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dismissing UTPCPL claim where claims "turns on the construction of the language of the mortgage" and were "necessarily interwoven with the mortgage itself"
Summary of this case from Hoffman v. Wells Fargo Bank, N.A.Opinion
CIVIL ACTION NO. 13-0113
11-13-2013
JAMES E. SCHWARTZ Plaintiff v. ONEWEST BANK, FSB Defendant
, J.
MEMORANDUM OPINION
INTRODUCTION
On March 1, 2013, One West Bank, FSB ("Defendant" or "One West"), filed a motion to dismiss the amended complaint [ECF 10] pursuant to the provision of Federal Rule of Civil Procedure (Rule) 12(b)(6) for failure to state a claim. On March 29, 2013, James E. Schwartz ("Plaintiff" or "Schwartz") formally opposed the motion [ECF 13]. On July 18, 2013, this matter was reassigned to the undersigned [ECF 19]. By order dated September 25, 2013 [ECF 20], this Court notified the parties that it was converting pursuant to Rule 12(d), the motion to dismiss and the answer, into cross-motions for summary judgment as to Counts I and II only of the amended complaint and directed the parties to file supplemental briefs in support of their respective position. On October 7, 2013, Plaintiff filed a supplemental brief [ECF 26]. Defendant filed its supplemental brief on October 15, 2013 [ECF 27], and stated that it is "agreeable to the entry of an order confirming that the Mortgage covers only Parcel A." Accordingly, judgment on Counts I and II only is entered in favor of Plaintiff.
In light of this ruling, the remaining matter before the Court is Defendant's motion to dismiss Counts III through VIII of the amended complaint. As to these counts, Plaintiff asserts that One West's foreclosure action and the subsequent sheriff's sale listings of a specific real estate property belonging to Plaintiff violated Pennsylvania's Fair Credit Extension Uniformity Act, 73 Pa. Con. Stat. § 2270.1, et seq., ("FCEUA"), and the Unfair Trade Practices and Consumer Protection Law, 73 Pa. Con. Stat. § 201-1, et seq., ("UTPCPL"). Plaintiff further contends that said foreclosure action and sheriff's sale listings give rise to claims of slander of title, abuse of process, and intentional interference with existing and/or prospective contractual relations.
Procedurally, on December 10, 2012, Plaintiff filed a complaint against Defendant in the Court of Common Pleas Bucks County [ECF 1]. Defendant removed the matter on January 9, 2013, pursuant to 28 U.S.C §§ 1332 and 1441 arguing the court's diversity jurisdiction [ECF 1]. On January 15, 2013, Defendant filed a motion to dismiss the complaint [ECF 6]. In response, on February 5, 2013, Plaintiff filed an amended complaint [ECF 7], which precipitated the instant motion to dismiss.
For the reasons set forth, this Court grants Defendant's motion to dismiss Counts III through VIII.
BACKGROUND
For the purpose of ruling on Defendant's motion to dismiss, this Court accepts as true the following summary of the relevant allegations in Plaintiff's amended complaint and attachments:
Schwartz is the owner of two parcels of land in Bucks County (hereinafter, referred to as "Parcel A" and "Parcel B"), which he acquired by deed in July 1996. Parcel A is identified as Bucks County Tax Map Parcel No. 44-014-084, and Parcel B is identified as Bucks County Tax Map Parcel No. 44-014-087.
On March 14, 2007, Schwartz obtained a loan from IndyMac Bank, FSB, (IndyMac Bank) in the amount of $375,000, and executed a note and a mortgage as security for the loan.
In March 2009, One West acquired the assets and operations of IndyMac Bank from the Federal Deposit Insurance Corporation. The mortgage executed by Schwartz was recorded by IndyMac Bank on November 25, 2009, and assigned to One West on January 3, 2010. The assignment was recorded on February 4, 2010.
In the interim, OneWest filed a mortgage foreclosure action against Schwartz in Bucks County Court of Common Pleas, averring that Schwartz had defaulted on the mortgage encumbering the property subject to the mortgage identified as Tax Map Parcel No. 44-014-084 (Parcel A). See Complaint, Exhibit A. In addition, "Exhibit A" attached to the Mortgage document also referenced Tax Map Parcel No. 44-014-084, as the encumbered property. However, within the metes and bounds description of the property, reference is made to "two adjoining tracts of land constituting one farm." See Defendant's Motion to Dismiss, Exhibit A to Exhibit C.
Schwartz failed to respond to the mortgage foreclosure complaint, and on February 2, 2010, OneWest filed a praecipe to enter judgment by default. Following the entry of the default judgment, a sheriff's sale was scheduled for May 14, 2010, which listed the foreclosed property as "Tax Parcel #44-14-84" (Parcel A). See Amended Complaint, Exhibit 2 (the "Initial Sheriffs Sale Notice"). For unknown reasons, the sheriff's sale was cancelled and re-listed several times
During the course of the mortgage foreclosure proceedings, counsel for OneWest advised Schwartz's then counsel that it was OneWest's position that the mortgage encumbered two parcels, Parcels A and B. Specifically, by letter dated October 29, 2010, OneWest's foreclosure counsel wrote "the Mortgage was intended to, and does, encumber both of the two parcels described in plaintiff's writ of execution. . . ." See Amended Complaint, Exhibit 4. This contention was repeated in emails to Schwartz's counsel on February 9, 2011, and July 20, 2011. See Amended Complaint, Exhibit 5.
On January 24, 2013, a notice of sale was issued rescheduling the sheriff's sale for February 8, 2013. Like the Initial Sheriff's Sale Notice, this notice referenced only "TAX PARCEL #44-14-84" (Parcel A). However, unlike the Initial Sheriffs Sale Notice, the January 24, 2013 Notice included a description of the property involved which referenced "two adjoining tracts of land constituting one farm." This language was identical to that contained in Exhibit A attached to the Mortgage.
Schwartz alleges that on August 12, 2010, he entered into an Agreement of Sale for both parcels with Schmidt Properties, LLC ("Schmidt"), intending to transfer the parcels under a short sale and to use the proceeds to pay off the mortgage with OneWest. Plaintiff contends that he was unable to close the transaction due to unspecified actions of OneWest.
Schwartz further alleges that sometime in 2011, he applied to sell the development rights to both parcels to Tinicum Township as part of a land conservancy program. He claims that the transaction failed because OneWest refused to subordinate its mortgage to the conservation easement Tinicum Township would place on the property in conjunction with the sale of the development rights.
While Plaintiff did not attach a copy of the foreclosure action complaint to his amended complaint, this Court may consider the foreclosure complaint because: (1) it is a publicly available document and Plaintiff has referenced it in his amended complaint; and (2) Defendant has attached a copy of the foreclosure complaint to its motion, as Exhibit C.
Plaintiff attached an identical copy of the mortgage to his amended complaint as Exhibit 1.
LEGAL STANDARD
When considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), the court "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The court must then determine "whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). The complaint must do more than merely allege the plaintiff's entitlement to relief; it must "show such an entitlement with its facts." Id. (citations omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)) (alterations in original). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id. To survive a motion to dismiss under Rule 12(b)(6), "a plaintiff must allege facts sufficient to 'nudge [his]claims across the line from conceivable to plausible.'" Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 570).
In deciding motions to dismiss, "courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint, and matters of public record." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citations omitted); see also Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] document[s]." Pension Benefits, 998 F.2d at 1196. Documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may also be considered. Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002) (citation omitted); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002) ("Although a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss into one for summary judgment.") (internal quotation omitted).
DISCUSSION
Plaintiff's Slander of Title Claim
At Count III of the amended complaint, Plaintiff asserts a claim for slander of title based on Defendant's alleged false representations of its interest in Parcel B. Plaintiff relies on the following assertions in support of his contentions: (1) statements made in Defendant's legal filings in the mortgage foreclosure action; (2) statements made by Defendant's foreclosure counsel in a letter and in two emails to Plaintiff's foreclosure counsel during the course of the mortgage foreclosure action; and (3) representations made in the sheriffs sale notices of 2010 and 2011. Defendant rebuts Plaintiff's slander of title claim and argues that the claim fails since it is based entirely upon representations that are subject to an absolute privilege.
In his sur-reply, Plaintiff contends that the slander of title claim is also based upon the incorrect description of the encumbered property in the assignment of the mortgage from IndyMac to OneWest. Plaintiff's amended complaint, however, contains no such allegations or, more importantly, facts to support such a claim.
Disparagement or slander of title is the false and malicious representation of the title or quality of another's interest in goods or property. Forman v. Cheltenham National Bank, 502 A.2d 686, 688 (Pa. Super. 1985). To assert a claim for slander of title, a plaintiff must allege: (1) a publication of a false statement; (2) the publisher either intends the publication to cause pecuniary loss or reasonably should recognize that the publication will result in pecuniary loss; (3) a pecuniary loss does in fact result; and (4) the publisher either knows that the statement is false or acts in reckless disregard of its truth or falsity. Pro Golf Manufacturing, Inc. v. Tribune Review Newspaper Company, 809 A.2d 243, 246 (Pa. 2002).
Under Pennsylvania law, it is well-settled that "[a]ll communications pertinent to any stage of a judicial proceeding are accorded an absolute privilege which cannot be destroyed by abuse . . . Thus, statements by a party, a witness, counsel, or a judge cannot be the basis of a defamation action whether they occur in the pleadings or in open court." Binder v. Triangle Publications, Inc., 275 A.2d 53, 56 (Pa. 1971); see also Triester v. 191 Tenants Assoc., 415 A.2d 698, 702 (Pa. Super. 1979) (recognizing extension of absolute privilege to claim for slander of title). This absolute privilege "extends not only to communications made in open court, but also encompasses pleadings and even less formal communications such as, preliminary conferences and correspondence between counsel in furtherance of the client's interest." Richmond v. McHale, 35 A.3d 779, 785 (Pa. Super. 2012) (citations omitted). In addition, the existence of the privilege does not depend upon the motive of the defendant in making the alleged statement. Greenberg v. Aetna Ins. Co., 235 A.2d 576, 578 (Pa. 1967). All reasonable doubts as to whether the alleged communications were pertinent and material to the relief or redress sought are to be resolved in favor of pertinency and materiality. Id. at 577-578.
Here, Plaintiff alleges that Defendant slandered the title to Parcel B by filing the mortgage foreclosure action and seeking to foreclose on the property described in the mortgage document attached to the complaint. Because all representations made in pleadings are subject to an absolute privilege, the representations made in the mortgage foreclosure complaint cannot form the basis of a claim for slander of title. Plaintiff's argument is, therefore, without merit.
Next, Plaintiff contends that Defendant slandered the title to Parcel B by communications made by One West's foreclosure counsel to Plaintiff's counsel "in the Foreclosure Action." In the correspondences, attached as Exhibits 4 and 5 to the amended complaint, OneWest's foreclosure counsel advised Plaintiff's counsel that OneWest believed both parcels were intended to be encumbered by the mortgage, as evidenced by its reference to the "two adjoining tracts." It is clear from the content and timing of the statements, however, that these were made in connection with counsel's representation of OneWest in the judicial foreclosure proceeding; to wit: the October 29, 2010 letter identifies the foreclosure action by caption in the subject line of the letter, and the email correspondences specifically refer to the October 29, 2010 letter. Further, in the amended complaint, Plaintiff acknowledged that these correspondences were made "in the Foreclosure Action." See Amended Complaint ¶¶ 43 and 44. Based upon these arguments and acknowledgment, this Court finds that the communications are absolutely privileged and cannot form the basis of a claim for slander of title. See Smith v. Griffiths, 476 A.2d 22, 25 (Pa. Super. 1984) (affirming application of absolute privilege to written communications of attorney on behalf of his client during the course of judicial proceedings).
Plaintiff also contends that Defendant slandered the title to Parcel B by "schedul[ing] a sheriff sale . . . ." Amended Complaint ¶¶ 24 and 28. Specifically, Plaintiff points to two sheriff's sale notices, attached to the amended complaint as Exhibits 2 and 3, which he contends Defendant "lists both of Mr. Schwartz's properties" for sale. Even assuming One West was responsible for the language contained in the sheriff's sale notices, the notices were posted in connection with and as a result of the state court's entry of judgment in the foreclosure action. Because each of the representations on which Plaintiff's slander claim is based was made in the course of and in connection to a judicial proceeding, i.e., the foreclosure action, the representations are absolutely privileged and cannot support a claim for slander of title.
Moreover, the first sheriff's sale notice attached to Plaintiff's Amended Complaint merely identifies the tax parcel number for Parcel A as being the subject of the sheriff's sale. See Exhibit 2. As such, the initial notice provides, at most, what Plaintiff has admitted was true, i.e., Parcel A was properly the subject of a sheriff's sale. While the notice for the February 8, 2013 sheriff's sale references "two adjoining tracts" and the tax parcel number for Parcel A, it merely parrots the language contained in the mortgage and attached to the foreclosure complaint. Compare Exhibit 3 and Exhibit 1. As such, the representation, even if deemed to be that of Defendant, does not meet the requirements for slander.
Plaintiff's Fair Credit Extension Uniformity Act Claim
At Count IV, Plaintiff asserts a claim under Pennsylvania's Fair Credit Extension Uniformity Act (the "FCEUA"), 73 Pa. Con. Stat. § 2270.1, et seq., which prohibits unfair or deceptive acts or practices with regard to the collection of debts. In support of his FCEUA claim, Plaintiff relies upon the same representations and conduct on which his slander of title claim is based. Because these representations are subject to an absolute privilege (see supra discussion), these cannot form the basis of Plaintiff's claim under the FCEUA. See e.g., Moses v. McWilliams, 549 A.2d 950, 957-58 (Pa. Super. 1988) (recognizing the extension of absolute privilege by Pennsylvania courts to torts other than defamation).
Notwithstanding, Plaintiff contends that Defendant engaged in unfair or deceptive debt collection practices "[b]y attempting to foreclose upon" Parcel B. Plaintiff fails, however, to allege facts that could be deemed unfair or deceptive debt collection acts or practices.
At best, Plaintiff points to the commencement of the mortgage foreclosure action as constituting Defendant's wrongful debt collection action. Notably, Plaintiff provides no legal support for his contention that a lender's commencement of foreclosure proceedings constitutes an unfair or deceptive debt collection practice. Assuming that the commencement of a foreclosure action could constitute an unfair or deceptive debt collection practice, a review of One West's mortgage foreclosure complaint shows that One West merely sought to foreclose on the property identified in the mortgage document attached to the foreclosure complaint. See Foreclosure Complaint, Exhibit C to Defendant's Motion to Dismiss ("The premises subject to said mortgage is described in the mortgage attached as Exhibit A and is known as 118 Hollow Horn Road, Erwinna, Pennsylvania 18920."). One West did not make any representations in that pleading as to its rights in Parcel B, but rather simply asserted rights in the property identified in the mortgage. This court filing cannot be deemed deceptive or improper.
Plaintiff's Unfair Trade Practices and Consumer Protection Law Claim
At Count V, Plaintiff asserts a claim under the Unfair Trade Practices and Consumer Protection Law (the "UTPCPL"), 73 Pa. Con. Stat. § 201-1, et seq. The UTPCPL prohibits "unfair methods of competition" and "unfair or deceptive acts or practices" in the conduct of trade or commerce. 73 Pa. Con. Stat. § 201-3. The UTPCPL provides various definitions of unfair practices, including a catch-all provision. See Id. § 201-2(4). "The statute creates a private right of action in persons upon whom unfair methods of competition and unfair or deceptive acts or practices are employed and who, as a result, sustain an ascertainable loss." Hunt v. U.S. Tobacco Co., 538 F.3d 217, 221 (3d Cir. 2008) (internal quotations omitted). Thus, to assert a viable claim under the UTPCPL, a plaintiff must allege, inter alia, "that he justifiably relied on the defendant's wrongful conduct or representation and that he suffered harm as a result of that reliance." Id. at 224 (finding "the justifiable-reliance standing requirement to apply to all substantive subsections of the Consumer Protection Law . . . .") (emphasis in original).
Plaintiff has not identified which of the specifically enumerated unfair practices Defendant has allegedly engaged. Plaintiff, instead, alleges generally fraudulent misrepresentations. As such, this Court assumes Plaintiff brings his claim under the catchall provision, which precludes "any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding." 73 Pa. Con. Stat. § 201-2(4)(xxi).
As the basis of his UTPCPL claim, Plaintiff alleges that Defendant made "false and/or misleading statements of fact concerning the applicability of the Mortgage Copy," engaged in "fraudulent conduct which created a likelihood of confusion and/or misunderstanding regarding the impact of the Mortgage Copy," and engaged "in acts of fraudulent conduct concerning the applicability of the Mortgage Copy." See Amended Comp. ¶ 80. The only facts alleged in support of these otherwise bald contentions, however, are those relating to the statements made by Defendant in the course of the foreclosure action. For the reasons discussed above, all of these alleged representations are subject to an absolute privilege and cannot, therefore, form the basis of liability under the UTPCPL.
Further, nowhere in the amended complaint does Plaintiff allege facts as to how he justifiably relied upon Defendant's alleged misrepresentations to his detriment. Plaintiff does not allege any action he undertook to his detriment in reliance upon Defendant's purported misrepresentations as to the encumbrance of Parcel B. Having failed to allege any such facts, Plaintiff's claim is dismissed. See Hunt, 538 F.3d at 227.
In addition, Defendant argues that Plaintiff's UTPCPL claim is barred by the economic loss doctrine because it is based entirely upon a contract, i.e., the mortgage, and Plaintiff's only alleged losses are economic in nature. Plaintiff counters that his UTPCPL claims are not barred by the economic loss doctrine because these claims are based on Defendant's alleged misrepresentations as to Defendant's interest in Parcel B made in court filings, the sheriff's sale notices, and the correspondence from Defendant's counsel, and are, therefore, independent of the mortgage.
The economic loss doctrine provides that "no cause of action can be maintained in tort for negligence or strict liability where the only injury was an 'economic loss' - that is, loss that is neither physical injury nor damage to tangible property." 2-J Corp. v. Tice, 126 F.3d 539, 541 (3d Cir. 1997). Within the Third Circuit, this doctrine has been expanded and applied in multiple contexts, including claims brought under the UTPCPL. See Werwinski v. Ford Motor Co., 286 F.3d 661 (3d Cir. 2002) (holding that plaintiff's UTPCPL claim was barred by the economic loss doctrine). In Werwinski, the Third Circuit held that Pennsylvania law made no exception to the economic loss doctrine for intentional tort or UTPCPL claims. Id. at 674. The court further held that where the allegedly fraudulent misrepresentations concerned the subject of a contract, the tort claims are clearly intertwined with, rather than extraneous to, the contract claims. Id. at 678. Thus, the court concluded that the economic loss doctrine barred such claims. Id.
Plaintiff's argument that this Court should not follow the Third Circuit's decision in Werwinski because it has been rejected by various state courts in Pennsylvania is misplaced as Werwinski is the law of this Circuit and, therefore, binding on this Court.
Similarly, resolution of Plaintiff's claims turns on the construction of the language of the mortgage with regard to the encumbered property. Specifically, any claims based on the alleged misrepresentations as to Defendant's interest in Parcel B are necessarily interwoven with the mortgage itself. Because Plaintiff's UTPCPL claim is dependent upon a determination as to whether the mortgage also encumbered Parcel B, the claim is inextricably tied in with the mortgage and, thus, barred by the economic loss doctrine.
In addition, Plaintiff has alleged nothing more than purely economic loss. He does not allege any injury to himself or to his tangible property. As such, this claim cannot be maintained in tort and Plaintiff's UTPCPL claim is barred.
Plaintiff's Abuse of Process Claim
At Count VI, Plaintiff asserts a claim for abuse of process. "The gist of an action for abuse of process is the improper use of process after it has been issued, that is, a perversion of it." McGee v. Feege, 535 A.2d 1020, 1023 (Pa. 1987) (citations omitted). An abuse of process is "use of legal process as a tactical weapon to coerce a desired result that is not the legitimate object of the process." Id. at 1026. In order to state a cause of action for abuse of process, a plaintiff must allege that the defendant used a legal process to accomplish a purpose for which the process was not designed. Rosen v. American Bank of Rolla, 627 A.2d 190, 192 (Pa. Super. 1993). It is not enough that the defendant had bad or malicious intentions or that the defendant acted from spite or with an ulterior motive. Rosen v. Tesoro Petroleum Corp., 582 A.2d 27, 32-33 (Pa. Super. 1990). Rather, there must be an act or threat not authorized by the process, or the process must be used for an illegitimate aim such as extortion, blackmail, or to coerce or compel the plaintiff to take some collateral action. Id. "[T]here is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions." Shaffer v. Stewart, 473 A.2d 1017, 1019 (Pa. Super. 1984); see also Rosen, 627 A.2d at 192 ("'[T]here is no action for abuse of process when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant . . . .'") (quoting Restatement (Second) of Torts §682 cmt. b). "Liability is reached when the utilization of the procedure for the purpose for which it was designed becomes so lacking in justification as to lose its legitimate function as a reasonably justifiable litigation procedure." Gen. Refractories Co. Fireman's Fund Ins. Co., 337 F.3d 297, 308 (3d Cir. 2003).
Here, Plaintiff alleges that Defendant engaged in an abuse of process by "filing the foreclosure action" and, therein, "attempt[ing] to unlawfully gain ownership of South 20 Parcel," i.e., Parcel B. Amended Comp. ¶ 83. As pled, this claim fails as a matter of law because such a claim cannot be based upon the commencement of legal proceedings, but rather must be based upon the "improper use of process after it has been issued ." McGee, 535 A.2d at 1023 (emphasis added); see also In re Larsen, 616 A.2d 529, 592-93 (Pa. 1992) ("Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish."). At most, Plaintiff has alleged that Defendant commenced the underlying foreclosure action for an improper purpose, although he has never objected to the foreclosure action as it relates to Parcel A. Such allegation is insufficient to support a claim for abuse of process. See Rosen v. Tesoro Petroleum Corp., 582 A.2d 27, 33 (Pa. Super. 1990) (affirming dismissal of abuse of process claim where plaintiff merely alleged that defendant commenced litigation for a wrongful purpose). Plaintiff's abuse of process claim is, therefore, dismissed.
Tortious Interference with Existing and Prospective Contracts
At Counts VII and VIII, Plaintiff alleges that Defendant tortiously interfered with an existing agreement of sale with Schmidt and/or a prospective contract with Tinicum by engaging in conduct aimed at preventing the sales. To maintain an action for intentional interference with contractual relations, whether existing or prospective, a plaintiff must allege the following: (1) the existence of a contractual, or prospective contractual relation between the complainant and a third party; (2) purposeful action on the part of the defendant, specifically intended to harm the existing relation, or to prevent a prospective relation from occurring; (3) the absence of a privilege or justification on the part of the defendant; and (4) the occasioning of actual damage as a result of the defendant's conduct. Advent Systems Ltd. v. Unisys Corp., 925 F.2d 670, 673 (3d Cir. 1991); Ira G. Steffy & Son, Inc. v. Citizens Bank of Pennsylvania, 7 A.3d 278, 288-89 (Pa. Super. 2010); Pelagatti v. Cohen, 536 A.2d 1337, 1343 (Pa. Super. 1987) (citing Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 471 (Pa. 1979)).
In support of his tortious interference claims, Plaintiff relies upon the same facts as those underlying his other claims, i.e., the alleged misrepresentations made during the course of the foreclosure action as to the encumbrance of Parcel B. As previously stated, these representations are absolutely privileged, and, therefore, cannot provide any basis for a tortious interference claim. See Pelagatti, 536 A.2d at 1343 (affirming the dismissal of tortious interference claims that were based upon representations made in the course of litigation on the basis that those communications were absolutely privileged). The claims are, therefore, dismissed.
CONCLUSION
For the foregoing reasons, this Court grants Defendant's motion to dismiss Counts III through VIII of the amended complaint. Two orders consistent with this memorandum follow.