The Bank, however, fails to demonstrate that this arrangement represents anything more than a business deal entered into by DiMarco, Jr. in order to resolve his own financial problems. Throughout the entire business relationship with the Bank, DiMarco, Jr. acted on his own behalf. First, DiMarco, Jr. was at all time the principal in any dealings with the Bank. DiMarco, Jr. applied for and accepted the loan from the Bank based on his personal financial statement and secured it with his personal guaranty. When he defaulted on the loan, DiMarco, Jr. alone entered into negotiations with the Bank to restructure his outstanding debt.
Second, Defendants were never a principal party in any dealings with the Bank. Indeed, Defendants were not aware of DiMarco, Jr.'s transactions with the Bank until sometime in 1992. Additionally, Defendants were not shareholders, officers or directors in DiMarco, Jr.'s business, DiMarco Development Group. There is no evidence that Defendants had any interest in DiMarco, Jr.'s business affairs. Pennfield Manor's purchase of the certificate indicates nothing more than Defendants agreeing to help DiMarco, Jr. renegotiate his debt with the Bank.
By relying on the doctrine of apparent authority, the Bank concedes that Defendants did not directly make any fraud- ulent misrepresentations. However, the Bank has demonstrated nothing that would lead a reasonable jury to believe that DiMarco, Jr. possessed any authority of any sort to act on Defendants' behalf. Indeed, the facts clearly point out that DiMarco, Jr. was the principal in all relevant events and that the actions that he took, alleged or otherwise, were intended to advance his own interests and not that of the Defendants. Accordingly, we grant summary judgment with respect to count III.
B. Allegations of Conspiracy to Defraud
The Bank also seeks to recover compensatory and punitive damages arising from a conspiracy allegedly orchestrated by Defendants to defraud the Bank during the Bank's restructuring and forbearance negotiations with DiMarco, Jr. The Bank relies primarily on circumstantial evidence to prove conspiracy. The circumstantial evidence presented by the Bank, however, does not demonstrate that Defendants possessed the requisite intent to injure.
To prove a civil conspiracy, the Bank must show that two or more persons combined or agreed with the intent to do an unlawful act or to do an otherwise lawful act by unlawful means. see Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 210, 412 A.2d 466, 472 (1979). In Pennsylvania, the elements of conspiracy may be proven entirely by circumstantial evidence provided that the evidence is full, clear and satisfactory. Rumbaugh v. Beck, 411 Pa. Super. 220, 236, 601 A.2d 319, 327 (1991). Proof of the intent to injure, however, is essential, and this intent must be absent justification. Thompson Coal Co., 488 Pa. at 211, 412 A.2d at 472.
In Thompson Coal Co., the Pennsylvania Supreme Court held that where the facts show that a person acted to advance his own business interests, those facts constituted justification and negate any alleged intent to injure. Id. The court also noted that although conspiracy is normally proven by circumstantial evidence, courts must not forget that conspiracy is easily alleged and that in a race between creditors, suspicion or the possibility of a guilty connection is not sufficient proof. Thompson Coal Co., 488 Pa. at 212, 412 A.2d at 473, n. 9. There, the court affirmed the summary judgment on a conspiracy charge finding that the record did not demonstrate an intent to injure. Instead, the court found facts indicating that the defendant merely acted to advance his own business interests. Thompson Coal Co., 488 Pa. at 212, 412 A.2d at 473.
Similarly, the Bank has failed to demonstrate that Defendants possessed an intent to injure which was absent justification. Instead, the record shows that Defendants acted as any interested and informed creditors would normally act in protecting their own interests. First, Defendants properly filed a mortgage on DiMarco, Jr.'s residence in October, 1991 in order to properly secure his loan, a precaution any prudent creditor would take. This lawful act occurred well before the Bank and DiMarco Jr. entered into restructuring and forbearance negotia- tions. Second, at the first signs of financial downfall, Defendants lawfully and publicly confessed judgment against DiMarco, Jr. and requested a sheriff's sale to secure their interests. The Bank does not contest that these were the actions that any alert creditor would take under similar circumstances. Finally, the Bank again points to Pennfield Manor's purchase of the certificate of deposit as a clear indication of a conspiracy to defraud. We find, however, that the timing of the purchase of the certificate negates any indication of a conspiracy. Defendants' actions as a responsible creditor began in October when they secured their interest by properly filing the mortgages. Later, Defendants initiated protection of their interest in January by publicly and openly confessing judgment against DiMarco, Jr. Defendants' actions did not preclude the Bank from taking similar actions. Nor was the Bank represented on April 15 when Defendants purchased DiMarco, Jr.'s residence at a publicly held Sheriff's sale. The Bank throughout this time period could have taken steps to protect its interest. Finally, Pennfield Manor purchased the certificate after the Sheriff's sale and Defendants owned DiMarco, Jr.'s residence.
Thus, given the relevant time period, the Bank has not demonstrated that the purchase of the certificate constituted a manifestation of a conspiracy.
Moreover, The Bank has not shown that Defendants possessed the intent to injure absent justifi-cation, an essential element to the conspiracy charge. As a result, summary judgment is also granted with respect to count IV.
C. Common Law Tort of Aider and Abettor Liability
Finally, the Bank seeks compensatory and punitive damages under a novel, common law tort of civil aider and abettor liability. However, we find no basis in Pennsylvania law for such a tort. Therefore, summary judgment is granted regarding count IX.
An appropriate order follows.
AND NOW, this 8th day of November, 1993, upon consideration of Defendants' Motion for Summary Judgment and Plaintiff's response thereto, it is hereby ORDERED that the Defendants' Motion is GRANTED with respect to counts III, IV, and IX.
BY THE COURT:
J. CURTIS JOYNER