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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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’1assets. 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 ARR205.

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 ARR205, 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