J-A33028-14

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

WP 940 ASSOCIATES, L.P.,

 Appellant

v.

DAVID A. BOTTGER, M.D.,

 Appellee

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

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 
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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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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. 
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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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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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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 (FleetAir). 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 
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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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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 
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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 posttrial 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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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;2therefore, 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,3as 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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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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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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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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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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[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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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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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