COUNTY OF ERIE v. M/A-COM, INC.

Sconiers and Whalen, JJ.

(dissenting). We respectfully dissent because we cannot agree with the majority that plaintiff, County of Erie (County), has the capacity to sue and that the first amended complaint sufficiently states a fraud cause of action against Kevin J. Comerford (defendant). We would therefore modify the order by granting in its entirety defendant’s motion to dismiss the first amended complaint against him based on those grounds.

We first address the majority’s conclusion that the County has the capacity to sue defendant. “[Cjapacity concerns a litigant’s power to appear and…