any alleged misrepresentation(s), (iii) when any alleged misrepresentation(s) was made,
and/or (iv) how any alleged misrepresentation(s) was made. See the Complaint.
There is simply no basis within the Complaint for Wells Fargo to discern any specific
alleged misrepresentation(s) that Plaintiff is attempting to impute upon it via the Complaint. Id.
In addition to failing to allege any specific alleged misrepresentation(s), the Complaint also fails
to plead the other required elements of a claim for fraud and/or fraudulent misrepresentation. Id.
For instance, because the Complaint does not identify any specific purported
“misrepresentation(s)” made by Wells Fargo to Plaintiff and/or Deyonna, in turn, it is also unable
18
to establish that any such unidentified “misrepresentation’ 99 cee i s material.” See Presbyterian Med.
Ctr., 832 A.2d at 1072 (citation omitted); the Complaint. Additionally, the Complaint does not
allege nor establish: (i) that Wells Fargo made any purported unspecified “misrepresentation” (a)
“falsely, with knowledge of its falsity or recklessness as to whether it is true or false” and/or (b)
“with intent of misleading another into relying on it”; (ii) Plaintiff's and/or Deyonna’s reliance on
any such purported unspecified “misrepresentation” of Wells Fargo; and/or (iii) any specific
resulting injury proximately caused by Plaintiff's and/or Deyonna’s reliance on any such purported
unspecified “misrepresentation” of Wells Fargo. Id.
Moreover, the Complaint utterly. disregards the particularity requirements of the
Pennsylvania Rules of Civil Procedure, particularly with respect to the Fraud Claim, and
improperly pleads general unsupported and/or, unexplainedlegal conclusions, such that (i)
unspecified “misrepresentations were relied upon by Deyonna, and/or her [unspecified]
representatives and [unspecified] family members” and/or (ii) “Plaintiff’s [unexplained] reliance
on Defendants’ [unspecified] misrepresentation were factual causes of the [unspecified alleged]
harm, waste and damages [allegedly] suffered by Deyonna.” See the Complaint at {§35-36;
Pa.R.Civ.P. 1019(b). Accordingly, the Complaint fails to plead the required elements to establish
a claim for “fraud” and/or fraudulent misrepresentation as a matter of law, and also fails to satisfy
the particularity requirements of Pa.R.Civ.P. 1019(b), and the Fraud Claim must therefore be
stricken and dismissed.
e. The Breach of Implied Contractual Duties Claim is Legally Insufficient and
Must be Stricken and Dismissed
Plaintiff's attempted Breach of Implied Contractual Duties Claim fails as a matter of law
and must be dismissed because: (1) Pennsylvania law does not recognize such a cause of action
and/or (2) it otherwise fails for the same reasons as Plaintiff's attempted Breach of Contract Claim.
19
The Breach of Implied Contractual Duties Claim consists of one (1) conclusory Paragraph within
the Complaint, which generally states:
The conduct of the Defendants destroyed and/or injured Deyonna
[sic] right to receive benefits of the full value of her Estate by failing
to perform their necessary and discretionary duties and obligations
to Deyonna in a reasonable manner and consistent with their legal
obligations to Deyonna.
See the Complaint at §] 38. The Complaint does not specify (i) what “conduct of the Defendants”
is being referred to, or (ii) what “necessary and discretionary duties and obligations” and/or “legal
obligations” are being referred to, in relation to the Breach of Implied Contractual Duties Claim.
See the Complaint at ¥ 38.
However, regardless of these deficiencies with the substance of the Breach of Implied
Contractual Duties Claim, any such claim “for breach of the implied covenant of good faith and
fair dealing is subsumed in a breach of contract claim,” and is not an independent cause of action
under Pennsylvania law. LSI Title Agence Inc. v. Evaluation Servs., Inc., 951 A.2d 384, 392 (Pa.
Super. 2008). Accordingly, the Breach of Implied Contractual Duties Claim does not, and cannot,
set forth a viable cause of action under Pennsylvania law, as it has been held that “a breach of the
covenant of good faith is nothing more than a breach of contract claim and that separate causes of
action cannot be maintained for each, even in the alternative.” JHE, Inc. v. Se. Pennsylvania
Transp. Auth., No. 1790 NOV.TERM 2001, 2002 WL 1018941, at *7 (Pa. Com. PI. Phila. Cnty.
May 17, 2002); see also Middletown Carpentry, Inc. v. C. Arena & Co., No. 2698, 2001 WL
1807379, at *6 (Pa. Com. PI. Phila. Cnty. Nov. 27, 2001) (“there is no independent cause of action
for breach of the implied duty of good faith absent an underlying breach of contract”). As such,
the Breach of Implied Contractual Duties Claim must be stricken and dismissed because (1) it is
not an independent cause of action under Pennsylvania law and/or, alternatively, (2) it otherwise
20
fails and is legally insufficient for all of the same reasons as the Breach of Contract Claim. See
id.
f. The UTPCPL Claim is Legally Insufficient and Must be Stricken and Dismissed
Lastly, the UTPCPL Claim also fails as a matter of law and must be stricken and dismissed
for legal insufficiency.
Initially, Plaintiff's purported legal basis for the UTPCPL Claim is unclear. Plaintiff
generally avers that “[t]his action is also brought under the PENNSYLVANIA CONSUMER
PROTECTION LAW 73 P.S. §202.1, et seq., for violation of the act in that the [unspecified]
Defendant at all times relevant [] engaged'in unfair and deceptive business practices prohibited by
the Pennsylvania Consumer Protection Law.” See the Complaint at § 40. However, the statutory
section(s) cited and invoked by Plaintiff as the basis for the UTPCPL Claim, 73 P.S. §202.1, et
seq., relates to “the distribution and sales of gasoline and petroleum products in the
Commonwealth of Pennsylvania.” Compare the Complaint at {40 with 73 Pa. Stat. Ann. § 202-
1. Given the discernable averments within the Complaint, Plaintiffs request for relief premised
upon 73 Pa. Stat. Ann. § 202-1, et seq. makes no logical sense. Compare the Complaint with 73
Pa. Stat. Ann. § 202-1, et seq.
Even assuming arguendo that Plaintiff intended to cite and reference Pennsylvania’s Unfair
Trade Practices and Consumer Protection Law found under 73 Pa. Stat.
Preview
FOX ROTHSCHILD LLP By: Adam G. Silverstein, Esquire Attorneys for Defendant, Georgios K. Patsalosawvis, Esquire Wells Fargo Bank, N.A. Attorney ID Nos. 70201/320783 2800 Kelly Road, Suite 200 Warrington, PA 18976 (215) 345-7500 (Office) (215) 345-7507 (Facsimile SHELLY CHAUNCEY, Guardian of the COURT OF COMMON PLEAS ESTATE OF DEYONNA GARNETT, an OF DELAWARE COUNTY Incapacitated Person, Plaintiff CIVIL ACTION V. Docket No: CV-2022-001599 WELLS FARGO BANK, N.A. and GUARDIAN SERVICES OF PENNSYLVANIA and SENIOR CARE OF PENNSYLVANIA, INC. Defendants MEMORANDUM OF LAW IN SUPPORT OF THE PRELIMINARY OBJECTIONS TO PLAINTIFF’S COMPLAINT OF DEFENDANT, WELLS FARGO BANK, N.A. Defendant, Wells Fargo Bank, N.A. (“Wells Fargo”), by and through its counsel, Fox Rothschild LLP, hereby submits this Memorandum of Law in support of its Preliminarily Objections to the Complaint filed by Plaintiff, Shelly Chauncey, Guardian of the Estate of Deyonna Garnett, an incapacitated person (‘Plaintiff’), on or about March 8, 2022 (the “Complaint’). 133470659.3 I. MATTER BEFORE THE COURT Wells Fargo’s Preliminary Objections to Plaintiff's Complaint (the “Preliminary Objections”) are currently before the Court for disposition. Plaintiff's Complaint must be dismissed as a matter of law. In addition to failing to conform to the rules of court and law, the Complaint fails to set forth any viable cause of action against Wells Fargo and/or is not within the subject-matter jurisdiction of the Civil Division of this Honorable Court. II. ISSUES PRESENTED The Preliminary Objections present the following issues for disposition: )) Should a preliminary objection»pursuant to Pa.R.Civ.P. 1028(a)(1) be sustained, and Plaintiff's Complaint dismissed, when the Orphans’ Court has mandatory jurisdiction over the subject-matter of the Complaint (i.e. the administration of an incapacitated person’s guardianship and/or claims against applicable fiduciaries) pursuant to 20 Pa. C.S. § 711? Suggest Answer: Yes. 2) Should preliminary objections pursuant to Pa.R.Civ.P. 1028(a)(2) and/or (3) be sustained, and Plaintiffs Complaint dismissed, when the Complaint, inter alia, (i) is solely premised upon general conclusory allegations, (ii) fails to allege or identify sufficient factual support, and/or (iii) does not comply with the pleading requirements of the Pennsylvania Rules of Civil Procedure, specifically including Pa.R.Civ.P. 1019(b), (f), (h), and (i)? Suggest Answer: Yes. 3) Should preliminary objections pursuant to Pa.R.Civ.P. 1028(a)(4) be sustained, and Plaintiff's Complaint dismissed, when the Complaint fails to plead and/or establish any legally cognizable claim or cause of action as a matter of law? Suggest Answer: Yes. 4) Should a preliminary objection pursuant to Pa.R.Civ.P. 1028(a)(5) be sustained, and Plaintiff's Complaint dismissed, when the Complaint fails to include and/or name potential defendants who are inextricably involved in, and/or whose conduct is the basis of, the matters allegedly giving rise to the Complaint, such that, without their involvement and joinder, the Court cannot completely resolve the controversy and render complete relief? Suggest Answer: Yes. 5) Should a preliminary objection pursuant to Pa.R.Civ.P. 1028(a)(7) be sustained, and Plaintiff's Complaint dismissed, when available and applicable statutory remedies under the Probate, Estates and Fiduciaries Code (20 Pa. C.S. § 101, et seq.) have not been exercised and/or exhausted? Suggest Answer: Yes. III. BACKGROUND — THE COMPLAINT Plaintiff filed the Complaint in her capacity as Guardian of the Estate of Deyonna Garnett, an incapacitated person (“Deyonna”). See a copy of the Complaint, attached to the Preliminary Objections as Exhibit“1,” and cited as “the Complaint” herein.' The Complaint relates to the administration of Deyonna’s guardianship, and only names Wells Fargo, Guardian Services of Pennsylvania (“GSP”), and Senior Care of Pennsylvania, Inc. (“SCP”) as defendants (collectively, the “Defendants”). See the Complaint. Deyonna’s guardianship-related proceedings have been before the Orphans’ Court Division of this Honorable Court, captioned as In re: Estate of Deyonna Garnett, an Incapacitated Person, O.C. No. 449-1983 (the “Guardianship Proceedings”). From what can be discerned, the Complaint relates to (1) Wells Fargo’s service as the Guardian of Deyonna’s Estate from on or about February 2, 1999 until its Court-approved resignation and discharge on November 30, 2018 and/or (2) GSP’s and/or SCP’s service(s) as the Guardian(s) of Deyonna’s Estate from on or about November 30, 2018 through August 18, 2021. Id. Attached to the Complaint is a November 30, 2018 Adjudication of the Honorable Kevin F. Kelly in the Guardianship Proceedings (the “Adjudication”), which: (1) recognizes that a First and Final Account of Wells Fargo, as guardian of the Estate of Deyonna, was filed covering the period of March 24, 1999 through July 31, 2018 (the “Account”) and called to Audit on November ! Wells Fargo was served with the Complaint on March 14, 2022. On March 31, 2022, Plaintiff's counsel provided Wells Fargo a thirty-day extension until May 4, 2022 to file a responsive pleading to the Complaint. 3 5, 2018; (2) confirms that “all [applicable] parties in interest [were provided] notice of the filing of the Account, the Statement of Proposed Distribution, and of the time and place of the audit”; (3) approves the Account and Statement of Proposed Distribution and grants Wells Fargo “leave to make such assignments, transfers and acquittances as may be necessary to consummate the same”; and (4) expressly discharges Wells Fargo “of any further liability of as such with respect to the Estate of Deyonna Garnett.” See the Complaint at Exhibit “C” thereto. Also attached to the Complaint are the following from the Guardianship Proceedings: a. A February 2, 1999 Final Decree appointing (1) Althea Garnett and Laura Jane Knox as the “plenary co-guardians of the person of Deyonna” and (2) First Union National Bank as the guardian of Deyonna’s Estate, see the Complaint at Exhibit “B” thereto; A November 30, 2018 Final Decree approving Wells Fargo’s resignation as the Guardian of Deyonna’s Estate, and appointing SCP as “successor Guardian of the Estate of Deyonna,” see the Complaint at Exhibit “C’” thereto; and An August 18, 2021 Decree (i) removing Althea as the Guardian of the Person of Deyonna, (ii) removing GSP as the Guardian of the Estate of Deyonna, and (iii) appointing Shelly Chauncy, Esq., as the new Guardian of the Estate of Deyonna, see the Complaint at Exhibit “A” thereto. GSP and/or SCP were appointed as the successor(s) Guardian(s) of Deyonna’s Estate following Wells Fargo’s Court-approved resignation from that position. See the Complaint at {ff 12,5. The Complaint alleges that there was an Order for Compromise Settlement issued on May 18, 1983 in a legal action initiated on behalf of Deyonna, but that it was not until February 2, 1999 that “Wells Fargo (formerly First Union National Bank), obtained guardianship of the estate” of Deyonna. See the Complaint at ff 8-11. According to the Complaint, “Althea Garrett” is Deyonna’s mother, who was appointed as a guardian of Deyonna’s person. See the Complaint at { 7. However, the Complaint also refers to a “Deyonna Garrett,” an “Althea B. Barnett,” and “Althea Garnett.” Id. at fj 8, 11. Upon information and belief, any references to “Garrett” and/or “Barnett” within the Complaint are apparent typos for “Garnett,” and in referring to “Althea Garrett and/or “Althea Barnett,” Plaintiff is referring to “Althea Garnett” (“Althea”), who was appointed as a co-guardian of Deyonna’s person pursuant to the February 2, 1999 Final Decree attached to the Complaint as Exhibit “B.” It is readily apparent that conduct and/or transactions relating to Althea form the basis of the Complaint. See the Complaint at § 15. The Complaint solely references statutory duties of a guardian(s) of the person found at 20 Pa. C.S. § 5521. See and compare the Complaint at 4 14 with 20 Pa. C.S. § 5521. However, the Complaint does not name Althea and/or Laura Jane Knox (“Laura”), the “plenary co-guardians of the person of Deyonna” appointed per the February 2, 1999 Final Decree in the Guardianship Proceedings (attached to the Complaint as Exhibit “B”), nor any current or former guardian(s) of the person(s) for Deyonna, as a defendant(s). See the Complaint. Despite the aforementioned inconsistencies and deficiencies, Plaintiff attempts to assert “claims” for the following against “‘all Defendants” (collectively, the “Claims”): 1 Breach of Contract (Count I), see the Complaint at {| 17-25 (the “Breach of Contract Claim”); Negligence (Count II), id. at {J 26-28 (the “Negligence Claim”); Breach of Fiduciary Duty (Count IID, id. at §] 29-32 (the “Breach of Fiduciary Duty Claim”); Fraud (Count IV), id. at §§] 33-36 (the “Fraud Claim”); Breach of Implied Duty of Good Faith and Fair Dealing (Count V2), id. at §§] 37- 38 (the “Breach of Implied Contractual Duties Claim”); and ? This Count is mislabeled as a second Count IV within the Complaint, and is referred to as Count V herein. See the Complaint at {§ 33-38. 6. Violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law (Count VE), id. at 4] 39-43 (the “UTPCPL Claim”). In support of the Claims, the Complaint generally concludes that “Defendants through their gross negligence, recklessness or intentional misconduct, breached their duties to Deyonna Garrett [sic].” Id. at § 15. However, the only “examples” of any alleged “negligence, recklessness or intentional misconduct” provided within the Complaint are unexplained bare allegations, such as that the “Defendants,” generally and collectively (collectively, the “Supporting Allegations”): a, Failed “to prevent waste and misuse of funds by Deyonna’s mother Althea,” see the Complaint at §15(a); Released “funds from Deyonna’s account to Althea,” id. at 415(b); Released “funds from Deyonna’s account to Althea [] despite knowing and/or having reason to know that Althea [] was intentionally spending the money for her own lifestyle instead of using the funds for the [sic] Deyonna’s care,” id. at 415(c); Paid “fees, expenses and compensation to Althea [] for caring for Deyonna,” id. at {IS@; Paid “fees and expenses for health insurance coverage premiums, when Defendants knew, or should have known, that those funds were not being used for health insurance premiums,” id. at 415(e); Failed “to confirm that [unspecified] insurance policy premium checks return from [unspecified] health insurance companies, (due to termination of health coverage), were deposited back into Deyonna’s accounts, and instead allow[ed] the returned funds to be issued to Althea [] and deposited/cashed by [Althea], for her own uses,” id. at {15(f); g Paid “fees and expenses for medical care and maintenance, when Defendants knew, or should have known, that those expenses should have been covered by health insurance, (if same was in force and effect at the time of the medical expenses),” id. at {15(g), Failed “to file [unspecified] required tax returns,” id. at §15(h); Authorized “Althea [] to purchase wheelchair accessible vehicles,” id. at {15(j); 3 This Count is mislabeled as Count V within the Complaint, and is referred to as Count VI herein. See the Complaint at {j 33-43. Failed “to investigate Althea[‘s] [] claims that expensive wheelchair accessible vehicles were stolen or sold,” id. at 15(k); Failed “to obtain compensation for the value of the stolen or sold vehicles from Althea [] and/or from auto insurance companies,” id. at 15(1); Allowed “Althea [] to obtain the value of the stolen or sold vehicles and thereafter failed[ed] to require Althea deposit the funds received back into Deyonna’s accounts,” id. at 15(m); and Failed “to invest Deyonna’s funds, and/or a portion thereof, into [unspecified] investment products which were not subject to financial market fluctuations,” id. at J15(0). The Claims, and the unexplained conclusory “basis” for them set forth within the Complaint and the Supporting Allegations, are misplaced and fail as a matter of law. As such, Wells Fargo preliminarily objects to the Complaint, and all of the Claims therein, which must be dismissed. IV. WELLS FARGO’S PRELIMINARY OBJECTIONS TO THE COMPLAINT As filed, the Complaint is improper and must be dismissed. Specifically, the Complaint must be dismissed pursuant to: (i) Pa.R.Civ.P. 1028(a)(1) for lack of subject-matter jurisdiction; (ii) Pa.R.Civ.P. 1028(a)(2) and/or (3) given its conclusory nature and insufficient specificity, in addition to its other failures to otherwise conform with the applicable law(s) and/or rules; (iii) Pa.R.Civ.P. 1028(a)(4) for failure to plead a legally cognizable claim as a matter of law; (iv) Pa.R.Civ.P. 1028(a)(5) for failure to join necessary parties; and/or (v) Pa.R.Civ.P. 1028(a)(7) for failure to exercise or exhaust proper statutory remedies under the Probate, Estates and Fiduciaries Code (20 Pa. C.S. § 101, et seq.) (the “PEF Code”). A. The Complaint Must be Dismissed for Lack of Subject-Matter Jurisdiction Pursuant to Pa.R.Civ.P. 1028(a)(1) Initially, the Complaint must be dismissed for lack of subject-matter jurisdiction pursuant to Pa.R.Civ.P. 1028(a)(1). Pa.R.Civ.P. 1028(a)(1) allows for preliminary objections on the ground of “lack of jurisdiction over the subject matter of the action.” See Pa.R.Civ.P. 1028(a)(1). The.Complaint is brought by Plaintiff in her capacity as the current Guardian of Deyonna’s Estate, and exclusively relates to Deyonna’s guardianship. See the Complaint. More specifically, the Complaint attempts to bring claims relating to Defendants’ respective service(s) as a former guardian(s) of Deyonna’s Estate. Id. In other words, the Complaint solely relates to matters involving Deyonna’s guardianship. Id. Moreover, the Complaint, particularly as it relates to Wells Fargo, relates to matters that have already been addressed and resolved via the Guardianship Proceedings and the Adjudication. See the Complaint at Exhibit “C” thereto. Pursuant to statute, the Orphans’ Court Division of this Honorable Court has mandatory subject-matter jurisdiction over matters relating to Deyonna’s guardianship, and specifically any matters referenced within the Complaint. See 20 Pa. C.S. § 711(10), (12), (14); the Complaint. The mandatory jurisdiction of the Orphans’ Court over matters pertaining to Deyonna’s guardianship has already been established and recognized via the Guardianship Proceedings. However, despite the mandatory subject-matter jurisdiction of the Orphans’ Court, the Complaint was improperly filed with this Court’s Civil Division. See the Complaint. Pursuant to 20 Pa. C.S. § 711: Except as provided in section 712 (relating to nonmandatory exercise of jurisdiction through the orphans! court division) and section 713 (relating to special provisions for Philadelphia County), the jurisdiction of the court of common pleas over the following shall be exercised through its orphans’ court division: (10) Incapacitated persons’ estates.--The administration and distribution of the real and personal property of the estates of incapacitated persons, except where jurisdiction thereof was acquired by the court of common pleas prior to January 1, 1969 unless the president judge of such court orders the jurisdiction of the estate to be exercised through the orphans' court division. (12) Fiduciaries.--The appointment, control, settlement of the accounts of, removal and discharge of, and allowance to and allocation of compensation among, all fiduciaries of estates and trusts, jurisdiction of which is exercised through the orphans’ court division, except that the register shall continue to grant letters testamentary and of administration to personal representatives as heretofore. (14) Legacies, annuities and charges.--Proceedings for the enforcement of legacies, annuities and charges placed on real or personal property by will, inter vivos trust, or decree of an orphans! court or orphans! court division or for the discharge of the lien thereof. 20 Pa. C.S. § 711(10), (12), (14). The Complaint and all of the Claims exclusively relate to and/or involve (i) the estate of Deyonna, an incapacitated person, (ii) the former and/or current fiduciaries appointed as guardians of Deyonna’s Estate and/or Person, and/or (iii) the Orphans’ Court’s prior decrees and adjudications in the Guardianship Proceedings. See the Complaint. Accordingly, the Orphans’ Court Division, and not the Civil Division, of this Honorable Court has mandatory subject-matter jurisdiction over the matters referenced within the Complaint pursuant to 20 Pa. C.S. § 711(10), (12), and/or (14).4 Given the Civil Division’s lack of subject-matter jurisdiction over the Complaint, the Complaint must be dismissed. 4 See Yocum v. Com. Nat. Bank of Pennsylvania, 46 A. 94, 94-96 (Pa. 1900) (“*The orphans' court has become a very important part of our judicial system. The exclusiveness of its jurisdiction and the conclusiveness of its decrees have been placed, by the acts of sembly and the deci: an ns of this court, upon a foundation which cannot be shaken.””) (quoting Whiteside v. Whit 20 Pa. 473, 474 (Pa. 1853)). 9 B. The Complaint Must be Dismissed for Failure to Conform to Law or Rule of Court and/or Insufficient Specificity Pursuant to Pa.R.Civ.P. 1028(a)(2) and/or (3) The Complaint must also be dismissed for failure to confirm to law or rule of court and/or insufficient specificity given its general, conclusory, and unspecified nature, and complete dearth of supporting factual averments. Pa.R.Civ.P. 1028(a)(2) allows for preliminary objections for “failure of a pleading to conform to law or rule of court,” and Pa.R.Civ.P. 1028(a)(3) provides for preliminary objections due to “insufficient specificity in a pleading.” See Pa.R.Civ.P. 1028(a)(2) and (3). First, the Complaint is not pled with sufficient specificity to “give the defendant[s] notice of what the plaintiff[’s] claim is and the grounds upon which it rests,” nor does it “formulate the issues by summarizing th[e] facts essential to support the claim[s],” and it must therefore be dismissed pursuant to Pa.R.Civ.P. 1028(a)(3). Sevin v. Kelshaw, 417 Pa. Super. 1, 7, 611 A.2d 1232, 1235 (Pa. Super. 1992); see the Complaint. As several examples of the Complaint’s deficient specificity, the Complaint, inter alia: Does not include any specific allegations of time and place with respect to any alleged actions and/or inactions of the Defendants, see the Complaint; Fails to differentiate between the Defendants and/or identify what particular actions and/or inactions are being allegedly assigned to which of the Defendants, as well as when and how any such alleged actions and/or inactions occurred, id.; Baldly concludes that all of the Defendants have acted with “gross negligence, recklessness or intentional misconduct,” without setting forth any specific facts supporting or leading to this conclusion, id. at § 15; Does not allege nor explain how and/or when with respect to any of the Supporting Allegations and other averments within Paragraph 15, id.; Generally alleges that all of the Defendants failed to “prevent waste and misuse of funds by Deyonna’s mother Althea,” but fails to allege how and/or when, id.; 10 Generally alleges that all of the Defendants failed “to file required tax returns,” but does not specify which alleged required tax returns were not filed, id.; g Generally alleges that all of the Defendants allowed “Deyonna’s funds to be invested in, and remain in, non-FDIC insured investment products,” but does not specify (1) what alleged “non-FDIC insured investment products” are being referred to, (ii) when any such investment(s) was made, and/or (iii) which Defendant made any such alleged investment(s), id.; Generally alleges that all of the “Defendants concealed information regarding funds they knew and/or should have known were wasted and misused and not returned to Ms. Garnett’s accounts, instead of investigating the reasons for the waste and correcting the errors and recovering the money,” but does not clearly identify (i) which “Ms. Garnett” is being referred to, (ii) which Defendant is alleged to have engaged in such,conduct, and/or (iii) when and how any such alleged conduct occurred, id.at §.16; Generally refers to alleged “contracts” between “Defendants” and “Ms. Garnett and/or her Estate,” but does not (i) attach any such alleged “contract” or aver the pertinent terms thereof, (ii) identify the date(s) of any such alleged “contracts,” (iii) clearly identify which “Ms. Garnett” is being referred to, and/or (iv) plead any specific averments allowing the Defendants to identify what purported “contracts” are being referred to, id. at {§ 17-25; and Provides no factual averments and/or explanations as to (i) how, (ii) who, and/or (ili) when, with respect to all of the Claims and their respective “supporting” averments, and instead exclusively relies on general conclusory statements and conclusions of law, id.at ff] 15-16, 17-43. Second, even assuming arguendo that the Complaint is properly filed with the Civil Division, the Complaint fails to comply with several unavoidable requirements of the Pennsylvania Rules of Civil Procedure, and must accordingly be dismissed pursuant to Pa.R.Civ.P. 1028(a)(2). Specifically, the Complaint, inter alia: d. Fails to make averments of time, place, and/or items of special damage with specificity as required by Pa.R.Civ.P. 1019(f); e. Asserts a claim(s) based upon alleged breach(es) of unspecified alleged “contracts,” but fails to (i) state whether any such alleged “contract(s)” is oral or written, (ii) attach a copy of any such “contract(s),” and/or (ili) state that a copy of any such “contract(s)” is unavailable, explain why, and set forth its substance, as required by Pa.R.Civ.P. 1019(h) and (i); and 11 f. Fails to make the averments of “fraud” therein with any particularity, as required by Pa.R.Civ.P. 1019(b). See Pa.R.Civ.P. 1019(b), (f), (h), and (i); the Complaint. Accordingly, given its extensive deficiencies in both form and substance, the Complaint must be dismissed pursuant to Pa.R.Civ.P. 1028(a)(2) and/or (3). C.._ The Complaint Fails to Plead a Cognizable Claim(s) and Must be Dismissed for Legal Insufficiency (Demurrer) Pursuant to Pa.R.Civ.P. 1028(a)(4) The Complaint further fails to sufficiently plead and/or establish any of the Claims as a matter of law, and must accordingly be dismissed pursuant to Pa.R.Civ.P. 1028(a)(4) for legal insufficiency (demurrer). See Pa.R.Ciy:P»1028(a)(4); the Complaint. “Pennsylvania is a fact- pleading jurisdiction. A complaint must therefore not only give the defendant notice of what the plaintiff[’s] claim is and the grounds upon which it rests, but itmust also formulate the issues by summarizing those facts essential to support the claim.” Youndt y. First Nat. Bank of Port Allegany, 868 A.2d 539, 544 (Pa. Super. 2005) (quoting Sevin v. Kelshaw, 611 A.2d 1232, 1235 (Pa. Super. 1992)). Preliminary objections in the nature of a demurrer are properly sustained where, as here, a complaint fails to set forth a cause of action upon which relief may be granted. Sinn v. Bird, 404 A.2d 672, 672 (Pa. 1979); Greenspan v. U.S. Auto Ass’n, 471 A.2d 856, 858 (Pa. Super. 1984). In determining such a preliminary objection, the Court must accept as true all well-pleaded facts, but is not to accept as true unwarranted inferences from facts, conclusions of law,> argumentative allegations, or opinions. See e.g. Hyam v. Upper Montgomery Joint Auth. 160 A.2d 539, 541 (Pa. 1960); Dorfman v. Pa. Soc. Servs. Union-Local 668 of the Serv. Employees 5 Here, the averments constituting the Claims are almost exclusively comprised of improper conclusions of law, which must be disregarded for purposes of determining these preliminary objections. See Allegheny Cty. v. Com., 490 A.2d 402, 408 (Pa. 1985) (“The pleader's conclusions or averments of law are not considered to be admitted as true by a demurrer.”). 12 Int’] Union, 752 A.2d 933, 936 (Pa. Commw. 2000); Small v. Horn, 722 A.2d 664, 668 (Pa. 1998). Here, all of the Claims within the Complaint are legally insufficient, and the Court must therefore strike and dismiss the Complaint in its entirety pursuant to Pa.R.Civ.P. 1028(a)(4). a. The Breach of Contract Claim is Legally Insufficient and Must be Stricken and Dismissed The.Complaint fails to set forth a legally cognizable claim for breach of contract, and the Breach of Contract Claim must therefore be stricken and dismissed. “A cause of action for breach of contract must be established by pleading (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” CoreStates Bank. N.A. v. Cutillo, 723 A.2d 1053, 1058(Pa. Super. 1999) (citing Gen. State Auth. v. Coleman Cable & Wire Co., 365 A.2d 1347, 1349 (Pa. Commw. Ct. 1976)). “While not every term of a contract must be stated in complete detail, every element must be specifically pleaded.” Id. (citing Snaith vy. Snaith, 422 A.2d 1379, 1382 (Pa. Super. 1980)). Additionally, pursuant to Pa.R.Civ.P. 1019, “Tw]hen any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written” id “[w]hen any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance of the writing.” Pa.R.Civ.P. 1019(h) and (i) (emphasis added). Here, as a matter of law, the Complaint falls short of pleading a viable claim for breach of contract. See the Complaint. The Complaint does not identify nor attach any written agreement(s) forming the alleged basis of the Breach of Contract Claim. Id. at {J 17-25; Pa.R.Civ.P. 1019(i). Nor does the Complaint specify whether any purported contract(s) forming the alleged basis of the Breach of Contract Claim was written or oral. Id. at {| 17-25; Pa.R.Civ.P. 1019(h). Moreover, the Complaint does not identify nor plead: 13 The existence of any specific purported contract(s) between Wells Fargo and Plaintiff and/or Deyonna; The essential terms of any alleged contract(s) between Wells Fargo and Plaintiff and/or Deyonna; The alleged existence and/or breach of any contractual duty between Wells Fargo and Plaintiff and/or Deyonna; and/or Any claimed specific damages resulting from the alleged breach of any purported contract(s) between Wells Fargo and Plaintiff and/or Deyonna. See the Complaint; CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. Ct. 1999) (“A cause of action for breach of contract must be established by pleading (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.”); see also Young v. Wetzel, 260 A.3d 281, 290-91 (Pa. Commw. Ct.), publication ordered (July 8, 2021), appeal denied, 267 A.3d 479 (Pa. 2021). Instead, the Complaint merely pleads and relies upon the general conclusion that the “Defendants breached their [unspecified] contracts.” See the Complaint at 21-25. In short, the Complaint fails to plead a sufficient claim for breach of contract as a matter of law, and leaves the Defendants to guess what purported “contracts” the Breach of Contract Claim is premised upon. See id. As such, the Breach of Contract Claim must be stricken from the Complaint and dismissed. b. The Negligence Claim is Legally Insufficient and Must be Stricken and Dismissed The Complaint also fails to plead an actionable claim for negligence, and the Negligence Claim must be stricken and dismissed. “The elements necessary to plead an action in negligence are: [(i)] the existence ofa duty or obligation recognized by law; [(ii)] a failure on the part of the defendant to conform to that duty, or a breach thereof; [(iii)] a causal connection between the 14 defendant's breach and the resulting injury; and [(iv)] actual loss or damage suffered by the complainant.” Orner v. Mallick, 527 A.2d 521, 523 (Pa. 1987) (citations omitted). Here, the Negligence Claim consists of two unexplained and unsupported conclusory averments, and the Complaint otherwise lacks any pleaded facts establishing the necessary elements of a claim for negligence. See the Complaint at {| 26-28. Specifically, in support of the Negligence Claim, Plaintiff generally concludes that: a. “Defendants owed a duty of care to take reasonable action to protect the assets of Mrs, Garnett and prevent waste of her assets, because Defendants knew, or should have known, that Ms. Garnett was relying on Defendants to act in her best interests,” see the Complaint at §/ 27; and “Defendants breached their duty of care to Ms. Garnett, and/or her Estate, by taking unreasonable actions and by failing to act to protect her assets and instead acted in an unreasonable manner by wasting Ms. Garnett’s funds on improper, unnecessary and wasteful expenses, by failing to recover wasted funds, and by failing to properly invest the funds,” see the Complaint at § 28. However, the Complaint’s averments in “support” of the Negligence Claim do not provide any factual basis for the general legal conclusions therein, which must be disregarded for purposes of determining these preliminary objections. See the Complaint at 4] 26-28; Youndt, 868 A.2d at 544; see also, e.g. Hyam, 160 A.2d at 541; Dorfman, 752 A.2d at 936; Small, 722 A.2d at 688. Specifically, with respect to the Negligence Claim, Plaintiff has failed to, inter alia, plead or identify (i) how, when, and/or via who Wells Fargo allegedly failed “to conform” to any alleged duty; (ii) any “actual loss or damage” allegedly suffered by Plaintiff and/or Deyonna; and/or (iii) any “causal connection” between alleged conduct of Wells Fargo and any “actual loss or damage” allegedly suffered by Plaintiff and/or Deyonna. Orner, 527 A.2d at 523; see the Complaint. Plaintiff does not allege, and the Complaint does not contain, any specific facts establishing a viable claim for negligence, and the Negligence Claim must therefore be stricken and dismissed. See the Complaint. 15 C. The Breach of Fiduciary Duty Claim is Legally Insufficient and Must be Stricken and Dismissed The Complaint similarly fails to plead a cognizable claim for breach of fiduciary duty, and the Breach of Fiduciary Duty Claim must accordingly be stricken and dismissed. To establish a breach of fiduciary duty claim, a plaintiff must establish (i) “the existence of a fiduciary relationship” with the defendant(s), (ii) that the defendant(s) “negligently or intentionally failed to act in-good faith and solely for [the plaintiffs] benefit,” and (iii) that the plaintiff “suffered an injury caused by [the defendant(s)’s] breach of his fiduciary duty.” Snyder v. Crusader Servicing Corp., 231 A.3d 20, 31-32 (Pa. Super, 2020) (citations omitted). Here, despite being directly contradicted by Plaintiff's other averments within the Complaint and the Exhibits attached thereto, in support of the Breach of Fiduciary Duty Claim, Plaintiff generally, and falsely, alleges that “[a]t all relevant times, [all of the] Defendants acted as a fiduciary over Ms. Garnett’s assets.” See the Complaint at § 30. However, to the extent Plaintiff is referring to the Defendants’ alleged respective service as the guardian of Deyonna’s Estate, the Complaint and its attached Exhibits make clear that a// of the Defendants did not serve in such a role “at all relevant[, yet unspecified,] times,” as the Complaint attaches (1) the November 30, 2018 Adjudication in the Guardianship Proceedings, which approved the Account and expressly discharged Wells Fargo ‘‘of any further liability . . . with respect to the Estate of Deyonna Garnett” and (2) the November 30, 2018 Final Decree approving Wells Fargo’s esignation as the Guardian of Deyonna’s Estate, and appointing SCP as “successor Guardian of the Estate of Deyonna.” See the Complaint at Exhibit “C” thereto. Additionally, with respect to the Breach of Fiduciary Duty Claim, Plaintiff has failed to, inter alia, plead or specify (i) how, when, and/or via who Wells Fargo allegedly “negligently or intentionally failed to act in good faith and solely for [the plaintiffs] benefit,” (ii) the existence of 16 an applicable fiduciary relationship between Wells Fargo and Plaintiff and/or Deyonna, and/or (ii) any actual or specific injury purportedly caused by Wells Fargo’s alleged breach of fiduciary duty. Snyder, 231 A.3d at 31-32; see the Complaint at {{f 29-32. As such, the Complaint does not contain a viable claim for breach(es) of fiduciary duty against Wells Fargo as a matter of law. See id. Moreover, as set forth above, any claims relating to Deyonna, the Guardianship Proceedings, and/or any alleged breaches of duty(ies) by persons alleged to have a fiduciary relationship with Deyonna, specifically including the Breach of Fiduciary Duty Claim, must be brought before the Orphans’ Court underits mandatory jurisdiction pursuant to 20 Pa. C.S. § 711. See 20 Pa. C.S. § 711(10), (12), (14). Accordingly, for all of the foregoing reasons, the Breach of Fiduciary Duty Claim must be stricken and dismissed from the Complaint. d. The Fraud Claim is Legally Insufficient and Must be Stricken and Dismissed The Fraud Claim also fails as a matter of law, and must be stricken and dismissed. The Fraud Claim consists of a total of three (3) general, unspecified, and conclusory averments, all of which can readily be set forth below, and are as follows: a. “Defendant made misrepresentations which were fraudulent misrepresentations of material fact, which included, statements that Deyonna’s funds needed to be spent on unnecessary medical expenses, vehicles, payments to Ms. Garnett’s mother, when she was not in her mother’s care and for health insurance payments which were improperly made”; “Those misrepresentations were relied upon by Deyonna and/or her representatives and family members to the detriment of Deyonna’s assets”; and “Plaintiff's reliance on Defendants’ misrepresentations were factual causes of the harm, waste and damages suffered by Deyonna.” See the Complaint at ff] 34-36. 17 “The elements of fraud, or intentional misrepresentation, are (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance.” Presbyterian Med. Ctr. v. Budd, 832 A.2d 1066, 1072 (Pa. Super. 2003) (citing Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994)). “In order to protect those against whom generalized and unsupported fraud may be'levied, the Pennsylvania Rules of Civil Procedure require that fraud be ‘averred with particularity, 999 66 [t]hus, a party raising a claim of fraud must set forth in its pleadings specific facts to support the alleged fraud.”Id. (quoting Pa.R.Civ.P. 1019(b)). Importantly, “every element of [a] fraud claim [must be pled with] with sufficient particularity.” Id. However, here, the Fraud Claim falls»egregiously short of the applicable pleading requirements. See the Complaint at {J 34-36. The Fraud Claim is not pled with particularity and is based upon general conclusory allegations of unspecified “misrepresentations.” Id. at {J 34-36; Pa.R.Civ.P. 1019(b). The Complaint fails to identify, among other things, (i) the specific subject and/or substance of any alleged misrepresentation(s), (ii) who and or which of the Defendants made any alleged misrepresentation(s), (iii) when any alleged misrepresentation(s) was made, and/or (iv) how any alleged misrepresentation(s) was made. See the Complaint. There is simply no basis within the Complaint for Wells Fargo to discern any specific alleged misrepresentation(s) that Plaintiff is attempting to impute upon it via the Complaint. Id. In addition to failing to allege any specific alleged misrepresentation(s), the Complaint also fails to plead the other required elements of a claim for fraud and/or fraudulent misrepresentation. Id. For instance, because the Complaint does not identify any specific purported “misrepresentation(s)” made by Wells Fargo to Plaintiff and/or Deyonna, in turn, it is also unable 18 to establish that any such unidentified “misrepresentation’ 99 cee i s material.” See Presbyterian Med. Ctr., 832 A.2d at 1072 (citation omitted); the Complaint. Additionally, the Complaint does not allege nor establish: (i) that Wells Fargo made any purported unspecified “misrepresentation” (a) “falsely, with knowledge of its falsity or recklessness as to whether it is true or false” and/or (b) “with intent of misleading another into relying on it”; (ii) Plaintiff's and/or Deyonna’s reliance on any such purported unspecified “misrepresentation” of Wells Fargo; and/or (iii) any specific resulting injury proximately caused by Plaintiff's and/or Deyonna’s reliance on any such purported unspecified “misrepresentation” of Wells Fargo. Id. Moreover, the Complaint utterly. disregards the particularity requirements of the Pennsylvania Rules of Civil Procedure, particularly with respect to the Fraud Claim, and improperly pleads general unsupported and/or, unexplainedlegal conclusions, such that (i) unspecified “misrepresentations were relied upon by Deyonna, and/or her [unspecified] representatives and [unspecified] family members” and/or (ii) “Plaintiff’s [unexplained] reliance on Defendants’ [unspecified] misrepresentation were factual causes of the [unspecified alleged] harm, waste and damages [allegedly] suffered by Deyonna.” See the Complaint at {§35-36; Pa.R.Civ.P. 1019(b). Accordingly, the Complaint fails to plead the required elements to establish a claim for “fraud” and/or fraudulent misrepresentation as a matter of law, and also fails to satisfy the particularity requirements of Pa.R.Civ.P. 1019(b), and the Fraud Claim must therefore be stricken and dismissed. e. The Breach of Implied Contractual Duties Claim is Legally Insufficient and Must be Stricken and Dismissed Plaintiff's attempted Breach of Implied Contractual Duties Claim fails as a matter of law and must be dismissed because: (1) Pennsylvania law does not recognize such a cause of action and/or (2) it otherwise fails for the same reasons as Plaintiff's attempted Breach of Contract Claim. 19 The Breach of Implied Contractual Duties Claim consists of one (1) conclusory Paragraph within the Complaint, which generally states: The conduct of the Defendants destroyed and/or injured Deyonna [sic] right to receive benefits of the full value of her Estate by failing to perform their necessary and discretionary duties and obligations to Deyonna in a reasonable manner and consistent with their legal obligations to Deyonna. See the Complaint at §] 38. The Complaint does not specify (i) what “conduct of the Defendants” is being referred to, or (ii) what “necessary and discretionary duties and obligations” and/or “legal obligations” are being referred to, in relation to the Breach of Implied Contractual Duties Claim. See the Complaint at ¥ 38. However, regardless of these deficiencies with the substance of the Breach of Implied Contractual Duties Claim, any such claim “for breach of the implied covenant of good faith and fair dealing is subsumed in a breach of contract claim,” and is not an independent cause of action under Pennsylvania law. LSI Title Agence Inc. v. Evaluation Servs., Inc., 951 A.2d 384, 392 (Pa. Super. 2008). Accordingly, the Breach of Implied Contractual Duties Claim does not, and cannot, set forth a viable cause of action under Pennsylvania law, as it has been held that “a breach of the covenant of good faith is nothing more than a breach of contract claim and that separate causes of action cannot be maintained for each, even in the alternative.” JHE, Inc. v. Se. Pennsylvania Transp. Auth., No. 1790 NOV.TERM 2001, 2002 WL 1018941, at *7 (Pa. Com. PI. Phila. Cnty. May 17, 2002); see also Middletown Carpentry, Inc. v. C. Arena & Co., No. 2698, 2001 WL 1807379, at *6 (Pa. Com. PI. Phila. Cnty. Nov. 27, 2001) (“there is no independent cause of action for breach of the implied duty of good faith absent an underlying breach of contract”). As such, the Breach of Implied Contractual Duties Claim must be stricken and dismissed because (1) it is not an independent cause of action under Pennsylvania law and/or, alternatively, (2) it otherwise 20 fails and is legally insufficient for all of the same reasons as the Breach of Contract Claim. See id. f. The UTPCPL Claim is Legally Insufficient and Must be Stricken and Dismissed Lastly, the UTPCPL Claim also fails as a matter of law and must be stricken and dismissed for legal insufficiency. Initially, Plaintiff's purported legal basis for the UTPCPL Claim is unclear. Plaintiff generally avers that “[t]his action is also brought under the PENNSYLVANIA CONSUMER PROTECTION LAW 73 P.S. §202.1, et seq., for violation of the act in that the [unspecified] Defendant at all times relevant [] engaged'in unfair and deceptive business practices prohibited by the Pennsylvania Consumer Protection Law.” See the Complaint at § 40. However, the statutory section(s) cited and invoked by Plaintiff as the basis for the UTPCPL Claim, 73 P.S. §202.1, et seq., relates to “the distribution and sales of gasoline and petroleum products in the Commonwealth of Pennsylvania.” Compare the Complaint at {40 with 73 Pa. Stat. Ann. § 202- 1. Given the discernable averments within the Complaint, Plaintiffs request for relief premised upon 73 Pa. Stat. Ann. § 202-1, et seq. makes no logical sense. Compare the Complaint with 73 Pa. Stat. Ann. § 202-1, et seq. Even assuming arguendo that Plaintiff intended to cite and reference Pennsylvania’s Unfair Trade Practices and Consumer Protection Law found under 73 Pa. Stat.