author: LASH, J.,

text:
    In the Interest of S.R.R.

      C.P. of Berks County,
    no. 7424-2005.

      Christine M. Sadler, assistant county solicitor, for County of Berks.

      Joseph A. Guillama, for defendant.
    September 13, 2010
   LASH, J.,

Before this court is the petition of the juvenile, S.R.R., to “rescind” a court order dated April 21,2010. That order provided that the juvenile is required to undergo an assessment by the State Sexual Offenders Assessment Board pursuant to section 6358 of the Juvenile Act. Section 6358 provides that when a juvenile has been found to be delinquent for an act of sexual violence and certain other criteria are present, the juvenile shall be subject to an assessment by the board to determine whether the juvenile is in need of involuntary treatment pursuant to Act 21 of the Juvenile Act. The juvenile contends that the facts in this case are insufficient to establish a basis for the court ordering the assessment. Also before the court is the motion of the County of Berks Juvenile Probation office to quash the juvenile’s petition due to untimeliness. Argument was held on August 19, 2010.

The juvenile has an extensive involvement in the juvenile justice system. On or about July 25,2005, a petition was filed in Juvenile Court alleging that the juvenile had committed aggravated indecent assault, 18 Pa.C.S. §3125(a)(1) and (2), felony 2, two counts of indecent assault, 18 Pa.C.S. §3126(a)(1)and(2),misdemeanor2, disorderly conduct, under 18 Pa.C.S. §5503(a)(4), misdemeanor 3, two counts of harassment, 18 Pa.C.S. §2709(a)(l) and (3), summary offenses, and purchase, consumption, possession or transportation of liquor or malt or brewed beverages, 18 Pa.C.S. §6308(a), a summary offense. The incidents were alleged to have occurred on July 23, 2005. At that time, the juvenile was less than 18 years of age, being bom on February 21, 1990.

A hearing on the petition was held on August 4,2005. At that time, the court found the juvenile involved in two (2) counts of indecent assault, disorderly conduct, and purchase, consumption, possession and transportation of liquor or malt or brewed beverages. The juvenile was adjudicated delinquent on the misdemeanor charges. Disposition was then deferred pending a drug and alcohol evaluation and a sexuality evaluation, and the juvenile was held in detention. At a disposition hearing on August 23,2005, the juvenile was placed on intensive probation with a sexuality counselor. Among other things, he was committed to the Youth Services Agency ACT program for eight weekends.

On December 19, 2005, the court held a hearing on allegations that the juvenile violated his probation. The violations included failure to attend school, failure to report to the Juvenile Probation office, failure to perform community service, failing to abide by a curfew, testing positive for marijuana, failing to attend a psychiatric evaluation, and failing to attend counseling. Further disposition was deferred and the juvenile was detained. On January 6, 2006, the juvenile was committed to the Drug and Alcohol Rehabilitation Services at Manos.

On August 23,2006, the court ordered that the juvenile be released from placement at Manos and detained pending his transfer to a new facility. On August 31, 2006, after an additional hearing, disposition was deferred, the juvenile being directed to cooperate with an additional sexuality evaluation. He remained detained pending the results of the evaluation. The disposition hearing was held on September 28, 2006, at which time the court committed the juvenile to the Alternative Rehabilitation Communities, Inc.’s (ARC) special-needs program. On June 18, 2008, the court ordered that the juvenile continue in placement at ARC.

At ahearing on July 10,2008, the juvenile was released from ARC and placed on probation. Shortly thereafter on August 1,2008, he left home without permission and remained missing until September 11,2008. The Juvenile Probation office filed probation violations, also charging him with failing to attend counseling, testing positive for marijuna, and drinking alcohol. On September 18,2008, the juvenile admitted the violations. Disposition was deferred, and the juvenile was detained pending his commitment to the Eagleville Rehabilitation Program commencing September 19, 2008.

On or about November 11,2008, Eagleville requested that the juvenile be removed from the program. The next day, the juvenile left Eagleville without permission and a bench warrant was issued. He was then detained on the same day pending further hearing. At a subsequent hearing held on November 20, 2008, the court stayed the bench warrant and detained the juvenile, pending his placement at the Berks County Priorities Responsibility Enhancement Program (PREP).

On April 27,2009, the juvenile was released from the PREP program and placed on probation to reside independently in his own apartment. On or about July 1,2009, additional violations of probation were lodged, alleging failure to report or to maintain contact with the Juvenile Probation office, failing to report for the inpatient drug and alcohol treatment as required, failing to attend counseling, testing positive for marijuana, admitting to the use of alcohol, and admitting to exposing himself on two occasions within the past three months. On July 9,2009, after hearing held, disposition was deferred. The juvenile was ordered to remain detained and submit to a drug and alcohol evaluation, On July 28,2009, after further hearing, the juvenile was committed to the Drug and Alcohol Rehabilitation program at Colonial House.

On October 1,2009, the court ordered the juvenile to remain at Colonial House, pending transfer to a halfway house, to remain in the halfway house until completion of the program, then to reside with his family in the community. Subsequently, the juvenile was transferred to the Alternative Counseling Associates Halfway House. However, on December 14, 2009, the juvenile was arrested for shoplifting. After hearing on December 22, 2009, the juvenile was placed in the shelter care facility at the Youth Detention Center. He remained there until April of 2010, when he was detained in Berks County Prison after being charged as an adult with assault.

On April 21,2010, on recommendation of the Juvenile Probation office, the court ordered that the juvenile be subject to an assessment by the State Sexual Offenders Assessment Board, pursuant to section 6358. The order was docketed with the clerk of courts of Berks County on April 23, 2010.

On May 24,2010, the juvenile filed the within petition to rescind the court’s order of April 21, 2010. The petition alleges that the court was without basis for ordering an assessment under section 6358. Petitioner points out that section 6358 sets forth that an assessment can only be conducted when a child has been found to be delinquent for an act of sexual violence and is committed to an institution or other facility, defined, and who remains in such facility upon attaining 20 years of age. Here, the juvenile was in placement when he turned 20 however, the placement did not relate to his original commitment. Further, subsequent to his adjudication on the indecent assault and his commitment thereon, the juvenile was released into the community on several occasions and placed on probation. The juvenile also alleges that the time he spent in shelter care is not considered a facility for purposes of section 6358. Under these circumstances, the juvenile cannot be considered to have “remained” in placement pursuant to his sexual offense.

On or about July 22,2010, the county filed its motion to quash the juvenile’s petition. The county points out that the juvenile’s petition was filed on May 24, 2010, which it contends was more than 30 days after entry of the order of April 21,2010. As such, the court is without authority to modify or rescind the order.

We will initially address the county’s motion to quash. As both parties note, the court’s authority for modification and rescission of orders is provided in section 5505 of the Judicial Code, which states:

“Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order as been taken or allowed.”

Our authority to modify or rescind an order under section 5505 is “almost entirely discretionary.” Stockton v. Stockton, 698 A.2d 1334, 1337 (Pa. Super. 1997), citing Justice v. Justice, 417 Pa. Super. 581, 586, 612 A.2d 1354, 1357 (1992). However, the motion to modify or rescind must be filed within 30 days of the entry of the disputed order. After the expiration of 30 days, the court loses “its broad discretion to modify, and the order can be opened or vacated only upon a showing of extrinsic fraud, lack of jurisdiction over the subject matter, a fatal defect apparent on the face of the record or some other evidence of‘extraordinary cause justifying intervention by the court.’ ” Stockton, 698 A.2d at 1337, citing Simpson v. Allstate Insurance Company, 350 Pa. Super. 239, 504 A.2d 335 (1986); and Orie v. Stone, 411 Pa. Super. 481, 601 A.2d 1268 (1992).

We find the county’s calculation of the 30-day period to be incorrect. The 30-day appeal period had not expired at the time the juvenile filed the within petition.

As stated in section 5505, the 30 days is commenced upon “entry” of the court’s order. While the county correctly points out that the order was executed on April 21, 2010, it was not entered until April 23, 2010, the date that it was docketed with the clerk of courts of Berks County. As stated by the Superior Court in Halpern v. Halpern, 926 A.2d 445, 447 (Pa. Super. 2007), an order is not considered entered under section 5505 until it is filed.

In calculating the 30-day period, we rely on section 1908 of the Statutory Construction Act of 1972. Section 1908 states:

“When any period of time is referred to in any statute, such period in all cases, except as otherwise provided in section 1909 of this title (relating to publication for successive weeks) and section 1910 of this title (relating to computation of months) shall be so computed as to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation.”

The proper calculation is, therefore, to exclude the first day, April 23, 2010, and include the last day, which would be May 23,2010. However, May 23,2010 was a Sunday. Under section 1908 whenever the last day of the period falls on a Sunday, that day is omitted from the computation. Thus, the 30th day becomes May 24,2010, which was also the date in which the within petition was filed. The county’s motion to quash the petition is therefore denied.

We turn then to the juvenile’s contention that he should not be required to submit to an assessment by the board under section 6358. Section 6358(a) provides:

“(a) General rule. — A child who has been found to be delinquent for an act of sexual violence which if committed by an adult would be a violation of 18 Pa.C.S. §§3121 (relating to rape), 3123 (relating to involuntary deviate sexual intercourse), 3124.1 (relating to sexual assault), 3125 (relating to aggravated indecent assault), 3126 (relating to indecent assault) or 4302 (relating to incest) who is committed to an institution or other facility pursuant to section 6352 (relating to disposition of delinquent child) and who remains in such facility upon attaining 20 years of age shall be subject to an assessment by the board.”

The board is enlisted under section 6358 to assess whether the juvenile should receive a civil commitment under Act 21. Act 21 was enacted to provide: “rights and procedures for the civil commitment of sexually violent delinquent children who, due to a mental abnormality or personality disorder, have serious difficulty in controlling sexually violent behavior and thereby pose a danger to the public and further provides for additional periods of commitment for involuntary treatment for said persons.” 42 Pa.C.S. §6401.

Before a person can be subject to the procedures of Act 21, three criteria must be met. 42 Pa.C.S. §6403(a). First, the person must have been a juvenile adjudicated delinquent for an act of sexual violence which, if committed by an adult, would be a violation of certain sexual offenses. The juvenile meets this criteria, having been adjudicated on two counts of indecent assault under section 3126 of the Crimes Code. See section 6402 of Act 21 and section 6358(a). Secondly, the person must have been committed to a juvenile facility or institution and remain at that institution when the person reaches 20 years of age. Section 6403(a)(2). Third, the person must be in need of involuntary treatment due to a mental abnormality or personality disorder which results in serious difficulty in controlling sexually violent behavior that makes the person likely to engage in an act of sexual violence.” Section 6403(a)(3).

The assessment under section 6358 determines whether the third criterion of Act 21 is met. Because a person cannot be subject to the provisions of Act 21 unless all three criteria of section 6403(a) are met, section 6358 mandates that the first two criteria of section 6403 be present before an assessment can be required.

The issue raised is one of statutory construction. In the Interest of C.A., A Minor Child, 961 A.2d 172, 174 (Pa. Super. 2008); In the Interest of K.A.P., 916 A.2d 1152 (Pa. Super. 2007), affirmed, 596 Pa. 351, 943 A.2d 262 (2008). In the Interest of C.A., the Superior Court set forth the standard of review for statutory construction:

“Our task is guided by the sound and settled principles set forth in the Statutory Construction Act, including the primary maxim that the object of statutory construction is to ascertain and effectuate legislative intent, In pursuing that end, we are mindful that ‘when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.’ 1 Pa.C.S. §1921(b). Indeed, as a general rule, the best indication of legislative intent is the plain language of a statute. In reading the plain language, ‘words and phrases shall be construed according to rules of grammar and according to their common and approved usage,’ while any words or phrases that have acquired a ‘peculiar and appropriate meaning’ must be construed according to that meaning. 1 Pa.C.S. 1903(a). However, when interpreting non-explicit statutory text, legislative intent may be gleaned from a variety of factors, including, inter alia: the occasion and necessity for the statute; the mischief to be remedied; the object to be attained; the consequences of a particular interpretation; and the contemporaneous legislative history. 1 Pa.C.S. §1921(c). Moreover, while statutes generally should be construed liberally, penal statutes are always to be construed strictly, 1 Pa.C.S. §1928(b)(l), and any ambiguity in a penal statute should be interpreted in favor of the defendant.
“Notwithstanding the primacy of the plain meaning doctrine as best representative of legislative intent, the rules of construction offer several important qualifying precepts. For instance, the Statutory Construction Act also states that, in ascertaining legislative intent, courts may apply, inter alia, the following presumptions: that the legislature does not intend a result that is absurd, impossible of execution, or unreasonable; and that the legislature intends the entire statute to be effective and certain. 1 Pa.C.S. §1922(1), (2). Most importantly, the General Assembly has made clear that the rules of construction are not to be applied where they would result in a construction inconsistent with the manifest intent of the General Assembly. 1 Pa.C.S. §1901.
“Commonwealth v. Shiffler, 583 Pa. 478, 879 A.2d 185, 189a 190 (2005). (some citations omitted)” 961 A.2d at 174.

It is apparent from a reading of Act 21 that its application pertains to those persons who have serious and continual sexual dysfunction, that is, those who are unable or unwilling to control themselves. Treatment for these persons is ongoing and may continue for an extended time. Because the Juvenile Court loses jurisdiction and is without authority to continue supervision once a juvenile offender turns 21 years of age, Act 21 provides means for continuing supervision and treatment for as long as is necessary.

The criteria set forth in section 6403 is therefore geared toward identifying the serious offenders, those who continue to pose a risk to the community. While the assessment is the best method for making these identifications, it is invasive. Accordingly it has been limited by the General Assembly to those persons who otherwise appear to pose a threat, namely, those persons who have already been found to have committed an act of sexual violence and who continue to require commitment due to their dysfunction.

Looked at another way, under section 6352(a) of the Juvenile Act, all dispositions by the court are required to be, among other things, “consistent with the protection of the public interest and best suited to the child’s treatment, supervision, rehabilitation and welfare.” A person with the level of dysfunction contemplated by Act 21 is by implication one who continues to pose a danger to the community, and therefore one who should remain in placement until the dysfunction is addressed. In those cases where the commitment continues through the person’s 20th birthday, there remains an appreciable concern that the dysfunction is present and will continue beyond the person’s 21st birthday. Act 21 is then implicated. Conversely, a person who may have been initially placed but then is released back into the community is one that the court has deemed can function without further need for placement. Accordingly, the phrase “remains in the institution or other facility upon obtaining 20 years of age” contemplates an ongoing placement.

In this case, the juvenile has been known to the juvenile justice system for a period of almost five years at the time the April 21, 2010 order was executed. During that time, the juvenile committed several criminal acts, violated his probation on several occasions, and received several placements. While some of these court actions addressed the juvenile’s sexual dysfunction, other actions were disciplinary in nature or dealt with other needs, such as drug rehabilitation. Moreover, the juvenile was released on several occasions into the community to reside with his family, continuing with sexual counseling on an outpatient basis. The county has not demonstrated that the juvenile’s placement as of his 20 th birthday was part of an ongoing commitment stemming from his indecent assault adjudications or that the current placement was ordered to address continual sexual dysfunction concerns.

The county has not sustained its burden that the juvenile remained in a facility from the time of his commitment on the indecent assault charges until his 20th birthday. The order executed April 21,2010 was without foundation and shall be rescinded. We enter the following order:

AMENDED ORDER

And now, September 13,2010, upon consideration of the petition of the juvenile, S.R.R., to rescind the court’s order of April 21, 2010 and the motion of the county of Berks Juvenile Probation office to quash the petition of S.R.R., responses thereto, briefs filed by the parties and after argument held, the petition of S.R.R. is granted. The order entered by the Berks County court dated April 21, 2010 is hereby rescinded. The county’s motion to quash is denied.

      . 42 Pa.C.S. §6358

      . 42 Pa.C.S. §§6401-6409. Chapter 64, enacted pursuant to Act 21 of 2003 (P.L. 97, August 14, 2003, effective February 10, 2004).

      . 42 Pa.C.S. §5505.

      . The provision of section 5505 applies to final orders. Commonwealth v. Fralic, 425 Pa. Super. 581, 585, 625 A.2d 1249, 1251 (1993). The juvenile asserts that the order of April 21,2010 is not a final order but is interlocutory and therefor subject to modification. Howerver, we do not address this issue based on our disposition on other grounds.

      . 1 Pa.C.S. §1908.

      . 42 Pa.C.S. §6352(a).

      . Our determination that the placement required to qualify for an assessment is an “ongoing” placement should not, however, be considered a mandate in every case that the placement must be continual from the time of adjudication through the 20th birthday anniversary. Temporary therapeutic alternatives imposed by a court for valid reasons may, in the right set of circumstances, be considered “ongoing.” There may also be cases where a court initially places a juvenile on probation with outpatient treatment, but revisits the issue at a later hearing, and determines that a commitment is necessary, with the commitment extending through the 20th birthday. Whether these types of cases would also be deemed “ongoing placement” is not before this court.


source: Caselaw Access Project

author: COX, J,

license: Public Domain

text:
    First Commonwealth Bank v. Olde Post Office Complex Partnership
    C.P. of Lawrence County,
    no. 12038 of 2008.

      Justin L. McCall, for plaintiff.

      Kirk B. Burkley and Scott M. Eckstein, for defendant.

      August 30, 2010
   COX, J,

Before the court for disposition is the motion for summary judgment in mortgage foreclosure filed on behalf of the plaintiff First Commonwealth Bank, which contends that the evidence of record demonstrates that there is no genuine issue of material fact with regard to plaintiff’s mortgage foreclosure action because defendant has failed to plead sufficient facts or present evidence to establish that it did not default on Note 1 and Note 2, or that those notes are invalid. Defendant filed a response in opposition to the motion for summary judgment and a brief in opposition to the motion for summary judgment in mortgage foreclosure, in which it argues the averments in plaintiff’s complaint regarding Note 1 and Note 2 are conclusions of law that did not require defendant to plead or produce sufficient evidence to refute those allegations.

On May 10, 1995, defendant obtained a loan from plaintiff in the principal amount of $850,000 (Loan 1). Loan 1 was evidenced by a note dated May 10, 1995, which was executed by defendant (Note 1). Note 1 was modified on five separate occasions between June 30, 1995, and April 24,2008, which ultimately extended the maturation date of Note 1 to April 10,2010. As security for payment of the debt, defendant made, executed and delivered to plaintiff a mortgage (Mortgage 1) in the original principal amount of $850,000 on the premises commonly known as the Olde Post Office Complex, 15 West Washington Street, New Castle, Lawrence County, Pennsylvania (mortgaged premises). Mortgage 1 was recorded in the office of the recorder of Deeds of Lawrence County on May 10, 1995, in record book volume 1206, page 504.

Several years later, defendant obtained another loan from plaintiff on January 13, 2000, in the principal amount of $220,000 (Loan 2). Loan 2 is evidenced by a note dated January 13, 2000, executed by defendant (Note 2). As security for payment of the debt, defendant made, executed and delivered to plaintiff a mortgage (Mortgage 2) in the original principal amount of $220,000 on the mortgaged premises. Mortgage 2 was recorded in the Office of the Recorder of Deeds of Lawrence County on January 13, 2000, in record book volume 1543, page 578,

Consequently, defendant defaulted on the terms of Note 1 and Mortgage 1 and Note 2 and Mortgage 2 by failing to make the required payments. On December 11, 2008, plaintiff commenced the mortgage foreclosure action sub judice, as well as a related confession of judgment on Note 1 and Note 2 in a separate action. Defendant is in default under the terms of Note 1 and Mortgage 1 and Note 2 and Mortgage 2 for failure to pay the entire accelerated balance of Loan 1 and Loan 2. Additionally, defendant has failed to pay the entire balance of Loan 1 and Loan 2 by their respective dates of maturation of April 10, 2010, and January 13, 2010.

Under Pennsylvania law, summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law. Kafando v. Erie Ceramic Arts Co., 764 A.2d 59, 61 (Pa. Super. 2000) (citing Rush v. Phila. Newspapers Inc., 732 A.2d 648, 650-51 (Pa. Super. 1999). Pa.R.C.P. 1035.2 states:

“Any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report or if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to the jury.”

In passing on a motion for summary judgment, the court must examine the record in a light, most favorable to the non-moving party and resolve any doubt in his favor. Swartley v. Hoffner, 734 A.2d 915 (Pa. Super. 1999) The non-moving party may not rest on averments in its pleadings and must demonstrate by evidence that there exists a genuine issue for trial. Younginger v. Heckler, 269 Pa. Super. 445, 450-51, 410 A.2d 340, 342 (1979). If there is no response, and summary judgment is otherwise appropriate, it may be entered against him. Id.

In the case of a mortgage foreclosure action, pretrial disposition is proper if there is no genuine dispute that: (1) the recorded mortgage is in the specified amount, (2) the mortgage is in default, and (3) the mortgagor failed to pay interest on the obligation. Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super 1998) (citing Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 225-26, 282 A.2d 335, 340 (1971)). This is true even if the mortgagor has not admitted the specific amount of indebtedness in their pleadings. Id.

In the instant case, the existence of Loan 1 and Loan 2 in the amounts of $850,000 and $220,000, respectively, are evidenced by promissory Note 1 and Note 2. Additionally, Mortgage 1 and Mortgage 2 have been executed, notarized and duly recorded in the Office of the Recorder of Deeds of Lawrence County. Pa.R.E. 901 mandates authentication or identification as a condition precedent to admissibility. Subsection (b)(7) of that rule states:

“(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:...
“(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or purported public record, report, statement, or date compilation, in any form, is from the public office where items of this nature are kept.”

Clearly, this court possesses the authority to recognize the existenced of publicly recorded Mortgage 1 and Mortgage 2, as provided by statute. Thus, element (1) has been satisfied as plaintiff has established the specific amounts for Mortgage 1 and Mortgage 2.

In turning to the second element, the court refers to the commercial loan note inquiries for Loan 1 and Loan 2, which are dated December 4, 2008, to determine whether the mortgage is in default. The inquiry for Loan 1 shows a current principal owed in the sum of $482,516.61, current interest due in the sum of $12,735.35, and late charges in the sum of $2,733.44, for a total balance in the sum of $497,985.40 as of December 4, 2008. Additionally, the inquiry shows that since September 10, 2008, the principal amount past due is $10,379.21 and the interest past due is $10,121.89. The inquiry for Loan 2 shows a current principal owed in the sum of $114,586.02, current interest due in the sum of $2,779.45, and late charges in the sum of $661.64, for a total balance in the sum of $118,027.11 as of December 4, 2008. Additionally, the inquiry shows that since September 13, 2008, the principal amount past due is $3,402.08 and the interest past due is $2,269.54.

In reference to the document language of Note 1 and Note 2, paragraph 3 states:

“Event of default. Each of the following shall be an ‘Event of default’ hereunder: (1) the nonpayment when due ... of any amount payable under this note or of any amount when due under or on any of the liabilities, or the failure of an obligor to observe or perform any agreement of any nature whatsoever with lender, including, but not limited to, those contained in the loan documents ....” (emphasis added)

According to the terms and conditions of Note 1 and Note 2, the mortgage was in default when defendant failed to make the required payments on each loan obligation. Moreover, plaintiff has submitted a sworn affidavit of Jeffrey S. Tomcik, assistant vice president of First Commonwealth Bank, which attests that the defendant obtained Note 1 and Mortgage 1 and Note 2 and Mortgage 2 in the abovementioned amounts. The Tomcik affidavit further attests that defendant was in default under the terms of the loan for failure to make required loan payments when due and owing. Additionally, defendant remains in default for failing to pay the entire accelerated balance of the loans. Accordingly, element (2), that the mortgage is in default, is thus satisfied.

With regard to element (3), that the mortgagor failed to pay interest on the obligation, this requirement is satisfied to the extent that the data compiled from the commercial loan note inquiries for Loan 1 and Loan 2 indicate the amount of interest past due.

Defendant has presented no substantive evidence to dispute plaintiff’s motion for summary judgment in mortgage foreclosure. Furthermore, notwithstanding a conclusoiy brief in opposition to the motion, defendant’s position is unsubstantiated and unsupported by case law. Referring to Pa.R.C.P. 1035.3:

“Response. Judgment for Failure to Respond.... [T]he adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response within 30 days after service of the motion identifying
“(1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or
“(2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.” (emphasis added)

Defendant has failed to produce any evidence of record that leads to a dispute over an issue of fact.

In an action on a note secured by a mortgage, plaintiff presents a prima facie case by showing “the execution and delivery of the [note] and its nonpayment . . . .” CoreStates Bank N.A. v. Cutillo, 723 A.2d 1053, 1056 (Pa. Super. 1999) (citing Philadelphia Workingmen’s Savings Loan & Building Association v. Wurzel, 355 Pa. 86, 90, 49 A.2d 55, 57 (1946)). Where defendant does not attempt to controvert the assertion that he failed to make payments as required under the terms of the note, the material facts cannot be in dispute. CoreStates, 723 A.2d at 1056.

In the instant case, plaintiff has provided ample business and public records indicating the existence of Note 1 and Mortgage 1, Note 2 and Mortgage 2 and defendant’s failure to make the required payments under those obligations. For the reasons set forth in this opinion, plaintiff’s motion for summary judgment in mortgage foreclosure is granted.

ORDER

Now this, August 30,2010, this case being before the court on July 26, 2010, for oral argument on the motion for summary judgment filed by the plaintiff, with the plaintiff, First Commonwealth Bank appearing, represented through counsel, Justin L. McCall, Esquire and the defendant, Olde Post Office Complex Partnership not appearing as its counsel, Kirk B. Burkley, Esquire telephoning the court that date to inform the court that he was unable to attend argument as he had a family emergency, but consenting to the matter proceeding that date, and after a consideration of the briefs and arguments submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

(1) In accordance with the attached opinion, the motion for summary judgment in mortgage foreclosure filed by the plaintiff is hereby granted.

(2) The prothonotary is directed to enter judgment in favor of the plaintiff, First Commonwealth Bank, successor by merger to Peoples Bank of Western Pennsylvania, against the defendant, Olde Post Office Complex Partnership, in mortgage foreclosure for the sum of $616,012.51, plus interest, any escrow, late charges and any other amounts as authorized by the note and mortgage from December 4, 2008, including reasonable attorneys’ fees and costs of collection after giving credit to defendant for all payments made since December 4, 2008, and for foreclosure and sale of the mortgaged premises.

(3) The prothonotary is directed to serve a copy of this order of court upon counsel of record, Justin L. McCall, Esquire and Kirk B. Burkley, Esquire.


author: RIZZO, J,

text:
    Avery v. African American Museum in Philadelphia

      Stephen R. Bolden, for appellant.

      Tracy A. Walsh, Wendi D. Barish and Jamie N. Labukas, for appellees.

      July 30, 2010
   RIZZO, J,

The appellant, Joel Avery, appeals from the court’s order and decision of May 5, 2010 denying the appellant’s motion for post-trial relief.

FACTS AND PROCEDURAL HISTORY

The appellant commenced this action on March 8, 2008. The appellees filed a motion for summary judgment on July 6,2009 which was denied on September 11,2009. A jury trial commenced on January 7, 2010 and ended on January 19, 2010, On January 19, 2010 the jury rendered a verdict for the appellees-defendants.

Following the jury verdict, the appellant filed a timely motion for post-trial relief on January 21, 2010, requesting judgment notwithstanding the verdict and a new trial. This court heard oral argument on the post-trial motion on April 16, 2010. On May 10, 2010 the post-trial motion for judgment n.o.v. and a new trial was denied. The appellant then filed a timely notice of appeal on May 17, 2010. The appellant filed a timely statement of matters complained of on June 3, 2010 pursuant to Pa.R.A.P. 1925(b).

The facts of the case are as follows:

In October 2005 Joel Avery, a public relations consultant, entered into a contract with Romona Benson, CEO of the African American Museum in Philadelphia. (N.T. 1/7/10 at 11-15.) Mr. Avery provided public relations services to the African American Museum in Philadelphia including promotion and media coverage. Id. at 18-21. The contract between the museum and Mr. Avery was for a period of two years, between October 2005 and October 2007. Id. at 15.

In April of2007, prior to the end of the two-year contract, Mr. Avery met with Ms. Benson to discuss a pay increase. (N.T. 1/8/10 at 9.) Ms. Benson agreed to give Mr. Avery a five hundred dollar a month pay increase, subject to budget approval from the board of the museum. Id. In July 2007, Ms. Benson informed Mr. Avery that there was not enough money in the budget to give him an increase. (N.T. 1/12/10 at 18-19.)

Following the news that there would be no increase in payment for Mr. Avery, Ms. Benson and Mr. Avery engaged in substantial e-mail correspondence between August 15, 2007 and August 17, 2007. On August 15, 2007 Mr. Avery e-mailed Ms. Benson to confirm that they would proceed with the same payment and level of services as the prior contract, which would not include a pay increase. (N.T. 1/8/10 at 9.) In response, Ms. Benson sent an e-mail to Mr. Avery on August 16, 2007, explaining that she would get back to Mr. Avery regarding the agreement. Id. The following day, August 17, 2007, Mr. Avery e-mailed Ms. Benson to suggest potential ways of obtaining the money needed to pay for the increase in salary, including using money from the mayor’s cultural bond, which granted the museum $3,000,000. Id. Ms. Benson responded the same day via e-mail, indicating that the bond he was referring to was earmarked for specific purposes, specifically the grant was for a capital purpose, and could not be used for paying Mr. Avery. Id.

On August 20, 2007, Mr. Avery attended a publicity event for the museum at Comcast Studios. Id. at 11. Mr. Avery’s appearance was a surprise to Ms. Benson, because she had communicated to him that it was not necessary for him to meet her there. Id. Mr. Avery, accompanied by his girlfriend, showed up at the event in attire that Ms. Benson found unprofessional and inappropriate. Id. at 12. After the event, Mr. Avery walked Ms. Benson to her car, where he again confronted her about obtaining a raise. Id. at 12-13. Ms. Benson felt “uncomfortable” during the conversation with Mr. Avery because he repeatedly asked about the raise, whether Ms. Benson was meeting with another public relations firm, and whether Ms. Benson could pay him out of funds from the previously mentioned bond. Id. at 51-52. Ms. Benson grew increasingly uncomfortable during the confrontation as a result of Mr. Avery’s questions and his physical proximity to her. Id. at 53. He continued to edge closer to her, making her feel intimidated. Id.

On August 21,2007, Mr. Avery forwarded the collection of e-mails between himself and Ms. Benson dealing with the terms of his requested pay increase to six members of the board of the museum, without Ms. Benson’s consent or prior knowledge. Id. at 61-62. The six members of the board who received the e-mails were Tom Muldoon, Bill Wilson, Ernie Jones, Cheryl McClenny-Brooker, Lisa Crutchfield, and Claire Lomax. (N.T. 1/12/10 at 30.) Tom Muldoon, a member of the board of the museum who had received the e-mails from Mr. Avery, sent the e-mails to Wanda Paul, the executive of Philadelphia Convention and Visitors Bureau. (N.T. 1/8/10 at 41-42.)

Later that week, on August 24,2007, Ms. Benson had dinner with two close friends, Wanda Paul and Swanie Goldsmith. Id. at 13-14. At the dinner, Ms. Benson said she had been under a lot of stress that week and mentioned Mr. Avery’s name. Id. at 14. Ms. Paul, senior vice president at the Philadelphia Convention and Visitors Bureau, said she had received a blind copy of an exchange of e-mails between Ms. Benson and Mr. Avery. Id. at 14-15. When Ms. Benson asked who sent her the e-mails, Ms. Paul said that she preferred not to disclose that information. Id. at 15. Ms. Benson believed that Mr. Avery had sent the collection of e-mails to Ms. Paul and she was bothered that he circulated the e-mails without her permission. Id. at 55.

In response to the confrontation and discovery that their e-mail correspondence had been sent outside of the museum community, Ms. Benson contacted the chairman of the executive board of the museum, Ernie Jones. (N.T. 1/8/10 at 49.) Upon Mr. Jones’ recommendation, Ms. Benson brought up her concerns about Mr. Avery with the executive committee of the board on August 27,2007, including Ernest Jones, Claire Lomax, Jacquelyn Manns Smalley, Biyan Freeman, Calvin Bland, Lisa Crutchfield, Anthony McIntosh, Cheryl McClenney-Brooker, and Barbara Potts. Id. Ms. Benson testified that she would consult with the executive board of the museum when she encountered extraordinary issues or sometimes for advice. Id. Considering this an extraordinary situation, Ms. Benson sought the counsel of the executive board prior to Mr. Avery’s termination. Id. at 49-50.

Following Ms. Benson’s discussion with the executive board, she sent Mr. Avery a letter on August 27,2007 to inform him that his contract would be terminated. In that letter, Ms. Benson wrote, in part:

“This letter is to inform you of the termination of your agreement with the African American Museum in Philadelphia as public relations consultant. It is unfortunate that we were unable to come to a reasonable agreement for renewal of services. Your recent correspondence in pursuit of a contract renewal and additional fees, and your choice to blind copy countless others outside of the museum constituted a serious breach of professional ethics. Therefore, we have made the decision to not continue the relationship.”

In addition sending the letter to Mr. Avery, Ms. Benson carbon copied the letter to nine members of the executive board of the museum. (Plaintiff’s brief in support of plaintiff’s motion for post-trial relief, 7.) Among the nine members of the executive board receiving a carbon copy of the letter were Ernie Jones, Cheryl McClenny-Brooker, Lisa Crutchfield, and Claire Lomax, recipients of the forwarded e-mails from Mr. Avery. Ms. Benson chose to carbon copy the nine members of the executive board of the museum on the letter, because she had discussed Mr. Avery’s service and behavior with them during a conference call that morning. (N.T. 1/8/10 at 31.)

A significant number of witnesses from the local nonprofit and tourism community were presented. In large part, the testimony presented by both parties described Mr. Avery’s work in a positive light. Over the course of the trial, the appellees presented a large body of testimony that the August 27 letter would not impact Mr. Avery’s ability to get work in his noted field. Although Ms. Benson was displeased with Mr. Avery’s behavior described in the August 27 letter, she continued to believe that he had been successful in his j ob as a public relations consultant. She testified that Mr. Avery “did'a very good job for us and we were satisfied with his work.” (N.T. 1/7/10 at 21.) Ms. Benson’s August 27 letter described the failure to come to a reasonable agreement for renewal of services as “unfortunate.” Exhibit 3.

The appellant brought a defamation claim against the appellees on March 8, 2008. The case was tried before a 12-person jury from January 7, 2010 through January 19, 2010. During the course of the trial, testimony was presented by both parties regarding the meaning of the statement in the August 27, 2007 letter, in the form of four expert witnesses and over 30 lay witnesses. (Defendant’s response in opposition to plaintiff’s brief in support of plaintiff’s motion for post-trial relief, 7.)

Prior to charging the jury, the trial court informed jurors that if the jury had a question for the court, the jury should continue deliberations instead of waiting for a response from the court. (N.T. 1/19/10 at 201.) On January 19,2010, the jury exited the courtroom to begin deliberations at 2:57 p.m. Id. at 204. The jury requested a re-reading of the definition of “defamation” and a copy of the letter from Ms. Benson. Id. at 207. At 4:33 p.m. the jury reentered the courtroom to have the definition re-read. Id. Following the reading, the jury exited the courtroom at 4:38 p.m. for further deliberations where they had the opportunity to review the August 27 letter marked as exhibit 2. Id. at 212. At 4:49 p.m. the jury reentered the courtroom to give its verdict for appellees. Id. at 213.

In charging the jury, the court used a verdict sheet that included eight questions. Question one, at issue, is as follows:

“Question 1: Do you find that the August 27, 2007 letter sent by defendant Romona Riscoe Benson to plaintiff Joel Avery contained a defamatory statement?”

In response to question one, the jury answered “no,” indicating that the letter sent by Ms. Benson did not contain a defamatory statement. (N.T. 1/19/10 at 214.) Due to the negative response on question one on the verdict sheet, no further questions needed to be addressed by the jury. Id.

ISSUES ON APPEAL

Pursuant to the Pennsylvania Rules of Appellate Procedure and order of this court, the appellant served on the court and counsel for the appellees, a statement of matters complained of on appeal. They are summarized as follows:

“(1) The only evidence available to the jury conclusively established the letter sent by defendant Romona Riscoe Benson to plaintiff Joel Avery on August 27,2007 contained a defamatory statement which was understood by the recipients of the letter as defamatoiy.
“(2) The instant trial court committed an abuse of discretion or error of law in failing to direct a verdict in favor of plaintiff on question 1 on the jury verdict sheet.
“(3) The instant trial court erred in failing to order a new trial where the jury disregarded the court’s instruction to engage in careful and thorough deliberations and instead rushed to judgment on question 1 on the jury verdict sheet.”

LEGAL DISCUSSION

I. The Substantial Amount of Evidence Presented to the Jury Did Not Conclusively Establish That the August 27 Letter Contained a Defamatory Statement

Appellant takes issue with the language in the August 27 letter sent by Ms. Benson that states “your choice to blind copy countless others outside of the museum constituted a serious breach of professional ethics.” (Plaintiff’s complaint at 9,13.) The appellant contends that the evidence presented to the jury established, without a doubt, that the letter written by Ms. Benson was defamatory on its face and understood by its recipients as defamatory. Both parties presented significant evidence regarding the meaning of the subject statement and such evidence did not conclusively establish that the statement was defamatory.

During the course of the nine-day trial, testimony was presented by both parties about the meaning of the statement in the August 27, 2007 letter, in the form of four expert witnesses and over 30 lay witnesses. (Defendant’s response in opposition to plaintiff’s brief in support of plaintiff’s motion for post-trial relief, 7.) The appellant and appellees presented conflicting testimony about whether the portion of the letter at issue was defamatory in nature. With conflicting evidence about the nature of the statement, the proper evaluation of evidence rested with the jury.

As the fact-finder, the jury’s role includes examining the credibility of all witnesses and determining the weight that should be given to all of the evidence. The jury “is free to accept or reject the credibility of both expert and lay witnesses, and to believe all, part or none of the evidence.” Nemirovsky v. Nemirovsky, 776 A.2d 988, 993 (Pa. Super. 2001). Conflicting testimony alone is not sufficient grounds to grant a new trial. Id. (citing Martin v. Evans, 551 Pa. 496, 711 A.2d 458, 461 (1998); Baldino v. Castagna, 505 Pa. 239, 249, 478 A.2d 807, 812 (1984). This court instructed the jury about conflicting testimony using the suggested standard civil jury charge, which states that “If... you decide that there is a genuine and irreconcilable conflict of testimony, it is your function and duty to determine which, if any, of the contradictory statements you will believe.” (N.T. 1/19/10 at 169) (citing Pa. SSJI (Civ) 5.04). The jury in the instant case was guided by the court’s instruction in evaluating conflicting evidence and giving it whatever credit it deserved. The jury found that the evidence did not establish a case for the appellant.

In addition to failing to demonstrate that the evidence conclusively established there was a defamatory statement, the appellant also failed to show that the verdict was against the weight of the evidence. When evaluating a claim that the verdict is against the weight of the evidence, Pennsylvania applies a “shocks-the-conscience” test. Commonwealth v. United States Mineral Products Company, 598 Pa. 331, 341, 956 A.2d 967, 973 (2008). Under this test, a new trial will only be granted on the basis of a weight of evidence claim if the “evidence supporting the verdict is so inherently improbable or at variance with admitted or proven facts or with ordinary experience as to render the verdict shocking to the court’s sense of justice.” Wagner v. Anzon Inc., 453 Pa. Super. 619, 636, 684 A.2d 570, 578 (1996).

The appellant failed to establish that the subject portion of the August 27, 2007 letter sent by Ms. Benson contained a defamatory statement. Conflicting evidence was presented by both parties regarding the defamatory nature of the statement, and the verdict was not against the weight of the evidence.

II. The Subject Statement in the August 27, 2007 Letter Did Not Constitute Defamation Per Se and a Directed Verdict in That Regard Was Not Warranted

The subject statement in the August 27 letter was not defamatory per se. Substantial evidence presented by both parties demonstrated that the statement could have more than one meaning. Additionally, language similar to that in the August 27 letter was found not to be defamatory in prior case law. Determination as to whether the August 27 letter contained a defamatory statement rested properly with the jury, and the trial court’s decision not to decide as a matter of law that the statement was defamatory did not deprive appellant of his ability to prove as such to the jury.

A. Defining Defamation and Defamation Per Se Through Statutes and Cases

The burden on the plaintiff for demonstrating an action for defamation is codified under 42 Pa.C.S. §8343(a). Under this statute, the plaintiff must demonstrate the following to prove a claim for defamation:

“(1) The defamatory character of the communication.
“(2) Its publication by the defendant,
“(3) Its application to the plaintiff.
“(4) The understanding by the recipient of its defamatory meaning.
“(5) The understanding by the recipient of it as intended to be applied to the plaintiff
“(6) Special harm resulting to the plaintiff from its publication.
“(7) Abuse of a conditionally privileged occasion.” 42 Pa.C.S. §8343(a).

In a claim for defamation, the defendant has the burden to prove:

“(1) The truth of the defamatoiy communication.
“(2) The privileged character of the occasion on which it was published.
“(3) The character of the subject matter of defamatoiy comment as of public concern.” 42 Pa.C.S. §8343(b).

The court must determine, in the first instance, whether the statement complained of is capable of defamatory meaning. Corabi v. Curtis Publishing Company, 441 Pa. 432, 442, 273 A.2d 899, 903 (1971). (citations omitted) When determining if the statement is capable of defamatory meaning, “[i]f the court has any doubt that the communication is defamatoiy, then the issue must be given to the jury for them to determine whether the defamatoiy meaning was understood by the recipient.” Gordon v. Lancaster Osteopathic Hospital Association, 340 Pa. Super. 253, 269, 270, 489 A.2d 1364, 1368, 1373 (1985) (citing Vitteckv. Washington Broadcasting Company Inc., 256 Pa. Super. 427, 389 A.2d 1197 (1978)). If there is more than one interpretation of whether the statement was defamatory “it is for the jury to determine if the defamatory meaning was understood by the recipient.” Pelagatti v. Cohen, 370 Pa. Super. 422, 439, 536 A.2d 1337, 1345 (1987) (citing Gordon v. Lancaster Osteopathic Hospital Association, 340 Pa. Super. 253, 489 A.2d 1364, 1368 (1985). Also, if a statement is capable of an innocent meaning, then it should be viewed as a jury question to determine the meaning of the statement. Dougherty v. Boyertown Times, 377 Pa. Super. 462, 472, 547 A.2d 778, 783 (1988).

The appellant asserts that the portion of the August 27,2007 letter at issue was defamatory per se. (Plaintiff’s brief in support of plaintiff’s motion for post-trial relief, 7.) Statements that are defamatory per se impute “to the plaintiff a criminal offense, punishable by imprisonment, or conduct incompatible with the plaintiffs business.” Brinich v. Jencka, 757 A.2d 388, 397 (2000) (citing Restatement (Second) of Torts, §570(c)). Conduct incompatible with the plaintiff’s business is further described as “conduct, character, or a condition that would adversely affect his fitness for the proper conduct of his business, trade, or profession.” Pelagatti v. Cohen, 370 Pa. Super. 422, 438-39, 536 A.2d 1337, 1345 (2000).

When a statement is found to be defamatory per se, the plaintiff is not required to prove special harm, such as pecuniary loss. Brinich v. Jencka, 757 A.2d 388, 397 (Pa. Super. 2000). Instead of being required to demonstrate special harm, “a defendant who publishes a statement which can be considered slander per se is liable for the proven, actual harm the publication causes.” Walker v. Grand Central Sanitation Inc., 430 Pa. Super. 236, 250, 634 A.2d 237, 250 (1993).

In two similar cases where employment contracts were not renewed, the courts did not find defamation per se. Both cases stemmed from allegedly defamatory languagé, similar to that of the August 27 letter, and both courts held that this type of language was not capable of defamatory meaning,

In Gordon v. Lancaster Osteopathic Hospital Association, the plaintiff alleged that letters of no confidence written by several department heads were defamatory. Gordon v. Lancaster Osteopathic Hospital Association, 340 Pa. Super. 253, 489 A.2d 1364, 1368, 1373 (1985). There, the defendants wrote a letter stating that “[W]e are totally unhappy and would like to present a vote of no confidence in Dr. Ivan Gordon. We all feel that we lack trust in the reporting of Dr. Gordon.” Id. at 1367. Another letter written by defendants indicated they had “difficulty in communication and lack of confidence in Dr. Ivan Gordon’s work.” Id. The court examined the Restatement of Torts §573 describing defamation per se with regard to business conduct. Id. at 1368. The court made note of Comment C of section 573, which states:

“The imputation must be of such a character as to disparage the other in his business, trade, profession or office or tend to harm him in it.... When peculiar skill or ability is necessary, an imputation that attributes a lack of skill or ability tends to harm the other in his business or profession.” Restatement (Second) of Torts §573, comment (c) (1977).

In order to examine the imputation of a statement, the court is guided by “consideration of the expertise and knowledge of those to whom the publication is circulated, and by consideration of the effect it is fairly calculated to produce.” Id. (citing Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971)). The test applied is “the impression it would naturally engender in the minds of the average persons ... among whom it is intended to circulate.” Id. (quoting Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971)).

In a second analogous case, a professor whose two-year contract was not renewed based upon letters from faculty and staff regarding his performance sued the college for defamation. Baker v. Lafayette College, 350 Pa. Super, 68, 71, 504 A.2d 247, 248 (1986). In four total letters, two were found by the court to be privileged and two were found to contain statements that were not capable of defamatory meaning. Id. at 74-79, 604 A.2d at 250-252. The two letters that were found not to be capable of defamatory meaning were highly critical of the plaintiff’s lack of interest and enthusiasm and allowing the presence of his wife in the classroom during class sessions. Id. The letters complained of described the plaintiff’s attitude as “almost cavalier in his dealings with the students,” and stated he was “less successful at meeting ... requirements” than other employees. Id. at 77-78, 604 A.2d at 252. There, the court held that the statements were not capable of defamatoiy meaning. Id. at 79, 604 A.2d at 253. Instead, the court characterized the statements as opinions and called the tone of the statements “mild.” Id. at 79, 604 A.2d at 252-53. In addition, the court considered the audience of the letter when determining if it was capable of defamatory meaning. Id. at 80, 604 A.2d at 253. The audience of the letter was only college officials involved in renewing the contract of the plaintiff. Id.

b. The Subject Language of the August 27 Letter Did Not Give Rise to a Finding of Defamation Per Se

The statement in the August 27 letter did not fall under the category of defamation per se. The evidence presented about the meaning of the letter and the prior case law demonstrate that a finding of defamation per se was not proper in the instant case. The jury was the proper fact-finder.

The appellant in the instant case claims that the statement made by Ms. Benson is defamatory per se because it accused him of conduct which is incompatible with the proper conduct in the hospitality industry in Philadelphia. (Brief in support of plaintiff’s motion for post-trial relief, 7.) Given similar statements made in Gordon and Baker that were found not to be capable of defamatory meaning, the portion of the August 27, 2007 letter at issue was not defamatory per se.

The context of the letter from Ms. Benson is similar to that of the statements in Gordon and Baker. In both cases, the statements were made by the defendants when determining whether to renew a contract with the plaintiffs. As in the present case, the circulation of the allegedly defamatory statement in Gordon was to people within the company. Id. Gordon v. Lancaster Osteopathic Hospital Association, 340 Pa. Super. 253, 261, 489 A.2d 1354, 1368 (1985) In Gordon, the Court found that statements by other doctors indicating their lack of trust in the plaintiff’s work and declining work performance did “not impute a charge of incompetency or unfitness” but were instead opinions. Id. Baker also dealt with allegedly defamatory language that was circulated internally. Baker v. Lafayette College, 350 Pa. Super. 68, 70, 504 A.2d 247, 248 (1986). There, the court considered the audience of the statement before determining that it was not capable of defamatory meaning. Id. at 79-80, 504 A.2d at 252-53.

In the present case, Ms, Benson sent the letter at issue to inform Mr. Avery about the termination of his contract. She also sent the letter to nine members of the executive board of directors of the museum with whom she had consulted about the matter earlier that morning. Ms. Benson occasionally consulted the executive board about extraordinary issues, and she considered the termination of the museum’s public relations consultant to be an extraordinary issue. As in both Gordon and Baker, the letter in the instant case was sent internally, only to members of the executive board of directors of the museum. The termination of a contract with the museum’s public relations consultant was well within the purview of Ms. Benson and the executive director, Mr. Jones, to seek input from the executive committee members. As stewards of the museum, the executive committee and its members are duty bound to make decisions in the best interest of the museum and guide it in difficult situations.

Ms. Benson sent a termination letter to the public relations consultant for the museum and included members of the executive board as recipients. Four of the members who received the letter had also received from Mr. Avery his e-mail correspondence with Ms. Benson. When considering the audience of the statement, as required by the court in Baker, the August 27 letter sent by Ms. Benson was not defamatory per se. This was an internal matter and only members of the museum received the letter.

Another issue that created doubt about the defamatory meaning of the subject language of the letter was the conflicting evidence the appellant and appellees presented regarding the meaning of the statements. With four expert witnesses and over 30 lay witnesses, both parties presented significant testimony about the meaning of the statement in the August 27 letter. (Defendant’s response in opposition to plaintiff’s brief in support of plaintiff’s motion for post-trial relief, 7.) Witnesses included leaders and participants in the hospitality industry, non-profit and museum community of Philadelphia. Given the substantial amount of evidence presented by both parties, the appellant failed to establish that the subject language of the letter was defamatory per se.

Both parties, however, presented similar testimony about the work performance of Mr. Avery. The appellant and appellees demonstrated that Mr. Avery was talented as a public relations consultant. Particularly, Ms. Benson, the author of the August 27 letter, testified that Mr. Avery “did a very good job for us and we were satisfied with his work.” (N.T. 1/7/10 at 21.) Ms. Benson also testified that Mr. Avery helped transform the museum’s public image from a fiscally distressed institution and landed dozens of major cover stories, headline stories and feature stories in the press about the museum. Id. at 20-21. The August 27 letter itself described the failure to reach an agreement regarding Mr. Avery’s pay as “unfortunate.” Exhibit 2. These statements praised Mr. Avery’s work and in effect expressed dismay that the employer-employee contract could not be salvaged. This was a simple case of wage dispute and nothing more.

With conflicting evidence regarding the meaning of Ms. Benson’s letter, the appellant did not establish that the letter imputed to Mr. Avery “conduct incompatible with [his] business.” Brinich v. Jencka, 757 A.2d 388, 397 (Pa. Super. 2000) (citing Restatement (Second) of Torts, §570(c)). Thus, the appellant did not establish that the subject language of the letter was defamatory per se, and the jury was the proper fact-finder to determine whether or not it was defamatory.

With more than one possible meaning of the letter at issue, the proper fact-finder was the jury. See Pelagatti v. Cohen, 370 Pa. Super. 422, 438-39, 536 A.2d 1337, 1345 (2000) (detailing importance of jury as fact-finder when more than one meaning of allegedly defamatory statement exists); Gordon v. Lancaster Osteopathic Hospital Association, 340 Pa. Super. 253, 261, 489 A.2d 1364, 1368 (1985) (explaining if doubt exists regarding meaning of defamatory statement, issue must be decided by jury). With conflicting evidence, the jury is able to “accept or reject the credibility of both expert and lay witnesses, and to believe all, part or none of the evidence.” Nemirovsky v. Nemirovsky, 776 A.2d 988, 993 (Pa. Super. 2001). This court should not have taken away the fact-finding role of the jury by allowing the August 27 statement to be classified as defamation per se. The issue of whether the August 27,2007 letter was defamatory was well within the purview of the jury. After careful deliberations, the jury determined that the statement was not defamatory.

III. The Trial Court Did Not Abuse Its Discretion in Failing to Order a New Trial; Jury Deliberations Were Careful and Thorough.

The appellant asserts that the jury disregarded this court’s instruction to deliberate for the purpose of arriving at a fair verdict. (Brief in support of plaintiff’s motion for post-trial relief, 26-28.) The appellant claims that the jury only deliberated for three minutes, between 4:38 p.m. and 4:41 p.m. Id. at 28. The appellant’s version of the timeline, however, does not correctly reflect the amount of time the jury deliberated. Prior to deliberations, this court instructed the jury to continue deliberating even if a note was sent to the court about any matter. (N.T. 1/19/10 at 201.) Specifically, this court instructed the jury:

“if a note comes to the court about any matter, [a response] will not necessarily be instant, because if some issues deal with some aspect of law in the case or evidence in the case, I, as the court, confer with counsel. So we have to assemble them, get some response, and then get a message formally back to you ... That said, continue your deliberations. Do not wait for a response back from the court. Not to worry, we will get back to you.” Id.

Following this court’s charge, the jury left the courtroom for deliberations at 2:57 p.m. (N.T. 1/19/10 at 204.) Sometime thereafter, the jury requested a re-reading of the definition of defamation and a copy of the letter from Ms. Benson. Id. at 207. At 4:33 p.m. the jury re-entered the courtroom to have the definition re-read. Id. The jury left the courtroom at 4:38 p.m. for deliberations with the subject letter, exhibit 2, and returned at 4:49 p.m. with a verdict. Id. at 212-13. Thus, the jury had between 2:57 p.m. and 4:33 p.m. to deliberate before returning to deliberate at 4:38 p.m. This gave the jury approximately an hour and a half to deliberate.

A jury verdict may be set aside if the jury disregarded the instructions of the court. Morris v. Peckyno, 202 Pa. Super. 490, 492, 198 A.2d 396, 398 (1964). In the present case, the jury had the opportunity to deliberate for approximately an hour and a half, following the court’s instructions to continue deliberations even if they had inquiries pending. There was no disregard of the court’s instruction, and therefore a new trial was not granted on this ground.

In support of this court’s decision not to grant a new trial based on the length of jury deliberations is a case where a jury began deliberations at 4:50 p.m. on a Friday before a long weekend and reached a verdict within an hour. DiFeliceantonio v. Pecora Corporation, 30 Phila. 548, 554, 28 D.&C.4th 200, 207 (1996). There, the court held that the jury deliberations were sufficient. Id. The court held that “the fact that the jury reached its conclusion within an hour is no indication that it failed to deliberate sufficiently long or to consider the evidence.” Id. Similarly, the jury in the present case had over an hour and one-half hours to deliberate and reach a verdict.

The appellant cites Chestnut v. The Hill School, 34 Phila. 100 (1997) in support of his motion for a new trial based on the lack of careful and thorough jury deliberations. In Chestnut, the jury left the courtroom to deliberate at 4:07 p.m. and returned at 4:10 p.m. with a question. Id. Upon receiving an answer to their question, the jury left to continue deliberations and reached a verdict at 4:16 p.m. for punitive damages in the amount $10,000,000. Id. The present case can be distinguished from Chestnut, because jurors were able to deliberate from 2:57 p.m. to 4:33 p.m., prior to returning to the courtroom for the definition of “defamation” be re-read. As the court instructed, jurors were to continue deliberations even if they were waiting for an answer from the court. The jury in Chestnut awarded $10,000,000 after deliberating for only 10 minutes, while the jury in the instant case deliberated for over one and one-half hours and returned a verdict after following the instruction of the court.

The jury in the instant case did not disregard the instructions of this court. They deliberated for an appropriate amount of time before reaching a verdict. DiFeliceantonio v. Pecora Corporation, 30 Phila. 548, 554, 28 D.&C.4th 200, 207 (1996) (holding jury reaching decision within one hour did not mean jury did not have sufficient time to consider and weigh evidence.)

CONCLUSION

Based on the aforementioned, the instant trial court properly denied the appellant’s motion for post-trial relief. Wherefore, the instant trial court’s ruling was proper and should be affirmed.

EXHIBIT 1

Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P Rule 1925(b)

(1) The only evidence available to the jury conclusively established the letter sent by defendant Romona Riscoe Benson to plaintiff Joel Aveiy on August 27,2007 contained a defamatory statement which was understood by the recipients of the letter as defamatory.

(2) The court committed an abuse of discretion or error of law in failing to direct a verdict in favor of plaintiff on question 1 on the jury verdict sheet, which asked the jurors to determine if the August 27,2007 letter sent by defendant Romona Riscoe Benson to plaintiff Joel Avery contained a defamatory remark understood to be so by the recipients thereof.

(3) The court abused its discretion in failing to order a new trial where the jury disregarded the court’s instructions to engage in careful and thorough deliberations and instead rushed to judgment on question 1 on the jury verdict sheet since the evidence available to it conclusively established the letter contained a defamatory statement, understood to be so by the recipients thereof.

Certificate of Service

I, Stephen R. Bolden, Esquire, hereby certify that on June 3, 2010, I caused a true and correct copy of the foregoing plaintiff’s statement of matters complained of on appeal to be electronically filed with this court. Same was served the following via first class mail on June 3, 2010:

Wendi D. Barish, Esquire

Weber Gallagher Simpson

Stapleton Fires & Newby [,LP

2000 Market Street, 13th Floor

Philadelphia, PA 19103

FELL & SPALDING

/s/Stephen R. Bolden, Esquire Stephen R. Bolden, Esquire

EXHIBIT 2

EXHIBIT 3

(4) Do you find that the false and defamatory communication in the letter dated August 27, 2007 was published by the defendants intentionally with knowledge that it was false?

Yes_No_

If your answer is “Yes”, go directly to question 7. If your answer is “No”, go to question 5.

(5) Do you find that the false and defamatory communication in the letter dated August 27, 2007 was published by the defendants recklessly, with disregard for whether it was true or false or entertaining serious doubt about the truth of the communication?

Yes_No_

If your answer was “Yes”, you should proceed to question 7. If your answer is “No”, go to question 6.

(6) Do you find that the false and defamatory communication in the letter dated August 27, 2007 was published by the defendants negligently with an absence of ordinary care and diligence in ascertaining the true facts?

Yes_No_

If your answer is “Yes”, go to question 7. If your answer is “No”, plaintiff cannot recover and you should not answer any further questions and should return to the courtroom.

(7) Do you find that the plaintiff has suffered harm as a result of the publication of a false and defamatory communication by the defendants?

Yes_No_

If your answer is “Yes” go to question 8. If your answer is “No”, the plaintiff cannot recover and you should not answer any further questions and should return to the courtroom.

(8) State the amount of damages you find that the defendants should pay to the plaintiff as a result of the defamation.

$_

      . The statement of matters complained of is attached as exhibit 1.

      . A. copy of the letter in its entirety is attached as exhibit 2. The only text of the letter alleged by appellant to be defamatoiy is as follows:
      “your choice to blind copy countless others outside of the museum constituted a serious breach of professional ethics.” (Plaintiff’s complaint, 9, 13.)

      . Calvin Bland, one of the nine members of the executive committee of the museum that received the August 27 letter testified as fellows:
      “Q: Sir, my question is: If you had been consulted at the time that they were considering retaining Mr. Avery, what, if anything, would you have offered?
      “A: He did good work. I was always impressed with his products.” (N/T 1/15/2010 at 17-18.)

      . See testimony of Romona Benson (N.T. 1/8/10 at 124); testimony of Ernest Jones (N.T. 1/15/10 at 39); testimony of Tom Muldoon (N.T. 1/8/10 at 36) (stating that, prior to lawsuit, his opinion of Mr. Avery did not change); The appellees presented witnesses, including Calvin Bland, Ernest Jones, Barbara Potts, and Claire Lomax, who testified that the August 27, 2007 letter did not negatively affect their perception of Mr. Avery. (N/T 1/15/2010 at 17-18); (N/T 1/15/2010 at 39); (N/T 1/13/2010 at 172); (N/T 1/13/2010 at 204).
      Bruce Crawley testified that Mr. Avery’s business could be impacted by filing a lawsuit against the museum. (N.T. 1/11/10 at 49-50.)

      . The verdict sheet is attached as exhibit 3.

      . The statement of matters complained of is attached as exhibit 1.

      . The appellant presented testimony from witnesses who indicated that the August 27, 2007 letter would negatively impact Mr. Avery’s ability to acquire further work in the local public relations industry. See N/T 1/11/2010 at 39-40 (describing Bruce Crawley’s testimony); N/T 1/11/2010 at 40-41 (detailing testimony from Acel Moore). The appellees presented witnesses, including Calvin Bland, Ernest Jones, Barbara Potts, and Claire Lomax, who testified that the August 27, 2007 letter did not negatively affect their perception of Mr. Avery’s abilities as a public relations consultant. (N/T 1/15/2010 at 17-18); (N/T 1/15/2010 at 39); (N/T 1/13/2010 at 172); (N/T 1/13/2010 at204).

      . See supra note 7.


author: CULLEN, J.,

text:
    Rettew v. Liberty Homes Inc.

      C.P. of Lancaster County,
    no. CI-09-08606.

      Edward Shensky, for plaintiff.

      Robert A. Lerman, for defendant Fisher Welding Services.

      J. Michael Flanagan, for defendant Liberty Flomes.
    August 20, 2010
   CULLEN, J.,

Pending before the court is the motion for judgment on the pleadings filed by defendant, Liberty Homes Inc. Having reviewed the pleadings and the arguments of the parties, the court concludes that defendant is entitled to the relief sought. Accordingly, the motion will be granted.

PROCEDURAL AND FACTUAL BACKGROUND

This case arises out of a fatal accident suffered by David Ellis Rettew on May 6, 2008, during the course of his employment with Eagle River Homes L.L.C. (Compl. ¶¶3, 24-25.) Plaintiff, Zane Rettew, is Mr. Rettew’s brother and the administrator of his estate. (Id. ¶1.) According to the complaint, the accident occurred when decedent, in the course of his employment with Eagle River Homes, was using the pendant controllers to move a roof unit along the superstructure from the ceiling pit area onto a manufactured home. He had completed this task and was in the process of moving the hoists back to the ceiling pit area when the hoists ran off the open end of the girders dropping the below-the-hook lifting device attached to the hoists onto decedent causing his death. (Id. ¶¶24-25.)

From September 21, 1995, through August 4, 2006, defendant, Liberty Homes Inc. was the owner of the facility and was “in the business of designing, manufacturing, maintaining, servicing, assembling and/or installing manufactured homes.” (Id. ¶¶7-8). During that time period, Daniel J. Fisher t/d/b/aFisher’s Welding Services, at Liberty’s request, “altered the design of the superstructure, and/or the system and/or the pendant controllers at the property, so as to make them unsafe for users such as decedent” and “failed to purchase/install ‘stops’ on [the] superstructure and/or the system” to prevent the sort of accident that occurred. (Id. ¶¶16-20.)

On or about August 4, 2006, Liberty sold its home manufacturing and assembly facility with all of its components, including the superstructure and the pendant controllers, to Eagle River Homes L.L.C. Decedent was operating this system as an employee of Eagle River Homes at the time of his death. (Id. ¶¶13, 24-25.) The sale transaction was completed pursuant to an asset purchase agreement between Liberty and Eagle River Homes L.L.C. (Def.’s am. ans. with new matter and cross-claim, ex. A, “asset purchase agreement.”)

Plaintiff, as administrator of his late brother’s estate, initiated this action by filing a complaint on June 1,2009. Liberty filed an answer on July 24,2009, and an amended answer and cross-claim on September 11, 2009. Fisher filed an answer and cross-claim on August 21, 2009.

After the pleadings closed, Liberty filed its motion for judgment on the pleadings and a supporting brief on October 6, 2009. On October 29, 2009, plaintiff filed a response to defendant’s motion and a supporting brief. Liberty filed its reply brief on November 4, 2009. Fisher filed a response to the motion and a supporting brief on November 17, 2009. Liberty likewise filed a reply brief. After the matter was assigned, the court heard oral argument at the request of the parties.

DISCUSSION

A party may file a motion for judgment on the pleadings at the close of the pleadings. Pa.R.C.P. 1034. A motion for judgment on the pleadings is similar to a demurrer in that it may be entered where there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. Erie Insurance Exchange v. E.L. ex rel. Lowry, 941 A.2d 1270, 1272 (Pa. Super. 2008). In determining whether there is a dispute as to the facts, the court must confine its consideration to the pleadings and relevant documents. Id.

The party seeking judgment on the pleadings must admit the truth of all the allegations of his adversary and the untruth of any of his own allegations that have been denied by the opposing party. Tate v. Pennsylvania Board of Probation and Parole, 40 Pa. Commw. 4, 6, 396 A.2d 482, 483 (1979). (citation omitted) Where there is a question of fact in dispute, judgment on the pleadings cannot be entered. Miami National Bank v. Willens, 410 Pa. 505, 507-08, 190 A.2d 438, 439 (1963).

Liberty argues it is entitled to judgment on the pleadings because there are no allegations of a duty on its part owed to decedent in plaintiff’s complaint which would support a negligence claim. (Def.’s mot. ¶¶13-14, 17; Def’s br. supp. def’s mot. (def.’s br.) 3.)

“It is axiomatic that the elements of a negligence-based cause of action are a duty, a breach of that duty, a causal relationship between the breach and the resulting injury, and actual loss. When considering the question of duty, it is necessary to determine whether a defendant is under any obligation for the benefit of the particular plaintiff... and, unless there is a duty upon the defendant in favor of the plaintiff which has been breached, there can be no cause of action based upon negligence ....

“Duty, in any given situation, is predicated upon the relationship existing between the parties at the relevant time. Where the parties are strangers to each other, such a [duty] may be inferred from the general duty imposed on all persons not to place others at risk of harm through their actions. The scope of this duty is limited, however, to those risks which are reasonably foreseeable by the actor in the circumstances of the case.” Gresik v. PA Partners L.P., 989 A.2d 344, 351-52 (Pa. Super. 2009) (emphasis in original) (quoting Roche v. Ugly Duckling Car Sales, 879 A.2d 785, 789 (Pa. Super. 2007). (citations omitted)

The determination of whether a duty exists in a particular case involves the “weighing of several discrete factors” which include: “(1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.” Althaus v. Cohen, 567 Pa. 547, 553, 756 A.2d 1166, 1169 (2000). (citation omitted) “A duty of care arises ‘only where a reasonable person would recognize the existence of an unreasonable risk of harm to others through the intervention of such negligence.’” Kenner v. Kappa Alpha Psi Fraternity Inc., 808 A.2d 178, 182 (Pa. Super. 2002). (internal quotations omitted) (citations omitted)

Relying on Gavula v. ARA Services Inc., 756 A.2d 17 (Pa. Super. 2000), defendant asserts that “there is no common-law duty recognized in the Commonwealth of Pennsylvania running from an asset purchase of a production facility to the employees of a separate corporation which continues to operate the facility after the asset purchase.” (Def.’s br. 5.) The facts of Gavula are as follows.

“On September 17,1992, plaintiff, Marie Gavula, was injured in a motor vehicle accident during the course of her employment with Ogden Ground Services Inc. (Ground Services). At the time she was a passenger in a step van owned by her employer and operated by a co-employee. The door of the van was kept open while the van was in operation. Ms. Gavula, a passenger, was standing when the driver had to stop the van. Ms. Gavula was then thrown from the van, and injured. Plaintiff alleges that the modifications made to the van, including rearranging the interior furnishings, had rendered it defective and that said defects were the cause of her injuries.

“From 1969 to 1986, plaintiff’s employer, Ground Services, was a wholly owned subsidiary of defendant ARA. In 1986 a change in corporate structure made Ground Services a subsidiary of The ARA Group, itself a subsidiary of ARA. In September, 1989, Ground Services was transferred to another business unit of ARA, Air/Leisure Services/Intemational (Air/Leisure). In 1990, ARA sold all the outstanding and issued stock of Ground Services to Ogden Allied Services Group (Ogden). The stock sale transferred all the business and assets of [Ground Services], including the van involved in plaintiffs accident.” Gavula, 756 A.2d at 18.

The Superior Court affirmed the order of the trial court granting summary judgment for the defendants, ARA Services Inc. and Air/Leisure Services/International Group Inc. Id. at 23. The Superior Court held, inter alia, that the defendants, as a matter of law, were not negligent with respect to their modification of the interior of the step van they sold to Ogden. Id. at 18-19. In reaching this conclusion, the Gavula court stated:

“We hold as a matter of law that [the plaintiffs] have not alleged sufficient facts to make out a claim for negligence. Specifically, they have not established that [the moving defendants], the former owners of the subject step van, owed Maria Gavula, a duty of care at the time of her accident. [The plaintiffs] have simply alleged that [the moving defendants] were “negligent” in various ways related to their modification of the step van. These allegations of negligence are incomplete, however, without any correlative factual averments as to a duty owed by [the moving defendants] .... We cannot infer such duty from allegations about the nature of the work performed by [the moving defendants] in modifying the van 55
“Duty, in any given situation, is predicated on the relationship existing between the parties at the relevant time .... Here, [the plaintiffs] averred no relationship with [the moving defendants] that would give rise to a duty.” Id. at 22. (citations omitted)

Based on Gavula, Liberty urges the court to grant its motion because “nowhere in plaintiff’s complaint does plaintiff allege that Liberty Homes Inc. owed a duty to plaintiff’s decedent.” (Def.’s br. 2.)

In response, plaintiff states that the “duty owed by [Liberty] in this instance, is not the duty of a prior owner of the business but the duty of a designer of the defective equipment to a foreseeable user of the equipment.” (Pl.’s mem. 3.) Plaintiff contends that Liberty designed and installed the allegedly defective equipment and had a duty not to place others, such as decedent, at risk of harm through it’s actions. (Id. 4; compl. ¶¶16,19, 21, 23, 27.) In support of this position, plaintiff cites Sports Management Group Inc. v. Allensville Planning Mill Inc., 16 D.&C.3d 760 (Mifflin Cty. Feb. 15, 1980). (Pl.’s resp. to def’s mot ¶ 13; pl’s mem. 4.)

In Sports Management, the trial court denied preliminary objections in the nature of a demurrer filed by a construction contractor which supplied a roof design for a gymnasium which collapsed. Sports Management, 16 D.&C.3d at 762. A subsequent purchaser of the building was permitted to pursue its claims against the builder and designer of the roof. Id. The defendants in Sports Management were in the business of building structures and designing roofs. Id. However, in the present case, Liberty “was in the business of designing, manufacturing, maintaining, servicing, assembling and/or installing manufactured homes . . . (Compl. ¶8.) Because Liberty is not in the business of manufacturing or designing bridge girders, monorail systems, track spurs, openers or switches, underhung cranes or hoists, or below-the-hook lifting devices (the equipment alleged to have been defective causing the decedent’s accident and death (compl. ¶9)), Sports Management is inapplicable.

The court must conclude that Gavula controls the outcome of this case. Liberty is “in the business of designing, manufacturing, maintaining, servicing, assembling and/or installing manufactured homes ...” (Com-pl. ¶8) and not in the business of constructing, designing, or altering the equipment (or superstructure) used to manufacture those homes. It is claimed that Liberty did alter the equipment, allegedly making it more dangerous, {id. ¶¶16, 19), prior to selling its home manufacturing and assembly facility with the equipment to Eagle River Homes L.L.C. {id. 13). The accident is said to have been caused by the dangerous equipment while decedent was employed by Eagle River Homes L.L.C. {Id. ¶¶24-25.)

Similarly, in Gavula, ARA Services Inc, was not in the business of designing modifications to step vans, but did so in an allegedly dangerous manner with respect to the van at issue. ARA Services Inc, later sold all of its assets to Ogden Allied Services Group, including this modified step van. The plaintiff was injured when she fell from the dangerously modified step van while she was employed by Ogden Allied Services Group.

The Gavula court found no duty on the part of ARA Services Inc. to Ms. Gavula and affirmed the order granting summary judgment on the plaintiff’s negligence cause of action. The same result is required here in light of the strikingly analogous facts. As a matter of law, no duty was owed by Liberty to decedent, and plaintiff therefore cannot maintain its cause of action for negligence against Liberty on the facts alleged. Accordingly, the motion for judgment on the pleadings with respect to plaintiff’s complaint will be granted.

With respect to Fisher’s cross-claim against Liberty, the court concludes that Liberty is also entitled to judgment in its favor. For the reasons discussed above, Liberty cannot be found, as a matter of law, to have acted negligently toward plaintiff’s decedent. Fisher extensively argues that Liberty may be liable due to Liberty’s purported fraudulent conduct in selling its business and assets with latent defects to Eagle River Homes L.L.C. (Fisher’s br. opp. def.’s mot. (Fisher’s br.) 8-9.) Fisher appears to be raising claims on behalf of Eagle River Homes L.L.C. which is not a party to this action. Fisher argues that Liberty did not disclose “latent defects associated with the superstructure” to Eagle River Homes L.L.C. (Id. 8.) Areview of the complaint and cross-claim reflects that neither plaintiff nor Fisher has alleged a cause of action based upon fraud. Accordingly, this argument lacks merit.

Fisher also opposes Liberty’s motion on the basis that the asset purchase agreement between Liberty and Eagle River Homes L.L.C. contains ambiguous language which does not absolve Liberty of liability from plaintiff’s negligence claim. (Id. 9.) For the reasons discussed above, the court concludes that Liberty is entitled to judgment on the pleadings because, as a matter of law, no duty existed on the part of Liberty to decedent. Because plaintiff’s negligence claim against Liberty cannot survive, the court does not find it necessary to address whether Liberty may or may not be absolved from liability by virtue of the terms in the asset purchase agreement between it and Eagle River Homes L.L.C.

Fisher’s cross-claim is dependant on plaintiff’s cause of action against Liberty as Fisher has not alleged an independent cause of action against Liberty. Rather, Fisher’s cross-claim is for contribution, indemnification, or both, based on plaintiff’s negligence claim and, therefore, Fisher cannot survive Liberty’s motion for judgment on the pleadings. Because Liberty’s motion will be granted with respect to plaintiff’s complaint, the motion also will be granted with respect to Fisher’s cross-claim.

Accordingly, the court enters the following:

ORDER

And now, August 20,2010, upon consideration of the motion for judgment on the pleadings filed by defendant, Liberty Homes Inc., and the responses of plaintiff, Zane Rettew, administrator of the estate of David Ellis Rettew, and defendant Daniel J. Fisher t/d/b/a Fisher’s Welding Services, it is ordered that the motion for judgment on the pleadings is granted.

      . The Gavula court also held that the moving defendants were not “sellers” within the meaning of section 402A of the Restatement (Second) of Torts for purposes of strict liability. Gavula, 756 A.2d at 20-21. Liberty states that “[t]he closest approximation of a duty appears in pargraph 22 of the complaint where plaintiff alleges, “At all times material hereto [Liberty and Fisher] were sellers of a product consisting of the superstructure, and/or the system, and/or the pendant controllers aforementioned.’” (Def.’s mot. ¶14.) Liberty asserts this allegation supports only a cause of action for strict liability, not negligence, and moves for judgment on the pleadings in that respect as well based on Gavula. (Id. ¶15.) In his response, plaintiff states that he is not alleging that Liberty is liable under strict liability. (Pl.’s mem. 1. supp. response to def.’s mot. (Pl.’s mem.) 5-6.) Rather, plaintiff alleges negligence as its sole cause of action against Liberty. (Id. 5.) Accordingly, it is unnecessary to discuss any potential liability under a strict liability theory.

      . Fisher states that Pennsylvania courts “have consistently held that one may recover for latent defects where the defects were not reasonably discoverable through an inspection of the property and where the seller had actual knowledge of the latent defects and had either made affirmative representations as to the absence of the defect or had made efforts to hid the defect physically by placement of objects to conceal it.” (Fisher’s br. 7.) In support of its argument, Fisher cites three cases: Ward v. Serfas, 387 Pa. Super. 425, 564 A.2d 251 (1989), Mancini v. Morrow, 312 Pa. Super. 192, 458 A.2d 580 (1983) and Woodward v. Dietrich, 378 Pa. Super. 111, 548 A.2d 301 (1988). (Id. 7-8.) Each of these three cases involves a claim of fraud. See Ward, 387 Pa. Super, at 428, 564 A.2d at 252; Mancini, 312 Pa. Super, at 196, 458 A.2d at 581-82; Woodward, 378 Pa. Super, at 115, 548 A.2d at 303. Such is not the case in this action as no fraud has been alleged. As a consequence, the cited cases offer no relevant support for Fisher’s misplaced arguments.

      . Fisher appears to concede that no other claims except negligence have been asserted by it and plaintiff against Liberty. (Fisher’s resp. opp. def.’s mot. ¶¶4, 6, 13, 15, 17.)