text:
    Hain v. Borough of West Reading

      November 13, 2007

      Eric Winter, for plaintiff.

      Johnathan D. Elerbst, for defendant Stirling Engineering & Construction Inc.
   LASH, J.,

The matter before this court is the motion of defendant, Stirling Engineering & Construction Inc., for summary judgment. Stirling claims, as a matter of law, that it is entitled to statutory employer immunity under the Pennsylvania Workers’ Compensation Act. Plaintiff, Archer Hain, argues that under these facts and circumstances, the statutory employer defense is a violation of plaintiff’s constitutionally protected due process rights and, therefore, the motion for summary judgment should be denied. For reasons set forth herein, this court grants the motion for summary judgment.

In Jones v. SEPTA, 565 Pa. 211, 216, 772 A.2d 435, 438 (2001), the Supreme Court restated the standard for granting summary judgment:

“Summary judgment will be entered only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law. Skipworth v. Lead Industries Association Inc., 547 Pa. 224, 230, 690 A.2d 169, 171 (1997). Summary judgment is proper in cases in which 4 an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to a cause of action or defense in which a jury trial would require the issues be submitted to a jury.’ Pa.R.C.P. 1035.2(2). We review the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 144-45, 615 A.2d 303, 304 (1992).”

The Act provides a no-fault system for compensation by employers for work-related injuries sustained by employees. The Act also grants immunity to employers from separate tort liability for work-related injuries. Under the Act, the protected class of employers is not limited solely to actual employers but includes what is known as “statutory” employers, as defined under section 52 of the Act, which states:

“An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employer or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employee or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employee.”

To determine what constitutes a statutory employer, our courts have relied on long-standing precedent established by the Pennsylvania Supreme Court in the case of McDonald v. Levinson Steel Company, 302 Pa. 287, 294, 153 A. 424, 426 (1930), which delineates a five-part test on whether a statutory employer relationship is present:

“(1) An employer who is under contract with an owner or one in the position of an owner;
“(2) Premises occupied by or under the control of such employer;
“(3) A subcontract made by such employer;
“(4) Part of the employer’s regular business entrusted to such subcontractor; and
“(5) An employee of such a subcontractor.” Id. at 294-95, 153 A. at 426.

For purposes of this motion, the facts are not in dispute. According to plaintiff’s amended complaint, defendant, Borough of West Reading, contracted with Stirling to construct a new facility for defendant, West Reading Fire Company No. 1. In due course, Stirling hired F.L. Roy-er as masonry subcontractor for the project. Plaintiff was an employee of Royer. At all relevant times, Stirling, as general contractor, controlled the day-to-day operations of the project, including supervising the subcontractors, such as F.L. Royer Inc.

On October 10, 2002, plaintiff was at the project site repairing damaged masonry. He was located inside the clock tower on scaffolding erected in the area. He fell from the scaffolding, suffering injuries.

Under these facts, Stirling clearly qualifies as a statutory employer, meeting all five requirements of the McDonald test. Further, Stirling’s status as a statutory employer is not compromised by the fact that the actual employer, F.L. Royer Inc., was the entity responsible to cover plaintiff’s compensation benefits, nor by the fact that Stirling incurred no responsibility. In the case of Fonner v. Shandon Inc., 555 Pa. 370, 379, 724 A.2d 903, 907 (1999), the Supreme Court determined that a general contractor is entitled to immunity as a statutory employer from suit for common-law negligence, even though the subcontractor, which directly employed the injured worker, provided the worker’s compensation insurance which paid benefits for the worker’s injuries. The court stated:

“Thus, in negligence cases, the general contractor has full immunity from suit by the employee of a subcontractor which an immediate employer would have. He is the statutory employer and is the insured employe’s employer for negligence immunity purposes and is secondarily liable for compensation even though the immediate employer or some other intermediate subcontractor ... is insured and responds fully on the injured employe’s claim. The reason for this difference . . . must be that, since the general contractor remains statutorily liable, although only in reserve status, in return for this he has the statutory employer’s immunity from statutory employe negligence in suits in all events, (citation omitted)”

Accordingly, under the terms of the Act, Stirling is entitled to summary judgment. Plaintiff, however, contends that this court should declare the Act unconstitutional. Specifically, plaintiff urges that section 52 precludes access to the court and limits recovery, actions proscribed by the Pennsylvania State Constitution.

Plaintiff cites Article 1, Section 11, and Article 3, Section 18, as the applicable provisions of the constitution. Article 1, Section 11, states:

“All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the legislature may by law direct.”

Article 3, Section 18, states:

“The General Assembly may enact laws requiring the payment by employers, or employers and employes jointly, of reasonable compensation for injuries to employes arising in the course of their employment, and for occupational diseases of employes, whether or not such injuries or diseases result in death, and regardless of fault of employer or employe, and fixing the basis of ascertainment of such compensation and the maximum and minimum limits thereof, and providing special or general remedies for the collection thereof; but in no other cases shall the General Assembly limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property, and in case of death from such injuries, the right of action shall survive, and the General Assembly shall prescribe for whose benefit such actions shall be prosecuted. No act shall prescribe any limitations of time within which suits may be brought against corporations for injuries to persons or property, or for other causes different from those fixed by general laws regulating actions against natural persons, and such acts now existing are avoided.”

The gravamen of plaintiff’s argument is that he cannot be denied his right to redress against Stirling because the Act significantly interferes with the exercise of a fundamental right, and such an interference can be upheld only if it is necessary to promote a compelling state interest and is narrowly tailored to effectuate that state purpose. Fausey v. Hiller, 851 A.2d 193, 195 (Pa. Super. 2004). According to plaintiff, there is no compelling state interest because under the Act, the actual employer is required to provide all the necessary compensation coverage. Thus, there is no corresponding duty conferred upon Stirling in exchange for the immunity it enjoys through the terms of the Act. Plaintiff cites the concurring opinion of Judge Melinson of the Superior Court in the case of Travaglia v. C.H. Schwertner & Son Inc., 391 Pa. Super. 61, 72-74, 570 A.2d 513, 518-20 (1989) (emphasis added), for elaboration of his position:

“I take this opportunity solely to note my opinion that sections 203 and 302 of the Workers’ Compensation Act have outlived their usefulness ... I believe that the statutory employer immunity doctrine articulated is contrary to basic tenets of American law. . . . [Tjhese sections of the Workers’ Compensation Act ‘operate to relieve [the general contractor] from payment of [workmen’s] compensation by placing that responsibility upon the subcontractor.’ Capazzoli v. Stone & Webster Engineering Corporation, 352 Pa. 183, 188, 42 A.2d 524, 526 (1945); see also, Cranshaw, 290 Pa. Super. 286, 434 A.2d 756. As stated by Arthur Larson, James B. Duke Professor of Law at the Duke University School of Law, ‘in the increasingly common situation displaying a hierarchy of principal contractors upon subcontractors upon subcontractors, if an employee of the lowest subcontractor on the totem pole is injured, there is no practical reason for reaching up the hierarchy any further than the first insured contractor.’ Larson, Workmen’s Compensation Law, §49.14.

“Thus, the effect of these abhorrent legislative pronouncements is to absolve a general contractor of any and all responsibility for negligent or grossly negligent conduct without even imposing upon that contractor the corresponding duty to compensate an injured employee under workers’ compensation. Our judicial system is based upon the concept that individuals and corporations alike will be held accountable for their mistakes and indiscretions. To allow general contractors to escape from any sort of liability for injuries to the employees of their subcontractors, without any examination of the circumstances of the injury, clearly runs counter to this fundamental concept.”

Plaintiff’s argument may point out a valid basis for changing the law. However, the argument fails to acknowledge the express authority conferred upon the General Assembly to enact the very type of legislation that he is attacking. Article 3, Section 18, expressly permits the General Assembly to enact laws on payment of compensation for employee injury. Said laws can delineate the rights, duties and nature of payment by employers, can fix the basis of ascertainment of compensation, and can set maximum and minimum limits. In passing the Act, the General Assembly was, without question, within its authority in imposing employer liability through the provisions of the Act and, correspondingly, granting immunity to employers from lawsuits raising claims separate from the Act. Having accepted that basic principle, this court can discern no constitutional restriction stemming from the word “employer” which would limit the General Assembly from expanding the common definition of employer to include a statutory employer as set forth in section 52. We cannot find that section 52 contravenes the intent of the framers of the Pennsylvania Constitution in granting the General Assembly the authority conferred by Article 3, Section 18. Plaintiff’s constitutional challenge must, therefore, be denied.

Accordingly, we enter the following order:

ORDER

And now, November 13,2007, upon consideration of the motion of defendant, Stirling Engineering & Construction Inc., for summary judgment, response thereto, briefs filed by the parties and after argument held, the motion is hereby granted. Judgment is entered in favor of defendant, Stirling Engineering & Construction Inc., and against plaintiff, Archer Hain.

      . 77 P.S. §52.


source: Caselaw Access Project

author:
CARRAFIELLO, J.,
     /s/James F. Mannion James F. Mannion /s/Lillian F. Meyers Lillian F. Meyers

license: Public Domain

text:
    Meyers v. Sovereign Bank

      June 6, 2007

      John Wendell Beavers, for plaintiff.

      Benjamin E. Zuckerman and Laura J. O’Neill, for defendants.
   CARRAFIELLO, J.,

Appellant, Lincoln Meyers, appeals from three orders of the Philadelphia Court of Common Pleas dated March 29, 2007 which granted the summary judgment motions of the appellees and denied appellant’s motion for summary judgment in the above captioned matter.

FACTUAL AND PROCEDURAL HISTORY

On April 7, 2005, appellant filed the present action asserting claims against Cozen and O’Connor, a Philadelphia law firm (Cozen), and one of the firm’s attorneys, Cathi Snyder, for defamation and interference with prospective commercial advantage. The third count of the complaint charged Sovereign Bank, the law firm representing the bank, Weir and Partners LLP, and one of their attorneys, Laura J. O’Neill, Esquire, with breach of confidentiality. After the discovery deadline had passed, all parties filed motions for summary judgment. As the court found the action frivolous and unsupported by either fact or law, the motions for summary judgment filed by the appellees were granted, and the motion for summary judgment filed by appellant was denied. This timely appeal followed.

Certain facts are uncontested by the parties and are needed to fully understand this action. Appellant’s father died in 1996 and left an estate worth over $10,000,000. Trusts had been established for his wife, Mrs. Meyers, and three grown children. Appellant’s mother was a trustee of the trust for appellant. Appellant, an attorney, was not named a trustee of any of the trusts nor was he an executor of his father’s estate; however, Mrs. Meyers executed a power of attorney appointing him her attorney-in-fact shortly after her husband’s death. Eventually, appellant and his siblings became the trustees of the marital account when the named trustees either died or resigned.

In November of 2000, appellant, using the power of attorney, secured a loan from Sovereign Bank for $346,263.36 in his mother’s name to purchase a Rolls Royce Corniche convertible as a birthday present to her from her children. Mrs. Meyers has maintained that she was unaware that her son had secured a loan in her name to buy the “present”. She did not want the Corniche, so appellant arranged for it to be shipped to Florida and sold. When the vehicle was sold, the title that was transferred to the dealership unaccountably did not list Sovereign Bank as a lien holder and appellant did not inform the dealership of Sovereign’s security interest. In exchange for the Corniche, appellant’s mother received a more modest car and a check for $61,000; appellant took title to a 2001 Aston Martin Vantage (worth over $150,000). To this date, Mrs. Meyers pays $3,225.17 a month to cover the loan arranged by appellant to purchase her “gift”.

In December of2003, Mrs. Meyers filed a complaint against appellant and his siblings, alleging appellant had drained the marital trust of the majority of its assets and his siblings, as trustees, had failed in their fiduciary duties to stop him. The complaint, which included counts for fraud, conversion, and unjust enrichment, was filed by James F. Mannion, Esquire and verified by Mrs. Meyers. (See exhibit A, hereafter, the Meyers complaint.) In February of 2004, Cozen replaced Mr. Mannion as counsel for Mrs. Meyers. At approximately the same time as the Meyers complaint was filed, Mrs. Meyers, as trustee of appellant’s trust, froze payments to appellant.

In early February 2004, appellant met with employees of Sovereign Bank to explain that he would soon have trust assets available to resume payment of his loan obligations, and he mentioned there were suits pending between family members in Montgomery County. When no further payment was received, Sovereign retained Weir and Partners on March 5,2004 to handle the matter of appellant’s delinquent loans.

Mr. Weir learned that Ms. Snyder of Cozen represented Mrs. Meyers in the Meyers complaint and attempted to reach her. On March 8, 2004, she returned his call. According to both parties, Ms. Snyder informed Mr. Weir that he would have to get a copy of the complaint through the court system. Mr. Weir stated that the bank was concerned about the location of the Corniche. Ms. Snyder informed him that to the best of her knowledge, the car had been transported to Florida and traded in for a car for appellant, a car for Mrs. Meyers and cash.

Ms. Snyder and other attorneys at Cozen actively investigated appellant’s financial interests in an attempt to discover what had happened to their client’s (Mrs. Meyers) assets. Mr. Weir and his associates conducted similar investigations on behalf of Sovereign Bank. When Sovereign Bank was forced to sue appellant for default on his loans, a litigation package, which included information about appellant’s default and current financial difficulties, was given to former officers of the bank who had been responsible for processing the loans.

Appellant brought this action charging the appellees with defamation, interference with prospective commercial advantage and breach of confidentiality. A thorough review of the voluminous documentation accompanying the motions for summary judgment convinced this court that appellant’s allegations consist of such misrepresentations that appellant’s actions should not only suffer summary judgment but further, should never have been brought in the first place.

LEGAL DISCUSSION

Summary judgment is properly granted under Pa.R.C.P. 1035 when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. In determining whether to grant summary judgment, a court must review the record in a light most favorable to the non-moving party. Bethlehem Steel Corporation v. MATX Inc., 703 A.2d 39 (Pa. Super. 1997).

When a summary judgment motion is supported by admissions of the opposing parties’ own witnesses, the motion may be granted based on oral testimony alone. Lineberger v. Wyeth, 894 A.2d 141 (Pa. Super. 2006). In order to overcome the motion, the opposing party must point to specific facts in the record demonstrating genuine issues of material fact. Mere assertions are insufficient to meet that burden, McCain v. Pennbank, 379 Pa. Super. 313, 549 A.2d 1311 (1988); neither will disputed facts which are not critical to the issues preclude summary judgment. See Larsen v. Philadelphia Newspapers Inc., 411 Pa. Super. 534, 602 A.2d 324 (1991).

A. The Cozen and O’Connor/Cathi Snyder Motion for Summary Judgment

Cozen and Cathi Snyder moved for summary judgment, alleging that there was no factual or legal basis for appellant’s allegations of defamation or interference of prospective commercial advantage. Although the firm conducted an investigation of appellant’s financial affairs in the course of their representation of Mrs. Meyers (see exhibit A, the Meyers complaint), there is no evidence to support the allegation that any attorney at Cozen made defamatory remarks. Nor was there evidence to support the contention that persons or entities contacted by Cozen subsequently made decisions adverse to appellant’s interests based on the firm’s contact.

Appellant, in his deposition, named Mr. Alan S. Fellheimer of the Pennsylvania Business Bank as a person who had intended to loan appellant funds for a building project, but changed his mind after a discussion with Ms. Snyder regarding the Meyers complaint. Even though named as a witness who would support his assertions, Mr. Fellheimer’s deposition testimony directly refuted appellant’s allegations.

According to Mr. Fellheimer’s testimony, Pennsylvania Business Bank loaned appellant’s company (which is solely owned by appellant) over $300,000, which the company had defaulted on in early 2003. On March 18, 2003, the bank confessed judgment against the company in the amount of $395,385.06. Subsequently, appellant asked Mr. Fellheimer if he could help him remove the judgment:

“At some point, I had a conversation with Mr. Meyers. He came to see me. The judgment was causing him great difficulty, would hinder his ability to pay us, could we possibly get it off his credit. Favor — could we do him a favor. I made a humongous mistake, and I did him a favor. And one of the biggest mistakes Fve ever made was, you know, doing Lincoln favors. Til tell you that. No good deed goes unpunished with Lincoln.

“I agreed to write him a letter — the only way you can get it off the credit report is to say it was done in error. ... I wrote a letter for him saying it was done in error, simply as a favor to him to help him get out of his problems. He stuck that so far up my whatever, I can’t tell you. He’s threatened me with it. He has used it against me every way he can.... Anytime I’ve ever done him a favor, he has done nothing but hurt me by it, and that’s what happened in this case.

“He asked me for that letter. I wrote that letter. I gave it to him to try to help him. . . . And after that we decided to sell the loan because we didn’t think Mr. Meyers was ever going to pay us and he used that against them, and then threatened to sue the bank because the judgment was still there. It was never our intention to give up the judgment, but he threatened to sue me because I had written the letter. I didn’t want the bank involved in litigation. I ended up having to personally buy that loan back from the people we sold it to.” (C&O’C motion for SJ, exhibit 19 at pp. 52-53.)

Mr. Fellheimer further testified that the bank never reviewed or reached any decision as to whether it would make any additional loans to appellant, as appellant informed Mr. Fellheimer that he had arranged for alternate financing. In fact, it is quite apparent that if Mr. Fellheimer or his bank ever elected not to deal with appellant, the decision would be based on Mr. Fellheimer’s personal knowledge of appellant’s dishonest practices, and not on any disclosures made by the appellees.

Appellant also alleged in his complaint that it was Cozen’s actions which caused Sovereign Bank to sue him for default on his loans. What is clear from the record is that Sovereign Bank had referred the matter to the Weir firm for collection on the defaulted loans prior to any contact between Weir and Cozen. The only admissible evidence clearly demonstrated that it was appellant’s default on several major loans which caused the damage to his business reputation.

To support a tortious interference claim, the plaintiff must satisfy four elements: (1) the existence of a contractual or prospective contractual relation between the complainant and a third party; (2) purposeful action on the part of the defendant, specifically intended to harm the existing relation, or to prevent a prospective relation from occurring; (3) the absence of privilege or justification on the part of the defendant; and (4) the occasioning of actual legal damage as a result of the defendant’s conduct. Al Hamilton Contracting Co. v. Cowder, 434 Pa. Super. 491, 497, 644 A.2d 188, 191 (1994). Appellant’s claims do not satisfy any of the elements, as appellant failed to show that Cozen’s actions, rather than his own failure to pay his creditors, caused the damage to his credit and his ability to secure future loans.

It is also the law in Pennsylvania that statements made by counsel in the course of litigation are absolutely privileged, and cannot form the basis for a defamation suit. Binder v. Triangle Publications Inc., 442 Pa. 319, 275 A.2d 53 (1971); Bochetto v. Gibson, 580 Pa. 245, 860 A.2d 67 (2004). Any calls made by members of the Cozen firm were directly related to their investigation of appellant’s assets and liabilities in support of his mother’s suit against him. Further, nothing in the record supports appellant’s claim that they were made to, or in fact did, damage his reputation. The litigation privilege extends to any conversation conducted by Cozen’s attorneys in furtherance of their representation of Mrs. Meyers, and the record does not establish that any action taken by Cozen abused that privilege.

B. The Sovereign Bank, Weir & Partners LLP, and Laura J. O ’Neill Motion for Summary Judgment

Appellant defaulted on two large loans held by Sovereign Bank. Sovereign Bank hired Weir & Partners LLP (Weir) to attempt to collect on those loans. Sovereign Bank gave Weir a copy of its entire file on appellant, including loan documents, internal memos, etc. In the course of investigating appellant’s loans, Weir learned that the Comiche, the car which had served as security for the loan appellant had signed for in his mother’s name, was missing. Weir discovered the Comiche had been transported to Florida and sold without notice to, or approval by, Sovereign Bank. After concluding the firm’s investigation, Weir filed suits on Sovereign Bank’s behalf against appellant for defaulting on his loans and against appellant’s mother for breach of contract.

In the course of the Sovereign Bank litigation, three former officers of the bank who had been involved when the loans were originally processed were given a package of documents to review by Ms. O’Neill, an attorney at Weir. Contained in the documents was a memo stating that appellant expected to have access to his trust fund assets to pay the loans, as well as documents showing he was in default.

Appellant claims Sovereign Bank breached a duty of confidentiality when it gave his personal financial information to the firm representing the bank in trying to collect on appellant’s defaulted loans. However, nothing in Pennsylvania law can be interpreted as preventing a lending institution from using this type of information to enforce its contractual rights as a creditor.

The case cited by appellant in support of his claim, Heritage Surveyors & Engineers Inc. v. National Penn Bank, 801 A.2d 1248 (Pa. Super. 2002), supports a bank’s refusal to inform another creditor of a borrower’s default. That case held that informing the other creditor would be a breach of the confidentiality owed a borrower. But in no way does that case stand for the proposition that a bank cannot hire a law firm to enforce its own contractual rights.

A borrower who has defaulted on a loan has little expectation that his financial affairs will remain private in the course of the litigation that ensues as a result of the default. Weir was entitled to review the bank’s records and prepare for the litigation. The information in the litigation package sent to former officers of the bank for review in anticipation of being called as witnesses was all directly related to the litigation over the loans. As the litigation itself was based on appellant’s defaults, it was to be expected that the documents would reveal those defaults and would contain whatever information had been offered by appellant as the reason for his financial difficulties.

As discussed previously in this decision, the judicial privilege is recognized in Pennsylvania as being an essential element of free access to the court system — allowing the exploration of claims without fear of a defamation claim. The same public policy would be violated if a court held that a firm representing a creditor in a default could not investigate or prepare the case.

C. Lincoln Meyers’ Motion for Summary Judgment

This court, for the reasons stated above, found that there were no genuine issues of fact, nor did the law support this cause of action against appellees. Accordingly, the court denied appellant’s motion for summary judgment.

CONCLUSION

The undisputed conduct of appellant in this matter should be embarrassing to him. It is understandable that appellant should feel aggrieved at any recounting of these sordid details. As a son, a fiduciary and an attorney, he has violated trusts and has alone generated a reputation for despicable behavior. As if that were not enough, he now attempts to seek “damages” from those who were taking appropriate steps to recoup the losses he caused. This cannot be permitted as appellees have occasioned him no damage and have only disseminated the truth to those who had a privilege to receive it.

Wherefore, for all the reasons stated above, the orders of this court granting appellees’ motions for summary judgment and denying appellant’s motion for summary judgment should be affirmed.

EXHIBIT A

NOTICE

You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within 20 days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other relief requested by the plaintiff. You may lose money or property or other rights important to you.

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Lawyer Reference Service

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Norristown, PA 19401

(610) 279-9660 Ext. 201

COMPLAINT

Parties

(1) Plaintiff, Lillian F. Meyers, is an adult individual residing at 237 Fairview Road, Lower Merion Township, Montgomery County, Pennsylvania. As set forth in more detail below, plaintiff brings this action in her individual capacity, as executor of the will of her deceased husband, Edward B. Meyers, and as trustee of the marital trust created under the will of Edward B. Meyers.

(2) Defendant, Lincoln Meyers, is an adult individual residing at 1650 Oak Wood Drive, Penn Valley, Montgomery County, Pennsylvania. As set forth in more detail below, Lincoln Meyers, served as attomey-in-fact for plaintiff under general powers of attorney, and served as agent for the executors of the will of Edward B. Meyers, deceased, and as agent for the trustees of the marital trust created under the will of Edward B. Meyers.

(3) Defendant, Robert A. Meyers, is an adult individual residing at 636 Spruce Lane, Villanova, Montgomery County, Pennsylvania. As set forth in more detail below, Robert A. Meyers serves as co-executor of the will of Edward B. Meyers, deceased and as co-trustee of the marital trust created under the will of Edward B. Meyers.

(4) Defendant, Leslie R. Meyers, is an adult individual residing at 530 Park Avenue, Apt. 5F, New York, New York. As set forth in more detail below, Leslie R. Meyers serves as co-executor of the will of Edward B. Meyers, deceased and as co-trustee of the marital trust created under the will of Edward B. Meyers.

Jurisdiction and Venue

(5) This court has original jurisdiction over this matter pursuant to 42 Pa.C.S. §931.

(6) Venue lies in this county pursuant to Pa.R.C.P. 1006(a) because the cause of action occurred in Montgomery County.

Background

(7) Edward B. Meyers (decedent) was a successful businessman and residential builder in the Philadelphia metropolitan area.

(8) Decedent married plaintiff, Lillian F. Meyers, and together they had three children, defendants Lincoln Meyers, Robert A. Meyers and Leslie R. Meyers.

(9) Decedent died suddenly on September 1, 1996. Decedent’s will dated July 16,1996 was probated by the Register of Wills of Montgomery County, Pennsylvania, on September 12, 1996 and letters testamentary were granted thereon to Lillian, Zita Phillips, Alvin Block and Henry F. Miller as executors. Exhibit A.

(10) In 1997, Zita Phillips resigned as co-executor and was replaced by Robert as executor. In 2000, Alvin Block and Henry F. Miller resigned as executors and were replaced by Leslie as executor.

(11) Under decedent’s will dated July 16, 1996, following certain specific pre-residuary bequests, the residue of decedent’s estate is divided into a “marital portion” and a “non-marital portion.” The non-marital portion consisting of decedent’s federal estate tax exemption amount, was distributable in equal shares to Lincoln, Robert and Leslie. The marital portion, consisting of the remaining assets of the estate, are held in trust for Lillian during her lifetime (the marital trust).

(12) Concurrently with their resignations as co-executors, Zita Phillips, Alvin Block and Henry F. Miller renounced their right to serve as trustees of the marital trust.

(13) The trustees of the marital trust are Lillian, Robert and Leslie.

(14) The gross value of decedent’s estate as of decedent’s date of death was more than $11.5 million.

(15) As of2000, the marital trust was funded with and/ or due assets from the estate of approximately $7 million.

Lincoln Obtains Lillian’s Power of Attorney

(16)Lillian was distraught following decedent’s death on September 1, 1996.

(17) Decedent had handled the family finances and businesses and Lillian was not experienced in such matters.

(18) Lincoln, a licensed Pennsylvania attorney and a successful businessman, persuaded his mother to allow him to handle the family finances.

(19) Lillian trusted Lincoln and relied upon him to act in her best interests.

(20) By general durable power of attorney dated October 14, 1996, Lillian appointed Lincoln her attorney-in-fact. Exhibit B.

(21) Lillian executed another power of attorney on November 11,1997, appointing Lincoln as her attorney-in-fact. Exhibit C.

(22) At all times relevant hereto, Lincoln was in a confidential relationship with Lillian, and owed her a fiduciary duty not to engage in self-dealing and to act solely in her best interests.

Lincoln Implements an “Estate Plan ”, Depleting Lillian s Assets Under the Guise of Saving Taxes

(23) Lincoln devised an “estate plan” wherein Lillian would transfer ownership of her assets to defendants in an effort to reduce or eliminate taxes upon Lillian’s death.

(24) Lincoln represented to Lillian that she would still control, and for all intents and purposes “own”, the assets transferred, but legal title would be transferred to defendants.

The Fairview Road Property

(25) By deed dated December 26,1997, Lillian “sold” her residence at 237 Fairview Road, Lower Merion Township, to her children Lincoln, Robert and Leslie. Exhibit D.

(26) Despite that the “sale” of the property was allegedly for consideration of $510,000 and despite that a “demand note” for such amount was prepared, Lincoln, Robert and Leslie never signed the note.

(27) Defendants considered, and still consider, the Fairview Road property to belong to Lillian notwithstanding the December 26, 1997 deed.

(28) From December 26,1997 and to this day, Lillian continues to reside in the Fairview Road property as her residence.

(29) The “sale” of the Fairview Road property was a sham, designed by Lincoln merely to attempt to save taxes.

(30) Lillian did not, and did not intend to, make a gift of the Fairview Road property to defendants.

(31) In the spring of 1998, Lincoln, Robert and Leslie obtained a loan in the amount of $392,000 from First Republic Bank, secured by a first mortgage on the Fairview Road property.

(32) Lillian received the mortgage proceeds of $392,000. At Lincoln’s direction, the proceeds were applied toward $ 1 million life insurance policies on her life naming each of Lincoln, Robert and Leslie as beneficiaries.

(33) At Lincoln’s direction, the monthly mortgage payments for the Fairview Road property were paid by Lillian from her personal funds.

(34) Lillian did not, and did not intend to, make a gift of such mortgage payments to defendants.

(35) At Lincoln’s direction, in June 2002 $365,000 was transferred from Lillian’s personal funds to pay off the mortgage on the Fairview Road property.

(36) Lillian did not, and did not intend to, make a gift of the $365,000 to defendants.

(37) No federal gift tax return was prepared or filed reflecting the transfer of the Fairview Road property to defendants, the monthly mortgage payments or the payoff of the mortgage.

The Oak Hill Condominiums

(38) In the fall of 2000 Lillian was diagnosed with a severe cardiac condition requiring two heart valve replacements.

(39) Under the guise of saving death taxes, Lincoln persuaded Lillian to transfer title to three condominium apartments she owned at the Oak Hill Condominiums in Lower Merion Township, Montgomery County.

(40) Lincoln had his attorneys prepare deeds transferring condominium Unit E-308 to Lincoln, transferring condominium Unit W-313 to Robert, and transferring condominium Unit E-309 to Leslie. Exhibit E.

(41) Lincoln brought the deeds to Lillian at the Fairview Road property and insisted that she sign them, given her health, and in order to save taxes. Lincoln then brought the signed deeds to his attorney and had a notary in that office, who was not present when Lillian signed the deeds, take the acknowledgment falsely stating that Lillian had personally appeared before her.

(42) The deeds recite consideration of $1; in fact no consideration was paid to Lillian for the transfer of the condominiums to defendants.

(43) Defendants considered, and still consider, the Oak Hill Condominiums to belong to Lillian, notwithstanding the execution of the deeds.

(44) The transfers of Oak Hill Condominiums were a sham, designed by Lincoln merely to save taxes.

(45) Lillian did not, and did not intend to, make a gift of such condominiums to defendants.

(46) No federal gift tax return was prepared or filed reflecting the transfer of the condominiums to defendants.

The Boca Raton Condominium

(47) Under the guise of saving death taxes, Lincoln persuaded Lillian to transfer title to her condominium apartment located at 6301C Gray cliff Drive, Unit 19C, Boca Raton, Florida, to Lincoln, Robert and Leslie.

(48) No consideration was paid to Lillian for the transfer of the Boca Raton Condominium to defendants.

(49) Defendants considered, and still consider, the Boca Raton condominium to belong to Lillian.

(50) The transfer of Boca Raton condominium was a sham, designed by Lincoln merely to save taxes.

(51) Lillian did not, and did not intend to, make a gift of the Boca Raton condominium to defendants.

(52) In December 2000, Lincoln, Robert and Leslie obtained a loan in the amount of $250,000 from First Republic Bank, secured by a first mortgage on the Boca Raton property.

(53) At Lincoln’s direction, the monthly mortgage payments for the Boca Raton condominium were paid by Lillian from her personal funds.

(54) Lillian did not, and did not intend to, make a gift of such mortgage payments to defendants.

(5 5) At Lincoln’s direction, in May of2001 assets were transferred from Lillian’s personal funds to pay off the mortgage on the Boca Raton condominium.

(56) Lillian did not, and did not intend to, make a gift of the mortgage payoff to defendants.

(57) No federal gift tax return was prepared or filed reflecting the transfer of the Boca Raton condominium to defendants, the monthly mortgage payments or the payoff of the mortgage.

Lincoln, As Lillian s Attorney-in-Fact, and As Agent for the Executors and Trustees, Converts Millions of Dollars for His Own Benefit

Transfers From Lillian’s Assets to or for the Benefit of Lincoln

(5 8) As attorney-in-fact for Lillian, Lincoln converted nearly $500,000 of Lillian’s personal assets, either directly to himself or for his benefit, including:

(a) Transferring $352,907.78 to his Salomon Smith Barney account in October 2000;

(b) Transferring $16,628 to his Salomon Smith Barney account in October 2000;

(c) Transferring $82,000 and $5,000 to PNC Bank in February 2001 and May 2002, respectively, believed to be on account of debts Lincoln owed to such institution;

(d) Transferring $15,000 to Sovereign Bank in May 2002, believed to be on account of debts Lincoln owed to such institution;

(e) Transferring $10,000 to Atlantic Central Bank in May 2002, believed to be on account of debts Lincoln owed to such institution; and

(f) Transferring $5,000 to his IRA account at Salomon Smith Barney in August 2002.

(59)Lincoln also obtained an unsecured loan in the amount of $250,000 from Lillian in September 2000, which loan has not been repaid despite demand therefor.

Lincoln Gives His Mother a “Gift” of a Rolls Royce Paid for by a Loan He Obtains in Her Name As Attorney-in-Fact

(60) In November 2001, Lincoln, as attomey-in-fact for Lillian under the October 14,1996 power of attorney, obtained a loan from Sovereign Bank in the amount of $346,263.36.

(61) Lincoln used a portion of the loan proceeds to pay off Lillian’s existing car loan, and used the balance to purchase Lillian a 2000 Rolls Royce Comiche as a “gift” for her 65th birthday.

(62) Lillian informed Lincoln that she did not want such an extravagant automobile, and asked him to return or trade in the automobile.

(63) On or about December 14, 2000, Lincoln took the Rolls Royce to Florida, and traded the automobile in to Palm Beach Motor Cars Ltd., receiving a credit of $288,000.

(64) Of the $288,000 “credit”, $61,112.26 was returned to Lillian, and Lincoln used the balance of the credit to purchase a 2001 Aston Martin Vantage in his own name.

(65) Lincoln failed to advise Palm Beach Motors Ltd. that Sovereign Bank had a lien on the car to secure its loan in the amount of $346,263.36.

(66) Sovereign Bank still believes it has a lien on the Rolls Royce and that it is still owned by Lillian.

(67) Lillian has been forced to pay Sovereign Bank $3,225.17 per month on account of the loan for her “gift” which was later transformed into Lincoln’s personal automobile.

Lincoln Converts Assets of the Estate and Marital Trust

(68)In addition to serving as Lillian’s attomey-in-fact, Lincoln served as the agent of the executors of the will of Edward B. Meyers, deceased, and as the agent of the trustees of the marital trust.

(69) As agent of the executors and trustees, Lincoln was authorized to, and did, engage in securities transactions in the brokerage accounts held by the executors and trustees.

(70) As agent, Lincoln owed fiduciary duties to the executors and trustees.

(71) Commencing at approximately the time of the resignation of Messrs. Block and Miller, as referenced in paragraph 10 above, Lincoln exceeded his authority as agent, abused his position of trust, violated his fiduciary obligations to the executors and trustees, and engaged in self-dealing transactions as set forth below.

Transfers from Estate to or for the Benefit of Lincoln

(72) At Lincoln’s direction as agent, during the period from December 2000 through May 2001, more than $315,000 was transferred from the estate to Lincoln’s personal bank account at First Union National Bank.

(73) At Lincoln’s direction as agent, during the period from November 1999 through March 2000, more than $190,000 was transferred from the estate to Lincoln’s personal account and/or personal loan account at PNC Bank.

(74) At Lincoln’s direction as agent, in April 2001 assets worth more than $735,000 were transferred from the estate to a trust for Lincoln’s benefit.

(75) The executors did not, and could not, authorize the transfers to or for the benefit of Lincoln as aforesaid, because Lincoln was not a beneficiary of the estate.

(76) Lincoln, as agent, was not authorized to transfer such sums, and exceeded the scope of the authority granted to him by the executors.

(77) By directing the transfers as aforesaid, Lincoln abused his position of trust and violated his fiduciary obligations to the executors.

(78) Lincoln’s actions as aforesaid constitute impermissible self-dealing by an agent.

(79) Robert and Leslie as executors, have failed to bring suit against Lincoln for his actions as aforesaid, in breach of their fiduciary obligations to the estate and its beneficiaries, including specifically Lillian.

Transfers From Marital Trust to or for the Benefit of Lincoln

(80) At Lincoln’s direction as agent, during the period from June 2001 to August 2002, more than $57,000 was transferred from the marital trust to or for the benefit of Lincoln, including:

(a) $10,000 transferred to North Penn Bank in June 2001, believed to be on account of debts Lincoln owed to such institution;

(b) $2,500 transferred to PNC Bank in January 2002, believed to be on account of debts Lincoln owed to such institution;

(c) $5,498.51 transferred to Republic First Bank in June 2002, believed to be on account of debts Lincoln owed to such institution; and

(d) $40,000 transferred to Lincoln’s IRA account at Salomon Smith Barney in August 2002.

(81) Upon information and belief, additional assets were transferred from the marital trust to or for the benefit of Lincoln.

(82) The trustees did not, and could not, authorize the transfers to or for the benefit of Lincoln as aforesaid.

(83) Lincoln, as agent, was not authorized to transfer such sums, and exceeded the scope of the authority granted to him by the trustees.

(84) By directing the transfers as aforesaid, Lincoln abused his position of trust and violated his fiduciary obligations to the trustees.

(85) Lincoln’s actions as aforesaid constitute impermissible self-dealing by an agent.

(86) Robert and Leslie as trustees, have failed to bring suit against Lincoln for his actions as aforesaid, in breach of their fiduciary obligations to the marital trust and its beneficiaries, including specifically Lillian.

(87) By permitting Lincoln to act as aforesaid and without recourse, the trustees have jeopardized the tax status of the marital trust.

Marital Trust Margin Account

(88) The marital trust currently has liquid assets worth approximately $3,146,353.

(89) In order to raise cash which he later converted for himself or his benefit, Lincoln as agent took margin loans against the marital trust’s brokerage account.

(90) The margin on the marital trust’s brokerage account is presently $2,223,340, leaving a net value of only approximately $923,013.

(91) Lillian’s personal assets have been depleted to the point where she has virtually no liquid assets.

(92) The interest cost of the margin loan has more than negated any income earned by the investments in the marital trust.

(93) Upon information and belief, the bulk of the $2.2 million margin loan was transferred to or for the benefit of Lincoln.

Count 1 — Lillian v. Lincoln Accounting As Attorney-in-Fact

(94)Plaintiff incorporates the allegations of paragraphs 1 through 93 of the complaint as if fully set forth herein.

(95) Lincoln breached his fiduciary duty as attomeyin-fact for Lillian.

Wherefore, plaintiff requests that this honorable court direct defendant Lincoln Meyers to file an account of his stewardship as attomey-in-fact for Lillian and grant such other relief as the court deems appropriate.

Count 2 — Lillian v. Lincoln Accounting As Agent for Executors

(96) Plaintiff incorporates the allegations of paragraphs 1 through 95 of the complaint as if fully set forth herein.

(97) Lincoln breached his fiduciary duty as agent for the executors.

Wherefore, plaintiff requests that this honorable court direct defendant Lincoln Meyers to file an account of his stewardship as agent for the executors and grant such other relief as the court deems appropriate.

Count 3 — Lillian v. Lincoln Accounting As Agent for Trustees

(98) Plaintiff incorporates the allegations of paragraphs 1 through 97 of the complaint as if fully set forth herein.

(99) Lincoln breached his fiduciary duty as agent for the trustees.

Wherefore, plaintiff requests that this honorable court direct defendant Lincoln Meyers to file an account of his stewardship as agent for the trustees and grant such other relief as the court deems appropriate.

Count 4 — Lillian v. Lincoln Conversion

(100) Plaintiff incorporates the allegations of paragraphs 1 through 99 of the complaint as if fully set forth herein.

(101) Lincoln intentionally deprived Lillian, the estate and marital trust of its use and possession of its assets without Lillian’s, the executors’ or the trustees’ consent and without lawful justification.

(102) Lillian, the estate and the marital trust have been damaged by Lincoln’s actions.

Wherefore, plaintiff requests judgment against the defendant Lincoln Meyers in an amount in excess of $50,000, together with attorney fees and costs of suit, and such other relief as the court deems appropriate.

Count 5 — Lillian v. Lincoln Fraud

(103) Plaintiff incorporates the allegations of paragraphs 1 through 102 of the complaint as if fully set forth herein.

(104) Lincoln falsely represented to Lillian that the transfers to defendants of her Fairview Road Property, her Oak Hill condominiums and her Boca Raton Florida condominium, would eliminate death taxes.

(105) Lincoln falsely represented to Lillian that, despite such transfers, she would still be the “owner” of the properties and in control of the properties.

(106) Lincoln made such false representations for the purpose of obtaining a financial benefit for himself and others.

(107) At the time Lincoln made such representations, he knew them to be false.

(108) Lincoln made such representations with the intention of having Lillian rely upon such representations.

(109) Lillian justifiably relied upon Lincoln’s representations.

(110) Lillian has been damaged by Lincoln’s false representations.

Wherefore, plaintiff requests judgment against the defendant Lincoln Meyers in an amount in excess of $50,000, together with attorney fees and costs of suit, and such other relief as the court deems appropriate.

Count 6 — Lillian v. Lincoln Undue Influence (Abuse of a Confidential Relationship)

(111) Plaintiff incorporates the allegations of paragraphs 1 through 110 of the complaint as if fully set forth herein.

(112) Lincoln stood in a confidential relationship to Lillian.

(113) Lincoln abused his confidential relationship with Lillian by persuading her to transfer the Fairview Road property, the Oak Hill condominiums and the Boca Ra-ton condominiums to himself and the other defendants under the guise of “estate planning.”

Wherefore, plaintiff requests judgment against the defendant Lincoln Meyers in an amount in excess of $50,000, together with attorney fees and costs of suit, and such other relief as the court deems appropriate.

Count 7 — Lillian v. Lincoln Breach of Fiduciary Duty

(114) Plaintiff incorporates the allegations of paragraphs 1 through 113 of the complaint as if fully set forth herein.

(115) Lincoln has breached fiduciary duties as attorney-in-fact for Lillian, as agent for the executors and as agent for the trustees.

Wherefore, plaintiff requests judgment against the defendant Lincoln Meyers in an amount in excess of $50,000, together with attorney fees and costs of suit, and such other relief as the court deems appropriate.

Count 8 — Lillian v. Lincoln Breach of Contract

(116) Plaintiff incorporates the allegations of paragraphs 1 through 115 of the complaint as if folly set forth herein.

(117) Lincoln has failed to repay the $250,000 loan made by Lillian to him in September of 2000, despite demand therefor.

Wherefore, plaintiff requests judgment against the defendant Lincoln Meyers in an amount in excess of $50,000, together with attorney fees and costs of suit, and such other relief as the court deems appropriate.

Count 9 — Lillian v. Lincoln Money Had and Received

(118) Plaintiff incorporates the allegations of paragraphs 1 through 117 of the complaint as if folly set forth herein.

(119) Lincoln received converted funds, and/or the benefit of the converted funds without payment of consideration therefor.

(120) Lincoln, in equity and good conscience, have rights in the funds inferior to the rights of Lillian, the estate and the trust.

Wherefore, plaintiff requests judgment against the defendant Lincoln Meyers in an amount in excess of $50,000, together with attorney fees and costs of suit, and such other relief as the court deems appropriate.

Count 10 — Lillian v. Lincoln Tracing Trust Property

(121) Plaintiff incorporates the allegations of paragraphs 1 through 120 of the complaint as if fully set forth herein.

(122) Lillian, as trustee of the marital trust, has the right to trace the funds Lincoln converted and applied for his own personal benefit.

Wherefore, plaintiff requests judgment against the defendant Lincoln Meyers in an amount in excess of $50,000, together with attorney fees and costs of suit, and such other relief as the court deems appropriate.

Count 11 — Lillian v. All Defendants Unjust Enrichment

(123) Plaintiff incorporates the allegations of paragraphs 1 through 122 of the complaint as if fully set forth herein.

(124) It is unconscionable and inequitable for Lincoln to retain the benefit he obtained from the conversion of funds as aforesaid.

(125) Lincoln has been unjustly enriched.

(126) Lillian, the estate and the marital trust have been damaged by Lincoln’s actions as aforesaid.

Wherefore, plaintiff requests judgment against the defendant Lincoln Meyers in an amount in excess of $50,000, together with attorney fees and costs of suit, and such other relief as the court deems appropriate.

Count 12 — Lillian v. All Defendants Constructive Trust

(127) Plaintiff incorporates the allegations of paragraphs 1 through 126 of the complaint as if fully set forth herein.

(128) Lincoln, Robert and Leslie have been unjustly enriched.

(129) A constructive trust should be imposed in Lillian’s favor upon the Fairview Road property, the Oak Hill condominiums and the Boca Raton condominium.

Wherefore, plaintiff requests that the court impose a constructive trust in Lillian’s favor upon the Fairview Road property, the Oak Hill condominiums and the Boca Raton condominium, and grant such other relief as the court deems appropriate.

Respectfully submitted,

/s/James F. Mannion

James F. Mannion

Dated: December 12, 2003

VERIFICATION

I, Lillian F. Meyers, verify that the facts set forth in the foregoing pleading, to the extent based upon my personal knowledge, are true and correct, and to the extent based upon belief and/or information provided by others, after reasonable investigation are believed to be true and correct; and false statements therein are subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities.

/s/Lillian F. Meyers

Lillian F. Meyers

Dated: September 30, 2003

      . The Corniche was the security for the loan.

      . In 2001, appellant secured two loans from Sovereign Bank in his own name; one for $260,000 to purchase a Rolls Royce Serap, and one for $310,000 to purchase a cigarette boat, which he named Prurient Interest. He stopped making payments on those loans in November of 2003. Sovereign Bank brought suit against appellant for default in May of 2004, and was granted summary judgment in that action in July 2006.

      . The assets of the trust were to be turned over to appellant. Mrs. Meyers, as trustee, froze the payments from the trust to do an accounting of the assets before dispersing the funds.

      . Sovereign Bank brought an action against Mrs. Meyers for breach of contract for selling the collateral for the loan issued in her name. As she denied knowing of the loan and, accordingly, claims she was unaware that she was improperly disposing of the collateral for that loan, Sovereign Bank’s motion for summary judgment in that matter was denied.

      . Because of the number of suits between the same parties and the huge amount of documentation involved in this motion, the facts as summarized above are this court’s attempt to simplify the convoluted fact pattern.

      . Although appellant claims the Meyers complaint was completely defamatory, he did not sue his mother, who verified the complaint, nor the attorney who drafted it.

      . Two of the employees have yet to be deposed; however, Weir and Sovereign Bank conceded that they had received the package. As all parties filed motions for summary judgment, it was the court’s conclusion that the issue was ripe for decision.


author: BONAVITACOLA, J.,

text:
    Benson v. Caldwell

      January 26, 2006

      Steven A. Rubin, for plaintiff.

      Kevin R. McNulty, for defendant.
   BONAVITACOLA, J.,

In the early afternoon of November 17,2002, plaintiff Deborah Benson was struck on her head when pieces of her bathroom ceiling fell on her. There was no bleeding or cuts. Her chief complaints were headaches and back pain. The incident occurred in the apartment she rented from defendant Richard Caldwell. A jury trial held on June 22, 2005, resulted in an award of $14,000 in economic damages and $50,000 in noneconomic damages for Benson. Subsequently, the parties filed post-trial motions and on October 19, 2005, the court issued an order granting Caldwell’s motion for a new trial and denying Benson’s motion for delay damages. This opinion clarifies that order.

The decision to grant a new trial lies within the sound discretion of the trial court. Duncan v. Mercy Catholic Medical Center of Southeastern Pennsylvania, 813 A.2d 6, 9 (Pa. Super. 2002). “A new trial should be ordered whenever the exercise of careful discretion sounds the presence of an injustice . . . .” Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985). In this matter, a prejudicial exhibit created the injustice as evidenced by the jury award of $50,000 in noneconomic damages, which appears disproportionate to the alleged injuries, as well as the course of treatment over four months, which appears likewise incommensurate with the alleged injuries.

The offending exhibit, marked as P-7, was a two-foot by four-foot panel of sheetrock. This sheetrock was displayed in the courtroom throughout the one-day trial, based on plaintiff’s pretrial representations to the court, N.T., 66-68, but was never received into evidence, N.T., 74. During Benson’s counsel’s opening statement, the sheetrock was presented to the jury, N.T., 7, and Benson’s counsel indicated a piece of sheetrock as large as the exhibit fell on her, N.T., 8, 9. The sheetrock was highlighted and displayed prominently during Benson’s testimony, both when she initially testified that she was hit by a two-foot by four-foot piece of sheetrock, N.T., 22, and also when she indicated that she was not hit by apiece that size, N.T., 36. On cross-examination, Benson conceded that the sheetrock that actually fell on her was not the same size as the sheetrock on display in the courtroom, N.T., 39-40.

To analyze the effect of the sheetrock, the court is guided by cases on evidence. Cf. Commonwealth v. Parker, 882 A.2d 488 (Pa. Super. 2005) (lacking clear law on use of demonstrative evidence during opening statement, the court examined cases on admissibility of evidence). Under the Rules of Civil Procedure, evidence is excluded if its probative value is outweighed by the danger of unfair prejudice. Pa.R.C.P. 403. Since the two-foot by four-foot panel of sheetrock presented an inaccurate representation of the cause of Benson’s injuries, its use and display was prejudicial. See Leahy v. McClain, 732 A.2d 619, 624-25 (Pa. Super. 1999) (admitting exhibits that contradict testimony would be highly prejudicial); Alt v. Franceski, 68 D.&C.4th 241, 256-57 (Lacka . Cty. 2004) (admitting exhibits that do not show actual damage would be prejudicial).

Although the court gave curative instructions at the conclusion of Benson’s testimony, N.T., 63, the prejudicial effect of the sheetrock exhibit was not adequately remedied. Clearly the sheetrock was “pertinent to a substantial portion of the case,” Boscia v. Massaro, 365 Pa. Super. 271, 278, 529 A.2d 504, 507 (1987), as Benson’s counsel referred to the exhibit during his opening remarks, utilized it as an aid during Benson’s testimony and placed it in full view of the jury throughout the duration of the trial. Benson’s counsel understood the influence of the sheetrock on the jury, as he sought to introduce the exhibit into evidence subsequent to both the court’s curative instructions and a discussion, between both attorneys and the court outside of the jury’s presence, that resulted in the exclusion of a witness solely because admission of the exhibit was a prerequisite to his testimony, N.T., 64-69. An assessment of the curative instructions against the impact of the sheetrock exhibit leads to a determination that indelible prejudice had occurred and that a new trial is warranted. Siegel v. Stefanyszyn, 718 A.2d 1274, 1277 (Pa. Super. 1998); see also, Lee v. SEPTA, 704 A.2d 180, 183 (Pa. Commw. 1997) (“the cumulative effect of the prejudicial [exhibit] outweighed the cumulative effect of the cautionary instructions ....”).

      . Sheetrock is a trade word used to describe a gypsum substance sandwiched between heavy paper and, depending upon where used, range in thickness from 1/8 inch to 1 1/2 inches.


author: LACHMAN, J,

text:
    Byrd v. Sacco

      June 30, 2006

      Angelo L. Cameron and Robert I Vance Jr., for plaintiff.

      Andrew G. Gay, for defendant.
   LACHMAN, J,

BACKGROUND

The plaintiff, Police Sergeant Kimberley Byrd brought this defamation action against her next-door neighbors Eileen Sacco and her husband Edward Sacco as a result of statements made by Eileen Sacco to the Police Advisory Commission and by Edward Sacco to the Police Department Internal Affairs Division. The statements included allegations that the plaintiff was mentally ill, that plaintiff’s daughter was the child of the police commissioner, and that the plaintiff had used her position of authority to harass the defendants and their family.

After three days of deliberations the jury returned a verdict against Mrs. Sacco in the amount of $10,000 for compensatory damages and $15,000 for punitive damages. N.T. 5/11/05, p. 13. However, the jury was deadlocked as to the claim against defendant Edward Sacco, and therefore a mistrial was declared as to Mr. Sacco.

On May 23,2005, Mrs. Sacco filed a timely post-trial motion in which she raised several issues. The second issue was a request for “a new trial because the verdict was against the weight of the evidence in that the plaintiff suffered no harm and that the statement made to Mr. Johnson at the Police Advisory Commission was done under conditionally privileged circumstances.” After reviewing the testimony, the court concluded that the plaintiff failed to establish any damages as a result of Mrs. Sacco’s statement to the Police Advisory Commission. Although there was testimony that the Internal Affairs Division report would remain in the plaintiff’s personnel file and might affect her opportunity for advancement in the Police Department, the statement to IAD was made by Mr. Sacco, not Mrs. Sacco. No evidence was offered to the jury about the effect of Mrs. Sacco’s statement to PAC, nor was there any evidence that the plaintiff had been humiliated or even upset by what had transpired.

In the interest of judicial economy and in the absence of evidence of the effect of defendant Eileen Sacco’s statements, the court granted a new trial so that the claims against both defendants could be tried together. This appeal followed.

Upon further review of the post-trial motion and the brief defendant filed in support of that motion, the court has determined that the issue of the plaintiff’s failure to establish damages was waived because defendant did not mention or discuss the issue in her post-trial motions brief and did not argue the issue during the hearing on post-trial motions. “In order to preserve an issue for appellate review following a civil verdict, the issue must first be raised in a post-trial motion. . . . Moreover, an issue raised in a post-trial motion is waived unless it is briefed or argued in post-trial proceedings.” Kraus v. Taylor, 710 A.2d 1142, 1146 (Pa. Super. 1998), appeal dismissed, 560 Pa. 220, 743 A.2d 451 (2000). “Failure to set forth an argument in briefs filed in the court in support of post-trial motions constitutes a failure to preserve the issue or issues not argued.” Jackson v. Kassab, 812 A.2d 1233, 1235 (Pa. Super. 2002), quoting DiSalle v. P.G. Publishing Co., 375 Pa. Super. 510, 546, 544 A.2d 1345, 1364 (1988), defendant abandoned and waived the issue of plaintiff’s failure to establish damages by failing to brief and argue that issue.

Plaintiff’s failure to establish damages was the only issue in defendant’s post-trial motions that this court believed merited relief. Having concluded that issue is waived, the trial court’s decision granting a new trial should be reversed for the reasons set forth below.

ISSUES

Mrs. Sacco raised the following additional issues in her post-trial motion:

(1) Should the trial court grant defendant’s motion for judgment notwithstanding the verdict (judgment n.o.v.) because there was insufficient evidence to submit the case to the jury?

(2) Should the trial court grant defendant’s motion for a new trial because the defendant’s statement to the Police Advisory Board was done under conditionally privileged circumstances?

(3) Should the trial court grant defendant’s motion for a new trial and/or to arrest judgment because a mistrial was warranted based upon racial remarks made by plaintiff during her testimony at trial?

(4) Should the trial court grant defendant’s motion for a new trial because the trial court incorrectly allowed the issue of punitive damages to be presented to the jury?

(5) Should the trial court grant defendant’s motion for a new trial or in the alternative, a remittitur because the damages awarded by the jury were shocking to the conscience of the court?

(6) Should the trial court grant defendant’s motion for a new trial and/or to arrest judgment because of the admission of character evidence testimony in plaintiff’s case in chief?

(7) Should the trial court grant defendant’s motion for a new trial or to arrest judgment because previous litigation before the Pennsylvania Human Relations Commission acted as an estoppel or res judicata with regard to the case?

DISCUSSION

1. Defendant’s Motion for Judgment n.o.v. Was Denied

Because There Was Sufficient Evidence To Submit the Case to the Jury

In support of her motion for judgment n.o.v., defendant argues that the verdict was contrary to the weight of the evidence because plaintiff did not meet her burden of proof with respect to the elements for defamation set forth in 42 Pa.C.S. §8343(a). This court was not persuaded by that argument.

In reviewing a motion for judgment n.o.v., “[t]he evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor." Jones v. Constantino, 429 Pa. Super. 73, 81, 631 A.2d 1289, 1293 (1993), citing Moure v. Raeuchle, 529 Pa. 394, 402, 604 A.2d 1003, 1007 (1992). The motion may only be granted in a clear case where no two reasonable minds would disagree that the verdict is improper. Id. Furthermore, “[o]ur system vests the responsibility of determining the facts with the jury and [the court] will not upset their findings absent a showing that the verdict is capricious, against the weight of the evidence and resulted in a miscarriage of justice.” Mitzelfelt v. Kamrin, 526 Pa. 54, 61-62, 584 A.2d 888, 891 (1990), quoting Gajkowski v. International Brotherhood of Teamsters, 515 Pa. 516, 531, 530 A.2d 853, 861 (1987).

In the instant case, the court did not find the evidence in favor of plaintiff to be insufficient or to warrant overturning the verdict. At trial, plaintiff’s burden of proof on her defamation claim, as codified at 42 Pa.C.S. §8343, was as follows:

“(a) Burden of plaintiff — In an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised:

“(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.” Id. at section 8343(a).

A “communication is ... defamatory if it ascribes to another conduct, character or a condition that would adversely affect his fitness for the proper conduct of his proper business, trade or profession.” Constantino v. The University of Pittsburgh, 766 A.2d 1265, 1270 (Pa. Super. 2001), quoting Maier v. Maretti, 448 Pa. Super. 276, 282, 671 A.2d 701, 704 (1995). “Statements by a defendant imputing to the plaintiff... conduct incompatible with plaintiff’s business constitute slander per se.” Brinich v. Jencka, 757 A.2d 388, 397 (Pa. Super. 2000).

Defendant contends that plaintiff did not meet her burden of proof because the only evidence presented at trial to establish the defamation was the testimony of Deputy Director William Johnson of the Philadelphia Police Advisory Commission. See defendant’s post-trial motion, p. 2. Defendant maintains that Mr. Johnson’s testimony was insufficient to meet plaintiff’s burden of proof required under the law; therefore, she is entitled to judgment n.o.v. Id.

Examining the record in its entirety, taking all the inferences in favor of plaintiff as the verdict winner, it is clear that there was sufficient evidence to sustain the verdict of liability against defendant on plaintiff’s defamation claim. During the trial, there was evidence that defendant telephoned the Police Advisory Commission on March 26, 2003 and spoke to Mr. Johnson. N.T. 5/4/05, pp. 102-103. He testified that during the telephone conversation, defendant said “that she felt Sgt. Byrd was mentally disturbed.” Id. at 105. Defendant told Mr. Johnson that “she believed that Sgt. Byrd’s child belonged to Commissioner Sylvester Johnson.” Id. Defendant also expressed to Mr. Johnson that Sgt. Byrd “had tortured her family over a period of time, and that she had threatened her.” Id. at 106. Additionally, during defendant’s own testimony, she admitted telling Mr. Johnson “what my husband told me that Miss Byrd told him, that she was mentally ill.” N.T. 5/5/05, p. 175. Within the same context defendant then told Mr. Johnson that plaintiff is “a police officer with a gun or a weapon, and that [defendant] was concerned for [her family].” Id. at 176.

Both Mr. Johnson’s testimony and defendant’s own testimony demonstrate that the statements were within the definition of slander per se. It is difficult to reasonably suggest that defendant’s statements that plaintiff is “mentally ill” and her child was fathered by Police Commissioner Johnson are open to interpretation as to whether they are defamatory. Furthermore, the context in which defendant’s statements were made could very well lead the hearer to believe that plaintiff was not fit to perform her duties as a police officer. The court notes that plaintiff is a police sergeant, working directly for the police commissioner, a position where sound judgment is especially crucial. Within this context, the accusations in the statements of defendant must be viewed as capable of a defamatory meaning.

This court included a jury instruction on slander per se and properly left it for the jury to determine if defendant did in fact defame plaintiff. Credibility determinations are for the jury, which “is entitled to believe all, part, or none of the evidence presented.” Randt v. Abex Corp., 448 Pa. Super. 224, 234, 671 A.2d 228, 233 (1996). This court could not grant defendant’s motion for judgment n.o.v. because crucial determinations depended on weighing the testimony of the witnesses and this task was solely within the province of the jury. The courts should not use judgment n.o.v. to invade that province. Ludmer v. Nernberg, 433 Pa. Super. 316, 322, 640 A.2d 939, 942 (1994). Both Mr. Johnson and defendant testified regarding defendant’s statements about plaintiff, and based upon this testimony the jury determined that plaintiff had been defamed. The evidence was sufficient and this court could not substitute its judgment for that of the jury’s.

2. Defendant’s Motion for a New Trial Was Denied Because There Was Sufficient Evidence Defendant Abused Her Conditional Privilege

Defendant contends that the statements she made to William Johnson were done under conditionally privileged circumstances. It is defendant’s position that she sought help and advice from the Police Advisory Commission because she was “legitimately attempting to protect her own interests.” Defendant’s motion for post-trial relief p. 2. Under Pennsylvania law, a defendant in a defamation action may raise the defense that the communication was privileged. The burden is on the defendant to prove the privileged character of the occasion on which the communication was published. 42 Pa.C.S. §8343(b). As stated by our Superior Court in Miketic v. Baron, 450 Pa. Super. 91, 101-102, 675 A.2d 324, 329 (1996):

“Communications made on a proper occasion, from a proper motive, in a proper manner, and based upon reasonable cause are privileged.... ‘An occasion is conditionally privileged when the circumstances are such as to lead any one of several persons having a common interest in a particular subj ect matter correctly or reasonably to believe that facts exist which another sharing such common interest is entitled to know.’ . . . Thus, proper occasions giving rise to a conditional privilege exist when (1) some interest of the person who publishes defamatory matter is involved; (2) some interest of the person to whom the matter is published or some other third person is involved; or (3) a recognized interest of the public is involved____Once a matter is deemed conditionally privileged, the plaintiff must establish that the conditional privilege was abused by the defendant.” (citations omitted)

After reviewing the record, this court finds that even if defendant communicated with the commission under conditionally privileged circumstances, there was sufficient evidence presented at trial for the jury to conclude that defendant abused that privilege. A conditional privilege may be defeated upon a showing of either negligence or malice. Miketic, 450 Pa. Super. at 102, 675 A.2d at 329. The conditional privilege is also abused “when the publication . . . includes defamatory matter not reasonably believed to be necessary for the accomplishment of the purpose.” Id.

Here, plaintiff introduced sufficient evidence to meet her burden of demonstrating abuse of the conditional privilege. The evidence was sufficient for the jury to conclude that defendant communicated in at least a negligent manner several defamatory falsehoods concerning plaintiff, and that defendant’s publication of the information included defamatory matter not reasonably believed to be necessary to accomplish her purposes.

Defendant testified that because she had been harassed by plaintiff, a police officer advised her to file a complaint with the Police Advisory Commission for protection. N.T. 5/4/05, p. 181. However, even if defendant called the commission to make a legitimate complaint about plaintiff because she was genuinely concerned about her family’s safety, one must question how reporting that “she believed that Sgt. Byrd’s child belonged to Commissioner Sylvester Johnson” could possibly help her to resolve her concerns. Moreover, although defendant thought it was necessary to report this information in a telephone conversation, she did not follow up by filing a formal complaint with the commission. N.T. 5/4/05, p. 106; N T. 5/5/05, pp. 176-77. Defendant’s failure to actually file a formal complaint may very well have led the fact-finder to believe that defendant did not call the commission to actually obtain help, but to report information that could possibly injure plaintiff’s professional reputation as a police sergeant. Accordingly, there was sufficient evidence for a jury to conclude that defendant abused her conditional privilege, and therefore, defendant’s motion was denied.

3. Defendant’s Motion for a New Trial and/or To Arrest Judgment Was Denied Because the Court Did Not Err by Not Declaring a Mistrial After Plaintiff Made Racial Remarks

Defendant’s argument is that this court erred in not granting a mistrial after plaintiff made certain racial remarks during her testimony at trial. See defendant’s post-trial motion, p. 2.- In reviewing a trial court’s admission of testimony, the Superior Court will reverse only if there has been an abuse of discretion or error of law. Gatto v. Kisloff 437 Pa. Super. 328, 331, 649 A.2d 996, 997 (1994). A mistrial is only appropriate where the occurrence is so inflammatory and prejudicial as to preclude a fair trial and to undoubtedly influence the jury, distracting the minds of the jurors from pivotal issues and influencing their verdict. Harsh v. Petroll, 840 A.2d 404, 432 (Pa. Commw. 2003), citing Commonwealth v. Brown, 544 Pa. 406, 676 A.2d 1178 (1996), cert. denied, 519 U.S. 1043 (1996). In evaluating whether a request for a mistrial is unreasonable, the record must be reviewed to fully appreciate the testimony in the context in which it was made and any subsequent remedial actions designed to remove any prejudicial effects. Harman ex rel. Harman v. Borah, 562 Pa. 455, 468, 756 A.2d 1116, 1123 (2000).

Defendant argues that she was prejudiced by plaintiff’s racial remarks because the jury was predominantly African-American. See defendant’s post-trial motion, p. 2. However, at trial, this court correctly denied defendant’s motion for a mistrial. N.T 5/5/05, p. 58. A review of the record reflects that plaintiff testified to the racial remarks defendant allegedly said to her during a dispute in order to give a background to the contentiousness of the dispute between them, and how their dispute escalated to the alleged defamation.

The court notes that the ongoing dispute between plaintiff and defendant arose within the context of a racial incident and that the racial slurs were also introduced in the testimony of other witnesses. Police Officer Cassandra Mathis, an officer previously assigned to “conflict prevention resolution,” a special unit for racial and bias incidents, testified that she went to Poquessing Creek Lane because she received a call regarding a racial incident between two neighbors. N.T. 5/4/05, pp. 124-25. Officer Mathis said that she interviewed defendant and that defendant acknowledged calling the plaintiff “a nigger” — one of the remarks that plaintiff attributed to the defendant. Id. at 127.

There is no way of determining whether plaintiff’s remarks distracted the minds of the jurors from pivotal issues and influenced their verdict. See Harsh v. Petroll, supra. However, this court instructed the jury that they were “to disregard the previous comments of the witness about racial remarks.” See N.T. 5/5/05, pp. 58-59. Through this instruction, the court took appropriate subsequent remedial action to cure any prejudicial effects of plaintiff’s remarks. For the reasons set forth above, the court did not err by not declaring a mistrial, and therefore, the defendant’s motion for a new trial is denied.

4. Defendant’s Motion for a New Trial and/or To Arrest Judgment Was Denied Because the Trial Court Correctly Allowed the Issue of Punitive Damages To Be Presented to the Jury

At trial the court permitted the issue of punitive damages to go to the jury. N.T. 5/6/05, p. 23. The court instructed the jury:

“[I]f you find that the conduct of the defendants was outrageous, you may award punitive damages as well as compensatory damages in order to punish the defendants for their conduct and to deter the defendants and others from the commission of like actions. A person’s conduct is outrageous when he or she acts with a bad motive or when he or she acts with reckless indifference to the interests of others. If you decide that the plaintiff is entitled to an award of punitive damages, it will be your job to fix the amount of such damages. In doing so, you may consider any and all of the following factors: The character of the defendants’ act; the nature and extent of the harm to the plaintiff that the defendants caused or intended to cause; the wealth of the defendants insofar as it is relevant in fixing an amount that will punish them and deter the defendants and others from like conduct in the future.” N.T. 5/6/05, pp. 67-68.

Defendant argues that instructing the jury on punitive damages was error because “among other things, there was no evidence presented to the jury as to the defendant’s ability to pay an award of punitive damages.” Further, there was “insufficient evidence to sustain plaintiff’s burden of showing malice or recklessness.” See defendant’s post-trial motion, p. 3.

The Pennsylvania Supreme Court has held that in order to award punitive damages to a private party plaintiff in a defamation suit, a jury must conclude that there was clear and convincing evidence that the defendant acted with “actual malice.” Hepps v. Philadelphia Newspapers Inc., 506 Pa. 304, 485 A.2d 374 (1984), rev’don other grounds, 475 U.S. 767 (1986). “Actual malice” means “that the defamatory publication was made either with knowledge that it was false or with reckless disregard of whether it was false.” Banas v. Matthews International Corporation, 348 Pa. Super. 464, 502 A.2d 637, 640 (1985). Our Supreme Court has also stated when determining the proper amount of punitive damages “the jury has the function of weighing the conduct of the tortfeasor against the amount of damages which would deter such future conduct. In performing this duty, the jury must weigh the intended harm against the tort-feasor’s wealth.” Kirkbride v. Lisbon Contractors Inc., 521 Pa. 97, 555 A.2d 800, 803 (1989).

Here, defendant contends that there was no evidence presented at trial that defendant acted with malice or recklessness, and no evidence that defendant had an ability to pay the $15,000 punitive damages award. First, the jury had before it evidence that defendant told the Police Advisory Commission that plaintiff’s child was fathered by the Police Commissioner. This statement was entirely unrelated to the work of the PAC. The jury was well within its right to conclude that defendant made the statement out of sheer malice and with the intent to harm the plaintiff’s reputation. Second, the jury had the evidence that defendant failed to file a formal complaint against the plaintiff with the PAC. From that evidence, the jury could properly conclude that the defendant’s statements to the PAC that plaintiff was mentally ill, was dangerous, and had threatened defendant and her family were malicious and not made for a proper purpose and were, instead, made solely to injure the plaintiff.

Regarding evidence of defendant’s wealth, the jury heard evidence that defendant has lived at the Poquessing Creek Lane address for 14 years. N.T. 5/4/05, p. 179. Additionally, the jury was shown photographs of defendant’s house and observed what she wore in court during the trial. From these observations alone, the jury could have reasonably come to a conclusion regarding defendant’s wealth. The jury also heard testimony that defendant drives a gray Mitsubishi Galant. N.T. 5/5/05, p. 54. The jury was made aware that defendant’s husband is gainfully employed, id. at 15,145,149; and that he took a vacation, presumably with his family. Id. at 32. The jury also heard that defendant had hired an attorney for previous litigation with plaintiff at the Pennsylvania Human Relations Commission. Id. at 24.

All of this was proper evidence from which the jury could infer the defendant’s wealth. From this evidence the jury could properly infer that defendant could afford a $15,000 punitive damages award. Accordingly, defendant’s motion for a new trial is denied.

5. Defendant’s Motion for a New Trial or a Remittitur Was Denied Because the Jury s Award Was Not Shocking to the Conscience

Defendant argues that she is entitled to a new trial or in the alternative a remittitur because the damages awarded by the jury were excessive and so unconscionable as to shock the conscience of the court. Defendant’s post-trial motion, p. 3. Defendant maintains that this is particularly so, since there is no nexus between evidence of harm suffered by plaintiff and defendant’s alleged acts. Id. This court was not persuaded by this argument.

The decision whether to deny a new trial or to deny remittitur when the verdict is challenged as excessive is committed to the sound discretion of the trial court and the court’s decision will be reversed only if there is a clear abuse of that discretion. Krysmalski v. Tarasovich, 424 Pa. Super. 121, 147, 622 A.2d 298, 312 (1993) (en banc); DiSalle v. P.G. Publishing Co., 375 Pa. Super. 510, 567, 544 A.2d 1345, 1375 (1988). “On appeal, the Superior Court is not free to substitute its judgment for that of the fact-finder.... Rather, it is our task to determine whether the post-trial motions judge committed a ‘clear’ or ‘gross’ abuse of discretion when conducting its initial evaluation of a defendant’s request for remittitur.” Doe v. Raezer, 444 Pa. Super. 334, 340-41, 664 A.2d 102, 105 (1995).

The duty of assessing damages is within the sole province of the jury. As the trier of fact, it alone weighs and determines the veracity and credibility of the witnesses and weighs their testimony to arrive at an amount of damages which it determines will fairly compensate the plaintiff for her loss. Doe, 444 Pa. Super. at 341, 664 A.2d at 105; Stoughton v. Kinzey, 299 Pa. Super. 499, 504, 445 A.2d 1240, 1243 (1982).

The trial court may grant a new trial on the ground of excessiveness or grant a remittitur only when the evidence of record clearly demonstrates that the jury’s verdict was the product of partiality, caprice, prejudice, mistake or corruption. Delahanty v. First Pennsylvania Bank N.A., 318 Pa. Super. 90, 117, 464 A.2d 1243, 1257 (1983); Doe, 444 Pa. Super, at 340, 664 A.2d at 105. “[I]t is the duty of the court to enforce the jury’s verdict unless the circumstances cry out for judicial interference.” Daley v. John Wanamaker Inc., 317 Pa. Super. 348, 352, 464 A.2d 355, 358 (1983). The grant of anew trial is warranted “only where injustice of the verdict stands forth like a beacon.” Fischer v. Troiano, 768 A.2d 1126, 1129 (Pa. Super. 2001).

Guided by this standard of review, there is no evidence that the verdict resulted from passion, caprice, prejudice, partiality or corruption and, therefore, neither a new trial nor a remittitur was granted. The jury’s award of $10,000 for compensatory damages and $15,000 for punitive damages to plaintiff in this defamation claim did not shock the court’s sense of justice. When a communication is found to be slander per se, the plaintiff need not prove any pecuniary loss. The defendant will automatically be liable for the actual harm suffered as a result of the communication. See Brinich v. Jencka, 757 A.2d 388, 397 (Pa. Super. 2000). Whether or not there was actual harm was for the jury to decide. Walker v. Grand Central Sanitation Inc., 430 Pa. Super. 236, 250, 634 A.2d 237, 244 (1993). A review of the record indicated that the jury was presented with ample evidence to support the amount of the verdict. The jury weighed the evidence and found that plaintiff was harmed by defendant’s slanderous statements. Accordingly, defendant’s motion for a remittitur or a new trial was denied.

6. Defendant’s Motion for a New Trial Was Denied Because the Issue Regarding the Admission of Character Evidence in Plaintiff’s Case in Chief Was Waived

At trial, the court permitted plaintiff to present reputation evidence in her case in chief, by allowing FBI Special Agent Mark Johnson, Commissioner Sylvester Johnson’s son, to testify regarding plaintiff’s good character. See N.T. 5/4/05, pp. 165-68. Defendant’s post-trial motion claims that it was error to permit this testimony because it was evidence of good character, and such evidence is inadmissible unless one’s good character has been attacked. See defendant’s post-trial motion, p. 3. Defendant waived this issue by failing to object at trial to the introduction of this evidence on that ground, and by failing to brief this issue in her post-trial motions brief.

When plaintiff attempted to question Special Agent Johnson about specific incidents of conduct regarding the plaintiff’s character and reputation, defense counsel objected only on the ground that “character cannot be proved by specific instances” of conduct. N.T. 5/4/05, p. 158. During the side-bar discussion on the objection, defense counsel never objected to the introduction of character evidence on the ground that such evidence was inadmissible because plaintiff’s reputation had not been attacked by the defendant. On the contrary, although defense counsel argued that reputation is not an element of a cause of action for defamation, he agreed that evidence regarding plaintiff’s reputation for chastity was relevant and admissible. N.T. 5/4/05, pp. 160-61, 164. When trial resumed, defense objections to questions regarding plaintiff’s general reputation were sustained. N.T. 5/4/05, pp. 166-68. Defendant did not object to questions asking Special Agent Johnson whether the plaintiff was a moral person. N.T. 5/4/05, pp. 168-69.

After cross-examining Special Agent Johnson as to the basis for his knowledge of plaintiff’s reputation in the community, defendant moved to strike his testimony “on the grounds that his contacts with the community and what he has heard renders him incompetent to give an opinion that’s relevant in his case.” N.T. 5/4/05, p. 173. Defendant never moved to strike on the ground that character evidence was inadmissible because plaintiff’s character had not been attacked by the defendant. The court denied the motion to strike. N.T. 5/4/05, p. 177.

Because defendant failed to object to the introduction of this evidence on the ground that character evidence is inadmissible unless one’s good character has been attacked, she waived that issue as a ground for a new trial. Pa.R.E. 103(a)(1); Pa.R.C.P. 227.1(b)(1); Commonwealth v. Arroyo, 555 Pa. 125, 142, 723 A.2d 162, 170 (1999) (“it is beyond cavil that if the ground upon which an objection is based is specifically stated, all other reasons for its exclusion are waived”).

Defendant also waived this issue by failing to discuss it in her post-trial motion brief or to argue it during the hearing on post-trial motions. “Failure to set forth an argument in briefs filed in the court in support of post-trial motions constitutes a failure to preserve the issue or issues not argued.” Jackson v. Kassab, 812 A.2d 1233, 1235 (Pa. Super. 2002), quoting DiSalle v. P.G. Publishing Co., 375 Pa. Super. 510,b 546, 544 A.2d 1345, 1364 (1988). Accord, Kraus v. Taylor, 710 A.2d 1142, 1146 (Pa. Super. 1998) (“an issue raised in a post-trial motion is waived unless it is briefed or argued in post-trial proceedings”), appeal dismissed, 560 Pa. 220, 743 A.2d 451 (2000). Defendant abandoned and waived this issue.

7. Defendant’s Motion for a New Trial or To Arrest Judgment Was Denied Because Previous Litigation Before the Human Relations Commission Did Not Act As an Estoppel or Res Judicata With Regard to the Present Case

On October 8,2003, plaintiff filed a complaint against defendant with the Pennsylvania Human Relations Commission (PHRC), alleging that defendant engaged in conduct that was racially based and that defendant retaliated against her for filing claims with the PHRC. There was a full hearing held before a PHRC examiner, and the examiner issued a stipulations of fact, findings of fact, conclusions of law, opinion, recommendation and final order. Defendant filed a motion for a nonsuit based on the PHRC decision, which was denied by the court. N.T. 5/5/05, pp. 184-85. Defendant argues that the litigation before the PHRC acted as an estoppel or res judicata with regard to plaintiff’s defamation action. See defendant’s post-trial motion, p. 3. This court disagrees.

For technical res judicata to apply, there must be a concurrence of four conditions: (1) identity in the thing sued upon or for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality or capacity of the parties suing or sued. Patel v. W.C.A.B. (Sauquoit Fibers Company), 88 Pa. Commw. 76, 79, 488 A.2d 1177, 1179 (1985). “Under the doctrine of collateral estoppel, the determination of a fact in a prior action is deemed conclusive between the parties in a subsequent action even though the cause of action is different, where the fact was actually litigated in the prior action, was essential to the judgment in the prior action, and was determined by a valid and final judgment.” Burr v. Callwood, 374 Pa. Super. 502, 543 A.2d 583, 585 (1988).

In this case, the issues presented in plaintiff’s defamation claim are not identical to the issues presented before the PHRC examiner. In the PHRC proceeding, the ultimate issue under consideration was whether defendant racially discriminated against and harassed plaintiff, whereas plaintiff’s defamation claim addressed whether defendant made defamatory statements regarding plaintiff. In the PHRC hearing, the examiner did not specifically find that defendant did or did not make defamatory statements against plaintiff. A careful review of the PHRC’s stipulations of fact, findings of fact, conclusions of law and opinion reveals that there was a finding of fact that plaintiff alleged in a complaint that defendant had called the Police Advisory Commission and reported that plaintiff had a relationship with Commissioner Johnson. However, nowhere in those findings did the PHRC address the issue of whether defendant had defamed plaintiff by making that call. In the absence of any ruling on that precise issue by the PHRC, it was proper for the issue to be submitted to the jury to decide in the present case. Simply put, the issue of defamation was never litigated before the PHRC. Therefore, neither collateral estoppel nor res judicata precluded litigation of the defamation issue in the present action.

CONCLUSION

For the reasons stated above, this court erred in granting the defendant’s motion for a new trial. The Superior Court should reverse the order granting the new trial and reinstate the jury’s verdict in favor of plaintiff, Kimberley Byrd.

      . Although inquiry commenced about whether plaintiff “needed” treatment as a result of the alleged defamation, the court sustained the objection to the question as phrased and there were no follow-up questions put to the plaintiff.

      . Defendant Eileen Sacco’s second issue raised in her post-trial motions asked for a new trial and not for judgment n.o.v.

      . William Johnson is not related to Philadelphia Police Commissioner Sylvester Johnson.