J.A30039/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


CEDARBROOK PLAZA INC.,                      :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
STORAGE PARTNERS OF CHELTENHAM,             :
L.P., AND BRUCE MANLEY,                     :
                                            :
                          Appellants        :     No. 266 EDA 2015

             Appeal from the Judgment Entered December 18, 2014
              In the Court of Common Pleas of Montgomery County
                         Civil Division No(s): 10-15608

BEFORE: MUNDY, JENKINS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED JANUARY 15, 2016

        Appellants, Storage Partners of Cheltenham, L.P., and Bruce Manley,

appeal from the judgment entered in the Montgomery County Court of

Common Pleas following a bench trial and verdict in favor of Appellee,

Cedarbrook Plaza, Inc. Appellants contend the trial court erred by refusing

to award a credit for the value of the assets acquired by Appellee.

Appellants also challenge the basis for the trial court’s ruling that no

conversion, distraint, or levy of Appellants’ assets occurred. We affirm.

        We adopt the trial court’s facts and procedural history. See Trial Ct.

Op. at 1-8. We reiterate that the parties stipulated that Sovereign Bank had



*
    Former Justice specially assigned to the Superior Court.
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a blanket lien on Appellants’1 assets. See ARR-316 (Appellee’s Reproduced

Record).2   The mortgage provided that Sovereign Bank or its agent may

possess Appellants’ assets in order to obtain the owed amounts. See ARR-

205.

       Appellee filed a complaint on June 15, 2010, raising only a breach of

contract claim.   Appellee’s Compl., 6/15/10, at 3-4.     On June 27, 2014,

Appellants moved to amend their answer and new matter to include, inter

alia, allegations that Appellee unlawfully distrained or converted Appellants’

property. Appellants did not raise any counterclaims, such as for conversion

or distraint. On July 3, 2014, the court granted in part Appellants’ motion.3

       On August 20, 2014, the court ruled against Appellants.     Appellants

filed a motion for post-trial relief that essentially requested judgment

notwithstanding the verdict, which the court granted in part and denied in

part on December 18, 2014. Appellants filed a premature notice of appeal

on January 13, 2015.      Appellants timely filed a court-ordered Pa.R.A.P.




1
  For convenience, we may refer to an individual Appellant, e.g., Storage
Partners of Cheltenham, L.P., by using the plural “Appellants.”
2
  We cite to the reproduced record for the parties’ convenience.          See
generally Pa.R.A.P. 2156.
3
 The court denied Appellants’ request to amend their pleadings to (1) raise
a statute of limitations or statute of frauds defense and (2) assert that
Pennsylvania’s Landlord-Tenant Act barred Appellee’s claim. Order, 7/3/14.




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1925(b) statement. The appeal was perfected after Appellee filed a praecipe

to enter judgment on February 20, 2015.

      Appellants raise the following issues:

         Whether the trial court erred by refusing to award
         Appellants a credit for the value of the assets, property
         and business seized by [Appellee] in connection with its
         unlawful distraint and/or conversion of Storage Partners’
         assets, property and business?

         Whether the trial court erred in making factual findings
         and/or legal conclusions relating to a nonparty’s acts and
         omissions, which were not at issue or even litigated by the
         parties in this litigation and not based upon any evidence?

Appellants’ Brief at 4.

      Appellants contend that Appellee converted and distrained their

property. Appellants insist that the trial court should have credited the value

of that property against the judgment awarded in Appellee’s favor on its

breach   of   contract    claim.   Appellants   posit   that   the   outcome   is

unconscionable and permits Appellee “to obtain a double recovery.” Id. at

17. In essence, Appellants argue that because they established Appellee’s

tortious conduct—conversion and improper distraint—the court should have

setoff the damages awarded for Appellee’s breach of contract claim.            We

hold Appellants have not established entitlement to relief.

      The standard of review follows:

         Our appellate role in cases arising from non-jury trial
         verdicts is to determine whether the findings of the trial
         court are supported by competent evidence and whether
         the trial court committed error in any application of the
         law. The findings of fact of the trial judge must be given


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         the same weight and effect on appeal as the verdict of a
         jury. We consider the evidence in a light most favorable to
         the verdict winner. We will reverse the trial court only if
         its findings of fact are not supported by competent
         evidence in the record or if its findings are premised on an
         error of law.

Amerikohl Mining Co. v. Peoples Natural Gas Co., 860 A.2d 547, 549-50

(Pa. Super. 2004) (internal quotation marks and citations omitted).         “The

trial court’s conclusions of law on appeal originating from a non-jury trial are

not binding on an appellate court because it is the appellate court’s duty to

determine if the trial court correctly applied the law to the facts of the case.”

Wilson v. Transp. Ins. Co., 889 A.2d 563, 568 (Pa. Super. 2005) (internal

quotation marks and citation omitted). We may affirm on any basis. In re

Strahsmeier, 54 A.3d 359, 364 n.17 (Pa. Super. 2012).

      The following also illuminates this Court’s standard and scope of

review from an order resolving a post-trial motion:

            An appellate court will reverse a trial court’s grant or
         denial of a JNOV only when the appellate court finds an
         abuse of discretion or an error of law. Our scope of review
         with respect to whether judgment n.o.v. is appropriate is
         plenary, as with any review of questions of law.

                 In reviewing a motion for judgment n.o.v.,
              the 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. Moreover, a judgment n.o.v. should only
              be entered in a clear case and any doubts must
              be resolved in favor of the verdict winner.
              Further, a judge’s appraisement of evidence is
              not to be based on how he would have voted


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              had he been a member of the jury, but on the
              facts as they come through the sieve of the
              [fact-finder’s] deliberations.

                  There are two bases upon which a judgment
              n.o.v. can be entered: one, the movant is
              entitled to judgment as a matter of law, and/or
              two, the evidence was such that no two
              reasonable minds could disagree that the
              outcome should have been rendered in favor of
              the movant. With the first a court reviews the
              record and concludes that even with all factual
              inferences decided adverse to the movant the
              law nonetheless requires a verdict in his favor,
              whereas with the second the court reviews the
              evidentiary record and concludes that the
              evidence was such that a verdict for the movant
              was beyond peradventure.

         Questions of credibility and conflicts in the evidence are for
         the fact-finder to resolve and the reviewing court should
         not reweigh the evidence. If there is any basis upon which
         the fact-finder could have properly made its award, the
         denial of the motion for judgment n.o.v. must be affirmed.

Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 890-91 (Pa. Super. 2011)

(per curiam) (internal brackets, ellipses, and citations omitted).

      Pennsylvania Rule of Civil Procedure 1031 defines a counterclaim as

follows: “The defendant may set forth in the answer under the heading

‘Counterclaim’ any cause of action cognizable in a civil action which the

defendant has against the plaintiff at the time of filing the answer.”

Pa.R.C.P. 1031(a).    “New matter” is defined by Pennsylvania Rule of Civil

Procedure 1030:

         (a) . . . [A]ll affirmative defenses . . . shall be pleaded in a
         responsive pleading under the heading “New Matter”. A
         party may set forth as new matter any other material facts


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         which are not merely denials of the averments of the
         preceding pleading.

Pa.R.C.P. 1030(a).4 “[I]t is clear that a defense or affirmative defense is not

properly called an ‘action’ or a ‘claim’ but is rather a response to an action

or a claim.” Sass v. AmTrust Bank, 74 A.3d 1054, 1061 (Pa. Super. 2013)

(citation omitted).

      An example of a claim is conversion, which is defined as follows:

            Conversion is a tort by which the defendant deprives
         the plaintiff of his right to a chattel or interferes with the
         plaintiff’s use or possession of a chattel without the
         plaintiff’s consent and without lawful justification. A
         plaintiff has a cause of action in conversion if he or she
         had actual or constructive possession of a chattel at the
         time of the alleged conversion.

Pittsburgh Const. Co. v. Griffith, 834 A.2d 572, 581 (Pa. Super. 2003)

(emphasis added and citations and quotation marks omitted).5

      Distraint is also a claim:




4
   See generally Black’s Law Dictionary 482 (9th ed. 2009) (defining
affirmative defense as “A defendant’s assertion of facts and arguments that,
if true, will defeat the plaintiff’s or prosecution’s claim, even if all the
allegations in the complaint are true.”).
5
  In Griffith, the court noted that “courts are cautious about permitting tort
recovery based on contractual breaches” and that the “‘gist of the action’
doctrine . . . operates to preclude a plaintiff from re-casting ordinary breach
of contract claims into tort claims.” Id. at 581. “[I]t is possible that a
breach of contract also gives rise to an actionable tort . . . . To be construed
as in tort, however, the wrong ascribed to defendant must be the gist of the
action, the contract being collateral.” Bruno v. Erie Ins. Co., 106 A.3d 48,
66 (Pa. 2014) (citation and quotation marks omitted).




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            Distress for rent in arrears is one of the most ancient of
         the landlord’s self-help remedies for the collection of rent.
         The remedy is now governed by the distraint provision of
         the Landlord and Tenant Act of 1951, which essentially
         codify a landlord’s common-law right to distrain, expanded
         however by a provision empowering landlords to sell
         distrained goods. As it was at common law, distress is a
         right belonging to the landlord whenever the relation of
         landlord and tenant exists, and the statute makes no
         fundamental change in a tenant’s right to protect himself
         or herself in instances of unjustifiable distraint.

                                   *    *     *

            The distraint procedures of the Landlord and Tenant
         Act, insofar as they are not unconstitutional, are obligatory
         since the Act integrates prior statutory and case law and
         there is no longer a common-law right of distraint
         independent of the statute and noncontractual in nature.

8A Summary of Pa. Jurisprudence 2d Property § 26:183 (footnotes omitted);

see 68 P.S. § 250.302; see also Restatement (Second) of Torts § 273. The

Superior Court, however, held that the Landlord and Tenant Act’s distraint

provisions   are   unconstitutional.    See       Allegheny   Clarklift,   Inc.   v.

Woodline Indus. of Pa., Inc., 514 A.2d 606, 609 (Pa. Super. 1986);

accord Smith v. Coyne, 722 A.2d 1022, 1025 (Pa. 1999) (“The landlord’s

right to distrain, for example, although permitted by the Act, has been held

unconstitutional.” (footnote omitted)).

      Instantly, Appellants raised conversion and distraint in their new

matter. Conversion and distraint, however, are claims. See Griffith, 834

A.2d at 581; 8A Summary of Pa. Jurisprudence 2d Property § 26:183.

Conversely, conversion and distraint are not affirmative defenses or material



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facts capable of defeating a breach of contract claim.        See Pa.R.C.P.

1030(a); Sass, 74 A.3d at 1061. Appellants failed to raise conversion and

distraint as counterclaims. See Pa.R.C.P. 1031(a); cf. Bruno, 106 A.3d at

66 (noting tort claim may arise from breach of contract). Further, because

Appellants are tenants and not landlords, they have no right to distrain.

See Smith, 722 A.2d at 1025. Regardless of whether they had standing to

raise such claims, Appellants cannot invoke tort claims within a new matter

to setoff damages awarded for Appellee’s breach of contract claim.       See

Pa.R.C.P. 1030(a), 1031(a). Thus, we affirm, albeit on other grounds. See

In re Strahsmeier, 54 A.3d at 364 n.17.

     Regardless, the contract does not provide for a setoff. Further, one of

the elements of conversion is the absence of lawful justification.       See

Griffith, 834 A.2d at 58.   As set forth above, the parties stipulated that

Sovereign Bank had a lien on Appellants’ assets, and the mortgage provided

that Sovereign Bank or its agent could possess Appellants’ assets. See ARR-

205, ARR-316.    It follows that seizure of Appellants’ assets was justified

under the mortgage.     See Griffith, 834 A.2d at 58.        With respect to

distraint, the claim is unavailable to Appellants, as this Court held it was

unconstitutional and Appellants are not landlords. See Allegheny Clarklift,

514 A.2d at 609; accord Smith, 722 A.2d at 1025.

     In support of their second issue, Appellants contend that the trial court

erred by holding that no conversion or distraint occurred. Appellants reason



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that the trial court’s holding was based on its conclusion that Sovereign

Bank’s actions were lawful.   Appellants thus posit that because the bank’s

actions were illegal, the trial court’s holding—no conversion or distraint

occurred—must fail.   We conclude Appellants are due no relief.         As noted

above, Appellants failed to raise counterclaims for conversion and distraint.

Thus, absent such counterclaims, Appellants cannot setoff or otherwise

recoup   damages    awarded   for   Appellee’s     breach   of   contract   claim.

Accordingly, we affirm, albeit on other grounds.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/15/2016




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