J-S54027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAWN BANCROFT                                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

KATHY J. KATITS, THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA,
AND CENTRAL BUCKS FAMILY YMCA

                                                       No. 377 EDA 2015


               Appeal from the Order Entered December 30, 2014
                 In the Court of Common Pleas of Bucks County
                      Civil Division at No(s): 08-13308-27-2


BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                          FILED OCTOBER 21, 2015

        Appellant, Dawn Bancroft, appeals from the order granting Appellee,

Kathy J. Katits’s motion for judgment on the pleadings. As we conclude that

none of Bancroft’s arguments on appeal merit relief, we affirm.

        A prior panel of this Court, in reviewing Bancroft’s appeal from the

order sustaining preliminary objections to her amended complaint, adopted

the following factual and procedural history of this matter from the trial

court:

        Plaintiff, Dawn Bancroft (“Bancroft”) was a part-time employee
        of [Central Bucks YMCA], located in Doylestown, Pennsylvania.
        Bancroft worked at the YMCA part-time beginning in January
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     1999.    In August 2007, the YMCA’s Fitness Director, Matt
     Giordano (“Giordano”) became Bancroft’s supervisor, and the
     two shared an office. In March 2008, Bancroft separated from
     her husband, and in August 2008, Bancroft and Giordano began
     a romantic relationship. Bancroft and the YMCA had orally
     agreed that she would begin working full-time in a few months.

     In mid-October 2008, Bancroft telephoned Katits, an employee
     of both the YMCA and Prudential.          Bancroft’s supervisor,
     Giordano, was in the office at the time of the phone call.
     Bancroft left a voicemail message for Katits regarding the
     microphone in Studio B. Bancroft mistakenly thought she had
     hung up the phone after leaving the voicemail, when she and
     Giordano resumed their personal conversation.              Katits’
     answering machine continued to record the personal
     conversation between Bancroft and Giordano regarding their
     romantic relationship.    Their romantic relationship was not
     known to other YMCA employees.          On October 27, 2008,
     approximately two weeks after Bancroft’s and Giordano’s
     conversation was unintentionally recorded, Bancroft was
     summoned to the office of YMCA’s Controller and Human
     Resources Director, Virginia Doyle (“Doyle”). Doyle told Bancroft
     that she had not properly hung up the phone after leaving the
     voicemail message for Katits, and that her personal conversation
     with Giordano had been recorded. She further informed Bancroft
     that Katits had played the conversation about Bancroft’s
     relationship with Giordano for other YMCA employees. Finally,
     Doyle informed Bancroft that she and Giordano were terminated,
     effective immediately.

     On December 30, 2008, Bancroft filed her original complaint
     against Katits and Prudential. Bancroft asserted three claims: 1)
     violation of Pennsylvania’s Wiretap Act against Katits and
     Prudential, 2) invasions of privacy against Katits and Prudential,
     and 3) intentional interference with contract against Katits
     individually. On February 2, 2009, Bancroft filed an Amended
     Complaint, adding the YMCA as an additional defendant as to the
     Wiretap Act claim only. On March 24, 2009, Katits and the
     YMCA filed Preliminary Objections to Bancroft’s Amended
     Complaint. On March 30, 2009, Prudential filed Preliminary
     Objections to Bancroft’s Amended Complaint.           Defendants’
     Preliminary Objections contend[ed] that Bancroft failed to state a
     cause of action for all her claims, and requested that Bancroft’s
     Amended Complaint be dismissed. Bancroft filed Answers to the

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        Preliminary Objections of all parties. On August 6, 2009, after
        Oral argument, [the trial court sustained all preliminary
        objections.]

Bancroft v. Katits, 2647 EDA 2009, at 1-3 (filed July 8, 2010) (unpublished

memorandum) (citation and some formatting marks omitted).

        This Court affirmed the trial court’s order in all respects save one. The

order sustaining the preliminary objection of Katits to Bancroft’s claim for

intentional   interference   with   contractual   relations   was   vacated   and

remanded. This Court determined that Bancroft had pled that Katits’s action

had interfered with her prospective full-time employment with the YMCA,

and therefore had successfully pled a cause of action under existing Superior

Court precedent. See id., at 5.

        On remand, Katits filed an answer with new matter, which asserted in

relevant part:

        8. Katits’s actions and information conveyed to the YMCA were
        in all respects lawful and truthful.     Accordingly, Katits was
        privileged in conveying such truthful information and cannot be
        held liable for intentional interference with a prospective
        contractual relationship.

Answer with New Matter, filed 9/27/10, at 6.        In her response to Katits’s

new matter, Bancroft denied that Katits “had any privilege” in bringing this

information to the YMCA, but did not deny Katits’s assertion that the

information was lawful and truthful. Answer to New Matter, filed 10/19/10,

at 2.




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      Katits subsequently filed a motion for judgment on the pleadings,

arguing in relevant part that under Walnut Street Associates, Inc. v.

Brokerage Concepts, Inc., 20 A.3d 468 (Pa. 2011), “conveying truthful

information to a third party is a valid and absolute defense to a claim for

tortious interference with a prospective contractual relationship.” Motion for

Judgment on the Pleadings, filed 9/19/14, at 4. In her response, Bancroft

stated:

      19. Denied. Defendant materially misrepresents to this Court
      the holding of [Walnut Street Associates.] In Walnut Street,
      the court discussed whether there is justification or privilege by
      consideration of the factors under the Restatement (Second) of
      Torts [§] 766. The language cited by Defendant in conveying
      truthful information or honest advice to a third party applies only
      within the scope of a request for advice. It is undisputed
      Defendant YMCA did not request Katits to provide advice.

Answer Opposing Motion for Judgment on the Pleadings, filed 10/9/14, at 4.

The trial court granted Katits’s motion for judgment on the pleadings, and

this timely appeal followed.

      On appeal, Bancroft seeks to raise three separate arguments.           First,

she argues that the trial court erred in concluding that she had not denied

that the information provided by Katits to the YMCA was true.              Second,

Bancroft   contends   that     the   trial   court   misapplied   Walnut    Street

Associates, as she believes it only applies in the context of responding to a

request for advice. Third, she argues that the trial court erred in applying

Walnut Street Associates to this case “retroactively.”




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       In general, issues may not be raised on appeal in the first instance.

See Pa.R.A.P. Rule 302(a). Rule 302 has been consistently applied by the

Supreme Court of Pennsylvania to require that issues be raised in front of

the trial court before an appeal has been filed.        See, e.g., Scalice v.

Pennsylvania Employees Benefit Trust Fund, 883 A.2d 449, n.10 (Pa.

2005). Here, a review of the record reveals that Bancroft’s first and third

arguments were raised for the first time in her 1925(b) statement to the trial

court after filing her notice of appeal. As a result, these issues are waived.1

       In her only preserved issue on appeal, Bancroft contends that the trial

court misapplied Walnut Street Associates.         Bancroft specifically argues

that under that case, truth is a defense only in the context of information

supplied in response to a request for advice. However, the Supreme Court

explicitly held that “Section 722 provides that it is not improper interference
____________________________________________


1
   In any event, we conclude that neither argument would merit relief.
Regarding her first issue, we note that Bancroft admits, in her appellate
brief, that she “is not alleging that the voicemail Katits played has been
altered in any way or is fabricated.” Appellant’s Brief, at 12. This, combined
with the pleadings reviewed above sufficiently support the trial court’s
conclusion that there is no dispute as to the truthfulness of the information
communicated by Katits to the YMCA. Turning to Bancroft’s argument
against retroactivity, the Supreme Court in Walnut Street Associates
stated that “[O]ur holding does not amount to an adoption of an entirely
new rule of law[,]” and therefore rejected the argument that its holding
should not apply retroactively.     Walnut Street Associates, 20 A.3d at
479. Furthermore, the previous panel of this Court did not address Katits’s
defense of truth, as the issue was not before it. Therefore, the “law of the
case” did not prevent the trial court from granting judgment on the
pleadings. See In re Estate of Elkins, 32 A.3d 768, 776 (Pa. Super.
2011).



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if the defendant is merely giving the third person (a) truthful information, or

(b) honest advice within the scope of a request for advice.”      Id., at 478

(emphasis supplied) (internal quotation marks omitted).       The use of the

disjunctive “or” defeats Bancroft’s argument on appeal.     We therefore find

no merit in Bancroft’s argument.

      We conclude that none of Bancroft’s arguments on appeal merit relief.

We therefore affirm the order granting judgment on the pleadings to Katits.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2015




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