author: HIGGINS, /.,

text:
    Castillo v. Lopez

      C.P. of Monroe County,
    No. 8586 CV 2012; 1023 DR 2012

      Brandie Belinger, for plaintiff.

      Robert Saurman, for defendant.
    July 9, 2014
   HIGGINS, /.,

— This matter is before the court on defendant Jhantteil Lopez’ (“mother”) request to relocate with the parties’ minor child, Sophia Castillo, (“Sophia”) bom on October 3, 2010. On October 10, 2012, plaintiff, David Castillo (“father”) filed a complaint in custody seeking an order for primary physical custody of Sophia. After a custody conciliation conference held and on November 9, 2012, this court entered an order providing the parties with shared legal and physical custody, with mother enjoying primary physical custody and father enjoying weekdays from 4:30 p.m. until 9:00 p.m. and every Sunday at a time to be agreed upon by the parties. On October 28, 2013, mother filed a petition for modification to permit Sophia to be returned during the weekdays at an earlier time due to a disruption in her schedule. After another custody conciliation conference held, an order was entered on November 18, 2013, providing the parties with shared legal and physical custody, with mother enjoying primary physical custody and father enjoying weekdays from 4:30 p.m. until 8:00 p.m. and alternate weekends beginning at 5:00 p.m. and ending on Sunday at 5:00 p.m. mother now seeks to relocate with Sophia to the Scranton/Wilkes-Barre area in northeast Pennsylvania. We held an evidentiary hearing in this matter on June 26, 2014, and we are now prepared to rule on mother’s request to relocate.

The Pennsylvania legislature has defined elements, which are to be considered in custody cases. The statute, in relevant part, is as follows:

(a) Factors. — In ordering any form of custody, the court shall those factors which affect the safety of the child, including the following: determine the best interest of the child by considering all relevant factors, giving weighted consideration to
(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child. (3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child’s education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member of a party’s household.
(15) The mental and physical condition of a party or member of a party’s household.
(16) Any other relevant factor.

23 Pa.C.S.A. §5328(a).

As the Pennsylvania courts have interpreted, the statute requires that in any custody case, our paramount concern must be for the best interest of the child after considering all factors set forth above. M.O. v. J T.R., 85 A.3d 1058 (Pa. Super. 2014). As the best interest of the child is a vague concept, we will consider all relevant factors affecting the child’s well-being. L.A.L. v. V.D., 72 A.3d. 690 (Pa. Super. 2013)(citations omitted). Since we must conduct a case-by-case analysis, we will make its determination based solely on the particular facts and circumstances of each case. S.J.S. v. M.J.S., 76 A.3d 541 (Pa. Super. 2013).

Since mother filed a relocation notice, we must consider additional factors when “determining whether to grant a proposed relocation.” 23 Pa. C.S.A. §5337(h) which are as follows:

(1) The nature, quality, extent of involvement and duration of the child’s relationship with the party proposing to relocate and with the nonrelocating party, siblings and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child and the likely impact the relocation will have on the child’s physical, educational and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving the relationship between the nonrelocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.
(6) Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.
(7) Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.
(8) The reasons and motivation of each party for seeking or opposing the relocation.
(9) The present and past abuse committed by a party or member of the party’s household and whether there is a continued risk of harm to the child or an abused party.
(10) Any other factor affecting the best interest of the child.

The burden of proof lies with the party proposing the relocation to establish that the relocation will serve the best interest of the child as shown under the factors set forth above. 23 Pa. C.S.A. §5337(i). Moreover, “each party has the burden of establishing the integrity of that party’s motives in either seeking the relocation or seeking to prevent the relocation.” S.J.S., supra, 16 A.3d at 551 (citation omitted).

In conducting our analysis based upon the above factors, we conclude that mother’s request to relocate to Scranton/Wilkes-Barre should be denied. Under §5328(a) we find that factors 1, 2, 6, 7, 8, 9, 10, 11, 12, 14 and 15 are neutral and favor both parents equally. Factor 16 is not applicable. We find that since the parties’ extended families are located in Monroe County, factors 4 and 5 favor father. Also, Father testified at hearing that he will accommodate mother’s schedule in caring for Sophia, including picking her up from day care if she is sick. On the other hand, we find that factors 3 and 13 favor mother. Mother testified that she performs Sophia’s daily routine and cares for all her needs. Mother also appears to cooperate with father. Accordingly, we believe that factor 13 favors mother.

The parties appeared before the court and seemed to be able to communicate with each other and coordinate drop off and pick up times for physical custody exchanges. Mother complained that father is sometimes aggressive and screams at Sophia. Father related that during the Christmas holiday he allowed mother to take Sophia to New York City during a period of his physical custody and he wanted to have that time back. Father also stated that he sometimes yells at Sophia, although he tries to talk to her first to discipline her. Overall, the parties seemed genuinely concerned with Sophia’s well-being and they appeared to cooperate with each other to that end.

In considering the relocation of mother with Sophia, we must look to the nature, quality, extent of involvement and duration of Sophia’s relationship with father. Father testified that he enjoys seeing Sophia every day. The periods of partial physical custody visitation between Father and Sophia has been very good. Father testified that he does not want to be a weekend father. Father indicated that he wants to see Sophia every day and he wishes to provide for her needs. We have no doubt that father spends quality time with Sophia.

Mother stated that from January 2014 until May 2014, father did not see Sophia daily. However, father indicated that he wants to be in Sophia’s life every day. Father was playing arena football to see if her could make it in the National Football League (NFL). He stated that if he could have entered the NFL, he could have provided very well for Sophia’s needs. Father testified credibly that he was loves being involved in Sophia’s life and he does not want to only have weekend visitations with her. Father appears to have a strong and loving relationship with Sophia.

We also believe that Mother has a close relationship with Sophia. Mother has provided for Sophia’s daily needs since she was born. Both father’s and mother’s parents assist them with care for Sophia. Consequently, we find that both parents have enjoyed quality involvement in Sophia’s life.

We must next examine Sophia’s age, developmental stage, needs and likely impact the relocation will have on her physical, educational and development. Sophia is a 3 year old girl. Sophia is not in school yet and we believe that the impact of relocating would be minimal. Mother has not yet secured a residence in the Scranton/Wilkes-Barre area, however, her boyfriend lives in mountain top, a suburb of Wilkes-Barre. Father raised concerns about the safety of the Wilkes-Barre area. Father indicated that all of the parties’ family members live in Monroe County and Sophia is doing well. Father is greatly concerned that he will not be able to see Sophia on a daily basis and he believes that it is important to see her daily. Father testified credibly that he desire a strong relationship with Sophia.

There have been no issues raised about S ophia’s physical or emotional development. Further, we will not consider Sophia’s preference due to her young age. Nevertheless, we must consider the feasibility of preserving the relationship between Sophia and father, the nonrelocating parent. The distance between Scranton/Willces-Barre and Monroe County is not extreme in distance, approximately 50 miles. Although this distance may seem insignificant, we believe that father is entitled to preserve his relationship with Sophia. Both of Sophia’s parents impressed this court that each has a strong and loving bond with her. However, father stated that he wishes to maintain a daily relationship with Sophia which will be difficult given the distance between the two households, if mother is permitted to relocate. Although he may have extended weekend and summer visits, we are not convinced that this arrangement will benefit Sophia’s relationship with father. We must consider what is in Sophia’s best interest.

We believe that stability, emotional development and nurturing are primary considerations in our determination. Both grandparents of Sophia are located in Monroe County. Sophia has lived in mother’s parents’ home since her birth. There is ample evidence that both mother and father’s family have helped in raising Sophia. Also, there are no family members or other friends located in the Scranton/ Wilkes-Bane area. Mother testified that she would place Sophia in child care located in her work building during her working hours. Mother recently secured a position with the Social Security Administration in Wilkes-Barre, PA. Father testified that he is willing to assist Mother with child care while she is working. Mother seeks the relocation to reduce the drive time for her and Sophia. Clearly, the relocation would benefit mother and her drive time, however, we must consider what is in Sophia’s best interests. We find that the feasibility of maintaining a close relationship between Sophia and father would not be preserved by granting mother’s request to relocate. Although the relocation would benefit mother, we are not convinced that Sophia’s best interest would be served in the relocation. Father enjoys daily contact with Sophia which we believe cannot be substituted through weekend visits. Mother also stated that her mother assists in child care for Sophia. We are concerned that mother would not have the support for child care in the Scranton/Wilkes-Barre area.

Finally, in considering whether it is in Sophia’s best interest to relocate, we look to mother’s motives for such relocation. We believe that mother’s motives are pure, however, we also find that father’s motives for opposing the relocation are also pure.

In conclusion, we find that the factors weigh more heavily against mother relocating to the Scranton/Wilkes-Barre area. We make this determination to deny the relocation after careful review of the record and evidence. While no one factor alone outweighs any other factor, we must consider all the factors together to determine what is best for Sophia. The support system in Monroe County is a factor which we consider in light of Sophia’s tender age. We believe that it is not in Sophia’s best to relocate with mother to the Scranton/Wilkes-Barre area. In light of the foregoing, we enter the following order.

ORDER

And now, this 9th day of July 2014, following custody hearing held on June 26, 2014, where the parties were represented by counsel, it is hereby ordered that defendant Jhantteil Lopez’ request for relocation is denied. The following custody order shall supersede all prior custody orders with respect to the minor child, Sophia Castillo, bom October 3, 2010.

1. SHARED LEGAL CUSTODY

Mother and father shall share legal custody of the minor child. For purposes of this recommendation, “shared legal custody” shall mean:

(a) All decisions affecting the child’s growth and development, including but not limited to education, choice of school, medical and dental treatment, religious training, athletic pursuits and extracurricular activities shall be considered major decisions, and shall be made by the parties jointly after discussion and consultation with each other with a view toward obtaining and following a harmonious policy in the child’s best interest;

(b) Each party agrees to keep the other informed of the progress of the child’s education and social adjustment. Each party agrees not to impair the other party’s right to shared legal or physical custody of the child. Each party agrees to give support to the other in the role as parent and take into account the consensus of the other for the physical and emotional well-being of the child with the recognition that their life styles may be different;

(c) While in the presence of the child, neither party shall make or permit any other person to make any remarks or do anything which would in any way be construed as derogatory or uncomplimentary to the other parent. It shall be the express duty of each parent to uphold the other parent as one whom the child should love and respect;

(d) It shall be the obligation of each parent to make the child available to the other in accordance with the following schedule and to encourage them to participate in the plan hereby set forth;

(e) Each parent shall have the duty to notify the other of any event or activity that could reasonably be expected to be of significant concern to the other parent or to the child;

(f) The parents shall communicate with one another concerning any parenting issues requiring consultation and agreement regarding a proposed modification of the custody schedule which may, from time to time, become necessary, and shall specifically not use the child as a messenger at any time. Neither party shall discuss with the child any proposed changes to this schedule or any other issue requiring consultation and agreement prior to discussing the matter and agreement with the other parent;

(g) With regard to any emergency decisions which must be made, the parent with whom the child is physically residing at the time shall be permitted to make a decision necessitated by the emergency without consulting the other parent in advance; however, that parent shall inform the other of the emergency and consult with him or her as soon as possible. Day to day decisions of a routine nature will be the responsibility of the parent having physical custody at that time;

(h) Mother and Father agree to share complete and full information from any doctor, dentist, teacher or other authority, and each parent may have copies of any reports given to them as a parent. Each parent shall also request any authority to forward copies to both parents at their respective addresses. Such documents include, but are not limited to, medical reports, athletic and school reports, birth certificates, etc. Both parents may and are encouraged to attend conferences and activities with the child. Both parents shall be listed with any school or day care center as parents to be contacted in the event of an emergency and to be notified regarding school events. Mother and father agree to share copies of any school notices in a timely fashion;

(i) Both parents shall attempt to avoid scheduling any activities or appointments for the child which would require his/her attendance or participation during the time when he/she is scheduled to be in the physical custody of the other parent without the parent’s prior approval; however, both parents agree to cooperate and be flexible in accommodating the child’s scheduled activities.

2. PFIYSICAL CUSTODY

Mother shall have physical custody of the minor child, Sophia, age 3, under and subject to father’s periods of partial physical custody as follows:

(a) Weekdays beginning at 4:30 p.m. until 7:30 p.m.;

(b) Alternating weekends beginning Friday at 5:00 p.m., when father shall pick the minor child up at the Tender Heart Child Care and Learning Center and ending on Sunday at 5:00 p.m., when Mother shall pick up the minor child at Dunkin Donuts parking lot located in Marshall’s Creek, Pennsylvania;

(c) Any other days and timed upon which the parties shall mutually agree;

3. HOLIDAYS

The parties shall alternate the major holidays. The alternating holiday schedule shall include the holidays of New Year’s Day, Presidents Day, Easter, Memorial Day, Fourth of July, Labor Day, and Thanksgiving. Mother shall have partial custody on Mother’s Day and father shall have partial custody on Father’s Day. Those periods of partial custody for which no times for exchange were heretofore scheduled shall begin at 9:00 a.m. and end at 8:00 p.m. These periods of Holiday custody shall begin with father enjoying the 2014 Labor Day holiday.

The parties shall alternate Christmas. Mother shall have physical custody of the child from Noon on Christmas Eve continuing until Noon on Christmas Day. Father shall have physical custody of the child from Noon on Christmas Day until Noon on December 26th. The above period shall alternate each and every year.

In the event that a holiday to which father/mother is entitled shall fall within a day prior or subsequent to weekend period of partial custody to which father/mother would also be entitled, that period of weekend partial custody shall be extended to include father’s/mother’s period of holiday partial custody.

4. TRANSPORTATION

In order to facilitate the exchange of partial custody of the minor child, the exchange point will be at the Dunkin Donuts parking lot located in Marshall’s Creek, Pennsylvania, unless otherwise provided for in this order. The minor child shall be transported with an appropriate car seat which complies with the laws of the Commonwealth of Pennsylvania in the back seat of the motor vehicle.

5. TELEPHONE ACCESS

Each parent, such parent shall allow the other parent to have private, liberal and reasonable telephone access with the minor child during that parent’s period of partial custody. This shall include the child initiating such contact. Reasonable telephone access shall be construed to be during the normal waking hours of the child, emergencies excepted. If the calling parent leaves a message at the residence of the custodial parent, custodial parent shall require the child to return the telephone call to the noncustodial parent.

6. SUMMER VACATIONS

With respect to summer vacations, mother and father shall each be entitled to a total of two (2) weeks of uninterrupted, non-consecutive partial physical custody with the minor child, provided they give the other party thirty (30) days prior written notice of their intention to exercise that right, which periods shall be taken in one week segments beginning Sunday at noon and ending Sunday at noon. Each parent shall provide to the other parent the telephone number and address where they will be exercising their period of vacation custody.

7. NOTICE: CHANGE OF RESIDENCE OR RELOCATION

Before a party may relocate the children change the residence of the children in a manner which significantly impairs the ability of the other individuals with custody rights to the children to exercise those rights, the party must comply with the requirements and obligations of Pennsylvania’s Custody Law set forth in 23 Pa. C.S.A.§5337.


source: Caselaw Access Project

author: ZULICK, J.,

license: Public Domain

text:
    Pocono Mountain Charter School v. Shawnee Tabernacle Church

      C.P. of Monroe County,
    No. 6893 CV 2013

      Christopher S. Brown, for plaintiff.

      James A. Swetz, for defendant.
    July 17, 2014
   ZULICK, J.,

— This is a declaratory judgment action in which the Pocono Mountain Charter School (PMCS) seeks to terminate its lease with its landlord, Shawnee Tabernacle Church, Inc. (Church) and to recover what it alleges was an overpayment of rent. The complaint was filed on August 15, 2013. The Church filed an answer and new matter on September 10,2013. Anon-jury trial was held on March 18, 2014 and both parties presented testimony and exhibits. The parties were given leave to file briefs after the transcript was prepared.

FINDINGS OF FACT

1. Pocono Mountain Charter School is a nonprofit, publicly funded public school, it operates under the Pennsylvania Charter School Law, 24 P.S. § 17-1701-A, et seq.

2. PMCS is located at 16 Carriage Square, Tobyhanna, Pennsylvania, in a building which it leases from Shawnee Tabernacle Church.

3. On August 8, 2012, PMCS and the Church entered into a lease agreement for the Carriage Square property. See exhibit P-1. This lease superseded the parties ’ previous lease. See exhibit P-5.

4. The term of the lease agreement is stated to be from August 1, 2012 through July 31, 2016. The monthly rent is $88,280.44. Exhibit P-1. The leased premises are stated to be 75,668.95 square feet. Id. The rent, calculated on a per square foot basis, is $14.00.

5. The lease was signed by Luddie Chatt, President of the Church Board for the landlord and Lisa Bansa, the President of the PMCS Board for the tenant. Id.

6. During the lease negotiations, both parties were represented by counsel. See exhibit D-3 at 5-6.

7. The parties each obtained appraisals of the fair rental value of the premises before entering into the lease.

8. Cookie Lancia opined in June, 2007 at the request of the Church, that the property’s fair market rental value was $12-$ 14 per square foot. Exhibit P-7.

9. In September, 2008, the property was appraised for the Church by Moyer Realty Advisors, LLC. That appraisal determined the fair market rental value of the school property was $14.50 per square foot. See exhibit D-2. Thomas Tierney, the appraiser, determined that the rented area of the Carriage Square property was approximately 65,000 square feet. Id. at 21.

10. In December, 2011, the property was appraised for PMCS by Jean A. Innamorati. Ms. Innamorati opined that the fair market rental value of the property was $15.00 per square foot. See exhibit P-8. Ms. Innamorati determined that the leased area was roughly 65,000 square feet. Id. at 10.

11. In April, 2013, following a deadlock of the board of directors of PMCS, Alan Price Young, Esq. was appointed by this court as the custodian of PMCS. N.T. at 11-12.

12. Mr. Young, upon becoming custodian, concluded that PMCS was paying excessive rent to the Church. Id. at 18-19. See also Exhibit P-2.

13. Mr. Young decided to stop paying the rent after July, 2013. Id. at 22.

14. Mr. Young had a further appraisal done for the Carriage Square property by Joseph C. Fisher. Mr. Fisher opined in his report of August 15, 2013 that the property had a fair rental value of $5.00 per square foot. See exhibit P-9.

15. Mr. Fisher also determined that the Church building was 63,535 square feet, of which 61,816 square feet were leased to PMCS. Id. at 14-15, “Table 1.”

16. The minutes of the PMCS Board do not reflect that the board approved the 2012 lease agreement. See exhibit P-3.

17. PMCS’s bylaws require an affirmative vote of the majority of the Trustees to: move to a new building or enter into contracts for an amount exceeding $4,000.00. See exhibit P-4, PMCS Bylaws, article V, duties 1) at page 11.

DISCUSSION

PMCS seeks a declaratory judgment that a) the parties’ lease is a tenancy at will pursuant to 68 P.S. § 250.202; and that b) the rent requirement of the lease agreement exceeds fair rental value and is therefore unconscionable or is based upon mutual mistake.

Enforceability of the Lease Agreement

The August, 2012 lease agreement was signed on behalf of PMCS, by “L. Bansa,” president of PMCS, on August 8, 2012. NT 22-24. PMCS concedes that Lisa Bansa was the president of the PMCS Board at the time, but argues that board minutes do not reflect that Ms. Bansa had board approval when she signed the lease agreement. Board minutes from July and August, 2013 do not contain a resolution authorizing the new lease agreement. NT 27, plaintiff’s exhibit 3.

The Pennsylvania Landlord -Tenant Act of 1951 provides:

§ 250.202. Leases for more than three years
Real property, including any personal property thereon, may be leased for a term of more than three years by a landlord to a tenant or by their respective agents lawfully authorized in writing. Any such lease must be in writing and signed by the parties making or creating the same, otherwise it shall have the force and effect of a lease at will only and shall not be given any greater force or effect either in law or equity, notwithstanding any consideration therefor, unless the tenancy has continued for more than one year and the landlord and tenant have recognized its rightful existence by claiming and admitting liability for the rent, in which case the tenancy shall become one from year to year.

68 P.S. § 250.202.

PMCS points out that the act requires an agent’s authority to be in writing for a lease exceeding three years.. Id. The 2012 lease was for a term of four years, until July 31, 2016, “although the term of the lease shall end if the charter school is forced to close by the Pennsylvania Department of Education Charter Appeal Board.” Lease agreement, article 1, term and rent, section 1.1, plaintiff’s exhibit 1.

PMCS also cites the Charter School Law which requires the board of trustees to comply with the “Sunshine Act.” See 24 P.S. § 17-1716-A(c). The Sunshine Act (in its latest iteration) provides that votes of board members must be publicly recorded, See 65 Pa.C.S.A. § 705, and that minutes be kept of official actions. Id. at § 706.

The Church offered the testimony of Kim Boxley, a former board member of PMCS, who testified that she was present at a board meeting in 2013 when the board voted to accept the lease agreement. She also testified that she believed that board minutes had been surreptitiously modified by unnamed persons, although she said she could not be sure that this was happening when the lease was discussed. NT 181-182.

The minutes of the PMCS Board are the best evidence of board action. Commonwealth ex rel. Hetrick v. School Dist. of City of Sunbury, 6 A.2d 279, 281 (Pa. 1939). Here the minutes do not reflect that the board approved the lease agreement. The Statute of Frauds provision of Landlord-Tenant Act will therefore be applied to PMCS’ obligations under the lease agreement.

Attorney Young disputed the lease payments in April, 2013; PMCS paid rent under protest from April through July 2013. In August 2013, PMCS began to escrow monthly rent payments. The lease was not in effect for more than one year before payment was disputed, so the lease will be considered to be a tenancy at will.

Reformation of the Lease Agreement

PMCS contends that the lease should be modified because the amount ofthe rent obligation is unconscionable. However, “[ujnconscionability may only be asserted as a defense in an action on a contract for the sale of goods. It is not a plaintiff’s doctrine available for affirmative relief to enjoin the provisions of a lease of real estate.” Witmer v. Exxon Corp., 394 A.2d 1276, 1286 (Pa. Super. 1978). The Witmer decision holds that unconscionability is not an argument available to a plaintiff-lessee to establish a breach of contract.

The Witmer court cited Von Lehn v. Astor Art Galleries Ltd., 86 Misc.2d 1, 380 N.Y.S.2d 532, 541 (1976), as persuasive authority. PMCS argues that this case is no longer good law in New York and that PMCS would now be allowed to advance an unconscionability theory in that state. This fact, however, does not give the court the authority to disregard the Witmer decision. The lease will not be modified under the theory that it is unconscionable.

Finally, PMCS alleges that a mutual mistake took place between the parties in adopting the lease. Specifically, PMCS objects to the rents required by the lease, and the square footage that PMCS is purportedly renting.

“A mutual mistake exists if, at the time a contract is executed, both parties thereto are mistaken as to the existing facts.” A.S. v. Office for Dispute Resolution, 88 A.3d 256, 266 (Pa. Cmwlth. 2014). “A party wishing to invalidate a contract must ‘show fraud or mutual mistake by clear, precise and convincing evidence.’” Id. “However, if a mistake is unilateral, there is no basis for rescinding a contract if the unilateral mistake ‘is not due to the fault of the party not mistaken but rather to the negligence of the party who acted under the mistake.’” Id.

[T]he contract is voidable by the adversely affected party if three conditions are met. First, the mistake must relate to a “basic assumption on which the contract was made.” Second, the party seeking avoidance must show that the mistake has a material effect on the agreed exchange of performances. Third, the mistake must not be one as to which the party seeking relief bears the risk. The parol evidence rule does not preclude the use of prior or contemporaneous agreements or negotiations to establish that the parties were mistaken. However, since mistakes are the exception rather than the rule, the trier of the facts should examine the evidence with particular care when a party attempts to avoid liability by proving mistake.

Step Plan Services, Inc. v. Koresko, 12 A.3d 401 (Pa. Super. 2010) citing Restatement (Second) of Contracts § 152, Comment: a. Rationale (1981) (emphasis deleted).

Here, there was no mutual mistake as to the price per square foot called for in the lease. The rent under the lease is calculated at a price per square foot of $14.00. Three appraisals were done of the Carriage Square property before the 2012 lease was signed. Mr. Tierney, retained by the Church, determined fair market rent was $14.50 per square foot. Ms. Innamorati, who was hired by PMCS, opined that fair market rent was $15.00 per square foot. Ms. Lancia, also hired by the Church, judged the fair market rent to be between $12.00 and $14.00 per square foot. The actual rent called for by the lease is within the range established by these appraisals.

PMCS argues that the Fisher appraisal provides evidence of a mutual mistake. Mr. Fisher determined fair market rent of the PMCS leased premises to be only $5.00 per square foot. This is a marked difference from the findings of the other appraisers. The Fisher appraisal considered charter school rents in the Philadelphia, Allentown and Bethlehem areas. These schools were paying from $10.16 to 18.00 per square foot rented. See plaintiff’s exhibit 9, Fisher appraisal, table 5 of charter school leases, page 45. Mr. Fisher did not use these properties alone to do his appraisal because none of the schools were in Monroe County. Fie also considered rents for commercial rented space of 10,000 sq. ft. or more in these three areas, Id., Table 7, Rental Survey of Single Tenant Properties in Monroe County, 10,000 square feet or more, page 46, and rents of commercial rented space of smaller premises. Id. Commercial Rented Space in Monroe County, 1,200 to 3,000 square feet, Table 9, page 47. Fie used this information to determine the percentage difference between Philadelphia rents, Lehigh Valley rents and Monroe County rents.

Mr. Fisher found that Philadelphia rents were 114 percent higher than Monroe County rents and that Lehigh Valley rents were 12 percent higher than Monroe County rents. He compared what schools in Philadelphia and the Lehigh Valley were renting for and reduced their rents by the percentage difference of rents in Monroe County. He then arrived at his appraised fair rental value of $5.00 per square foot. Id. page 48, NT 101.

Thomas Tierney testified for the Church. He had done an appraisal for the Church in November, 2008. He examined leases for charter schools in eastern Pennsylvania, New Jersey and Maryland, finding a school in Monroe County at that time, the Pocono School of Excellence, was paying rent in 2008 of $11.76 per square foot for 22,967 square feet of space. NT 139. He examined other charter school leases that ranged from $13.07 per square foot to $24.98 per square foot. NT 141-148. After reviewing these school properties, he opined that the fair rental value for the PMCS school in 2008 was $14.50 per square foot. NT 149.

The question now before the court is not what the actual fair rental value of the property was at the time the lease was agreed upon in August, 2012. The question here is whether the rent agreed to by the parties was a mutual mistake. In other words, were both parties “mistaken as to the existing facts.” A.S. v. Office for Dispute Resolution, supra at 266. PMCS now takes the position that the school’s rental obligation was greatly inflated above market value. This analysis of the situation is backed by the Fisher appraisal, and it may or may not be correct, but that does not make it a “mutual mistake.”

The appraisal of real estate is not an exact science. The Church’s appraiser looked carefully at nine other charter school leases in Pennsylvania, Maryland and New Jersey and based upon those rentals gave his opinion to the Church in 2008 that a fair rental amount was $14.50. The appraiser hired by PMCS, Jean Innamorati, found that the fair rental value of the PMCS lease was $15.00 per square foot on December 17, 2011. The fact that Mr. Fisher does not now agree with the other appraisers does not show that a mutual mistake existed as to the value per square foot of the Carriage Square property. This was a matter of opinion and negotiation. The Church had ample support for its “ask” price. The school’s own appraiser supported it. A prudent charter school board may have sought a second opinion in 2012. A question hovering throughout this litigation has been whether the Pennsylvania Charter School Law adequately protects the taxpayer in the charter school’s use of taxpayer funds. However, there is insufficient evidence that the Church was mistaken or completely off base in its analysis of the worth of its building.

PMCS also contends that a mutual mistake existed as to the actual size of the Carriage Square property. The lease declares that the square footage rented to PMCS is as follows:

Article 2
Leased premises
For reference purposes, this lease applies to the following premises:
The entire building owned by the Shawnee Tabernacle Church, consisting of72,239 square feet of area, except for the portion of the building consisting of 1,582.9 square feet as set forth on the plan attached, marked exhibit “A,” plus the playground area which consists of 5,012.85 for a total rented area of 75,668.95 square feet.
Petitioner’s exhibit 1, lease agreement, Article 2.

The lease thus identifies the leased area as 75,668.95 square feet. Mr. Fisher measured the leased building area as 61,816 square feet and the playground area as 3,420 square feet for a total of 65,236 square feet. The three appraisers, Fisher, (61,816 square feet, petitioner’s exhibit 9, page 13, NT 97) Innamorati (65,000 square feet, petitioner’s exhibit 8, page 10); and Tierney (65,000 feet in 2008, NT 152) all believed the area of the property to be 65,000 square feet or less. Fisher testified that measurements were taken for his appraisal, NT 99, and I find that his measurements are the most accurate.

Shawnee Tabernacle presented no evidence to support a determination that the Carriage Square property is greater than 75,000 square feet. Accordingly, the court finds that PMCS has established that the parties were mutually mistaken as to the size of the rented property. The area of the leased Carriage Square property was a basic assumption of the lease agreement. The actual square footage is approximately 10,433 smaller than the area stated in article II. This mistake has had a material effect on the agreed upon performances of the parties. Finally, PMCS did not bear risk of the property being substantially smaller than was represented in the lease. Where a mutual mistake is found to exist, “...the injured party may acquire reformation of the contract or...avoid the contractual obligations.” Step Plan, 12 A.3d at 410 (quoting Loyal Christian Ben. Ass’n v. Bender, 493 A.2d 760, 762 (1985)). The lease will be reformed to reflect a $910,304.00 yearly rent payment due by PMCS.

DECISION

And now, this 17th day of July, 2014, following a hearing and after considering the briefs and arguments of the parties, it is ordered as follows:

1. PMCS’s request to have the lease declared “at-will” is granted. The lease term is at the will of the parties.

2. PMCS’s request to have the lease reformed due to unconscionable rent is denied.

3. PMCS’s request to have the lease reformed due to mutual mistake of the parties as to the appropriate price per square foot of the Carriage Square property is denied.

4. PMCS’s request to have the lease reformed due to mutual mistake as to the area of the Carriage Square property is granted. The lease shall be reformed to reflect that the Carriage Square property is 65,236 square feet in size. PMCS’s rent due for past and future rent from the inception of the lease until PMCS vacates the premises will be $913,304.00 per annum, payable in equal monthly payments of $76,108.66 under the reformed lease.

      . The lease agreement states in article 1 that the lease term is “from August 1,1, (sic) 2012 to July 31, 2016.” The base rent is stated in paragraph 1.4 to be “$5,296,826.50 payable in sixty (60) equal monthly installments of Eighty-eight Thousand Two Hundred Eighty and 44/100.” Id. Lease agreement. This article is inconsistent; the term is stated to be four years but the monthly rental is payable over a five year term. The parties appeared to accept the five year term and the $88,280.44 monthly rental payments.

      . The Witmer decision was recently cited with approval in Grimes v. Enterprise Leasing Co. of Philadelphia, LLC, 66 A.3d 330, 340 (Pa. Super 2013).

      . While the lease does not expressly declare the price per square foot as $ 14.00, this appears to be the method by which the parties determined the rental value of the property. The yearly rental value ($1,059,365.28) divided by the purported number of square feet (75,668.95) equals a price of $ 13.9999997 per square foot.

      . This is calculated by multiplying the Carriage Square property’s 65,236 square feet by the value of the property per square foot, $14.00.


author: RAU, J.,

text:
    Greene v. Philadelphia Media Network, Inc.

      Clifford E. Haines, Lauren A. Warner, Andrew J. Kenis, Mark J. Schwemler and Noah S. Cohen, for plaintiff.

      Raphael Cunniff, Eli M. Segal, Amy B. Ginensky and Kaitlin M. Gurney, for defendants.
    Aug. 1, 2014-
   RAU, J.,

MEMORANDUM OPINION

Plaintiff Carl Greene sued defendants, Philadelphia Media Network, Inc., and Philadelphia Media Network (Newspapers), LLC, for monetary damages for defamation, false-light invasion of privacy, and commercial disparagement based on seventeen articles and editorials concerning Mr. Greene's tenure as executive director at the Philadelphia Housing Authority, which were published in the Philadelphia Inquirer and Daily News between November 1, 2010 and August 9, 2011. Defendants filed a motion for summary judgment asserting that plaintiff Greene, who is a public figure, did not show by clear and convincing evidence that the articles were materially false or that defendants published them with actual malice, that is “with knowledge that [they were] false or with reckless disregard of whether [they were] false or not.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). Defendants argued that the first amendment protects publishers from liability for defamation for unreasonable interpretations of articles’ meanings, claimed unfairness in presentation, opinions, immaterial inaccuracies or truthful articles. Movants also argued that plaintiff Greene could not overcome the fair report privilege, which provides that when “it is in the public interest that information be made available as to what takes place in public affairs, a newspaper has the privilege to report the acts of the executive or administrative officials of government.” Sciandra v. Lvnett, 187 A.2d 586, 588 (Pa. 1963). Once defendants filed their summary judgment motion, the law required plaintiff Greene to refute with actual evidence any facts essential to the cause of action that defendants asserted were not disputed. Pa.R.C.P. 1035.3(a)(2). At this stage, the plaintiff “may not rest upon the mere allegations or denials of the pleadings” but must respond with more. Pa.R.C.P. 1035.3(a). Plaintiff Greene offered Dr. Timothy Habiclc as an expert in linguistics to provide his primary evidence that defendants published the articles with actual malice. Defendants challenged Dr. Habick’s proffered expertise and report and requested a Frye hearing. (Defs.’ reply in supp. of mot. summ. j. at 11, n.5.)

This memorandum addresses this court’s findings and conclusions on the legal admissibility of Dr. Habick’s testimony under Pennsylvania Rule of Evidence 702 and accompanying case law following a Frye hearing on July 28, 2014. Plaintiff Carl Greene’s proffered expert, Dr. Timothy Habick, submitted a report stating that, upon review and analysis of all of the allegedly defamatory articles written by numerous authors, he concluded that the writing showed that the defendants “willfully, maliciously, without substantiation, and with reckless disregard for the truth, defamed” plaintiff Carl Greene. (PL’s answer in opp’n to defs.’ mot. summ. j. ex. L, at 3.) Plaintiff’s counsel offered Dr. Habick’s testimony as a linguist for two reasons: (1) to explain what the articles mean to the average reader, and (2) to show that defendants published the articles with actual malice, that is, “with knowledge that [they were] false or with reckless disregard of whether [they were] false or not.” Sullivan, 376 U.S. at 279-80. In short, plaintiff has offered a linguist to testify as an expert to what an average reader thinks, and to what the mental state of the defendants’ seven authors and editorial board was when they published allegedly false statements. Defendants challenged Dr. Habick’s qualifications, the relevance of his testimony, and the reliability of his methods, claiming that they were not “generally accepted in the relevant field” of linguistics. Pa.R.Evid. 702; Grady v. Frito-Lav, 839 A.2d 1038, 1047 (Pa. 2003).

Given the considerable clout that the term “expert” imbues to a jury, Pennsylvania law requires that the judge serve as a gatekeeper before proffered expert testimony is provided at trial. The judge must screen to ensure that the witness has demonstrated qualifications in the field offered, the testimony provides information that an average juror would not already possess, the testimony is relevant and the methods used are reliable. Pennsylvania Rule of Evidence 702 provides:

“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;
(b) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the relevant field.”

Pa.R.Evid. 702. In examining the admissibility of expert witness testimony, the Pennsylvania Supreme Court has recently held:

“[Tjhis court has recognized the influential nature of expert testimony on complex subjects, and the potential that distortions have to mislead laypersons.... [W]e conclude that a Frye hearing is warranted when a trial judge has articulable grounds to believe that an expert witness has not applied accepted scientific methodology in a conventional fashion in reaching his or her conclusions.”

Betz v. Pneumo Abex LLC, 44 A.3d 27, 53 (Pa. 2012). Plaintiff’s counsel conceded that the type of “unique” testimony offered here rendered a Frye hearing appropriate. Trach v. Fellin, 817A.2d 1102, 1109 (Pa. Super. Ct. 2003) ("Frye only applies when a party seeks to introduce novel scientific evidence.”). Plaintiff Greene, as the proponent of the evidence, bears the burden of establishing “all of the elements for its admission under Pa.R.E. 702, which includes showing that the Frye rule is satisfied.” Grady v. Frito-Lay, 839 A.2d 1038, 1045 (Pa. 2003).

In explaining the idea of “methodology,” the Pennsylvania Superior Court has explained that replicability, or reproducibility, lies at the heart of the scientific method:

“[T]he scientific method is a method of research in which a problem is identified, relevant data are gathered, a hypothesis is formulated from these data, and the hypothesis is empirically tested. Within the meaning of the definition of the scientific method, ‘ empirical’ means ‘provable or verifiable by experience or experiment.’ Key aspects of the scientific method include the ability to test or verify a scientific experiment by a parallel experiment or other standard of comparison (control) and to replicate the experiment to expose or reduce error.”

Trach, 817 A.2d at 1113 (internal citations omitted). “Frye only applies to determine if the relevant scientific community has generally accepted the principles and methodology the scientist employs, not the conclusions the scientist reaches....” Id. at 1112.

An expert must be qualified in the field in which they testify.

This court found that Dr. Habick was not qualified in the areas for which his testimony was offered. Dr. Habick was offered as an expert in linguistics and logic to offer an opinion about (1) how average readers would read the articles and (2) how linguistic and logical analysis shows that defendants and their reporters “willfully, maliciously, without substantiation, and with reckless disregard for the truth, defamed” plaintiff Carl Greene. (Pl.’s answer in opp’n to defs.’ mot. summ. j. ex. L, at 3.)

Dr. Habick testified that he has spent the bulk of his career developing test questions for graduate school admissions tests, initially at the Educational Testing Service (ETS) and then at his business, Reasoning, Inc., which he founded after his departure from ETS in 2001. He used his linguistic expertise to develop questions that achieved the “highest level of fairness” for test-takers. Dr. Habick’s venture into the field of forensic linguistics is a fascinating tale of serendipity. Dr. Habick testified that he met Dr. Marilyn Lashner’s daughter in 2009 and later met Dr. Lashner. When Dr. Lashner died the next year, her children gave Dr. Habick her business, Media Analysis and Communications Research. Prior to being bequeathed this forensics linguistics business, Dr. Habick had never worked in the area of forensics linguistics, nor had he done any linguistic analysis in the area of defamation. Dr. Habick was assisted in this new venture by reviewing Dr. Lashner’s prior reports and analyses after her death. Though Dr. Habick’s resume lists among his accomplishments that he “[provided forensic linguistic services in support of Dr. Marilyn Lashner’s case evaluations, analyses and reports, discovery assistance, and testimony,” he admitted in his testimony that he had never actually worked with Dr. Lashner but instead had been only an acquaintance. (See Frye Hr’g Defs.’ Ex. 7, Aff. of Timothy Habick, Schnitt v. Cox Radio, Inc., et al., Case No. 08-05738 (Fla. Cir. Ct.).)

Dr. Habick testified that he analyzed the logical structures and identified fallacious arguments in the articles in question. However, he is not a logician. Dr. Habick claims expertise in this area due to having worked alongside and collaborating with logicians during his 27 years of writing exam questions. This assertion has faulty logic: a nurse is not qualified to do surgery just because the nurse has worked alongside a surgeon for many years and may be familiar with much of what occurs in the operating room. Dr. Habick has insufficient expertise under the law to give testimony in the area of logic.

Dr. Habick uses the term defamatory and defamation throughout his report but his testimony showed that he did not know the correct legal definition of defamation for public figures. A public figure is not defamed under the law just because embarrassing facts are publicized and opined about by writers. True statements, even if unflattering, do not constitute defamation. Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 775 (1985); Spain v. Vicente, 461 A.2d 833, 836 (Pa. Super. Ct. 1983). A public-figure plaintiff such as Carl Greene must show by clear and convincing evidence that the allegedly defamatory statements were materially false and made with actual malice. Gertz v. Robert Welch. Inc., 418 U.S. 323, 342 (1974). Dr. Habick is not qualified to render an opinion concluding that defendants “defamed” plaintiff when he does not know how defamation is defined under the law.

Dr. Habick also misunderstands the application of the actual malice standard in defamation cases: falsity is a precondition to actual malice. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (defining actual malice as publishing statements “with knowledge that [they were] false or with reckless disregard of whether [they were] false or not”). “Actual malice under the New York Times standard should not be confused with common-law malice or the concept of malice as an evil intent or a motive arising from spite or ill will.” See also Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991). The actual malice requirement is a subjective, not an objective, standard: showing that a defendant should have seriously doubted the accuracy of her or his story is insufficient. Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989); see also Garrison v. Louisiana, 379 U.S. 64, 74 (1964) (a plaintiff cannot prevail without clear and convincing evidence of a “calculated falsehood”); Am. Future Sys. Inc., v. Better Bus. Bureau, 923 A.2d 389, 395 n.6 (Pa. 2007) (proving actual malice is difficult because actual malice “implies at a minimum that the speaker entertained serious doubts about the truth of his publication, ...or acted with a high degree of awareness of...probable falsity”); Bartlett v. Bradford Publ’g, Inc., 885 A.2d 562, 564 (Pa. 2005) (mere departure from journalistic ideals not actual malice).

Dr. Habick analyzed the defendants’ articles to assess whether defendants published statements intentionally knowing they were false or with recklessness as to their falsity, even though he had no information as to whether the statements were actually false. He testified that he talked to plaintiff’s counsel, read the complaint, and relied upon his “common sense”, “common knowledge,” and “verifiable truths.” He admitted he did no factual research save for some minor internet searches. This process shows again that he misapprehends the legal definition of actual malice for public figures. The statements must be proven as false before a publisher can be found to have actual malice in publishing them. See St. Amant v. Thompson, 390 U.S. 727, 730 (1968) (defamation plaintiff has “the burden of proving that the false statements ... were made with actual malice as defined in New York Times Co. v. Sullivan and later cases” (emphasis added)). Dr. Habick began his analysis with faulty assumptions that statements were false. Dr. Habick dismissed this concern by testifying that if any of the allegedly defamatory statements turned out to be true, his opinion should just be ignored as to those statements and kept intact for the others. Not only is this approach contrary to sound scientific method but it illustrates a fundamental lack of understanding of what “actual malice” means in the context of defamation.

Actual malice in the context of public figure defamation is not the same as malice in common usage. Actual malice does not mean “evil” or “critical.” Masson, 501 U.S. at 510. There is nothing inappropriate about reporters’ publishing unflattering information that is materially true or they even justifiably think is true. The press must be permitted to write about public officials like plaintiff Greene in order to keep the citizenry informed about the conduct of those serving in their government. Public officials in a democracy must be open to being evaluated by the press and the public they serve. Muzzling the press from criticizing public officials would threaten good government and ultimately threaten democracy’s survival.

Dr. Habick also has no training or experience in journalism. He has no background or experience in empirically testing or scientifically determining the intent of journalists or any other group of writers to determine whether they have written articles with malice as defined by defamation law. Though Dr. Habick was being offered for the purpose of testifying about how an article is read by an average reader, he conceded that he is unable to read as an average reader himself based on his extensive experience in linguistics. He also conceded that he has never tested how average readers interpret journalistic pieces outside the context of high-stakes graduate testing. Though Dr. Habick has been offered as an expert in prior cases, he has never been qualified by a court to give his expert opinion in a defamation case.

Thus, Dr. Habick does not have the requisite qualifications to testify as an expert to what an average reader might think or the subjective intent of defendants and their reporters when they published the articles.

An expert’s methodology must be reliable as evidenced by being generally accepted in the field.

Plaintiff failed to meet his burden of showing that Dr. Habick used methodology that was generally accepted in the field of linguistics. Plaintiff’s claims of what his linguistic expert could provide were bold: he claimed that a linguistic expert could use a scientific method to determine the subjective intent of publishers and reporters when they wrote and published articles. In short, a linguistic expert could divine by a mere reading and analysis of articles, and nothing more, whether a publisher and its many reporters wrote the articles “with knowledge that [they were] false or with reckless disregard of whether [they were] false or not.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). Such a promise, if true, would prove exciting indeed: courts could reduce the number of trials, police investigations could be shortened, and crimes could be solved if a linguist could be employed to merely analyze another speaker’s language, without reference to any facts, and determine the speaker’s mental intent. However, Dr. Habick’s analysis was not shown to be accepted science to permit its admission in court. His analysis was not based on factual research, was not replicable, lacked the requisite degree of certainty, and used methods that were not shown as generally accepted within the field of linguistics.

Dr. Habick testified that he reached his opinions “solely on the basis of the examination of the articles” and not on “deposition testimony or other facts contained in documents that were exchanged by the parties after this case was initiated.” (Pl.’s answer in opp’n to defs.’ mot. summ. j. ex. L, at 4.) Dr. Habick testified as to what he did to reach his opinion. He first met with plaintiff’s counsel, who explained the issues. Next he read the complaint but not the answer. Dr. Habick then applied his linguistic analysis to the seventeen articles. His linguistic analysis involved looking at the linguistic structures, including argumentation, logical fallacies, and assumptions. Dr. Habick testified that he used his “common sense,” “common knowledge,” and “verifiable reality” to reach his conclusions as to the truth of statements made. Dr. Habick admitted he did no fact checking, other than some unspecified internet research, to determine whether statements were true or not. He provided the ultimate disclaimer: if any statements made by defendants were found to be false, his conclusions that they were defamatory and made with malice should be ignored.

Dr. Habick also contributed another proviso that compromised the admissibility of his testimony: he testified he was making the claim only that there was a “likelihood” that the published statements were defamatory and made with malice, but that he could not speak with certainty. The law generally requires that experts testify to more than a mere “likelihood” of the substance of expert testimony to make it admissible as having any value to a jury. Dr. Habick’s opinion lacked the requisite certainty for expert testimony. See Hoffman v. Brandywine Hosp., 661 A.2d 397, 402 (Pa. Super. Ct. 1995) (an expert’s opinion lacks a reasonable degree of certainty if it is based merely upon a “likelihood” that something “may” have occurred). See also Com, v. Spotz, 756 A.2d 1139, 1160 (Pa. 2000) (experts are not required to use “magic words,” but rather the court “must look to the substance of [the expert’s] testimony to determine whether his opinions were based on a reasonable degree of medical certainty rather than upon mere speculation”). In addition, Dr. Habick’s conditioning his opinion as finding there was a mere “likelihood” of actual malice itself compromised plaintiff’s success in this case. The law requires that plaintiff must show by clear and convincing evidence, not mere likelihood, that defendants knew the statements were false or published with reckless disregard of whether they were false to defeat summary judgment. Sullivan, 376 U.S. at 279-80.

Dr. Habick testified that he had no hypothesis for his analysis. He did not retain or provide any of the underlying notes or data he used for his analysis. He conducted no surveys or questionnaires of readers as to their interpretations of the articles to support his opinion as to what “average readers” might conclude upon reading the articles. With respect to his opinion about the intent of the authors, Dr. Habick testified that what the authors said about their intent in writing the article was not relevant to his analysis of their subjective intent in terms of actual malice. No validity or replicability studies were performed or attempted.

When Dr. Habick was pressed to describe how his process of analysis fit within the methodology used in the field of linguistics, he evaded responding with precision. He simply insisted that this is what linguists do: they analyze structures. This vagueness makes it impossible to validate or test his analysis and has been frowned upon by the Supreme Court when assessing the admissibility of scientific methodology:

“[T]he breadth and character of an expert’s extrapolations are relevant to the scientific acceptance of his methodology. The alternative is to permit experts to evade a reasoned Frye inquiry merely by making references to accepted methods in the abstract.”

Betz v. Pneumo Abex LLC, 44 A.3d 27, 58 (Pa. 2012).

Strikingly, Dr. Habick failed to employ the methods used in linguistics within the context of test examination questions, for which he has experience to verify or replicate his results. He conducted no interannotater studies or any other validity studies to verify his conclusions, as is done in the test-taking field. Not only did he fail to articulate a clear replicable methodology he employed that could be replicated by others in his field, he made no attempt to have other linguists verify or evaluate his methods. Plaintiff failed to provide any evidence that Dr. Habick’s linguistic analysis of a reporter’s articles to determine if they had satisfactory argumentation, logic, or assumptions could even reveal an author’s intent or recklessness in writing an article. Even if he could show that articles have fallacies, he showed no link between poor logic and a writer’s subjective intent about whether the statements are true or not. Moreover, Dr. Habick’s conclusion about whether a statement in the article was false seemed to rest not on any proven facts but rather on his personal “common sense,” “common knowledge,” and “verifiable reality.”

Dr. Habick conceded that he knew of no peer-reviewed articles endorsing his method. No defamation cases were presented where a linguist had been qualified as an expert under Frye standards for using the Dr. Habick’s process of analysis to establish whether a publisher had actual malice or to educate the jury as to how an average reader would interpret articles. Indeed, no evidence was provided that linguists generally accept Dr. Habick’s assertion that a linguist need simply read articles and apply common sense and knowledge without any factual research or verification to assess whether an author knowingly wrote a false article or wrote one with reckless disregard for its truthfulness. Thus, the magical promise of crystal-ball-like insight into another’s mental state through analysis of a person’s writing failed to be backed by any generally accepted science.

An expert’s knowledge must be beyond that possessed by the average layperson and be relevant to a question the jury must answer.

Experts must contribute knowledge that the jurors don’t already have. Pa. R. Evid. 702(a) (expert’s testimony is admissible only if it provides “scientific, technical, or other specialized knowledge” that “is beyond that possessed by the average layperson”). The law does not permit a party to package a witness as an expert to talk in confusing, technical, or Latin language to tell a juror something that is already within the realm of common sense and general knowledge. “Expert testimony is permitted only as an aid to the jury when the subject matter is distinctly related to a science, skill, or occupation beyond the knowledge or experience of the average layman. Where the issue involves a matter of common knowledge, expert testimony is inadmissible.” Com. v. O’Searo, 352 A.2d 30, 32 (Pa. 1976) (internal citations omitted). Dr. Habick’s proffered testimony does not meet these requirements because average jurors are inherently qualified to read the articles as average readers without the aid of an expert, and because logical and linguistic structures are irrelevant to the question of whether false statements are knowingly or recklessly published as truth.

The Superior Court has recently held:

“Admissible expert testimony that reflects the application of expertise requires more than simply having an expert offer a lay opinion. Testimony does not become scientific knowledge merely because it was proffered by a scientist.’ Likewise, expert testimony must be ‘based on more than mere personal belief,’ and ‘must be supported by reference to facts, testimony or empirical data.’
The exercise of scientific expertise requires inclusion of scientific authority and application of the authority to the specific facts at hand. Thus, the minimal threshold that expert testimony must meet to qualify as an expert opinion rather than merely an opinion expressed by an expert, is this: the proffered expert testimony must point to, rely on or cite some scientific authority-whether facts, empirical studies, or the expert’s own research-that the expert has applied to the facts at hand and which supports the expert’s ultimate conclusion. When an expert opinion fails to include such authority, the trial court has no choice but to conclude that the expert opinion reflects nothing more than mere personal belief.”

Snizavich v. Rohm & Haas Co., 83 A.3d 191, 195 (Pa. Super. Ct. 2013) (internal citations omitted), allocatur denied July 29, 2014 (88 EAL 2014). Dr. Habick’s testimony reflects his personal beliefs and, by his own admission, his common sense and knowledge. It does not provide specialized knowledge beyond what the average jury already possesses.

First, Dr. Habick’s testimony was offered to provide insight as to what an average reader would conclude. A jury provides a perfect sampling of average readers. Dr. Habick’s allegedly expert testimony provides nothing that the average jury does not have. Indeed, Dr. Habick testified that based on his extensive experience in linguistics, he lacks the ability to even read an article as an average reader would. Jurors are already endowed with the ability to read newspaper articles and need no expert assistance, especially from an expert like Dr. Habick who confesses that he can no longer read articles through the lens of an as average reader and that he rarely even reads the newspaper.

Second, Dr. Habick claims to use his linguistic analysis coupled with his “common sense,” “common knowledge,” and “verifiable reality” to tell the jury what the many reporters and the collective editorial board must have thought when they wrote and published the articles he assumes to be false. Dr. Habick claims that he can determine in a scientific way that the defendants subjectively must have known or been reckless in not knowing that the articles they wrote were false. He claims to know this based on analyzing defendants’ reporters’ articles and their allegedly faulty argumentation, logic, and assumptions, coupled with his “common sense,” “common knowledge” and “verifiable reality” that the articles are false. Jurors are known and valued for their “common sense” and “common knowledge”; having a so-called expert tell them what is common sense and common knowledge would be invading their province by purporting to provide them information that the average layperson already possesses. Average jurors also can assess the validity of arguments, logic, and assumptions without an expert, even though they may not be able to assign the proper Latin terminology to each type with quite the same practiced ease of a linguist like Dr. Habick.

Dr. Habick offers extensive critical commentary about the logical and linguistic structure of the articles in this case. However, there is no element of a defamation case that calls for a linguist’s or logician’s stamp of approval of the writing style. Dr. Habick’s career has focused on trying to make test questions clear and unambiguous to prospective graduate student test takers, which is a noble and important task. However, defamation law is not about whether articles fall into this balanced style where rigorous rules are applied to ensure clear and uniform understanding. People may prefer that reporters write with clear logic and structure. However, reporters who may be perceived by some as not having that gift are not subject to legal liability for defamation. Moreover, opinions on what constitutes good, clear writing vary as much as tastes in cuisine. Defamation law requires only that publishers and authors, whether logical or not, do not knowingly or recklessly publish false statements about public figures. Latin nomenclature, logical structure and linguistic style are irrelevant to a jury’s ability to reach a conclusion on that straightforward issue.

Dr. Habick’s testimony would be unfairly prejudicial, confusing and misleading to the jury.

Dr. Habick’s proffered testimony does not meet minimal legal requirements for its admissibility. However, even if Dr. Habick’s testimony did meet those standards, this Court finds that his testimony would be excluded under Pa. R. Evid. 403 as “its probative value is outweighed by a danger of...unfair prejudice, confusing the issues, [or] misleading the jury.” See, e.g., Betz v. Pneumo Abex LLC, 44 A.3d 27, 52 (Pa.2012) (affirming that R. 403 gives the trial court a role in screening proffered experts to exclude unfair prejudice, confusion, and misleading evidence). Dr. Habick’s testimony reaches into areas that the jury need not decide — (1) that of a so-called sophisticated linguistic analysis rather than an average juror’s reading, and (2) that of a linguist speculating about his view as to the likelihood, based on no actual proven facts outside of the articles’ written words, that the articles were written with knowledge of their alleged falsity or with reckless disregard of their alleged falsity. However, he confuses the definitions of defamation and actual malice. He uses overly technical vocabulary to discuss basic concepts. He makes assumptions that statements are false, which is a jury’s task, and jumps to assessing whether the statements were published intentionally or recklessly as to whether they are false. Dr. Habick’s testimony, if permitted and given the imprimatur of being “expert” by the court, would unfairly prejudice, confuse and mislead the jury. By contrast, the jury will have far more information when they make their decision than Dr. Habick did in rendering his opinion that statements were defamatory. In addition to reading the articles, the jury will hear evidence including testimony from plaintiff, defendants, reporters and others who can provide evidence as to the true facts and the defendants’ subjective intent. The jury will not be determining the publishers’ subjective intent based on whether the articles are logical or include false assumptions. Jurors will be guided by whether there is evidence of actual malice.

Conclusion

This court finds that Dr. Habick’s testimony and report do not meet legal requirements under Pa. R. Evid. 702 and caselaw. Dr. Habick is not qualified in the areas he was offered for — namely, (1) to explain what the articles mean to the average reader, and (2) to show that Defendants knowingly published false statements or did so with reckless disregard of their falsity. Sullivan, 376 U.S. 254, 279-80 (1964). Plaintiff failed to showthatDr. Habick was qualified to testify in these areas, that his methodology was reliable or scientific and generally accepted within the field of linguistics, and that his testimony was relevant to the issues the jury would need to decide. Pa.R.Evid. 702. Further, this court finds that Dr. Habick’s testimony is not admissible because it would be unfairly prejudicial, confusing and misleading. Pa.R.Evid. 403. For the foregoing reasons, Dr. Habick’s testimony and report are not admissible and may not be used as evidence in support of plaintiff’s response to the summary judgment motion nor at trial.

ORDER

And now, this 1st day of August, 2014, upon consideration of plaintiffs Frye motion, all responses and replies thereto, and the Frye hearing held on July 28, 2014, it is hereby ordered that the motion is denied. As a result of the Frye hearing, this court holds that the testimony and report of Dr. Timothy Habick is inadmissible because it does not meet legal requirements. This court found that Dr. Habick is not qualified in the areas offered, his opinion is not reliable or generally accepted by those in his field, and is not relevant to the issues the juiy must decide. Therefore, Dr. Habick’s testimony and report are hereby stricken from the record, and cannot be considered legally admissible evidence in this action, either at the summary judgment stage or at trial. (PL’s answer in opp’n to defs.’ mot. summ. j. ex. L.) (See attached memorandum opinion).

      . This brief memorandum opinion is drafted without the benefit of the written transcript. If there is an appeal, this court may amplify this opinion with citations to the evidentiary hearing and further analysis.

      . See, e.g., Tucker v. Phila. Daily News, 848 A.2d 113, 133 (Pa. 2004) (“[A]n article is not made defamatory by being unfair....”); Baker v. Lafayette Coll., 532 A.2d 399, 402 (Pa. 1987) (“[OJpinion without more does not create a cause of action in libel.”); Thomas Merton Ctr. v. Rockwell Int’l Corp., 442 A.2d 213, 216 (Pa. 1981) (“[W]e must consider the full context of the article to determine the effect the article is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate.”) (internal quotations omitted); Kilian v. Doubleday & Co., 79 A.2d 657, 660 (Pa. 1951) (a statement that is “substantially true” cannot be defamatory); ToDay’s Hous. v. Times Shamrock Commc’ns, Inc., 21 A.3d 1209, 1215 (Pa. Super. Ct. 2011) (finding an absence of material falsity and explaining, “The law does not require perfect truth, so long as any inaccuracies do not render the substance and ‘gist’ of the statements untrue.”).

      . Defendants also argued that Greene did not show evidence that any of the statements caused him injury to his reputation, emotional distress or economic loss.

      . Dr. Habick testified that he met Dr. Lashner when her daughter came by his home in 2009, notified him that Dr. Lashner had previously lived in his home and asked whether Dr. Lashner could visit her former home. Thereafter, he developed a relationship with the family.

      . In Pennsylvania, any person bringing a defamation claim bears the burden of proving:
      “(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.”

        Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899, 903 (Pa. 2007) (citing 42 Pa. CONS. STAT. ANN. §8343(a)).

      . See also Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); Betz v. Pneumo Abex LLC, 44 A.3d 27, 53, 58 (Pa. 2012) (clarifying court’s gatekeeping role and explaining relevance of the breadth and character of an expert’s extrapolations); Summers v. Certainteed Corp., 997 A.2d 1152, 1161 (Pa. 2010) (summary judgment is improper where an expert’s conclusions are sufficiently supported); Grady v. Frito-Lay, 839 A.2d 1038 (Pa. 2003) (affirming that party proffering expert evidence must show that scientists in the field generally accept the expert’s methodology for arriving at the expert’s conclusion); Trach v. Fellin, 817 A.2d 1102, 1113 (Pa. Super. Ct. 2003) (explaining meaning of “methodology”).

      . After plaintiff filed Dr. Timothy Habick’s report, defendants requested a Frye hearing. This court granted that request, and plaintiff thereafter submitted a Frye motion that argued in favor of the admissibility of Dr. Habick’s evidence.

      . Plaintiff Carl Greene’s proffered expert, Dr. Timothy Habick, submitted a report stating that, upon review and analysis of all of the allegedly defamatory articles, he concluded that the writing showed that the authors wrote with actual malice — reckless disregard for the falsity of their statements. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). This court finds, however, that Dr. Habick’s testimony and report do not meet legal requirements under Pa.R.Evid. 702 for several reasons: because he is not qualified in the areas he was offered for — namely, (1) to explain what the articles mean to the average reader, and (2) to show that defendants exhibited a reckless disregard for the truth; because his methodology is not reliable or scientific; and because his testimony is not relevant to the issues the jury would need to decide. See also Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); Betz v. Pneumo Abex LLC, 44 A.3d 27, 53, 58 (Pa. 2012) (clarifying court’s gatekeeping role and explaining relevance of the breadth and character of an expert’s extrapolations); Grady v. Frito-Lay, 839 A.2d 1038, 1045 (Pa. 2003) (affirming that party proffering expert evidence must show that scientists in the field generally accept the expert’s methodology for arriving at the expert’s conclusion); Trach v. Fellin, 817 A.2d 1102, 1113 (Pa. Super. Ct. 2003) (explaining meaning of “methodology”). Even if Dr. Habick were qualified, his methodology reliable and his testimony relevant, this court finds his testimony would be excluded under Pa.R.Evid. 403 as “its probative value is outweighed by a danger of...unfair prejudice, confusing the issues, [or] misleading the jury.” See, e.g., Betz, 44 A.3d at 52 (affirming that R. 403 gives the trial court a role in screening proffered experts to exclude unfair prejudice, confusion, and misleading evidence).