MEMORANDUM OPINION AND ORDER
In this case, plaintiff Sunquest Information Systems, Inc. filed a nine-count complaint against defendants Compucare Company and Dean Witter Reynolds, Inc., alleging that both defendants are liable to it as a result of misconduct arising out of Sunquest’s acquisition of Antrim Corporation, a former subsidiary of Compucare that markets medical software. Plaintiff avers that defendants improperly failed to disclose hidden problem areas within An-trim, including “Year 2000” or “Y2K” deficiencies in its software products, that were material to plaintiffs decision to go through with the acquisition. Both defendants admit that plaintiff has properly pleaded causes of action for indemnity, breach' of contract and breach of express warranty in counts I — III of the complaint, but have filed motions under Fed.R.Civ.P. 12(b)(6) to dismiss those portions of the complaint that sound in breach of implied warranty, negligent and fraudulent misrepresentation, securities fraud and rescission. For the following reasons, I will grant Compucare’s motion in its entirety, but grant Dean Witter’s motion only in part.
I.
According to the allegations of the complaint, which must be credited as true for the purposes of deciding this motion, “Sun-quest develops, markets and supports integrated computer information systems for hospitals and other health-care providers[,] ... providing] comprehensive information processing for hospital laboratory operations.” Dkt. no. 1, ¶ 6. Plaintiff avers that it “is a leader in this field....” Id. In September 1996, plaintiff “became interested in acquiring information systems for out-patient laboi'atory operations....” Id. ¶ 7. Defendant Dean Witter, an investment banking firm retained by defendant Com-pueare, introduced plaintiff to Compucare and its subsidiary, Antrim. Id. ¶ 8. The parties negotiated for the sale of all outstanding shares of Antrim from Compu-care to Sunquest; on November 26, 1996, a Stock Purchase Agreement (“SPA”) was signed. Id., ¶ 9; see also dkt. no. 1, Exh. A (SPA).
The SPA is a thirty-nine page, single-spaced document setting forth the representations of Sunquest and Compucare. See dkt. no. 1, Exh. A. It contains an integration clause, as well as a choice of law provision reciting that the contract is to be “governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania....” Id. ¶¶ 9.6, 9.7. Plaintiff contends that some of Compu- *649 care’s representations did not comport with the actual condition of Antrim; these form the basis for counts I — III of the complaint and are not specifically at issue here. Sunquest also avers, however, that defendants made a variety of oral misrepresentations about Antrim, specifically:
a. Antrim’s most recent laboratory and financial information systems release was fully functional.
b. Antrim’s most recent laboratory and financial information systems release was Year-2000 compliant (i.e., capable of handling the transition through the Year 2000 without failure) and had been developed and beta-tested.
c. Antrim had released a fully functional information system that could connect reference laboratories with hospital laboratories at multiple sites to create integrated information-delivery networks.
d. Antrim had released a fully functional blood bank system to process and manage information on donors and transfusion services for medical laboratories and blood centers.
e. Antrim had net operating losses of at least $4.9 million that could be carried forward for federal income tax purposes by Sunquest after the Stock Purchase. The net operating loss carry-forward was valuable to Sunquest as an offset against future federal taxable income.
Dkt. no. 1, ¶ 11. Despite the integration clause, Sunquest seeks to hold defendants liable for these alleged misrepresentations under tort and securities fraud theories. It also alleges that Compucare “created a false sense of urgency about closing the transaction and intentionally restricted Sunquest’s access to important information regarding Antrim....” Id. ¶ 14.
As a result of these alleged misrepresentations, plaintiff avers that it was induced to consummate the SPA for $5 million, which it would not have done had full and truthful disclosures been made. Id. ¶ 17.
II.
A motion to dismiss cannot be granted unless the allegations in the complaint taken as true fail to state any claim upon which relief can be granted.
Angelastro v. Prudential-Bache Securities, Inc.,
Normally, a district court deciding a motion to dismiss will not consider documents that are not a part of the pleadings. “However, an exception to the general rule is that 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.’ ”
Burlington Coat,
*650 III.
Defendant Compueare seeks dismissal of count four of plaintiffs complaint, which purports to state a claim for breach of implied warranty. In that count, plaintiff avers that “[t]he medical information systems transferred to Sun-quest by Compueare as part of a voluntary transaction creating an interest in property were subject to the implied warranties of merchantability ... and fitness for a particular purpose prescribed by the Uniform Commercial Code.... ” Dkt. no. 1, ¶¶ 54-55. Defendant argues that “the transaction between Compueare and Sun-quest was a sale of stock, not a sale of Antrim’s assets, and, therefore, no warranties were created regarding Antrim’s assets, other than those specifically set forth in the Stock Purchase Agreement.” Dkt. no. 7, at 4 (emphasis deleted). I agree with defendant.
Assuming, without deciding, that a sale of securities is properly treated as a sale of goods under Article II of the UCC, only three implied warranties are created in such a transaction: title, genuineness and validity.
Independent Order of Foresters v. Donaldson Lufkin & Jenrette, Inc.,
Paragraph 1.1 of the SPA and paragraph 9 of the complaint both characterize the disputed transaction as a sale of stock, not an asset sale, yet plaintiff alleges that it was Antrim’s computer systems that were flawed. Dkt. no. 1, ¶¶ 20, 22, 23, 25. It is axiomatic, of course, that there can be no breach of warranty without a sale,
Whitmer v. Bell Tel. Co.,
To be sure, plaintiff is able to cite several cases in which implied warranties were recognized in transactions other than sales. In
All States Leasing Co. v. Ochs,
In sum, I conclude that Sunquest purchased a 100% interest in the stock of Antrim, not, as plaintiff argues, “a property interest in defective goods.... ” Dkt. no. 13, at 9. Its implied warranty claim at count four will accordingly be dismissed.
IY.
The more difficult question is whether, under Pennsylvania law, plaintiff can maintain claims for tortious misrepresentation where the underlying transaction was governed by a voluminous, detailed, integrated writing negotiated by sophisticated parties with the assistance of counsel and with the opportunity to perform due diligence. Count five asserts a claim for fraud, while count six pleads negligent misrepresentations and omissions. The elements of both claims are similar, except for the higher level of scienter and burden of proof for fraud.
See Weisblatt v. Minnesota Mut. Life Ins. Co.,
A.
Defendants argue that plaintiffs misrepresentation claims should be dismissed because this action fundamentally sounds in contract, not in tort, and under Pennsylvania’s “gist of the action” doctrine, tort claims cannot be maintained when they essentially duplicate an action for breach of an underlying contract. I agree, but only as to defendant Compucare.
When a plaintiff alleges that the defendant committed a tort in the course of carrying out a contractual agreement, Pennsylvania courts examine the claim and determine whether the “gist” or gravamen of it sounds in contract or tort; a tort claim is maintainable only if the contract is “collateral” to conduct that is primarily tortious.
Wood & Locker, Inc. v. Doran & Assoc.,
To further elaborate, contract actions arise from breach of duties mutually agreed to, while torts have their basis in violations of duties imposed as a matter of social policy.
Phico,
Defendants assert that counts five and six are based upon the same conduct that plaintiff claims amounted to a breach of contract and that plaintiffs success would be entirely dependent on the terms *652 of the SPA. As such, they maintain that the contract and both common law tort claims are intertwined and duplicative, precluding plaintiff as a matter of law from pursuing its fraud and negligent misrepresentation claims. Sunquest responds that “a plaintiff may maintain both fraud and contract claims in the same action when the plaintiff asserts that the defendant breached both specific contractual terms and a duty of care owed to the plaintiffs .... ” Dkt. no. 13, at 10. According to Sunquest, which thereby all but concedes that its negligent misrepresentation claim is not maintainable, defendants fraudulently induced it to enter the SPA, which breached an independent, extracontractual duty.
Plaintiff relies upon five cases for the proposition that fraud and contract theories may coexist.
See Roadmaster Indus., Inc. v. Columbia Mfg. Co.,
In
Piezo Crystal,
the plaintiff purchased defective metal from the defendant and sued for breach of contract and fraud. The court considered these claims on defendant’s motion for summary judgment and permitted both to proceed.
Fox’s Foods,
however, meets the issue more directly. There, the plaintiff entered into a lease arrangement with the defendant, under which the latter was to construct a supermarket for plaintiff to occupy. Repeated assurances were made concerning the timely completion of the project, but delay nevertheless occurred, and plaintiff sued for breach of contract and fraud. Defendant argued that its assurances, “even if knowingly false when made, [could] not support a fraud claim since they relate to existing contractual obligations.”
Additionally, plaintiff maintains that another case,
C.P. Cook Coal Co.,
militates in favor of permitting its misrepresentation claims to go forward. .That court applied the gist of the action doctrine to bar plaintiffs negligence claim,
Thus, it appears that none of plaintiffs cases provides substantial support for its position. Any remaining doubt is removed when the effect of the SPA’s integration clause is examined. I turn now to that issue.
B.
Paragraph 9.6 of the SPA contains the following integration clause:
Entire Agreement. This Agreement, together with the Exhibits and Schedules hereto and the Confidentiality Agreement dated July 27, 1996, constitute the entire agreement between the parties with respect to the subject matter of this Agreement, and is a complete and exclusive statement of those terms. It supersedes all understandings and negotiations concerning the matters specified herein, both oral and written.
Dkt. no. 1, Exh. A, ¶ 9.6. Defendants argue that this clause, and the parol evidence rule it triggers, seal the fate of plaintiffs fraudulent misrepresentation theory, while plaintiff strenuously contends that fraud in the inducement is an exception to inadmissibility of parol evidence and that those claims should survive. I agree with defendants.
Pennsylvania law on this point is not a model of clarity, having evolved in fits and starts over the last half century.
See 1726 Cherry St. Partnership v. Bell Atl. Properties, Inc.,
In 1726 Cherry St., plaintiffs owned a parcel of land in Center City Philadelphia which they sold to defendant under the terms of an integrated writing. During the negotiations, plaintiff alleged that defendant misrepresented its intentions concerning another parcel, and plaintiffs argued that they would have insisted upon a higher price for their land had they known the true state of affairs. Id. at 664-65. After exhaustively analyzing two seemingly conflicting lines of Pennsylvania deci-sional authority, the superior court barred plaintiffs’ fraudulent inducement claim, opining:
In sum, [Pennsylvania law] permits the admission of parol evidence of representations concerning a subject dealt with in an integrated written agreement and made prior to or contemporaneous with the execution of the agreement to modify or avoid the terms of that agreement only where it is alleged that the parties agreed that those representations would be included in the written agreement but were omitted by fraud, accident or mistake. This is commonly referred to as “fraud in the execution” because the party proffering the evidence contends that he or she executed the agreement because he or she was defrauded by being led to believe that the document he or she was signing contained terms that were actually omitted therefrom. Such a case is to be distinguished from a “fraud in the inducement” case such as the instant one, where the party proffering evidence of additional prior representations does not contend that the parties agreed that the additional representations would be in the written agreement, but rather claims that the representations were fraudulently made and that but for them, he or she never would have entered into the agreement.
Id. at 666. It continued:
Under these circumstances what the [plaintiffs] seek to do is exactly what the Pennsylvania parol evidence rule forbids: to admit evidence of a prior representation in a fully integrated written agreement. If the [plaintiffs] intended to rely on what they now contend was a *654 centrally important representation conveyed by Bell Atlantic in the course of the negotiations over a multimillion dollar commercial real estate transaction, then the [plaintiffs] should have insisted that the representation be set forth in their integrated written agreement. They are now barred from eliciting parol evidence that they were fraudulently induced into entering the contracts.
Id. at 670.
In another case decided on the same day as
1726 Cherry St.,
the Supreme Court of Pennsylvania, held essentially the same way. In
HCB Contractors v. Liberty Place Hotel Assocs.,
A year-and-a-half later, the Third Circuit applied
HCB
and
1726 Cheiry St.
in a case in which plaintiffs candy distributorship was terminated and plaintiff asserted claims for breach of contract and fraud in the inducement.
See Dayhoff, Inc. v. H.J. Heinz Co.,
More recently, in
Horizon Unlimited,
Judge Shapiro in the Eastern District of Pennsylvania dismissed claims for fraud and negligent misrepresentation under similar circumstances,
[I]t is not sufficient for a plaintiff to allege that defendants made fraudulent misrepresentations; the plaintiff must allege fraud in the inducement, that is, “the representations were fraudulently or by accident or mistake omitted from the integrated written contract.” HCB Contractors,652 A.2d at 1279 . “ ‘[I]f it were otherwise, the parole evidence rule would become a mockery, because all a party to a written contract would have to do to avoid, modify or nullify it would be to aver (and prove) that the false representations were fraudulently made.’ ” Nicolella v. Palmer,432 Pa. 502 ,248 A.2d 20 , 23 (1968).
Many of the other cases cited by Sun-quest for the proposition that fraud in the inducement claims may be brought despite the presence of an integrated writing disclaiming prior oral evidence were decided under the law of New York, not Pennsylvania.
See Turkish v. Kasenetz,
Sunquest cites
Betz
and
Berger v. Pittsburgh Auto. Equip. Co.,
Unfortunately for Sunquest,
Berger
was subsequently rejected by both
1726 Cherry St.,
Accordingly, I conclude that the integration clause bars whatever fraud in the inducement claims Sunquest may have otherwise had against Compueare. 6 It does not, however, bar those claims against Dean Witter, which was not a party to the SPA. 7 For that reason, and because Sun-quest also alleges that Compueare made fraudulent omissions, I will analyze defendants’ remaining arguments.
C.
Sunquest argues that, whatever result may obtain on defendants’ affirmative misrepresentations, they should still be held liable for their omissions. According to plaintiff, defendants failed to disclose facts about Antrim that were peculiarly within their knowledge and not susceptible of easy discovery by Sunquest during its due diligence review.
It is axiomatic, of course, that silence cannot amount to fraud in the absence of a duty to speak.
E.g., Drapeau v. Joy Tech., Inc.,
Sunquest does not argue that there was a fiduciary or confidential relationship between the parties here. Instead, relying upon
Fox’s
Foods,
8
it posits
*657
a duty arising under section 551(b)(2) of the Restatement (Second) of Torts.
9
In
Fox’s Foods,
a case involving assurances to complete construction of a building when the defendant actually held other projects in higher priority, the court opined that a party making an “incomplete” representation that could be misleading if left to stand alone is under a duty to disclose such other facts as may be necessary to make the initial statement clear.
See
Fox’s Foods and section 551(b)(2) of the Restatement are both inapposite to the case at bar. Again, Sunquest tries to pretend that the integration clause either does not exist or has no legal force. As I have already concluded after discussion, supra, the integration clause and the parol evidence rule preclude any evidence of affirmative misrepresentations. For purposes of this legal analysis, then, there were no partial or ambiguous statements that would be misleading absent disclosure of other facts. Thus, no duty to speak ever arose within the meaning of section 551(b)(2). Plaintiffs argument, properly considered, is nothing more than an attempted bootstrap around the integration clause. Accordingly, plaintiffs fraud claim based ' upon omissions by Compucare fails. 10
D.
In order to assert a claim for either fraud or negligent misrepresentation, the plaintiff must show justifiable reliance on the allegedly untrue statement or omission.
Gibbs,
The same cannot be said for Sun-quest’s claims against Dean Witter. There, the integration clause does not apply, but both defendants also argue that because Sunquest is a sophisticated party that had the opportunity to inspect Antrim before the closing, it cannot, as a matter of law, assert misrepresentation or omission claims.
See Wittekamp v. Gulf & W., Inc.,
E.
Defendants also urge me to dismiss plaintiffs misrepresentation claims under the economic loss doctrine. This issue has not been well briefed by any of the parties, and it is mostly argued in a series of dueling footnotes. Nevertheless, because the economic loss doctrine, if it applies, would result in the dismissal of Sunquest’s fraud and negligent misrepresentation claims against Dean Witter, I will analyze its applicability.
In
Palco Linings, Inc. v. Pavex, Inc.,
The
Palco
court noted, however, that two exceptions exist to the economic loss rule. First, if the misrepresentation is intentionally false, that is, fraudulent, the plaintiffs fraud claim may proceed.
Id.
at 1274. Second, under section 552
of
the Restatement (Second) of Torts, if the defendant is “in the business of supplying information for the guidance of others [and] makes negligent misrepresentations[,]” plaintiffs claim is not barred.
12
Accord Auger v. Stouffer Corp., No.
93-2529,
First, Sunquest expressly pleads that Dean Witter
13
made fraudulent misrepre
*659
sentations, so the first exception is triggered.
See Auger,
V.
Count VII sets forth federal claims under section 10(b) of the 1934 Exchange Act, while count VIII asserts similar claims under the Pennsylvania Securities Act. These two statutory claims have the same elements, and will be treated together.
See Feret v. Corestates Financial Corp.,
No. 97-6759,
A.
With respect to Sunquest’s securities fraud claims against Compucare, the analysis is straightforward. I have already concluded that, because of the integration clause in the SPA, Sunquest could not have justifiably relied upon any of Compucare’s misrepresentations or omissions. Because justifiable reliance is manifestly an element of any securities fraud action,
see Braunstein v. Benjamin Berman, Inc.,
No. 89-5344,
B.
The more substantial issue is whether Sunquest’s securities fraud claims against Dean Witter survive the instant motion to dismiss. Defendant argues that those claims, as pleaded, fail to meet the standards applicable under Fed.R.Civ.P. 9(b) or the Private Securities Litigation Reform Act of 1995 (“PSLRA”), 15 U.S.C. § 78u-4(b). Under that section, “the complaint shall specify each statement alleged to have been misleading, [and] the reason or reasons why the statement is misleading[.]” 15 U.S.C. § 78u-4(b)(í). Moreover, if the securities fraud claim at issue requires a showing of scienter, the complaint must “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2). Under Rule 9(b), “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.” Plaintiff and defendants fail to address whether the PSLRA imposed a higher standard of pleading than already existed under Rule 9(b) and how the two standards differ, 14 although, in *660 many respects, they appear to be identical. 15
In order to properly plead securities fraud, Rule 9(b) requires
plaintiffs [to] plead with particularity the circumstances of the alleged fraud in such a way as to inject “precision and some measure of substantiation into their allegations of fraud.” By way of example, allegations - of “who, what, when, where and how: the first paragraph of any newspaper story,” would satisfy the particularity requirement of Rule 9(b). In re Westinghouse Securities Litig.,832 F.Supp. 948 , 965 (W.D.Pa.1993) (citing, inter alia, Seville Indus. Machinery Corp. v. Southmost Machinery Corp.,742 F.2d 786 , 791 (3d Cir.1984)), rev’d in part on other grounds,90 F.3d 696 (3d Cir.1996).
In re Crown Am. Realty Trust Sec. Litig.,
No. 95-202J,
Plaintiffs pleading regarding Dean Witter’s alleged fraud is sparse indeed. In paragraph 10, it alleges that:
During the negotiations in September, October and November 1996, Dean Witter ... made various representations to Sunquest regarding Antrim’s products and operations. Those representations were made in written form in promotional materials supplied to Sunquest by Dean Witter....
These promotional materials are not attached to the complaint, nor are they- further identified or referenced. Paragraph 11, however, does contain a very general description of the nature (or, “what”) of the misrepresentations allegedly made by both defendants, both orally and in writing:
a. Antrim’s most recent laboratory and financial information system release was fully functional.
b. Antrim’s most recent laboratory and financial information systems release was Year-2000 compliant (i.e., capable of handling the transition through the Year 2000 without failure) and had been developed and beta-tested.
c. Antrim had released a fully functional information system that could connect reference laboratories with hospital laboratories at multiple sites to create integrated information-delivery networks.
d. Antrim had released a fully functional blood bank system to process and manage information on donors and transfusion services for medical laboratories and blood centers.
e. Antrim had net operating losses of at least $4.9 million that could be carried forward for federal income tax purposes by Sunquest after the Stock Purchase ....
It is also alleged in paragraph 13 that defendants made certain fraudulent omissions, most significantly that Antrim’s software installations “were highly customized for each individual site[,]” “that there was virtually no technical documentation for the custom-designed systems!,]” that the “systems were not Year 2000 compliant,” that the “multi-site laboratory information system was plagued by serious functionali *661 ty and design deficiencies!!,]” and “had not been successfully installed at Antrim’s customers’ sites.” Finally, in paragraph 33, plaintiff avers that a Dean Witter employee, Andrew Lipsky, along with representatives of Compucare, orally “represented to Sunquest that Antrim’s net operating loss carry-forward was $4.9 million.”
This is problematic, at a minimum, because it is impossible to sort out from these allegations exactly what misrepresentations were made by Dean Witter in the promotional materials and what may have been misrepresented or omitted only by Compucare, as to which I have dismissed the securities fraud counts. The “who, when and where” are therefore insufficiently pleaded, and it is not reasonable to expect Dean Witter to frame a responsive pleading to these allegations.
See Klein,
Moreover, Sunquest’s allegations of scienter are insufficient. Scienter is properly pleaded by alleging facts giving rise to an inference that the defendant “knew or was reckless in not knowing” that its representations were false when made.
Burlington Coat,
All plaintiff has done is to recite, in boilerplate fashion, that “Dean Witter made [its] material misrepresentations and omissions to Sunquest with reckless disregard for the truth or with intention of deceiving and inducing Sunquest to take actions that would benefit ... Dean Witter, and to induce Sunquest to enter into a purchase of Antrim’s stock for an excessive price.” Dkt. no. 1, ¶ 16. Neither this conclusory recitation nor any other averment of the complaint identifies any action of Dean Witter that leads to an inference of conscious or reckless, as opposed to merely negligent or mistaken, conduct on the part of Dean Witter. “A plaintiff cannot simply couple a factual statement with a conclusory allegation of fraudulent intent to adequately plead scienter.”
Walish,
Nor can it be successfully argued that plaintiff has successfully alleged motive and opportunity. In
Shields v. Citytrust Bancorp, Inc.,
Motive would entail concrete benefits that could be realized by one or more of the false statements and wrongful non-disclosures alleged. Opportunity would entail the means and likely prospect of achieving concrete benefits by the means alleged.
Id. at 1130. Plaintiffs averments are insufficient. Assuming that Dean Witter’s motive was to close the Antrim deal and make money for itself, the allegations against it are too unfocused to even evaluate what misrepresentations and omissions were made (the means) and how and why they were likely to secure a concrete benefit to defendant.
Thus seen, it is evident that plaintiffs allegations of securities fraud are deficient, both as to particularity and scienter. It is quite possible, of course, that plaintiff will be able to cure these pleading defects by amendment. Hence, I will dismiss counts VII and VIII against Dean Witter, but with leave to amend.
*662 VI.
Finally, Compucare argues that count IX of the complaint, which pleads rescission, should be dismissed. 16 I agree.
First, Sunquest seeks rescission only as a remedy against Compucare’s alleged securities fraud and common law misrepresentations and omissions, all of which have been dismissed from this action. For that reason alone, the rescission claim must be dismissed.
Second, rescission is not available because Sunquest never tendered or attempted to tender its shares back to Compucare. It is axiomatic under Pennsylvania law that a party seeking rescission must “tender[ ] back [to the defendant] what [it] has received [so that it may sue] for what it has parted with[.]”
Wolgin v. Smith,
No. 94-7471,
ORDER
AND NOW, this 24th day of March 1999, upon consideration of defendants’ motions to dismiss portions of plaintiffs complaint, dkt. nos. 6, 11, and the responses thereto, it is hereby ORDERED and DIRECTED that:
1. defendant Compucare’s motion to dismiss, dkt. no. 6, is GRANTED;
2. defendant Dean Witter’s motion to dismiss, dkt. no. 11, is GRANTED IN PART AND DENIED IN PART;
3. Count IV of plaintiffs complaint is DISMISSED WITH PREJUDICE;
4. Counts V and VI of plaintiffs complaint are DISMISSED WITH PREJUDICE as to defendant Compucare only;
5. Counts VII and VIII of plaintiffs complaint are DISMISSED WITH PREJUDICE under Fed.R.Civ.P. 12(b)(6) as to defendant Compucare, and DISMISSED WITH LEAVE TO AMEND under Fed. R.Civ.P. 9(b) as to defendant Dean Witter;
6. Count IX of plaintiffs complaint is DISMISSED WITH PREJUDICE;
7. plaintiff shall file an amended complaint stating only the remaining claims against the appropriate defendants on or before April 15,1999;
8. defendants shall answer or otherwise plead on or before May 6,1999.
9. a ease management conference will be held in my Johnstown chambers on Wednesday, May 12, 1999, at 4:15 P.M.
Notes
. Compueare also relies upon
Cryer v. M & M Mfg. Co.,
. The same can also be said of Roadmaster, which, additionally, was not decided under Pennsylvania law.
. The Dayhoff court also explained the distinction between these two types of fraud:
Fraud in the execution applies to situations where parties agree to include certain terms in an agreement, but such terms are not included. Thus, the defrauded party is mistaken as to the contents of the physical document that it is signing. Parol evidence is admissible in such a case only to show that certain provisions were supposed to be in the agreement but were omitted because of fraud, accident, or mistake. Fraud in the inducement, on the other hand, does not involve terms omitted from an agreement, but rather allegations of oral representations on which the other party relied in entering into the agreement but which are contrary to the express terms of the agreement.
.
See also Abrams v. Crown,
. There is, however, one district court opinion to the contrary. In
CoreStates Leasing, Inc. v. Housewright,
No. 96-8678,
. Sunquest argues that the integration clause should still be held to have no effect, because it purports only to "supersede all understandings and negotiations” and does not explicitly exclude "representations.” I reject this argument for two reasons. First, the integration clause in
Dayhoff
also failed to refer to representations, but the court nevertheless excluded the fraud claim.
See
. Dean Witter relies on two cases to support its argument that, as Compucare’s agent, it should receive the benefit of the integration clause against Sunquest’s fraud claims.
See Bowman,
. Sunquest also relies upon
Zimmerman v. Susie,
. That section provides, in pertinent part:
(2) One party to a business transaction is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated; ...
(b) matters known to him Lhat he knows may be necessary to prevent his partial or ambiguous statement of facts from being misleading[.]
. Because Dean Witter was not a party to the SPA, Sunquest is not barred from making its omissions claims against that defendant, for the reasons discussed supra regarding affirmative misrepresentations.
. In
Duquesne Light,
however, the Third Circuit implied that the economic loss doctrine may not apply unless the plaintiff at least potentially has a contract-based remedy available.
. With respect to the engineering firm, the court opined that the firm "cannot be said to be in the business of supplying information for the purpose of inducing additional action by the plaintiff.... It is illogical to state that defendant was doing any more by way of its representations to the plaintiff than what it was already contractually bound to the City to do.”
Id.
at 1275. At least one court applying Pennsylvania law has expressly disagreed with this conclusion.
See Diaz Contracting, Inc. v. Lisbon Contractors, Inc.,
No. 88-9203,
.Because all misrepresentation claims against Compucare have been dismissed on other grounds, I need not consider whether *659 the economic loss doctrine applies to those claims. I note, however, that the economic loss analysis appears similar, if not identical to, the application of the “gist of the action” doctrine.
. Indeed, plaintiff's briefs fail to address the PSLRA or the limited amount of caselaw interpreting it.
. Although it appears that the standard for pleading scienter is lower under Rule 9(b), the Third Circuit has held that the rule requires the same “strong inference” standard applied by the PSLRA.
Burlington Coat,
. Sunquest does not seek rescission against Dean Witter, which was not a party to the SPA.
. Plaintiffs cases are either inapposite or outdated. Two of them were decided under the law of other jurisdictions that do not enforce a strict tender rule.
See Prudential Ins. Co. v. BMC Indus., Inc.,