J-A33028-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

WP 940 ASSOCIATES, L.P.,                  :   IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                        Appellant         :
                                          :
                   v.                     :
                                          :
DAVID A. BOTTGER, M.D.,                   :
                                          :
                        Appellee          :
                                          :
                                          : No. 1139 EDA 2014


               Appeal from the Judgment Entered April 22, 2014
              in the Court of Common Pleas of Delaware County,
                        Civil Division at No(s): 09-4706

BEFORE: LAZARUS, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED MARCH 05, 2015

      WP 940 Associates, L.P. (WP 940) appeals from the judgment entered

against it and in favor David A. Bottger, M.D. (Bottger).          After careful

review, we reverse in part the order denying WP 940’s post-trial motion,

vacate the judgment, and remand for the trial court to enter judgment

consistent with this memorandum.

      The trial court set forth the following summary, taken from the

evidence in the non-jury trial in this case.

             WP Realty, Inc. is a commercial real estate company which
      owns and manages commercial real estate with, at the times
      relevant to this matter, a market value of approximately $1.4
      billion. WP Realty, Inc., through one of its affiliated entities, and
      agents, [WP 940,] purchased the subject property located at 940
      Haverford Road, Bryn Mawr, Delaware County, Pennsylvania
      (“Bryn Mawr Plaza” or the “Complex” or “Leased Premises”) in


* Retired Senior Judge assigned to the Superior Court.
J-A33028-14


     April 2004 for the purpose of eventually locating its corporate
     offices to that location.    [Bottger] is a medical doctor and
     specifically a plastic surgeon who has been practicing medicine
     for 23 years. On March 22, 1996, [Bottger] entered into a
     certain lease agreement (the “Lease”) for the rental of
     approximately 3,016 square feet of office space at Bryn Mawr
     Plaza.

            In April of 2004, [WP 940,] as agent for WP Realty, Inc.,
     purchased the subject office building in which [Bottger] was a
     tenant. In 2006, WP Realty, Inc., systematically concluded lease
     relationships with tenants William Wurster, Suzanne Slenn and
     Slenn Studio LLC, and Philadelphia Ballet Studio, with a plan to
     occupy the entire building as the WP Realty, Inc., corporate
     offices.   In the summer of 2006, Bryan Weingarten (“Mr.
     Weingarten”), the Chief Executive Officer of WP Realty, Inc., and
     apparently of [WP 940,] asked [Bottger] if he would relocate his
     medical practice early, before the end of his Lease, so that WP
     Realty, Inc. could take over the Leased Premises for its
     corporate use.      When Mr. Weingarten approached [Bottger]
     asking him to vacate the Leased Premises early, the Lease term
     was to run through and including February 28, 2011. At the
     time of Mr. Weingarten’s solicitation in mid-2006, [Bottger] did
     not intend to leave the Leased Premises, but Mr. Weingarten
     made it clear that the Lease would not be renewed. [Bottger]
     had built a successful plastic surgery medical practice at the
     Leased Premises and had no desire to leave the Leased Premises
     or Bryn Mawr, Delaware County, Pennsylvania which was an
     ideal geographical location for his medical specialty.

           In mid-2006, [Bottger] agreed to relocate, and Mr.
     Weingarten and [WP 940] provided [Bottger] relocation
     assistance in the form of property leads for his medical practice.
     Immediately after agreeing to Mr. Weingarten’s proposal,
     [Bottger] began the search for a new medical practice location,
     both through his personal efforts and with the assistance of [WP
     940].    Over the next two years, [WP 940], through Mr.
     Weingarten and a manager, Daniel Mortimer (“Mr. Mortimer”),
     assisted [Bottger] in his effort to relocate the plastic surgery
     medical practice.

           [Bottger] entered into a lease with Main Line Hospitals,
     Inc., for new office space in Newtown Township, Delaware
     County, Pennsylvania, on June 17, 2008 (the “Lease for New


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J-A33028-14


      Office Space”). At no time following Weingarten’s solicitation
      until [Bottger] signed the Lease for New Office space did [WP
      940] inform [Bottger] to stop his effort to surrender the Leased
      Premises, early.

             In late June 2008, according to Mr. Weingarten, [WP 940]
      first informed [Bottger] that [WP 940] objected to [Bottger’s]
      early surrender of the Leased Premises and demanded strict
      performance of the Lease. By then, [Bottger] had signed the
      Lease for New Office Space and incurred substantial costs,
      expenditures and financial obligations to arrange the relocation
      of his medical practice to Newtown Township, Delaware County,
      Pennsylvania.

            Following Mr. Weingarten’s late June 2008 demand for
      [Bottger’s] performance under the Lease, [Bottger] spoke to Mr.
      Mortimer of [WP 940]. [Bottger] confirmed his conversation
      with Mr. Mortimer in a memorandum, and then on July 3, 2008,
      sent a letter to Mr. Weingarten confirming the agreement
      Weingarten solicited of [Bottger] during the summer of 2006 and
      requesting reconsideration.

             On February 28, 2009, in reliance upon Weingarten’s 2006
      solicitation, [Bottger] surrendered the Leased Premises, along
      with the value he had developed in his Bryn Mawr plastic surgery
      practice, and relocated to the New Office Space in Newtown
      Township, Delaware County, Pennsylvania.

            In March 2009, a dermatology medical practice, Haverford
      Dermatology, took possession of the Leased Premises pursuant
      to a lease agreement it entered with [WP 940]. Haverford
      Dermatology occupied the Leased Premises without any change
      to the floor plan of what had been [Bottger’s] medical office. A
      clear inference from WP 940’s evidence, specifically the
      testimony of Mr. Rosenberg, General Legal Counsel, was that the
      lease between Haverford Dermatology and [WP 940] was for a
      term of years continuing significantly beyond February 28, 2011.

Trial Court Opinion, 7/14/2014, at 6-9 (citations omitted).

      On April 6, 2009, WP 940 filed a complaint in confession of judgment

against Bottger in the Court of Common Pleas of Delaware County.



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According to the complaint, because Bottger breached the lease agreement,

Bottger owed WP 940 for rent from the time he vacated the premises on

February 28, 2009 through the expiration of the lease on February 28, 2011.

The total amount of the confessed judgment was $138,438.44, which,

pursuant to the lease, included attorneys’ fees.   On May 6, 2009, Bottger

filed a petition to strike and/or open the confessed judgment and for a stay

of proceedings.    WP 940 filed a response, and on August 7, 2009, after a

hearing, the trial court opened the judgment.

     After discovery was conducted, a non-jury trial was held on November

12 and 13, 2013. With respect to WP 940’s breach of contract claim against

Bottger, the trial court found in favor of Bottger and against WP 940. The

trial court also awarded damages to Bottger on his purported counterclaims

in the amount of $428,779.44.      Finally, on Bottger’s purported claim for

negligent misrepresentation, the trial court found in favor of WP 940 and

against Bottger.

     WP 940 timely filed a post-trial motion, which included, inter alia, a

claim that the trial court erred in permitting evidence of counterclaims that

had not been pled properly.    That motion was denied on March 26, 2014,

and this timely appeal followed.   The trial court ordered WP 940 to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925, and WP 940 timely filed its statement.




                                    -4-
J-A33028-14


      On appeal, WP 940 sets forth five issues for our review, which we have

reordered for ease of disposition.

            1. Whether a court is precluded from granting relief based
      upon counterclaims which were not [pled] in the petition to open
      a confessed judgment, were not otherwise [pled] by an
      amendment to a petition to open a confessed judgment, were
      not asserted in any other legal proceeding between the parties,
      and which are barred by the statute of limitations.

            [2].   Whether a tenant is precluded from recovering
      damages incurred to relocate to alternate leased premises prior
      to the end of a lease where the tenant admits that the tenant
      was able to remain in the original leased premises until the end
      of the original lease term without any interference from the
      landlord.

            [3]. Whether a party is precluded as a matter of law
      under the gist of the action doctrine from introducing evidence of
      damages for negligent misrepresentation where the party’s claim
      for misrepresentation relates to the performance of a contract.

            [4]. Whether a party should be barred from introducing
      evidence and obtaining relief from the party’s default under a
      contract where the contract is subject to the statute of frauds
      and the party’s defense of estoppel cannot be used to
      circumvent the statute of frauds.

            [5]. Whether a judgment for amounts due under a lease
      should remain undisturbed (other than to amend the judgment
      amount) where the lease is subject to the statute of frauds and
      the only defense to the judgment would violate the statute of
      frauds.

WP 940’s Brief at 5-6 (trial court answers omitted).1

      WP 940’s first four issues concern the trial court’s award of damages in

favor of Bottger and against WP 940 in this action.      In determining that

1
   With respect to issue 3, regarding damages for negligent
misrepresentation, the trial court did not award Bottger any damages on this
basis; so this issue is moot.


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J-A33028-14


Bottger was entitled to damages, the trial court reached several conclusions.

First, the trial court held that “Bottger properly raised several counterclaims

stemming from the alleged wrongful conduct of WP 940[.]” Trial Court

Opinion, 7/14/2014, at 15.    As part of these purported counterclaims, the

trial court “found the evidence presented by [Bottger] to be clear and

convincing proof in support of the Doctrine of Equitable Estoppel.” Id. at 17.

Moreover, based on these equitable considerations, the trial court held that

“the statute of frauds not be enforced.” Id. at 18.     Finally, the trial court

awarded “reliance damages” to Bottger for “his expenditures made in

performance of the Lease as modified by estoppel, less the loss [Bottger]

with reasonable certainty would have suffered had the Lease as modified

been performed.” Id. at 20-21.

      First, we consider WP 940’s contention that Bottger’s petition to strike

and/or open the confessed judgment did “not allege any counterclaims” nor

did it “allege any demands for damages or monies purportedly due and

owing to” him and therefore an award of damages of any sort in favor of

Bottger was improper. WP 940’s Brief at 20 (emphasis in original).

      The trial court concluded that Bottger “properly raised several

counterclaims stemming from the alleged wrongful conduct of” WP 940. Trial

Court Opinion, 7/14/2014, at 15. In support of this determination, the trial

court pointed to numerous paragraphs in Bottger’s petition to open and/or

strike the confessed judgment. The trial court further concluded that the



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J-A33028-14


counterclaims were proper because they were addressed “in response to

[WP 940’s] specific Interrogatories on the issue in November 2009.” Id.

       Petitions to strike or open judgment by confession are governed
       by Pennsylvania Rules of Civil Procedure 2959 and 2960.

            Relief from a judgment by confession shall be sought
            by petition. Except as provided in subparagraph (2),
            all grounds for relief whether to strike off the
            judgment or to open it must be asserted in a single
            petition.

       Pa.R.C.P. 2959(a)(1) (emphasis added); see also Pa.R.C.P.
       2959(a)(2) (permitting a further, limited request for a stay of
       execution on due process grounds); Pa.R.C.P. 2959(c) (“A party
       waives all defenses and objections which are not included in the
       petition or answer.”); Pa.R.C.P. 2960 (limiting the scope of
       proceedings upon opening of judgment).

Huntingdon Nat. Bank v. K-Cor, Inc., __ A.3d __, 2014 WL 7447667, at

*2 (Pa. Super. 2014).

       We examine J.M. Korn & Son, Inc. v. Fleet-Air Corporation, 446

A.2d 945 (Pa. Super. 1982) for guidance.          In that case, J.M. Korn & Son,

Inc.   (J.M. Korn) confessed judgment against Fleet-Air Corporation (Fleet-

Air). Fleet-Air filed a petition to open the judgment, alleging a defense of

partial payment.    J.M. Korn filed an answer conceding that payments had

been made, and the parties agreed to open the judgment. The trial court

issued an order opening the judgment and granted the parties leave to

amend    their   pleadings    to   include    “any   other   claims,    defenses   or

counterclaims    arising     out   of   the    parties’   contractual    advertising

arrangement.” J.M. Korn, 446 A.2d at 946.             J.M. Korn filed a notice of



                                        -7-
J-A33028-14


appeal from that order complaining that the trial court erred in permitting

the parties to amend their pleadings. This Court held that the issues for trial

      were framed by [J.M. Korn’s] complaint, which had been filed
      with the judgment notes, and by [Fleet-Air’s] petition to open
      and [J.M. Korn’s] answer thereto.         Although clarifying
      amendments to these pleadings may be filed, if necessary and
      otherwise proper, it would be improper for [Fleet-Air] after
      judgment had been opened, to amend its petition to assert new
      defenses or counterclaims. To the extent that the trial court’s
      order allowed such amendments, it was erroneous.

Id. at 947. Consequently, once the judgment is opened, the issues for trial

are limited to those specifically included in the complaint, petition, and any

amendments thereto.

      While a counterclaim is not a ground to open a confessed
      judgment, it may be determined in subsequent proceedings if
      the counterclaim is added to the petition to open judgment by
      amendment before the judgment is opened. Such an
      amendment must be made before the order opening the
      judgment is entered. The issues to be tried thereafter are
      properly framed by the original complaint, filed with the
      judgment notes, and by the petition to open and the answer
      thereto, including any claims, defenses, or counterclaims
      pleaded in the petition to open judgment. It is proper to include
      new matter and a counterclaim in the petition to open or strike a
      confessed judgment so that the issues raised thereby can be
      determined in the event the judgment is opened.

Goodrich Amram 2d § 2959(b):2.

      Thus, to the extent the trial court relied on any averments made after

the judgment was opened, notably in answers to interrogatories, such

conclusion was in error. Accordingly, we examine Bottger’s petition to open

and/or strike the confessed judgment, particularly those upon which the trial

court relied, to determine whether these counterclaims were raised.


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J-A33028-14


      In its opinion, the trial court pointed to the following paragraphs of

Bottger’s petition.

            72. WP Realty has breached that Early Lease Termination
      Agreement, wherein [Bottger] performed under its terms but WP
      Realty now refuses to end the lease term on February 28,
      200[9], the day he returned possession of the Leased Premises
      to WP Realty.

            73. At no time prior to Dr. Bottger securing his new office
      space and executing the Lease for New Office Space did WP
      Realty ever advise or notify him or otherwise indicate that it was
      not willing to honor the terms of the Early Lease Termination
      Agreement or that it intended to act contrary to its earlier
      request and promises.

            74. Under the Early Lease Termination Agreement, the
      Lease ended when [Bottger] returned possession of the Leased
      Premises to WP Realty and [Bottger] has no further obligations
      of any kind under the Lease beyond that date.

             75. It was WP Realty that breached the Early Lease
      Termination Agreement and it has improperly failed or refused to
      end the Lease as promised and has unreasonably, unfairly and
      improperly refused to honor its promises and agreement to end
      [Bottger’s] obligations under the Lease upon him securing new
      office space and surrendering the Leased Premises to WP Realty.

                                     ***

      96. WP Realty acted unreasonably and in breach of the Lease
      and Early Lease Termination Agreement.

                                     ***

      98. The Lease terminated on February 28, 2009 as a matter of
      agreement between the parties pursuant to the Early Lease
      Termination Agreement and as a result, [Bottger] has no
      obligations to pay rent or other charges, fees or costs beyond
      that date.

      99. [Bottger] did not breach the Lease but rather it was WP
      Realty which breached the Early Lease Termination Agreement


                                    -9-
J-A33028-14


      and has wrongfully and improperly failed or refused to honor and
      abide by its terms.

                                     ***

      125. WP Realty has acted wrongfully and unlawfully and with
      unclean hands and has otherwise intentionally breached its
      agreement with [Bottger], and thereafter, has taken improper,
      unlawful, illegal and wrongful steps to confess judgment against
      [Bottger] in an intentional and calculated manner to deprive him
      of his due process rights and cause him injury and harm.

Petition to Strike and/or Open Confessed Judgment, 5/6/2009.

      A review of these paragraphs reveals that Bottger never used the word

counterclaim, nor did he affirmatively request damages. Our review of the

entire petition reveals the same. Therefore, we hold the trial court erred as

a matter of law in awarding damages to Bottger and reverse WP 940’s post-

trial motion on that basis, vacate the judgment in part, and remand for the

trial court to enter a judgment in favor of WP 940. Having concluded that

Bottger did not assert properly any claim for money damages, WP 940’s

remaining issues related to an award of reliance damages are moot, as those

arguments stem from the trial court’s erroneous determination that Bottger

properly pled a claim for damages.

      We now turn to WP 940’s final issue: whether the trial court erred by

not awarding any damages to WP 940 for Bottger’s breach of contract. WP

940’s Brief at 34-36. Specifically, WP 940 requested, per the terms of the

lease, rent due from the time Bottger vacated the property until the end of

the lease term, as well as attorneys’ fees.



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J-A33028-14


      The trial court declined to award damages to WP 940 because Bottger

“presented at trial clear and convincing evidence that [WP 940], despite the

terms of the Lease, induced Dr. Bottger through words and conduct in

support of those words to change his financial condition to his substantial

disadvantage through his justifiable reliance upon the words and conduct of

the agents of [WP 940].” Trial Court Opinion, 7/14/2014, at 17.       In other

words, the trial court believed that WP 940’s actions induced Bottger to

believe that WP 940 had agreed to terminate his lease two years early; thus,

it held that WP 940 could not collect rent from Bottger for those two years.

      WP 940 argues that such a determination was improper because the

lease at issue is governed by the statute of frauds;2 therefore, any alleged

modification had to be in writing. WP 940’s Brief at 34. Moreover, WP 940

argues that the trial court erred in applying principles of estoppel, 3 as such


2

      The statute reads in pertinent part: “…[A]ny uncertain interest
      of, in, or out of any … lands, … made or created by … parol, and
      not put in writing, and signed by the parties so making or
      creating the same, or their agents, thereunto lawfully authorized
      by writing, shall have the force and effect of leases or estates at
      will only, and shall not, either in law or equity, be deemed or
      taken to have any other or greater force or effect, ….”

Charles v. Henry, 334 A.2d 289, 291 n.1 (Pa. 1975) (quoting 33 P.S. § 1).
3

      As our Supreme Court has explained, equitable estoppel is a
      doctrine sounding in equity which acts to preclude one from
      doing an act differently than the manner in which another was
      induced by word or deed to expect. It arises when one by his
      acts, representations, or admissions, or by his silence when he


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J-A33028-14


principles are inapplicable to contracts governed by the statute of frauds. Id.

at 33.

         We first point out that there are cases that support the contentions of

both WP 940 and Bottger with respect to the relationship between principles

of estoppel and the statute of frauds. On one hand, there is a line of cases

holding “that principles of estoppel may not be invoked against operation of

the Statute of Frauds. Polka v. May,[118 A.2d 154 (Pa. 1955)]; Peterson

v. Chandler, [] 66 A.2d 284 ([Pa.] 1949); Mott v. Kaldes, [] 135 A. 764

([Pa.] 1927).” Borrello v. Lauletta, 317 A.2d 254, 255 (Pa. 1974).

         On the other hand, in Davis v. Inv. Land Co., 146 A. 119 (Pa. 1929),

our Supreme Court held that where an oral contract has been

         so far performed as to render it inequitable to permit a
         defendant to interpose the bar of the statute, he will not be
         allowed to do so. In Hancock v. Melloy, 187 Pa. 371, 379, 41


         ought to speak out, intentionally or through culpable negligence
         induces another to believe certain facts to exist and such other
         rightfully relies and acts on such belief, so that he will be
         prejudiced if the former is permitted to deny the existence of
         such facts. When estoppel is established, the person inducing
         the belief in the existence of a certain state of facts is estopped
         to deny that the state of facts does in truth exist, aver a
         different or contrary state of facts as existing at the same time,
         or deny or repudiate his acts, conduct, or statements. There are
         two essential elements to estoppel; inducement and reliance.
         The inducement may be words or conduct and the acts that are
         induced may be by commission or forbearance provided that a
         change in condition results causing disadvantage to the one
         induced.

Liberty Prop. Trust v. Day-Timers, Inc., 815 A.2d 1045, 1050 (Pa.
Super. 2003) (internal quotations and citations omitted).



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J-A33028-14


     A. 313, 315, quoting with approval from Riggles v. Erney, 154
     U. S. 244, 14 S. Ct. 1083, 38 L. Ed. 976, we said: “If the parol
     agreement be clearly and satisfactorily proved, and the plaintiff,
     relying upon such agreement and the promise of the defendant
     to perform his part, has done acts in part performance of such
     agreement to the knowledge of the defendant - acts which have
     so altered the relations of the parties as to prevent their
     restoration to their former condition - it would be a virtual fraud
     to allow the defendant to interpose the statute as a defence, and
     thus to secure to himself the benefit of what has been done in
     part performance.”

Id. at 120.

     Further, Pennsylvania law provides that the statute does not exist to

help perpetrate a fraud:

     Ever since that venerable statute was armed with authority to
     prevent the assertion of [oral] understandings regarding title to
     land, it has been called upon to strike down agreements which
     were not committed to writing. The laudable purpose of this
     guardian of truth is to prevent frauds and perjuries.
     Occasionally, however, an embattled property owner or
     prospective purchaser of land, summons the statute to enforce a
     condition which does not seem to coincide with principles of
     honesty and fair dealing. In such cases the Courts should study
     the situation involved to make certain that the statute is not
     being used to perpetrate fraud and perjuries rather than prevent
     them. In the same vein, Professor Corbin has said that the
     purpose of the statute of frauds is “the prevention of successful
     fraud by inducing the enforcement of contracts that were never
     in fact made. It is not to prevent the performance or the
     enforcement of oral contracts that have in fact been made; it is
     not to create a loophole of escape for dishonest repudiators.” 2
     Corbin on Contracts § 498, pp. 680-681 (1950).

Fannin v. Cratty, 481 A.2d 1056, 1064 (Pa. Super. 1984) (citation omitted)

(quoting Simplex Precast Industries, Inc. v. Biehl, 149 A.2d 121 (Pa.

1959)).




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J-A33028-14


     Accordingly, we hold the trial court did not err in considering equitable

principles to determine whether WP 940 did indeed induce Bottger to

terminate his lease early. This case represents one of those circumstances

where the trial court should “study the situation involved to make certain

that the statute is not being used to perpetrate fraud and perjuries rather

than prevent them.” Fannin, 481 A.2d at 1064.

     The trial court offered the following findings of fact in support of its

conclusion that WP 940 entered into an oral modification of the contract, and

induced Bottger to rely upon that oral agreement. Therefore, it concluded

that WP 940 was not entitled to enforce the written lease.

     7.   In the summer of 2006, [Mr. Weingarten], the Chief
     Executive Officer of WP realty, Inc., and apparently of [WP 940],
     asked [Bottger] if he would relocate his medical practice early,
     before the end of his Lease, so that WP Realty, Inc. could take
     over the Leased Premises for its corporate use.

                                    ***

     10.    In mid-2006, [Bottger] agreed to relocate, and Mr.
     Weingarten and [WP 940] provided [Bottger] relocation
     assistance in the form of property leads for his medical practice.

     11. Immediately after agreeing to [Mr.] Weingarten’s proposal,
     [Bottger] began the search for a new medical practice location,
     both through his personal efforts and with the assistance of [WP
     940].

     12. Over the next two years, [WP 940,] through Mr. Weingarten
     and a manager, [Mr. Mortimer], assisted [Bottger] in his effort to
     relocate the plastic surgery practice.

Decision, 2/19/2014, at 2-3.




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J-A33028-14


      Based on these facts, the trial court concluded that Bottger “presented

at trial clear and convincing evidence that [WP 940], despite the terms of

the Lease, induced [Bottger] through words and conduct in support of those

words to change his financial condition to his substantial disadvantage

through his justifiable reliance upon the words and conduct of [WP 940’s]

agents.” Id. at 8; see also Trial Court Opinion, 7/14/2014, at 17 (same).

      To reach this conclusion, the trial court observed that “[d]uring the

time period mid-2006 to June 2008, the trial testimony is replete with

descriptions of occasions when representatives of [WP 940] referred

[Bottger] to office space either controlled by [WP 940] or to space controlled

by others having no legal connection with [WP 940].” Decision, 2/14/2014,

at 5. Additionally, the trial court found the testimony of Weingarten,4 “when

weighed in comparison with that of Mr. Mortimer[5] and [Bottger to be]



4
  The trial court did not find the testimony of Mr. Weingarten credible. He
testified that he merely suggested in 2006 that Dr. Bottger look at the other
properties owned by WP 940 in the event that WP 940 chose not to extend
the lease in Dr. Bottger’s current space beyond 2011. N.T., 11/12/2013, at
60.
5
 The testimony of Mr. Mortimer, a property manager employed by WP 940
at the time of this dispute, demonstrates that between 2006 and 2008, WP
940 assisted Bottger in his search for new office space.

            [Counsel:] Okay. Now at some point did you -- were you
      asked by Mr. Weingarten to show Dr. Bottger some space in
      buildings that were owned by WP Realty?

            [Mortimer:] Yes.



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J-A33028-14



           [Counsel:] Okay.   And do you know approximately when
     that was, sir?

          [Mortimer:] I do not recall.

           [Counsel:] Okay. And in fact, did you embark on that and
     actually show him some properties?

          [Mortimer:] Yes.

           [Counsel:] And do you recall offhand which properties, if
     any, that you did show him?

          [Mortimer:] It was 944 Haverford Road and I believe 600
     Haverford Road.

           [Counsel:] Now at the time that you were showing him
     those properties did you have an understanding that Dr. Bottger
     was going to relocate his entire medical practice?

           [Mortimer:] That was -- my understanding was he may
     relocate into one of our other properties.

            [Counsel:]    Were you present at any conversations
     between Dr. Bottger and Mr. Weingarten that led Dr. Bottger to
     start looking for space?

          [Mortimer:] I was not.

                                   ***

           [Counsel:]  It was your understanding that [Mr.
     Weingarten and Bottger] had some discussion that predated
     your involvement?

          [Mortimer:] From Dr. Bottger. Yes.

          [Counsel:]     Okay.     And it’s true, though, that Mr.
     Weingarten eventually asked you to show Dr. Bottger at least
     two properties, as you’ve just testified?

          [Mortimer:] That is correct.



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J-A33028-14


inconsistent and not credible.” Id (footnote added).     The trial court also

found Bottger’s testimony to be “consistent, clear and credible.” Id.



                                     ***

           [Counsel:] And do you know whether you had suggested
      an architect by the name of Gary Begosian to [Bottger] to
      consult with?

             [Mortimer:] I don’t recall, but that’s very possible. Gary
      did a lot of WP’s work.

                                     ***

            [Counsel:] Okay. So you were having communications
      with Mr. Weingarten with regard to whether Dr. Bottger was
      interested in those properties. Is that fair?

            [Mortimer:] I would say that’s fair. Yes.

                                     ***

            [Counsel:] Did there come a time where Dr. Bottger
      discussed the possibility of his purchase of some vacant land in
      Newtown Square?

            [Mortimer:] Yes.

            [Counsel:] All right. And in regards to that did [Dr.
      Bottger] send you some paperwork, sir?

            [Mortimer:] Yes.

            [Counsel:] And were you kind enough to have some folks
      look at that and then respond back to him as to whether the
      price seemed to be right for the -- in the market and in that
      general area?

            [Mortimer:] I was.

N.T., 11/13/2013, at 214-223.



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J-A33028-14


       These factual conclusions are supported by the record. Moreover, it is

well-settled that in a non-jury trial, “the trial court functions as fact-finder,

and the appellate courts generally do not substitute their judgments for

those of a fact-finder in matters of credibility.” Commonwealth v.

Sanchez, 907 A.2d 477, 491 (Pa. 2006).

       Based on the trial court’s credibility determinations and the support in

the record, we conclude the trial court did not err in concluding that

principles of equity support the trial court’s decision not to award damages

to WP 940. Accordingly, we affirm that portion of the judgment.

       Order denying WP 940’s motion for post-trial relief reversed in part.

Judgment vacated.         Case remanded to the trial court for judgment to be

entered consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/5/2015




                                       - 18 -
