intended to quit, and that Browne's action in reliance on Maxfield's statement was a substantial factor in his loss of employment. That is all Browne must prove to sustain his burden on the question of causation. Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280, 1285 (1978).
Pecuniary loss. Under Pennsylvania law, "the victim [of misrepresentation] is entitled to all pecuniary losses which result as a consequence of his reliance on the truth of the representations," Delahanty v. First Pennsylvania Bank, N.A., 318 Pa. Super. 90, 464 A.2d 1243, 1257 (1983), and pecuniary loss is an element of the cause of action, see supra. In addition to other reliance damages, "in an employment context lost future income [from his prior job] is in fact what the plaintiff loses when he is induced to leave an otherwise on-going position." Lokay v. Lehigh Valley Cooperative Farmers, Inc., 342 Pa. Super. 89, 492 A.2d 405, 410 (1985). We conclude that the pecuniary loss required to sustain a misrepresentation claim is to be defined in the same manner when the plaintiff is caused to be fired from an otherwise ongoing position.
We agree with defendants that the record requires the conclusion that Browne's employment at DVM was terminable at will. The task of determining damages will thus be a difficult one. But that obstacle is not insuperable. Cf. Delahanty, supra, 464 A.2d at 1257-58 (discussing level of certainty required for proving damages). We thus conclude that a jury might reasonably find that Browne suffered pecuniary loss as a result of the alleged misrepresentation.
State of mind. Turning now to the elements that distinguish negligent misrepresentation from fraudulent misrepresentation, we find that a jury might reasonably conclude from the evidence that Maxfield acted without exercising reasonable care in misrepresenting the status of Browne's job candidacy. We also find that a jury might conclude, by a preponderance of the evidence, that Maxfield acted with conscious indifference to whether his representations were true or false.
Standard of proof. In order to prevail on a claim of fraudulent misrepresentation, "fraud must be proved by a higher standard than the preponderance of the evidence standard." Beardshall v. Minuteman Press International, Inc., 664 F.2d 23, 26 (3d Cir. 1981). See also Maley v. John Hancock Mutual Life Insurance Co., 609 F. Supp. 621, 625 (E.D. Pa. 1985) (applying clear and convincing evidence standard to all elements of fraudulent misrepresentation). Our summary judgment determination must, under Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986), be made in light of the evidentiary standard to be applied at trial. We find that Browne cannot meet the heightened standard of proof required for proving fraud on the basis of the record before us.
Our conclusion that Browne's fraudulent misrepresentation claim cannot stand does not require a finding that punitive damages are unavailable as a matter of law. The wrongful conduct underlying a claim for punitive damages, unlike allegations of fraud, need be proven only be a preponderance of the evidence. Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088, 1098 & n.14 (1985). Nonetheless, we agree with defendants that punitive damages are inappropriate on the record before us.
The Pennsylvania Supreme Court stressed in Martin that "the imposition of punitive damages is an extreme remedy." Id. at 1098 n.14. Focusing on the state of mind required to be shown, that court was careful to limit punitive damages to cases in which the actor appreciates that his conduct creates a high degree of risk. Id. at 1097. Varying the factual situation in the case before us, such a showing might be made if Browne had told Maxfield that he had reason to fear Pearce's reaction. Instead, however, the evidence shows that Browne merely expressed his view that it would be improper for Pearce to hear the news of his KYW job from anyone but Browne. On these facts, we hold that a jury could not reasonably find that Maxfield was aware of the nature of the risks Browne faced and nonetheless acted with a reckless indifference to Browne's interests. Id. at 1098 & n.13. We thus hold that punitive damages are unavailable in this case.
We also agree with defendants that the claim of Kathleen Browne, Arthur Browne's wife, for damages for loss of consortium is not viable on the facts of this case. Browne has not claimed damages for physical and emotional injuries, and such damages are likely to be unavailable to him as a matter of law. See Kutner v. Eastern Airlines, Inc., 514 F. Supp. 553, 559 (E.D. Pa. 1981) (limit on damages for breach of contract); Restatement (Second) of Torts § 552B (limit on damages for negligent misrepresentation). Damages for loss of consortium are not generally available when the spouse's direct injuries are pecuniary, see, e.g., Cappiello v. Ragen Precision Industries, Inc., 192 N.J. Super. 523, 471 A.2d 432 (1984), and we do not predict that Pennsylvania courts would expand the cause of action beyond these limits.
In sum, we shall grant defendants' motion for summary judgment as to plaintiffs' claim of fraudulent misrepresentation, loss of consortium, and punitive damages, and deny their motion as to plaintiffs' claims of negligent misrepresentation and breach of contract.
As a final matter, defendants have moved to strike various portions of the evidence produced by plaintiffs in opposition to defendants' motion for summary judgment. As we have not relied upon any of the evidence objected to by defendants, we shall deny defendants' motion without prejudice to the raising of evidentiary objections at trial.
An appropriate order is appended.
For the reasons set forth in the accompanying memorandum, it is hereby ORDERED AND DIRECTED that
(1) defendants' motion for summary judgment is GRANTED as to plaintiffs' claims of fraudulent misrepresentation, loss of consortium, and punitive damages, and DENIED as to plaintiffs' claims of negligent misrepresentation and breach of contract;
(2) defendants' motion to strike portions of plaintiffs' exhibits is DENIED WITHOUT PREJUDICE to the raising of evidentiary objections at trial.