Under Pennsylvania Law a business and/or its agents can be liable for fraudulent misrepresentation if a misrepresentation of fact or law is fraudulently made for the purpose of inducing another to act or refrain from acting. The elements of intentional or fraudulent misrepresentation are as follows:
(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 the 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.
Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999).
The representation need not be in the form of a positive assertion. It can consist of anything calculated to deceive, whether by single act or combination, whether by suppression of truth or a suggestion of what is false, and it includes direct falsehoods, innuendos, silence, gestures, etc. There are two separate torts that impose liability for fraud notwithstanding the absence of an positive assertion: (1) Fraudulent Concealment; and (2) Fraudulent Nondisclosure. See, e.g., Youndt v. First Nat. Bank of Port Allegany, 868 A. 2d 539 (Pa. Super. 2005).
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