author: BLACK, J.,

text:
    Fabian v. Steve Brady Inc.

      C.P. of Lehigh County,
    no. 2000-E-54.

      Wallace B. Eldridge III, for plaintiff.

      Frederick Weinberg and Ira Gutt, for defendants.

      November 3,2000
   BLACK, J.,

In this action, plaintiff, Matthew M. Fabian, seeks to enjoin defendants, Steven Brady Inc. and Dent Wizard International Corporation, from proceeding with legal action against him in the State of Missouri. DWI previously initiated suit against plaintiff in the Circuit Court of the County of St. Louis, State of Missouri, for money damages and equitable relief arising from alleged contract breaches and alleged tortious misconduct relating to proprietary information of DWI. Plaintiff contends that the Missouri courts do not have personal jurisdiction over him, and therefore that DWI should not be permitted to continue its action against him in that state.

A hearing was held on October 13,2000, on plaintiff’s petition for a preliminary injunction. Based on the evidence presented at this hearing, we have granted the preliminary injunction and make the following findings of fact and conclusions of law:

FINDINGS OF FACT

(1) Plaintiff is an adult individual residing at 307-1/2 South 15th Street, Allentown, Lehigh County, Pennsylvania.

(2) Defendant Dent Wizard International Corporation is a Delaware corporation with its principal office in St. Louis, Missouri, and is in the business of providing paintless dent removal services independently and through franchisees throughout the entire United States and Canada.

(3) Defendant Steve Brady Inc. is a Pennsylvania corporation that is no longer active. Previously, Brady was a franchisee of defendant DWI in the paintless dent removal business with its principal office in Conshohocken, Pennsylvania.

(4) On September 30, 1999, DWI acquired all of Brady’s assets and took over the operation of its paint-less dent removal business. DWI has continued operating this business from Brady’s former office in Conshohocken, Pennsylvania.

(5) On August 21, 1996, plaintiff signed an employment agreement with Brady, pursuant to which plaintiff agreed to work exclusively for Brady as a motor vehicle repair technician specializing in the paintless removal of dents. The employment agreement is a preprinted form document. It contains a noncompetition covenant that purports to restrict plaintiff from engaging in the paintless dent removal business within certain time and geographical limits after termination of his employment with Brady. It also provides in paragraph 11 as follows:

“(11) This agreement, as well as any and all addenda thereto, shall be governed by the laws of the State of Pennsylvania and venue shall be proper in the court of competent jurisdiction in Montgomery County, Pennsylvania.”

(6) At the same time he signed the employment agreement, plaintiff was also required by Brady to sign an agreement with DWI entitled “Trainee secrecy, noncompete and nondisclosure agreement.” The secrecy agreement is also a preprinted form document. It provides that plaintiff is not to use or disclose any proprietary information of DWI and also that plaintiff is not to engage in the paintless dent removal business within certain time and geographical limits after termination of his employment with a DWI franchisee. The secrecy agreement contains the following provision in paragraph 14:

“(14) Choice of forum and governing law

“In light of Dent Wizard’s substantial contacts with the State of Missouri and its significant interest in ensuring that disputes as to the validity and enforceability of this agreement are resolved on a uniform basis, trainee and the company agree that (i) any litigation involving any noncompliance with or breach of the agreement, or regarding the validity and/or enforceability of the agreement, shall be filed and conducted in Missouri, and (ii) this agreement shall be interpreted in accordance with and governed by the laws of the State of Missouri, without regard for any conflict of laws principles.”

(7) Plaintiff signed both the employment agreement and the secrecy agreement at the same time at Brady’s office in Conshohocken, Pennsylvania. Both agreements were presented to him by Brady’s principal, Steven Brady. Plaintiff had no contact with DWI prior to the signing of these documents.

(8) After signing the employment agreement and the secrecy agreement, and as a condition of his employment by Brady, plaintiff was required to and did attend an eight-week training program conducted by DWI in St. Louis, Missouri. Plaintiff’s participation in this training program was paid for by Brady.

(9) Plaintiff was physically present in the State of Missouri for this eight-week training program in August and September of 1996. He has not been physically present in the State of Missouri at any other time.

(10) When DWI acquired all of Brady’s assets on September 30, 1999, it also acquired Brady’s rights under the employment agreement, to the extent that these rights could be legally assigned.

(11) Plaintiff worked for Brady and then DWI as a motor vehicle repair technician specializing in the paintless removal of dents from September 1996 to December 31, 1999. Plaintiff worked out of the office of Brady and then DWI in Conshohocken, Pennsylvania.

(12) Plaintiff traveled to various customer locations to perform his dent removal services. These customers were all located within the Commonwealth of Pennsylvania.

(13) On December 31, 1999, plaintiff resigned his employment with DWI.

(14) Approximately a week later, in early January 2000, plaintiff commenced the operation of his own business as an independent contractor in the paintless removal of dents, and has continued in this business up to the present time.

(15) Plaintiff’s office is located in his home in Allentown, Pennsylvania. His dent removal services are performed at customer locations, including automobile dealerships and repair shops, all of which are located in the Commonwealth of Pennsylvania. Some of plaintiff’s customers were previously customers of Brady and DWI.

(16) On August 28, 2000, plaintiff was served with a pleading filed by DWI in the Circuit Court of the County of St. Louis, State of Missouri, entitled “plaintiff’s petition for injunctive and other relief and damages.” The petition asserts claims against plaintiff for damages for breach of the noncompetition provision in the employment agreement (Count I), for violation of the Uniform Trade Secrets Act (Count II), and for interference with prospective business relationships and/or contracts (Count III). The petition also seeks temporary and permanent injunctions to prohibit plaintiff from engaging in or being employed in the paintless dent removal business in violation of the employment agreement (Count IV) and from divulging DWI’s trade or business secrets in violation of the secrecy agreement (Count V).

(17) DWI asserts that the Missouri court has personal jurisdiction over plaintiff, based on his attendance in 1996 at the eight-week training program in St. Louis, Missouri, and also on the forum selection clause in the secrecy agreement.

(18) Plaintiff is 27 years of age and is inexperienced in legal and business matters. Before coming to work for Brady, he was employed as a construction worker.

(19) Plaintiff is of limited financial means. His annual income while employed by Brady and DWI was in the mid-to-high $30,000s.

(20) The litigation of this case in the State of Missouri would be a considerable financial hardship for plaintiff.

(21) The forum selection clause in the secrecy agreement was never discussed with plaintiff at the time it was signed, and he did not fully understand its meaning. The secrecy agreement was presented to plaintiff at the same time that he was presented with the employment agreement, which provides for venue in the court of Montgomery County, Pennsylvania. It is understandable that plaintiff was confused and did not comprehend the effect of these differing provisions.

(22) During his employment with Brady and then DWI plaintiff had no contact with the Missouri office of DWI, other than his attendance at the 1996 training program.

(23) Plaintiff’s services while an employee of Brady and DWI were all performed within the Commonwealth of Pennsylvania.

(24) Plaintiff’s alleged tortious misconduct and contract breaches all occurred in the Commonwealth of Pennsylvania.

(25) Since DWI does business throughout the United States and Canada and continues to maintain and operate an office in Conshohocken, Pennsylvania, the litigation of its claims against plaintiff in Pennsylvania would not cause any undue hardship to DWI.

CONCLUSIONS OF LAW

(1) This court has jurisdiction to determine the validity of the Missouri court’s exercise of personal jurisdiction over plaintiff.

(2) For a Missouri court to properly exercise personal jurisdiction over plaintiff, the Missouri long-arm statute must provide a basis for such jurisdiction and Missouri’s exercise of personal jurisdiction must not violate the due process clause of the Fourteenth Amendment to the United States Constitution.

(3) Plaintiff transacted business in the State of Missouri, within the meaning of Missouri’s long-arm statute, when he participated in DWI’s eight-week training program in St. Louis, Missouri, in 1996.

(4) The fact that plaintiff transacted business in the State of Missouri in 1996 is not sufficient to establish personal jurisdiction over him by the courts of that state. Missouri’s exercise of personal jurisdiction must also be consistent with the due process requirements of the Fourteenth Amendment.

(5) Due process requires that before a court can exercise personal jurisdiction over an out-of-state defendant, that defendant must have had certain minimum contacts with the forum state and, in addition, the exercise of such jurisdiction must comport with traditional notions of fair play and substantial justice.

(6) Minimum contacts consist of some act or acts by which the defendant purposefully availed himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.

(7) By attending DWI’s eight-week long course in St. Louis, Missouri, in 1996, plaintiff did have minimum contacts with the State of Missouri.

(8) Under the circumstances of this case, Missouri’s exercise of personal jurisdiction over plaintiff does not comport with traditional notions of fair play and substantial justice.

(9) DWI’s legal action against plaintiff in the Circuit Court of St. Louis, Missouri, violates the due process clause of the Fourteenth Amendment.

(10) Forum selection provisions are subject to judicial scrutiny for fundamental fairness. Although prima facie valid, such clauses are not historically favored, particularly where they are not the product of negotiation.

(11) Under the circumstances of this case, the forum selection clause in the secrecy agreement is fundamentally unfair to plaintiff and is therefore invalid.

(12) The purpose of a preliminary injunction is to preserve the status quo as it exists or existed before the acts of which the plaintiff complains.

(13) A preliminary injunction should be granted where it is necessary to prevent immediate and irreparable harm that cannot be compensated for by money damages; greater harm would occur from refusing such relief than from granting it; the activity sought to be enjoined is actionable; and the relief requested is reasonably suited to abating this activity.

(14) Issuance of a preliminary injunction barring DWI from further legal proceedings against plaintiff in the State of Missouri is necessary and appropriate in this case to preserve the status quo that existed prior to the commencement of the Missouri litigation, pending a final adjudication of the issue of personal jurisdiction.

(15) Since Brady is not a party to the Missouri litigation and has not threatened any legal action against plaintiff in that state, there is no basis for the issuance of a preliminary injunction against Brady.

DISCUSSION

A Pennsylvania court will normally defer to the jurisdiction of another state where the case was first filed. Churchill Corp. v. Third Century Inc., 396 Pa. Super. 314, 323, 578 A.2d 532, 538 (1990), appeal denied, 527 Pa. 628, 592 A.2d 1296 (1991). In addition, where a contract contains a forum selection clause, a Pennsylvania court will usually enforce such a provision.

“A Pennsylvania court should decline to proceed with the cause when the parties have freely agreed that litigation shall be conducted in another forum and where such agreement is not unreasonable at the time of litigation.” Id. at 321, 578 A.2d at 536.

Nevertheless, a forum selection clause does not automatically confer personal jurisdiction. Regardless of such a clause, where the forum state lacks personal jurisdiction over a Pennsylvania resident, a Pennsylvania court may properly enjoin the forum-state plaintiff from further proceedings in the forum state. Id. at 322, 528 A.2d at 536.

For a Missouri court to properly exercise in personam jurisdiction over a Pennsylvania resident, the Missouri court must have a basis for doing so under Missouri’s long-arm statute. Filipovich v. J.T. Imports Inc., 431 Pa. Super. 552, 637 A.2d 314 (1994); Chromalloy American Corp. v. Elyria Found. Co., 955 S.W.2d 1 (Mo. 1997) (en banc). Also, the Missouri court’s exercise of jurisdiction must satisfy the due process requirements of the Fourteenth Amendment to the United States Constitution. Burger King Corporation v. Rudzewicz, 471 U.S. 462 (1985); Churchill Corp. v. Third Century Inc., supra.

Missouri’s long-arm statute extends jurisdiction over parties who have transacted business within the state. Mo. Ann. Stat. §506.500. Under Missouri law, “even a single transaction may confer jurisdiction, if that is the transaction that gives rise to the suit.” Chromalloy American Corp. v. Elyria Found. Co., supra at 4. Missouri courts have interpreted the “transaction of any business” provision in the Missouri long-arm statute so broadly that it applies in a contract dispute if the non-resident defendant has entered the state for even one meeting relating to the contract at issue. See May Dept. Stores Co. v. Wilansky, 900 F. Supp. 1154, 1162 (E.D. Mo. 1995).

In 1996, plaintiff transacted business in Missouri, within the meaning of its long-arm statute, when he participated in DWI’s eight-week training program in St. Louis. Mo. Ann. Stat. §506.500. The Missouri suit that plaintiff seeks to enjoin is based, at least in part, on DWI’s claim that plaintiff is unlawfully using trade secrets of DWT learned during this training program. Therefore, under Missouri’s long-arm statute, plaintiff’s participation in this training program is sufficient to authorize the suit against him in the Missouri courts.

However, as noted above, even though the requirements of Missouri’s long-arm statute are met, the exercise of jurisdiction must still comport with the due process clause of the Fourteenth Amendment to the United States Constitution. Burger King, supra; Filipovich, supra. Where a non-Pennsylvania resident is sued in a Pennsylvania court, the court will decline to exercise jurisdiction, even if permitted by Pennsylvania’s long-arm statute, if the exercise of jurisdiction would violate due process. See McCall v. Formu-3 International Inc., 437 Pa. Super. 575, 650 A.2d 903 (1994) (finding the Pennsylvania long-arm statute conferred jurisdiction upon Pennsylvania courts but that the exercise of jurisdiction by a Pennsylvania court would violate the due process clause of the Fourteenth Amendment). The Missouri courts are similarly constrained in the exercise of personal jurisdiction by federal due process considerations.

The due process clause of the Fourteenth Amendment “protects an individual’s liberty interest in not being subject to the binding judgment of a forum with which he has established no meaningful ‘contacts, ties, or relations.’ ” Burger King at 471-72. To establish personal jurisdiction over a defendant consistent with due process, the plaintiff must demonstrate (1) that the defendant has certain minimum contacts with the forum state and (2) that the forum state’s exercise of personal jurisdiction comports with traditional notions of fair play and substantial justice. In determining whether these requirements have been met, a reviewing court is not to employ a mechanical test, but rather is to examine and evaluate the specific facts of each case. Id. at 478-79.

The minimum contacts requirement “will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails [himself] of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Id. at 475 (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). Random, fortuitous or attenuated contacts will not suffice. Id.

In the instant case, we find that plaintiff did have the requisite minimum contacts with the State of Missouri as a result of his attendance at the 1996 training session in St. Louis. At that time he purposefully availed himself of the benefits and protections .of the laws of Missouri. His physical presence in Missouri was related to his employment duties. It was not a random, fortuitous or attenuated contact.

Nevertheless, the jurisdictional rules are not intended to place one party at a serious disadvantage in litigating with another party. See Burger King at 478 (citing The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972)). Therefore, even though the “minimum contacts” test has been met, the nature of these contacts must be examined to “determine whether the assertion of personal jurisdiction would comport with ‘traditional notions of fair play and substantial justice.’ ” Burger King at 475-76. In conducting this analysis, a court must consider the extent to which litigation in the foreign state would be an unreasonable burden on the defendant in that action. Id.

Based on the evidence presented at the preliminary hearing, we conclude that fair play and substantial justice require that the litigation commenced by DWI in the State of Missouri against plaintiff be conducted instead in the Commonwealth of Pennsylvania. There are a number of reasons that drive us to this conclusion.

First, it is clear that there would be considerable hardship to plaintiff in litigating in the State of Missouri. Missouri is a long way from Pennsylvania. Plaintiff is of limited financial means, and he lacks experience in legal and business matters. We recognize that mere inconvenience in terms of expense or travel time does not alone constitute a violation of due process. However, in this case, much more than mere inconvenience is involved. Considering the distance between Missouri and Pennsylvania, plaintiff’s limited financial means, and his inexperience with long-distance litigation, we are convinced that a trial of the parties’ dispute in the State of Missouri would place plaintiff at such a distinct disadvantage that he would probably have to default in the proceeding. This prospect does not comport with traditional notions of fair play and substantial justice. See State ex rel. Mario v. Hess, 669 S.W.2d 291, 294 (Mo. App. 1984) (finding that exercise of jurisdiction “could be unreasonable if it resulted in undue hardship, such as a necessity to travel or transport witnesses such a distance that expenses would render access to the courts impractical.”).

Second, plaintiff’s contacts with the State of Missouri have been quite limited. He signed both the employment agreement and the secrecy agreement in Pennsylvania. His employment activities for Brady and DWI were all performed in Pennsylvania. The contract breaches and tortious misconduct alleged by DWI all took place in Pennsylvania. Except for the training program back in 1996, plaintiff was never physically present in Missouri and had no contact with DWI’s Missouri office.

Third, the employment agreement, on which Counts I and IV of the Missouri suit are based, provides for Pennsylvania law to govern and for venue in the court of Montgomery County, Pennsylvania. DWI states that it will withdraw Counts I and IV in the Missouri action, but it has yet to do so.

Fourth, DWI does business throughout the United States and Canada, maintains an office in Conshohocken, Pennsylvania, and is quite capable of litigating the issues between the parties in a Pennsylvania court. We note that DWI was represented by legal counsel from Florida at the preliminary injunction hearing. Although DWI states in its brief that all its witnesses are located in the State of Missouri, no evidence was presented at the hearing to support this claim. Since the alleged contract breaches and tortious misconduct all occurred in Pennsylvania, we find this claim dubious.

Finally, the forum selection clause in the secrecy agreement is fundamentally unfair in the circumstances of this case, and therefore is unenforceable. Such clauses in a form contract are always subject to judicial scrutiny for fundamental fairness. Carnival Cruise Lines Inc. v. Shute, 499 U.S. 585, 595 (1991). In this case the clause was contained in a preprinted form contract and was not specifically bargained for. The secrecy agreement was presented to plaintiff for signature at the same time as the employment agreement, which provides for venue in Montgomery County. Thus, it is understandable that plaintiff did not fully comprehend the meaning of this forum selection clause. Although such clauses are prima facie valid, they are not historically favored, particularly where they are not the product of negotiation. See Churchill Corp., supra at 325, 578 A.2d at 538; Chase Third Century Leasing v. Williams, 782 S.W.2d 408 (Mo. App. 1989); and State ex rel. Marlo v. Hess, 669 S.W.2d 291 (Mo. App. 1984).

Accordingly, the exercise of jurisdiction over plaintiff in this matter by a Missouri court would, in our judgment, violate the due process clause of the Fourteenth Amendment.

Defendant states that plaintiff waived his right to contest the jurisdiction of the Missouri court by filing a pro se motion to dismiss in that court for lack of personal jurisdiction. However, a litigant cannot be said to have waived personal jurisdiction by filing a motion contesting such jurisdiction. Defendant has cited no authority for such a startling proposition, and we are aware of none. We understand that plaintiff’s pro se motion in Missouri has since been withdrawn.

In considering whether to grant preliminary injunctive relief to plaintiff, we note the purpose of this remedy:

“The purposes of a preliminary injunction are to preserve the status quo and prevent imminent and irreparable harm which might occur before the merits of the case can be heard and determined.” Soja v. Factoryville Sportsmen’s Club, 361 Pa. Super. 473, 477, 522 A.2d 1129, 1131 (1987).

The requirements for obtaining a preliminary objection are well-established. The party seeking a- preliminary injunction must show the following: “first, that it is necessary to prevent immediate and irreparable harm which could not be compensated by damages; second, that greater injury would result by refusing it than by granting it; and third, that it properly restores the parties to their status as it existed immediately prior to the alleged wrongful conduct.... Even more essential however, is the determination that the activity sought to be restrained is actionable, and that the injunction issued is reasonably suited to abate such activity.” School District of Wilkinsburg v. Wilkinsburg Education Association, 542 Pa. 335, 337 n.2, 667 A.2d 5, 6 n.2 (1995) (quoting New Castle Orthopedic Associates v. Burn, 481 Pa. 460, 464, 392 A.2d 1383, 1385 (1978)). In reviewing a request for preliminary relief, we must be mindful that “[a] preliminary injunction is an extraordinary remedy and should only be granted where the plaintiff has established a clear right to the relief requested.” Hart v. O’Malley, 544 Pa. 315, 318 n.1, 676 A.2d 222, 223 n.1 (1996).

In the instant case we believe that plaintiff will suffer immediate and irreparable harm if the litigation in Missouri is allowed to proceed, because he will have to either expend considerable sums defending the case there, or allow a default judgment to be entered against him— most likely the latter. The refusal of the preliminary injunction request would cause greater harm than granting the injunction, since the delay of a few months until a final hearing can be held will not cause any significant harm to DWI. The injunction will restore the parties to their positions immediately before the Missouri litigation and is reasonably suited to achieve this purpose. Finally, we find plaintiff’s claim to be actionable and his right to relief clear. Therefore, for the reasons stated, we have granted the prehminary injunction.

PRELIMINARY INJUNCTION

Now, November 3, 2000, upon consideration of plaintiff’s petition for preliminary injunction, after hearing and review of the briefs submitted by the parties, for the reasons set forth in the accompanying opinion, it is ordered and decreed as follows:

(1) A preliminary injunction is hereby issued enjoining defendant Dent Wizard International Corporation, its agents and employees, preliminarily and pending a final hearing, (a) from pursuing any litigation in the State of Missouri against plaintiff, Matthew M. Fabian, including without limitation, a certain action styled: Dent Wizard International Corporation, a Delaware corporation v. Matthew M. Fabian, no. 00CC-001215, in the Circuit Court of the County of St. Louis, Twenty-First Judicial District, State of Missouri, and (b) from entering of record in any Pennsylvania court any judgment rendered in favor of said defendant against plaintiff in the Circuit Court of the County of St. Louis, Twenty-First Judicial District, State of Missouri, or in any other court of the State of Missouri.

(2) A final hearing on plaintiff’s complaint in equity shall be held on Friday, January 19, 2001, at 9:30 a.m., Courtroom 3A, Lehigh County Courthouse.

(3) This preliminary injunction is conditioned upon the posting of a bond without corporate surety in the amount of $15,000.

(4) Plaintiff’s request for a preliminary injunction against defendant Steve Brady Inc. d/b/a Dent Wizard of Pennsylvania is denied.

      . “Any person... whether or not a citizen or resident of this state, ... who in person... [d]oes any of the acts enumerated in this section, thereby submits such person... to the jurisdiction of the courts of this state as to any cause of action arising from the doing of such acts: (1) The transaction of any business within the state....”

      . Plaintiff’s counsel has called to our attention an unpublished decision of the Circuit Court of St. Louis County, Missouri, filed March 22, 2000, in the case of DWI v. Roberts, docket no. 99CC-4304, in which DWI’s request for a preliminary injunction against the defendant was refused on the ground that DWI’s dent removal process was not a trade secret because it does not differ substantially from the process employed by its competitors and is generally known in the industry. We understand this decision is currently on appeal in Missouri.


source: Caselaw Access Project

author: ACKERMAN, J.,

license: Public Domain

text:
    Nathan v. Nathan

      C.P. of Philadelphia County,
    February Term 1998,
    no. 0811.

      Howard J. Levin, for plaintiff.

      Joseph W. Cunningham, for defendant.
    July 24, 2000
   ACKERMAN, J.,

After a six-day jury trial, the jury entered its verdict as follows on the following issues:

“At the conclusion of all evidence and on motion of the defendant, Glen Albert Nathan D.C., a directed verdict was entered in behalf of said defendant and against the plaintiff, Lauren Sue Sostman Nathan, as to Count II of plaintiff’s complaint alleging breach of fiduciary duty; as to Count III of plaintiff’s complaint alleging violation of the Pennsylvania Security Act; and as to a portion of Count I of plaintiff’s complaint dealing only with fraudulent nondisclosure.

“The issue of fraudulent misrepresentation and punitive damages went to the jury; and the jury returned the following verdict:

“The jury found for the plaintiff, Lauren Sue Sostman Nathan, and against the defendant, Glen Albert Nathan D.C., in the amount of $723,000, representing compensatory damages due to the plaintiff.

“Before the punitive damage stage of the litigation went to the jury, the parties settled the punitive damage portion of the case and stipulated to the entry of a verdict in behalf of the plaintiff, Lauren Sue Sostman Nathan, and against the defendant, Glen Albert Nathan D.C., in the sum of $300,000 for punitive damages.

“The total verdict, therefore, by the jury and as stipulated, aforesaid, is for the plaintiff, Lauren Sue Sostman Nathan, and against the defendant, Glen Albert Nathan D.C., in the total amount of $1,023,000.”

On January 21,2000, defendant filed a motion for post-trial relief in the nature of a judgment n.o.v. or in the alternative, a motion for new trial and, thereafter, plaintiff responded thereto.

The defendant’s original motion for post-trial relief alleged the following:

(1) Judgment n.o.v. is appropriate because the record does not support the jury’s finding that defendant made a fraudulent misrepresentation.

(2) A new trial is appropriate because the verdict is against the weight of evidence.

On April 24, 2000, defendant’s new counsel filed a brief in support of post-trial motions; and on April 26, 2000, defendant, through his trial counsel, filed a petition for leave to amend his post-trial motions to add the following alleged errors:

(1) A new trial is required because plaintiff failed to lay a foundation for the admission of exhibits P-18 and P-41, two charts entitled “Summary of financial requires for initial listing” in that there was an insufficient basis that defendant was aware of the substance of those charts and/or such evidence was unduly prejudicial.

(2) The lawsuit is barred by the divorce decree by reason of 23 Pa.C.S. §3332,42 Pa.C.S. §5505, the doctrine of res judicata and because this court did not have subject matter jurisdiction to hear the case in the first instance.

Because the issue of subject matter jurisdiction can be raised at any stage of the litigation, this court signed an order granting the petition for leave to amend the post-trial motion and to accept defendant’s supplemental motion for consideration.

After argument and hearing and upon consideration, this court ordered that:

(1) The defendant’s motion for post-trial relief is denied.

(2) Judgment is entered in accordance with the verdict of the jury as to compensatory damages as well as the stipulated verdict of the parties as to punitive damages in favor of the plaintiff, Lauren Sue Sostman Nathan, and against the defendant, Glen Albert Nathan D.C., in the sum of $1,023,000.

Defendant filed an expedited motion for reconsideration, limited to this court’s jurisdiction over this dispute, which this court denied on June 9, 2000, and defendant filed the instant appeal.

PROCEDURAL FACTS

The essential procedural facts giving rise to this appeal are as follows:

On February 4, 1998, plaintiff instituted this action against her former husband, the defendant, Glen Albert Nathan, by writ of summons in the Court of Common Pleas, Philadelphia County. In addition, plaintiff named as defendants, David Grunfeld, Esquire, Susan Peikes Gantman and Sherr, Joffe and Zuckerman PC. On March 25, 1998, defendant Nathan wrote that an entry of appearance and demand for jury trial was being filed.

On September 1, 1998, an amended complaint was filed alleging causes of action based upon fraud, tortious nondisclosure, and breach of Pennsylvania Security Regulations as well as punitive damages. Defendant Nathan filed an answer to the amended complaint along with new matter on October 20, 1998.

The gist of the amended complaint was that the defendant fraudulently misrepresented the value of the stock the couple owned in the ABC/ABFS Company. Plaintiff averred that defendant told her the stock was worth, at best, $100,000 — what they had paid for it — or at worse, nothing, and that she was getting a great deal. The complaint averred that in reality, the ABC/ABFS Company was poised to go public with an initial public offering and the value of the stock was actually in excess of $2.6 million ($18 per share x 147,824 shares). (See amended complaint, ¶¶5-48.) Plaintiff averred defendant knew the stock was worth far more than he represented by virtue of his being present at board of directors meetings at the company from the time the investment was made in 1988 throughout 1995. (Amended complaint, ¶¶21 and 50.) Discovery was conducted in this case.

On August 6,1999, defendant filed a motion for summary judgment, which was timely responded to by plaintiff and denied by the Honorable Judge Flora Barth Wolf on October 19,1999. While Judge Wolf did not expressly set forth her reasons for such denial, counsel for defendant suggests in footnote 6 in its brief that “the court has already passed on it . . .” (presumably subject matter jurisdiction).

On January 7, 2000, jury selection occurred, and on January 10, 2000, trial commenced before this court. After defendant’s motion for directed verdict, the case went to the jury on plaintiff’s common-law fraudulent misrepresentation theory. The jury answered a detailed verdict sheet finding all elements necessary for finding against the defendant on fraud, awarded compensatory damages in the amount of $723,000 (N.T. 1/13/00, p. 50) and answered affirmatively that punitive damages should be awarded. (N.T. 1/13/00, p. 50.)

Following the verdict, plaintiff was granted leave to take the deposition of defendant and have him produce documentation concerning his assets for the punitive damages trial which was to resume the next day.

The following day, January 14, 2000, a settlement of $300,000 for the punitive damages was reached between the parties and placed on the record (N.T. 1/14/00, pp. 1-13), for a total verdict by the jury and as stipulated in favor of plaintiff, in the total amount of $1,023,000. On January 20, 2000, defendant filed post-trial motions which did not raise its res judicata defense, its subject matter jurisdiction defense, or its objection to plaintiff’s exhibits P-18 and P-41. Plaintiff timely filed an answer to defendant’s post-trial motions.

On April 24, 2000, defendant’s new counsel filed a brief in support of post-trial motions, and on April 26, 2000, defendant, through his trial counsel, filed a petition for leave to amend its post-trial motions to add the res judicata/subject matter jurisdiction defense, and the objection to plaintiff’s exhibits P-18 and P-41.

Because the issue of the subject jurisdiction of this court is pivotal, we will examine that issue at the outset.

A. No Subject Matter Jurisdiction Exists For This Court Over This Case

Defendant argues that this lawsuit is barred by the divorce decree entered by the Montgomery County Court of Common Pleas on March 15, 1996 in Nathan v. Nathan, no. 93-11191 (C.P. Montgomery Cty.) as follows:

“Decree

“And now March 25, 1996, it is decreed that Lauren Sue Sostman Nathan and Glen Albert Nathan are hereby divorced from the bonds of matrimony.

“It is further ordered that:

“[x] The property settlement agreement between the parties, dated February 14, 1996, and attached to this decree is hereby incorporated by reference as fully as though the same were set forth herein at length. Said agreement shall not merge with, but shall survive this decree.

“[ ] This court retains continuing jurisdiction to resolve the claims of either party to equitable distribution alimony, counsel fees, costs, expenses, or related claims which shall be listed for hearing.

“[ ] No other relief is granted.

“By the court:

“/s/William J. Furber, J.”

Defendant argues that the decree “finally and conclusively resolved the parties’ respective interests in the stock in ABC/ABFS. Although certain procedures exist by which plaintiff could have sought to undo the terms of the postnuptial agreement and decree, she may not make an end-run around those procedures by simply filing a separate lawsuit. The failure to avail herself to the prescribed procedures for challenging the decree is fatal and this lawsuit is barred by 23 Pa.C.S. §3332,42 Pa.C.S. §5505, and the doctrine of res judicata. (Citing Ratarsky v. Ratarsky, 383 Pa. Super. 445, 557 A.2d 23 (1989).)

23 Pa.C.S. §3332 Opening or vacating decrees, provides as follows: ;

“A motion to open a decree of divorce or annulment may be made only within the period limited by 42 Pa.C.S. §5505 (relating to modification of orders) and not thereafter. The motion may lie where it is alleged that the decree was procured by intrinsic fraud or that there is new evidence relating to the cause of action which will sustain the attack upon its validity. A motion to vacate a decree or strike a judgment alleged to be void because of extrinsic fraud, lack of jurisdiction over the subject matter or a fatal defect apparent upon the face of the record must be made within five years after entry of the final decree. Intrinsic fraud relates to a matter adjudicated by the judgment, including perjury and false testimony, whereas extrinsic fraud relates to matters collateral to the judgment which have the consequence of precluding a fair hearing or presentation of one side of the case.”

A fair reading of the divorce decree by Judge Furber makes it clear that the property settlement agreement between plaintiff and defendant does not “merge” with the decree and shall “survive” the decree.

The Montgomery County Divorce Court did not by its decree retain continuing jurisdiction to resolve the claims of either party to “equitable distribution” or “related claims,” nor did Judge Furber indicate that “no other relief is granted.”

The action before this court was not a motion to open a decree of divorce or annulment as governed by 23 Pa.C.S. §3332, nor is the limitation period for seeking to open a decree of divorce or annulment as set forth in 42 Pa.C.S. §5505 in question here.

The language of paragraph 17(b) of the postnuptial agreement appears to specifically authorize the filing of this suit. Indeed, the action before this court for fraudulent misrepresentation of essential elements under the terms of the postnuptial agreement is for “redress” of any rights as may be present under that agreement. It is significant that the language of paragraph 17(b) is not limited to a right to “enforce” that agreement.

The case of Hess v. Hess, 397 Pa. Super. 395, 580 A.2d 357 (1990) involved, as here, an action by an ex-wife against an ex-husband for fraud in connection with husband’s nondisclosures as to the value of certain properties in negotiating the marital property settlement agreement. The Court of Common Pleas of Delaware County, Civil Division, entered judgment on jury verdict and ex-husband appealed. The Superior Court did not, on its own motion, as it could have if appropriate, hold that the Court of Common Pleas of Philadelphia County did not have subject matter jurisdiction.

Neither 23 Pa.C.S. §3332 by its terms, nor the decree of the Montgomery County court by its terms, prohibit this court from exercising its jurisdiction over the class of case before it.

The case of Ratarsky v. Ratarsky, 383 Pa. Super. 445, 557 A.2d 23 (1989) is not applicable as it involved an action by a former wife to reopen a divorce decree. The discussion of “extrinsic fraud” under the Divorce Code, a statutory term under 23 Pa.C.S. §3332, is also not applicable to a common-law fraudulent misrepresentation case as is before this court.

The case of Wareham by Trout v. Wareham, 716 A.2d 674, 676 (Pa. Super. 1998) also involved a property settlement agreement that was incorporated in a divorce decree but not merged into that decree. The Wareham opinion makes it clear that under those circumstances “the agreement survives as an independent contract which... is enforceable by traditional contract remedies.” (Citing Nessa v. Nessa, 399 Pa. Super. 59, 581 A.2d 674 (1990).)

In Nessa v. Nessa, supra, that court held that since the contract survived it could be “enforced only in accordance with the law regulating contracts through proceedings of law or in equity.” Id. at 64, 581 A.2d at 676.

The case of Sonder v. Sonder, 378 Pa. Super. 474, 549 A.2d 155 (1988), citing Litwack v. Litwack, 289 Pa. Super. 405, 433 A.2d 514 (1981), “(court may not alter contract absent mistake or fraud without consent of both parties).” Sonder, supra at 481, 549 A.2d at 159. (emphasis added)

Accordingly, the argument of defendant that this court is without subject matter jurisdiction is without merit.

B. This Action Is Foreclosed As Res Judicata By The Divorce Decree

Next, the argument that the divorce decree is res judicata on the merits of this case before this court has no merit because the Montgomery County court did not purport to foreclose another court from reviewing a claim of fraud.

SUBSTANTIVE FACTS

The substantive facts involved in this matter are as follows:

Plaintiff and defendant were married in 1984. In 1988, they invested $100,000 into ABC/ABFS Company, a privately held firm in Bala Cynwyd, Pennsylvania. The investment came at the urging of Beverly Santilli, a close childhood friend of defendant Glen Albert Nathan. (N.T. 1/10/00, p. 70; 1/11/00, p. 17; 1/12/00, p. 95.) (Anthony J. Santilli dep., p. 8.)

In April of 1993, plaintiff and defendant separated, with defendant moving out of the marital home. (N.T. 1/10/00, p. 76.) Defendant was the primary wage earner for the couple’s income through his lucrative chiropractic practice. Defendant had managed the couple’s finances, (N.T. 1/10/00, pp. 69,71-76), had possession of the ABC/ABFS stock certificates (N.T. 1/12/00, p. 52), and the ABC/ABFS financial data at his chiropractic office. Plaintiff took care of the couple’s two young children. Plaintiff had no background in finances or investments (N.T. 1/10/00, p. 68), and she had always trusted and relied upon the defendant to handle the money.

After defendant moved out of the marital home, he stopped paying the mortgage and other bills. The bank began foreclosure proceedings on the marital home. (N.T. 1/10/00, p. 77.) Plaintiff was forced to file for Chapter 13 bankruptcy protection on April 13, 1994 (N.T. 1/10/ 00, p. 34; N.T. 1/11/00, p. 58) which delayed the foreclosure and on August 4,1994, the house was ordered to be sold. (N.T. 1/11/00, p. 59.)

In March of 1995, plaintiff and her two children moved into a rented single home at 258 Harrison Avenue in Elkins Park, Pennsylvania. (N.T. 1/10/00, p. 79.) Defendant signed the lease for this rental property and defendant paid the rent. (N.T. 1/10/00, p. 80.) Plaintiff had no credit because of her bankruptcy filing. After plaintiff moved into the Harrison Avenue property, defendant told her that she had only one year to live in that home. (N.T. 1/10/00, p. 80.)

In the summer of 1995, plaintiff and defendant discussed dividing up whatever marital assets were left and getting legally divorced. (N.T. 1/10/00, pp. 80-81.) Defendant told her he wanted to “get this over and done with and maybe once it’s over, and done with, we could get together again and be a family.” (N.T. 1/10/00, p. 81.) He told her “he had broken up with his girlfriend and he didn’t want his children to feel like third class citizens — he wanted to make it work.” (N.T. 1/10/00, pp. 81-82.) Defendant told plaintiff “she needed to find another rental property. Unless I turned over 25 percent of my stock to him, he wasn’t going to sign a lease on another home for me.” (N.T. 1/10/00, p. 81.)

Defendant offered plaintiff $30,000 in exchange for wife-plaintiff’s one-quarter interest in ABC/ABFS. Plaintiff testified:

“Question: Did you ask him what the stock was worth?

“Answer: Of course.

“Question: What did he tell you?

“Answer: Fie told me it was what we paid for it, and that it could be worthless someday. I’m getting a great deal.

“Question: Did you trust and believe him when he told you that?

“Answer: Yes.

“Question: Why?

“Answer: Because I wanted to. I trusted him because I wanted us to be a family.

“Question: Was he being civil with you at the time you had this discussion?

“Answer: Yes.” (N.T. 1/10/00, pp. 81-82.)

Plaintiff testified she met with her attorney, Susan Gantman, Esquire, and discussed the $30,000 offer and Gantman told her in November of 1995:

“My lawyer told me that we could fight until we’re blue in the face, and I could end up with nothing. If he was a rotten bastard, I better take what I can get.” (N.T. 1/10/00, p. 82.)

Plaintiff also testified:

“Question: Did Glen want you to deal directly with him or did he want you to deal through your lawyer with him?

“Answer: He told me, let’s not let the lawyers get all the money. Let’s do this amicably and civil and we can do it together without any lawyers.” (N.T. 1/10/00, p. 83.) Plaintiff testified she owed her lawyer, Sue Gantman, $10,000 at this time and defendant knew this. (N.T. 1/ 10/00, p. 83.)

On November 30,1995, plaintiff met with her brother-in-law, Sam Brand, and prepared a four-page handwritten document. (P-21.) (N.T. 1/10/00, p. 85.) This document, together with a September 14, 1995 letter from David Grunfeld to Sue Gantman (P-23), all confirm plaintiff’s agreement to sell her 25 percent interest in ABC/ABFS to defendant for $30,000 cash. (N.T. 1/10/ 00, pp. 86-89.)

Sue Gantman, Esquire, confirmed that Lauren and Glen entered into the agreement to sell her one-quarter interest in ABC/ABFS for $30,000 without the benefit of her as counsel. She testified that Lauren dealt with Glen on this deal.

“Question: You would agree, ma’am, that on November 29 or November 30, that Lauren and Glen entered into a handwritten agreement between themselves without counsel representing them, right?

“Answer: Correct...

“Question: The point is that they entered into that agreement without the benefit of you as counsel, is that right?

“Answer: Yes.

“Question: Lauren dealt directly with Glen on that deal. Isn’t that true?

“Answer: That is true.” (N.T. 1/11/00, pp. 103-104.)

The substance of those three (P-21, P-22, P-23) documents were then typed into a formal postnuptial agreement by the attorneys. This was identified as P-24. The postnuptial agreement was dated February 14,1996 and was signed by plaintiff and defendant. (N.T. 1/10/00, p. 89.)

After the formal postnuptial agreement was signed, defendant transferred the $30,000 cash payment to plaintiff’s attorney, Sue Gantman, Esquire. Shortly after that, plaintiff received a phone call from defendant informing her that she was now a “rich lady.” The testimony was as follows:

“Question: Did there come a point in time after Valentine’s Day in 1996 when you learned the stock you just sold for $30,000 was worth more money?

“Answer: Yes.

“Question: When was that?

“Answer: I don’t recall the exact date. My ex-husband called me and told me I was a rich lady.

“Question: He called you and told you were what?

“Answer: A rich lady.

“Question: You were what?

“Answer: A rich lady. I asked him what he meant. He told me the stock went public. Then I called my brother-in-law and asked him to find out about it. I also called my uncle who had — my uncle finally found out about the company, that it was trading on the Philadelphia Stock Exchange.

“Question: Had you ever heard the term IPO, or initial public offering before Glen called you?

“Answer: No.

“Question: Had you ever heard about a public offering of a stock?

“Answer: No.” (N.T. 1/10/00, pp. 92-93.)

Upon learning that the stock had gone public and was now worth far in excess of what defendant had paid her, she accused defendant of cheating her, and defendant replied, “That’s the way it goes.” (N.T. 1/10/00, p. 96.)

Plaintiff testified that she then called her attorney, Sue Gantman, Esquire, and asked her what her rights were. Susan Gantman, Esquire, met with her and had a nine-page petition prepared called a “Petition for special relief.” (P-25.) This petition was prepared in November of 1996 setting forth all facts to try to undo the fraud that the defendant had committed. (N.T. 1/10/00, pp. 94-95; 1/11/00, p. 107.) This petition, however, was not filed by Susan Gantman, and Ms. Gantman referred plaintiff to another lawyer, Marvin Wilenzik, Esquire, and plaintiff then came to the office of Howard J. Levin, Esquire, for representation. (N.T. 1/10/00, p. 95.) As mentioned above, in the procedural section, plaintiff, through Howard J. Levin, Esquire, immediately filed a writ of summons in Common Pleas Court in Philadelphia against defendant, Glen Albert Nathan, defendant’s attorney, David I. Grunfeld, Esquire, his attorney, and defendant, Susan Gantman, Esquire, believing at that time there were potential causes of action against Grunfeld for conspiracy to commit fraud, and against Susan Gantman, Esquire, for negligence in failing to investigate the rates of the stock. Once documentation was obtained from Susan Gantman, Esquire, she was dismissed, by agreement, from the case, before the complaint was filed. A dismissal of David Grunfeld occurred after discovery in the case was completed.

In 1988, when the $100,000 was invested into ABC, it was Beverly Santilli, the defendant’s close friend, who initially approached defendant with the investment idea. Her husband, Anthony Santilli, was forming a new company and was looking for investors. The minimum investment was $35,000. (Anthony J. Santilli dep., p. 10.) The ABC/ABFS Company was a privately held firm and its business was to make loans to consumers and businesses. After defendant and Mr. Santilli met, defendant decided to invest $100,000 of marital funds into ABC/ ABFS. This was a significant amount and made defendant one of the “largest” investors in the company. (N.T. 1/11/00, p. 19.) Defendant was therefore given the title of “assistant secretary of ABC/ABFS.” (N.T. 1/11/00, p. 19.)

From 1988 through 1995, defendant was intimately familiar with the inner workings of ABC. He attended several board of directors’ meetings. (N.T. 1/11/00, p. 20.) In addition, defendant received financial information from ABC/ABFS, year-to-date statements, unaudited financial statements, agendas of meetings, and draft public stock prospectuses. (N.T. 1/11/00, p. 31; 1/12/00, p. 48.) (A.J. Santilli dep., p. 40.) In addition, defendant was regularly on the premises of ABC/ABFS in Bala Cynwyd from the mid 1990s until 1999 (while the case was in suit) providing chiropractic services to ABC/ ABFS employees for a fee. (N.T. 1/11/00, p. 70.)

Anthony J. Santilli, the chief executive officer of ABC/ ABFS testified that defendant wanted to “stay close and watch” his investment (A.J. Santilli dep., pp. 11-12), and learn about the business. Being at the board of directors’ meetings would allow defendant to learn. (A.J. Santilli dep., pp. 11-12.)

While defendant argues that “the record contains no evidence whatsoever” that defendant misrepresented the value of the stock (defendant brief at p. 5), the record establishes quite the contrary.

Plaintiff subpoenaed the ABC/ABFS documents. (See subpoenas P-20, and Robin Brown, Esquire, attorney for ABFS, letter of September 11, 1998, enclosing documents AB1-AB83.) The attorney for ABFS confirmed that the ABC/ABFS Company had produced all documents, evidencing the board of directors’ meetings that defendant attended; the minutes of these meetings that he attended were where public stock equity offerings were discussed. (A.J. Santilli dep., pp. 25-28.),

Plaintiff presented clear and convincing evidence that defendant knew, from at least 1993, that ABC/ABFS stock was poised to go public and had a value far in excess of the “worthless” or “at best what we paid for it,” i.e., $100,000 value he told his wife.

Mr. Santilli testified that the minutes taken at the board meetings were accurate. (A.J. Santilli, p. 29.) He confirmed that defendant received balance sheets of ABC/ ABFS; year-to-end statements, and monthly statements of income (A.J. Santilli, p. 29) by virtue of having this special title, and being such a large investor.

Mr. Santilli established that the ABC/ABFS financial documents went to defendant at the defendant’s chiropractic office address and not to his home. (P-14-P-15, A.J. Santilli, pp. 30-33.) Mr. Santilli sent defendant unaudited “For Management Purposes Only” financial documents because defendant: “was part of the, I guess, the body of people outside the company who had inside information because they are board members.” (N.T. A.J. Santilli, p. 33.) (emphasis added)

Mr. Santilli testified that the agenda for the February 8, 1993 meeting, which defendant admitted receiving (N.T. 1/11/00, p. 22), stated that Mr. Santilli was going to review and discuss the first draft of the new equity prospectus for sale of stock to the public. (A.J. Santilli, pp. 34-36.) Defendant admitted receiving a copy of that prospectus, P-16. (N.T. 1/11/00, p. 31.)

The February 9,1993 prospectus (P-16), discussed listing the company on the Nasdaq Exchange and confirmed a price to the public of $4 a share for the common stock. (A.J. Santilli, pp. 34-39.) Again, defendant admitted receipt of P-16 at the February 9, 1993 meeting. (N.T. 1/ 11/00, p. 31.) The minutes for this meeting state:

“Item no. 4: Review first draft of new equity offering. Mr. Santilli presented to the board a target of $1.5 million dollars in new equity. He also discussed positioning of the company as a new financial institution. The board adopted a resolution giving existing debtholders a 20 percent discount for the conversion of debt to equity.” (N.T. 1/11/00, p. 32.)

Mr. Santilli confirmed that as of February 3, 1993, there was a “present intention” to list ABFS on the Nasdaq Exchange and confirmed a price to the public of $4 per share. (A.J. Santilli, pp. 38, 39.)

Plaintiff introduced P-17, the prospectus dated May 14,1993 into evidence. (P-17.) (A.J. Santilli, p. 39.) This prospectus was also admitted as sent by Mr. Santilli to defendant (A.J. Santilli, p. 40) and received by defendant. (N.T. 1/12/00, p. 45.)

The May 14,1993 prospectus also described the shares of ABFS being sold to the general public at $4 per share, and listed defendant, Glen Albert Nathan, and Mrs. Nathan, as owning 87,700 shares or 7 percent of the common stock in the company. Thus, defendant knew, at a minimum, that his jointly owned shares in ABFS were worth at least $350,800 based on 87,700 shares at $4 per share. This only increased in time with a three to two stock split which occurred in October of 1995. (N.T. 1/ 11/00, p. 32.)

The minutes for August 18, 1993 (P-9) have defendant as attending the meeting. Under item 3, it states:

“Discussed current stock equity offering. Mr. Santilli presented the status of the equity offering.”

Defendant admitted Mr. Santilli presented the status of the public stock offering at the August 18,1993 meeting. (N.T. 1/11/00, p. 32.)

Mr. Santilli also established the events which transpired in 1995. Defendant was present for the January 24, 1995 meeting. (P-12.) A chart of “Summary of financial requirements for initial listing,” P-18, was dated March 31,1995. This was produced by the ABFS attorneys in response to plaintiff’s subpoena. P-18 was properly authenticated. Mr. Santilli testified this chart contained the kinds of things that would have been part of a generalized discussion on May 9,1995 at the board meeting (A.J. Santilli, p. 48), and testified that there was a “good chance” that the March 31,1995 chart (P-18) may have been used at the May 9,1995 meeting. (A.J. Santilli, pp. 46-49.) The chart, P-18, confirms, yet again, that the minimum bid price for the ABFS shares was being set internally in the company at $4 per share.

A similar chart, P-41, dated May 31, 1994, and produced by ABFS under the subpoena, also set the minimum bid price for ABFS stock at $4 per share.

Plaintiff’s expert, Morris Gocial, CPA, was qualified as an expert in the field of preparing certified reports for public offerings as well as the determination of the business value of privately owned stock. (N.T. 1/11/00, p. 124.) Mr. Gocial testified that it could be many months to go public, three years on average, and as long as five years. (N.T. 1/11/00, pp. 119, 128.) He explained there was a minimum of three years of audited financial statements that the SEC requires before a company is allowed to go public. (N.T. 1/11/00, p. 128.)

Mr. Gocial explained how the minimum bid price is arrived at. (N.T. 1/11/00, p. 138.) His opinion was that the value of the common stock, while defendant and plaintiff were negotiating in November of 1995 up through February of 1996, was $10 to $17 a share. He gave an opinion that the value of the 147,824 ABFS common shares held by the Nathans on November 29,1995, (after the 3/2 split) was $409,934 based on $10 a share, including interest (pp. 145, 147), or $722,241 based on $17 per share. (PP. 145, 147.) He testified that the damages would be similar as of February 14, 1996, the date that the postnuptial contract was actually executed.

Defendant, Glen Albert Nathan, admitted he came to the board of directors’ meeting on May 9,1995 and “there may have been an agenda at the place where I was sitting.” (N.T. 1/11/00, p. 34.) He contends that he was asked to wait outside and then he left. (N.T. 1/11/00, p. 34.) He denied ever having seen the chart, P-18, prior to this lawsuit being instituted.

C. This Court Finds That It Properly Received Exhibits P-18 and P-41

First, the P-18 and P-41 charts were produced pursuant to the subpoena served on ABC/ABFS. (See subpoena.) The letter of Robin Brown (P-20) confirms that 83 documents (AB-1 to AB-83) were produced pursuant to the subpoena. P-18 and P-41 were part of these documents. It was, thus, properly authenticated as a business record of ABFS or under Pa.R.E. 901, by Anthony Santilli, in his testimony, that it was something that he had reviewed which was probably used at the May 9, 1995 meeting.

P-18 and P-41 were clearly relevant to the issues being tried. They set forth the comparisons of various stock exchanges’ requirements for the listing of an initial public offering on the various exchanges, and were testified to, would have been part of the discussions at these meetings. It was relevant for plaintiff’s expert to rely upon same in expressing his opinion. It was relevant for purposes of Mr. Santilli’s testimony as to what was discussed at the May 9, 1995 meeting.

Finally, there was simply no demonstrable overtly prejudicial effect of such evidence. Defendant had full opportunity to argue, and did, in fact, argue that the defendant was not present on the May 9, 1995 meeting when P-18 was used. Defendant also argued that he had not seen either of these two charts until the discovery process in this case.

The Pennsylvania Rules of Evidence and the cases interpreting same provide an abundance of support for the admission of the charts P-18 and P-41 and for the jury’s consideration of those exhibits as evidence in the case. To begin with, the documents were properly authenticated. Pa.R.E. 901 provides that the authentication requirement is satisfied by evidence to support a finding that the matter in question is what its proponent claims. To that end, Pa.R.E. 901(b) provides several illustrations for satisfying this requirement. Pa.R.E. 901(b) states that evidence is authenticated with testimony that a matter is what it is claimed to be. In addition, Pa.R.E. 901(b)(4) allows authentication through the appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

Not only did Anthony Santilli testify that the charts were what they were claimed to be, but he did so upon considering the circumstances surrounding the board meeting agendas where the discussion of the charts was identified. Pennsylvania law permits evidence to be authenticated by circumstantial evidence, including through testimony that an item of evidence is connected to a party, see Commonwealth v. Bassi, 284 Pa. 81, 130 A. 311 (1925), and through the identity established by the contents and circumstances of a conversation, or in this case a meeting, see Bonavitacola v. Cluver, 422 Pa. Super. 556, 619 A.2d 1363 (1993).

Defendant’s real argument is that he claims he was not there when the charts were shown and therefore the charts should not be admissible. Therefore, defendant would have this court determine, as a matter of law, that because he was not present, that the charts are inadmissible. This was a fact issue for the jury to decide and they did so. Once properly authenticated, the court properly allowed the jury to weigh the credibility and sufficiency surrounding this evidence.

D. Judgment N.O.V.

On the issues of judgment n.o.v. and a new trial, this court adopts the well-reasoned arguments of counsel for plaintiff set forth in his brief as compelling.

It is fundamental that on a motion for judgment n.o.v., the court is obligated to view the evidence and all reasonable inferences that arise from the evidence in the light most favorable to plaintiff, the verdict winner. Niles, supra.

Defendant argues that there is “no evidence whatsoever” that defendant “either misrepresented the value of the stock in ABC/ABFS or made a fraudulent assertion related thereto.” (Defendant brief at 5.)

Defendant omits plaintiff’s testimony at N.T. 1/10/00 at 81 that defendant told her the stock was “worth what we paid for it and it could be worthless someday. I’m getting a great deal.” Defendant ignores that he was in possession of the actual stock certificates from the time they were obtained and never disclosed the precise number of shares held by the couple prior to November 30, 1995, or in between November 30, 1995 and February 14,1996. (N.T. 1/12/00, pp. 52-53, 88.) Plaintiff learned after the stock went public on May 13, 1996, that the couple held 147,824 shares at the time of the negotiations of November 30,1995 and February 14,1996. Thus, defendant, by placing a value of $100,000 on 147,824 shares, in effect, valued the shares at 68 cents per share when, in reality, the stock began trading on the Philadelphia Exchange on May 13, 1996 between a low of $10 and a high of $17 per share.

Defendant ignores the testimony of plaintiff’s expert, Morris Gocial CPA, and Anthony Santilli, as well as the documents themselves that the ABFS common stock was valued internally at the ABFS Company beginning in 1993 at $4 per share. (P-16 prospectus February 9,1993; admitted received by defendant (N.T. 1/11/00, p. 31); P-17 prospectus of May 14, 1993; admitted received by defendant (N.T. 1/12/00, p. 45); P-41 — 5/31/94 ABFS chart; P-18 — 3/31/95 ABFS chart). Thus, the value was not $100,000, what they “paid for it” or “worthless” or “unknown,” even before the three to two split in October of 1995. Defendant knew, because the documents tell us he knew as early as 1993, that there were 87,700 shares owned. At $4 a share, this is a value of $350,800. By November of 1995, after the three to two split, the defendant knew because he was in possession of the certificates that 147,824 shares at $4 per share was worth $591,296, at a minimum, not the $100,000 he falsely asserted. Plaintiff proved through her expert it was actually worth quite more — $10 to $17 per share.

Defendant also ignores the testimony of Morris Gocial CPA, that it takes a company three years average to complete the public offering, and sometimes as long as five years. Thus, by 1993, the defendant knew that the company was poised to go public and management was waiting for the best time to do it. Defendant also knew that he would make a significant return on his initial investment of at least three and a half times what he paid for it. In fact, Mr. Gocial testified the total value of the investment by 1995 was 25 times what the couple bought it for.

There is clear and convincing evidence that defendant had the scienter or intent to deceive plaintiff. Not only did the jury find the intent to deceive by special jury interrogatories, it also found the defendant liable for punitive damages. Punitive damages, by definition as the court set forth in its charge, was that the defendant’s conduct had to be outrageous or acted with a bad motive or reckless indifference to the plaintiff. (N.T. 1/13/00, p. 39.)

Defendant contends he did not know the value of the stock; he thought it was essentially worthless; he didn’t know it was going to go public and he didn’t intend to deceive plaintiff. The jury clearly disbelieved him. The verdict was not based upon any speculation. It was based upon oral testimony in which they evaluated the credibility of the various witnesses and upon the documentation itself.

Defendant’s testimony on these very issues lacked credibility. Defendant testified that despite being present at all of the board of directors’ meetings, except one (N.T. 1/11/00, p. 27), he really didn’t understand what was being discussed. He testified that he just knew the company was running out of money, “it scared me, it made me skeptical of the future, if any, long term.” (N.T. 1/11/00, pp. 45-46.) Defendant testified he “always” felt the company was on the “verge of going under” and the $100,000 investment was “worth nothing.” (N.T. 1/11/ 00, pp. 46 and 47.) Yet, despite this, defendant invested $3,000 to $6,000 of his daughter Arielle’s college fund into the ABFS Company. (P. 48.) Common sense tells you, you do not invest your child’s future into a company if you truly believe it is on the verge of going under. Moreover, defendant kept his wife in the dark by not telling her he invested their daughter’s college fund in ABC/ABFS. (N.T. 1/12/00, p. 96.)

Defendant also testified that despite receiving financial documents, year-to-date statements from 1988 to 1995, he didn’t understand them. He contended he didn’t even know what a year-to-end statement was. He emphatically stated it was something “totally foreign to what I dealt with on a day to day basis.” (N.T. 1/11/00, p. 41.) When defendant was confronted with his own year-to-date statements from his own chiropractic practice for 1993 and 1994, (P-37), he conceded “generally, I know what they are.” But contended “I don’t understand them.” (N.T. 1/11/00, p. 43.)

In sum, there was indeed clear and convincing evidence that the defendant misrepresented the value of the stock to plaintiff and did it with the intent to deceive. It was not mere coincidence that he struck the deal with plaintiff alone, outside her lawyer (N.T. 1/11/00, p. 104) using the economic power of refusing to sign a lease until the deal was concluded on November 30,1995 and the stock began trading on May 13, 1996.

P-28, the letter from David Grunfeld to Susan Gantman of November 28, 1995, stated “Glen will not sign the lease or borrow the funds without an overall agreement. Lease offer is open until Thursday late, so perhaps we can do that.” The testimony was clear that plaintiff was in economic distress by defendant and she and her children moved out of the Harrison Avenue home and took possession of a new apartment on Walker Avenue on December 1, 1995. Only after defendant struck his favorable deal of $30,000 for one-quarter of her interest did defendant sign and prepay for the Harrison Avenue lease.

Thus, when the facts are viewed in the light most favorable to the verdict winner, it is clear that there was ample and sufficient evidence for this jury to conclude that there was a fraudulent misrepresentation, with intent to deceive, with justifiable reliance, causing plaintiff harm.

E. New Trial

On the issue of entitlement to a new trial, defendant argues that the verdict is against the weight of the evidence. Defendant argues that since plaintiff was represented by Susan Gantman and Gantman sent her the February 8, 1995 letter from ABFS to Grunfeld advising that ABFS was not in the position to determine the value of the stock, that a new trial is in order. This is clearly wrong. Plaintiff testified she never received this letter (N.T. 1/10/00, p. 101) and there was no letter from Susan Gantman enclosing that to her.

Defendant argues that D-10 and D-ll, the two Susan Gantman letters of November 19, 1995, are “unequivocal” that the property settlement was not a fair and equitable agreement. (Defendant brief, p. 16.) This argument also fails. Susan Gantman testified that plaintiff came in that day and wanted to get the agreement done that day. (November 29,1995.) “I was concerned. I didn’t think she should sign an agreement that day.” (N.T. 1/ 10/00, p. 97.)

The plaintiff’s recollection of the meeting was different. She testified on cross-examination that Sue Gantman “took me into a closed room and told me we could fight until I was blue in the face and wind up with nothing. This was his offer and I should take it.” (N.T. 1/10/00, p. 112.) Plaintiff’s testimony must be viewed in the context of the economic duress the defendant was utilizing of threatening no lease unless there was an overall deal. (See P-28.) Sue Gantman did confirm that Lauren and Glen cut their own deal and Lauren did not rely on her lawyer. (N.T. 1/11/00, p. 104.) At best, what defendant is arguing is a mere conflict of the testimony between plaintiff and her lawyer. This is not a reason to order a new trial.

There is also evidence that after learning of the fraud that had been committed upon plaintiff, Susan Gantman, Esquire, prepared the petition for special relief. (P-25.) (N.T. 1/11/00, pp. 107-110). Why would an attorney prepare a petition laying out all factual averments of the fraud defendant committed not only to the plaintiff client, but to Susan Gantman as well, put it on her pleading paper, as an officer of the court, unless she believed it to be true? The simple truth of the matter is that defendant, Glen Nathan, deceived and tricked his own lawyer, Granfeld, as to the value and number of shares, opposing counsel Gantman and plaintiff.

Defendant also argues that D-4, the letter from David Granfeld of March 10, 1995 discussing the possibility that the stock could go public, is the basis for a new trial. This is also wrong. Defendant characterized this evidence as “extremely compelling” evidence. (Defendant brief, p. 16.) Defendant fails to cite that Sue Gantman admitted as follows:

“Question: When you received David Grunfeld’s March 10, 1995 letter, did you ask him in writing who the underwriters were?

“Answer: Who the underwriters of what were?

“Question: Of ABC, in case it could go public.

“Answer: No, sir.

“Question: Did you ask Mr. Grunfeld in writing when you got that letter whether any offering was about to be made or was going to be made?

“Answer: No, sir.

“Question: Did you ask Mr. Grunfeld in writing the size of any possible offering?

“Answer: No, sir.

“Question: So it is true, Ms. Gantman, you didn’t ask in writing because you didn’t think this company was about to go public? Is that fair?

“Answer: No sir. I didn’t have any idea if it was about to go public.

“Question: Isn’t it true that as a divorce practitioner representing clients who have an interest in privately held companies that you always are aware of the possibility that the company could go public?

“Answer: Yes.

“Question: When dealing, Ma’ am with a privately held stock, isn’t it true you automatically talk about it going public?

“Answer: Yes.” (N.T. 1/11/00, pp. 100-101.) (emphasis added) It is submitted this is precisely what a “CYA” letter is.

David Grunfeld testified similarly that he had no “inkling” that this company was going to go public when he wrote that March 10, 1995 letter. (N.T. 1/12/00, p. 84.)

Defendant argues plaintiff’s position is convenient but not credible. How is it not credible when the two divorce practitioners both agreed that they knew nothing specific about this ABC/ABFS Company going public, and they always, when dealing as divorce practitioners with any privately held company, always do a letter to cover themselves? The letters are therefore not “extremely compelling.”

Finally, defendant argues that Beverly Santilli’s testimony should grant them a new trial. Defendant argues that Ms. Santilli testified that defendant would “absolutely not” be present during any discussion regarding the company going public. This argument is of no merit. The jury was allowed to consider the weight, bias, demeanor and favoritism of this person testifying. The court will recall she was a close childhood friend of defendant, went out socially with him before stock was purchased, during the time he held the stock and was married, and after a separation. In fact, she went out with defendant Nathan during the pendency of this lawsuit. (Beverly Santilli dep., pp. 11-18.) It was, thus, the jury’s prerogative to attach whatever weight to her testimony it saw fit, and this is not the basis for a new trial.

Accordingly, there is no basis for judgment n.o.v. or for a new trial.

No error has been committed by this court.

      . Defendants Gantman and Sherr, Joffe and Zuckerman were not included in the complaint. Plaintiff later agreed to dismiss defendant Grunfeld.

      . Below is a list of the documents of minutes of meetings reflecting where defendant was in attendance:
      P-1 — 6/7/88
      P-2 — 8/3/88
      P-3 — 1/17/90
      P-4 — 8/1/90
      P-5 — 7/17/91
      P-6 — 10/16/91
      P-7 — 5/19/92
      P-8 — 2/9/93
      P-9 — 8/18/93
      P-10 — 10/26/93
      P-11 — 1/25/94
      P-12 — 1/24/95
      P-13 — 5/9/95

      . Also provided pursuant to the subpoenas were the charts of the comparisons of the requirements for listing ABFS on various stock exchanges, P-18 and P-41.