Bank of New York Mellon v. Butterline, M.

• Court: Superior Court of Pennsylvania
• Decided: August 29, 2018
• Docket: 2690 EDA 2017
• Status: Unpublished

Opinion

J-A03041-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BANK OF NEW YORK MELLON TRUST IN THE SUPERIOR COURT COMPANY, N.A. OF PENNSYLVANIA Appellant

v.

MARK AND LISA BUTTERLINE, LIBERTY MUTUAL INSURANCE CO. A/S/O MIKAL & STEPHEN BENCZE AND MIKAL & STEPHEN BENCZE

Appellees No. 2690 EDA 2017

Appeal from the Order Entered August 11, 2017 in the Court of Common Pleas of Philadelphia County Civil Division at No.: 150901529

MIKAL AND STEPHEN BENCZE IN THE SUPERIOR COURT OF PENNSYLVANIA

LIBERTY MUTUAL INSURANCE CO. AND THE BANK OF NEW YORK MELLON

APPEAL OF: THE BANK OF NEW YORK MELLON

No. 2691 EDA 2017

Appeal from the Order Entered August 11, 2017 in the Court of Common Pleas of Philadelphia County Civil Division at No.: 141003255 J-A03041-18

LIBERTY MUTUAL INSURANCE CO. IN THE SUPERIOR COURT A/S/O MIKAL AND STEPHEN BENCZE, OF PENNSYLVANIA Appellee

THE BANK OF NEW YORK MELLON CORP.,

Appellant No. 2692 EDA 2017

Appeal from the Order Entered August 15, 2017 in the Court of Common Pleas of Philadelphia County Civil Division at No.: 141001662

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED AUGUST 29, 2018

In these consolidated cases, Appellant, the Bank of New York Mellon

Corp., (Mellon), appeals from the orders entering judgment on August 11 and

August 15, 2017, confirming the order of May 3, 2017, against it and in favor

of Appellees Mikal and Stephen Bencze (the Benczes), Liberty Mutual

Insurance Company (Liberty Mutual, or Liberty), and Mark and Lisa Butterline

(the Butterlines), after the trial court denied reconsideration. The suits

address responsibility for the repair of property damage following a hurricane.

We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

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We take the underlying facts and procedural history in this matter from

the trial court’s May 3, 2017, August 11, 2017, and October 3, 2017 opinions,

as well as our independent review of the certified record.

These consolidated actions concern property damage to the home of the

Benczes at 2715 E. Huntingdon Street (Bencze Property) in Philadelphia. The

damage occurred during Superstorm Sandy when the wall of the adjacent

property, 2713 E. Huntingdon Street (the 2713 Property), fell onto the roof of

the Bencze Property. Appellees brought legal actions, complaining that

Mellon, as owner, did not repair the 2713 Property. Mellon maintains that it

had no legal obligation to do so.

The Benczes sued Mellon, as owner of the 2713 property, for both

equitable and monetary relief.1 Liberty Mutual filed a separate action against

Mellon for subrogation. Mellon filed a third action against the Butterlines, the

previous owners of the 2713 Property, for trespass and contribution. The trial

court consolidated these three actions for a bench trial. Following trial, the

trial court found in favor of the Benczes and Butterlines and against Mellon.

The Benczes purchased their home in July of 2009. The house is a two-

story row home with a flat roof. The 2713 Property is a three-story row home

with a flat roof. The properties are semi-detached at the first level, with the

1 The Benczes also sued their homeowner’s insurance carrier, Liberty Mutual, for breach of contract. The trial court severed the claim to be resolved by a separate trial.

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first floor wall separated by a narrow alleyway. The properties share a party

wall at the second floor level. The 2713 Property has a third floor, which rises

above the Bencze property and overlooks its roof. Both properties have a

basement. The record is unclear as to whether the basements share a

subterranean party wall.

Prior to the fall of 2007, the Butterlines defaulted on their mortgage.

Mellon commenced a foreclosure action against them in November, 2007.

Following entry of judgment against the Butterlines, Mellon purchased the

2713 Property at sheriff sale on November 1, 2011. The Sheriff Deed

transferred the 2713 Property to Mellon on July 23, 2012. Mellon recorded it

on October 31, 2012.

As noted, during Superstorm Sandy in October of 2012, portions of the

2713 Property’s third floor wall fell onto the Bencze Property’s roof. The trial

court credited the Benczes’ testimony about the damage this caused, including

at least five puncture holes in their roof. The falling debris also caused the

flashing on the 2713 Property’s third floor wall to separate, allowing debris to

fall between the properties. The Benczes produced photographic evidence to

support these contentions.

The Benczes took immediate action, including submitting a claim to

Liberty Mutual,2 cleaning the debris, and placing a tarpaulin over part of the

2Liberty Mutual inspected the Bencze Property, tarped the puncture holes and made two payments to the Benczes in November and December 2012.

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roof. Soon after the storm, in November 2012, water from the 2713 Property

began leaking into the Bencze Property, causing water stains and bubbles in

the portions of the Bencze Property adjacent to the damaged areas of the

2713 Property. While the Benczes attempted to have the property repaired,

any attempts were unsuccessful because of the unrepaired damage to the

2713 Property. The Benczes continually contacted Mellon and its mortgage

servicer by telephone and e-mail in an attempt to have the 2713 Property

repaired. The evidence at trial, credited by the trial court, demonstrated that

throughout a two-year period Mellon assured the Benczes that it would repair

the 2713 Property but did not do so.

The Bencze Property continued to sustain ongoing damage, particularly

water damage after rain and snow. The basement became wet and the house

began to smell. Additional parts of the 2713 Property’s third floor wall fell

onto the Bencze Property Roof in July 2013.

Further damage occurred in January 2014, when a flood took place in

the 2713 Property. After the flood, the Benczes promptly notified Altisource,

Mellon’s property manager. However, it took no action for nineteen days,

allowing the water to leak into the Bencze property basement. As there

continued to be on-going water damage every time it rained or snowed, the

Benczes noticed the presence of mold in their property, causing illness to both

themselves and their pets. At trial, the Benczes provided photographic and

video evidence of the continuing damage to their property. There had been

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no problems with water damage or mold prior to Superstorm Sandy. The

Benczes had not made any property claims prior to Superstorm Sandy.

At the time of Superstorm Sandy, the Butterlines still occupied the 2713

Property. Mellon filed an ejectment action against them in November 2012,

and Mellon was granted possession in October 2013. It had the Butterlines

removed from the 2713 Property on January 31, 2014. Following the

ejectment of the Butterlines, squatters occupied the 2713 Property. The trial

court credited the Benczes testimony regarding their calls to the police and

their attempts to notify Mellon that the 2713 Property was not secured.

In September 2014, Mr. Butterline observed that the door to the 2713

Property was wide open. The property showed evidence of water and other

damages; despite this, the Butterlines again took possession of the property,

restored the utilities, and made other repairs to the property. The trial court

credited Mr. Butterline’s testimony that he did not enter the property between

January and September 2014, and did not cause any damage to it.

Because of Mellon’s failure to repair the 2713 Property, the Benczes

attempted to remediate the damages themselves. Dirk Voories, of ABD

Construction, who testified as an expert at trial, was present during attempts

to repair the third floor wall of the 2713 Property. He also examined repairs

made to the Bencze Property and found them to be sound.

Unfortunately, the Benczes were unable to remediate the mold damages

because water continued to infiltrate their property whenever it rained. In

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September 2014, the Benczes relocated because of health concerns, which

they believed were caused by mold. The trial court credited Mr. Bencze’s

testimony that in May 2015, he stayed overnight in the Bencze Property and

became ill.

As noted, the Benczes sought injunctive relief against Mellon. In

December 2014, the trial court entered an order which would again allow

ejectment of the Butterlines, and which required Mellon to begin repairs and

maintain the 2713 Property within ten days of gaining possession. Mellon

obtained possession on February 5, 2015, but did not comply with the order.

At trial, Mellon argued that it had a policy of not entering occupied

properties. However, the trial court found that Mellon made no attempts

between November 2012 and 2015, even during the periods that the 2713

Property was unoccupied, to repair it. The trial court further held that Mellon

had access to the exterior of the 2713 Property at all times and neither Mellon

nor its agents tried to contact either the Butterlines or Benczes in order to

gain access to either property. The court noted that Mellon did not seek

emergency legal relief to request access to property, and did not make any

timely attempt to repair the property after gaining possession in February

2015. In sum, the court determined that Mellon did not make any attempts

to repair the 2713 Property until January 2016.

Pursuant to a court order, the parties undertook a joint inspection of the

properties on August 20, 2015. Among those present were the Benczes, their

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expert Mr. Voories, and Mark Childs, who was a field service manager for

Altisource. Both Mr. Voories and Mr. Childs wrote reports which were admitted

into evidence at trial. However, despite being granted access, Mr. Childs,

unlike Mrs. Bencze and Mr. Voories, did not inspect the Bencze Property roof.

At trial, Mellon maintained the position it adopted throughout the

litigation, that it was not legally responsible for the condition of the 2713

Property until it obtained actual possession. In the alternative, Mellon also

argued that much, if not all, of the water damage to the Bencze Property was

caused by a faulty downspout and tear in the Bencze Property roof. Mr.

Voories disputed this claim, and Mr. Childs’ reports generated at the time did

not reflect any concerns about the Bencze Roof downspout. Mr. Voories,

testifying as an expert with a reasonable degree of certainty, concluded that

water was coming from the 2713 Property and damaging the Bencze

Property.3 He made additional inspections of the Bencze Property and did not

find that their downspout was faulty.4

Mellon attempted to qualify Mr. Childs as an expert but the trial court

declined. The trial court did permit Mr. Childs to testify as a fact witness. In

3 The trial court noted that Mr. Voories’ report used less certain language but ultimately found that the report was not inconsistent with the trial testimony because it was not created in anticipation of litigation and not written as a legal document.

4 In April 2016, Mr. Bencze installed foam around the base of his downspout to ensure that it did not became loose from the drainpipe.

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his report, written after the joint inspection, Mr. Childs could not state with

certainty whether any damage occurred between the first and second

ejectments of the Butterlines.

Mr. Childs did not address whether water infiltration from the 2713

Property caused damage to the Bencze Property during other periods. Mr.

Childs was also unfamiliar with property conditions prior to 2013. Despite

making three further visits to the property, he never inspected the Bencze

Property roof. Mr. Childs did take a photo that he claimed showed a tear in

the Bencze Property roof, but that photo was taken from the roof of the 2713

Property, and, again, Mr. Childs did not mention the alleged tear in his written

reports. While those reports reflect Mr. Childs’ observation that moisture

readings he took at the Bencze Property were greater around the area of the

Bencze downspout, the report did not reflect his claim at trial that the

downspout was disconnected from the drainpipe.

The Bencze’s civil and mechanical engineer, Edward Pridgen, also

inspected both properties and testified as an expert at trial. Like Mr. Voories,

he determined that the damage to the Bencze Property, including the water

damage, was caused by the damage to the 2713 Property’s wall and roof. Mr.

Pridgen testified that the 2713 Property’s roof needed to be replaced. Mr.

Pridgen reviewed Mr. Childs’ photo of an alleged tear in the Bencze roof but

did not see anything in the photo that caused him concern. He did note

damage to the Bencze downspout but found it to be both properly installed

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and intact. His opinions that the damage to the 2713 property was causing

damage to the Bencze Property were based upon a reasonable degree of

certainty given his experience and knowledge in construction.

A non-jury trial in these matters took place on September 28, November

8, and November 15, 2016. On May 3, 2017, the trial court issued an opinion

finding in favor of Liberty Mutual, the Benczes and the Butterlines. On May

12, 2017, Mellon filed post-trial motions. On June 2, 2017, the Benczes and

Liberty Mutual filed a motion for delay damages. On August 11, 2017, the

trial court denied Mellon’s motion for post-trial relief, granted the Benczes’

motion for delay damages, and denied Liberty Mutual’s motion for delay

damages. On August 15, 2017, the parties praeciped for entry of judgment.

The instant, timely appeal followed.5

On appeal, Mellon raises the following questions for our review.

1. Whether the trial [court] erred as a matter of law in imposing liability on [Mellon] for damages allegedly arising prior to [Mellon’s] acquiring actual possession of the [2713 Property?]

2. Whether the trial [court] erred in imposing liability on [Mellon] and awarding damages to the Benczes and Liberty[] when neither plaintiff proved proximate causation or damages by a preponderance of the evidence[?] This issue includes, but is not limited to, the following specific points:

5 In response to the trial court’s August 25, 2017 order, Mellon filed a statement of errors complained of on appeal on September 6, 2017. See Pa.R.A.P. 1925(b). The trial court filed an opinion on October 3, 2017. See Pa.R.A.P. 1925(a).

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a. Whether the trial [court] erred in relying on an unqualified expert to reach [its] determinations regarding water and mold damage[?]

b. Whether the trial [court] erred in reaching [its] determinations regarding water and mold damage without objective evidence including, without limitation, moisture samples or mold analysis[?]

3. Whether the trial [court] erred in imposing liability on [Mellon] and awarding damages on the Benczes’ and [Liberty’s] claim for water damage because the Benczes and Liberty[] failed to sustain their burden of proving that any water damage was the legal or proximate result of the condition of the [2713 Property?]

4. Whether the trial court erred in refusing to qualify Mark Childs as an expert witness causing prejudice to [Mellon] by, among other things, precluding admission of a report by a mold expert and the written report and analysis of mold spore samples by an independent laboratory[?]

5. Whether the trial court erred in refusing to award [Mellon] damages or contribution against [the Butterlines?]

(Mellon’s Brief, at 4-5).6

In its first claim, Mellon argues that it “had no legal duty or obligation

to make repairs to the [2713] Property prior to [its] acquiring actual

possession of the [property].” (Id. at 19; see also id. at 19-31).

6 Mellon’s argument section does not match its statement of the question involved. (See Mellon’s Brief, at 4-5, 18–49); see also Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as there are questions to be argued[.]”). Nonetheless, we will address its issues to the extent that we can determine them, because this discrepancy does not hamper our review. See Donahue v. Fed. Express Corp., 753 A.2d 238, 241 n.3 (Pa. Super. 2000).

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Initially, we note that this inquiry involves a pure question of law.

Accordingly, our standard of review is de novo and our scope of review is

plenary. See Liberty Mut. Ins. Co. v. Domtar Paper Co., 113 A.3d

1230, 1234 (Pa. 2015) (standard of review as de novo and scope of review as

plenary for pure questions of law).

After a thorough review of the record, the parties’ briefs, the applicable

law, and the well-reasoned opinion of the trial court, we conclude that there

is no merit to this issue. The trial court opinion properly disposes of this

question. (See Trial Court Opinion, 5/03/17, at 19-22) (finding that: (1)

Mellon owned 2713 Property at time of Superstorm Sandy; (2) Mellon had

duty to use and maintain property in manner that did not harm adjoining

landowners; (3) Mellon’s reliance on Zisman v. City of Duquesne, 18 A.2d

95 (Pa. Super. 1941), is misplaced; (4) once Mellon foreclosed on 2713

Property there was no longer mortgagee/mortgagor relationship between it

and Buttlerines; (5) Mellon was lawful owner of property as of date of sheriff’s

sale; (6) Mellon was not landlord out of possession; (7) Mellon took no action

to remediate or cure conditions that caused damage to Bencze Property; and

(8) Mellon breached its duty and was negligent for failing to repair 2713

Property).

We agree with the trial court that when Mellon purchased the property

at sheriff’s sale in 2011, it assumed all risks associated with the property.

CSS Corp. v. Sheriff of Chester Cnty., 507 A.2d 870, 872 (Pa. Super.

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1986), appeal denied, 522 A.2d 559 (Pa. 1987) (“A sheriff’s sale is made

without warranty; the purchaser takes all the risk, and the rule of caveat

emptor applies in all its force.”). (citations omitted). Mellon cannot now avoid

this fact and attempt to equate itself with a mortgagee or landlord out-of-

possession. It received all rights, title and interest in the property at the time

of purchase and must now assume the responsibility that comes with that

ownership. See id. Accordingly, we reject Mellon’s first issue on the basis of

the trial court’s opinion.

In its second and third issues, Mellon challenges the sufficiency of the

evidence, claiming that the Benczes and Liberty Mutual failed to prove that

any of its negligence caused any of the damages. (See Mellon’s Brief, at 31-

41).

Specifically, Mellon complains that: (1) the Benczes “did not offer

competent evidence that any ‘post-acquisition’ damages were caused by [its]

negligence” (id. at 33); (2) “[t]he only competent evidence regarding the

cause of ‘post-acquisition’ damages disproved [the Benczes’] theory and their

experts[’] unsupported opinions” (id. at 37); and (3) the testimony of Mellon

witness Mark Childs “highlighted [the Benczes’] failure to meet their burden

of proof[.]” (Id. at 39). We disagree.

We apply the following standard of review to a nonjury trial verdict:

Our appellate role in cases arising from nonjury 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

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of the trial judge must be given the same weight and effect on appeal as the verdict of the 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. However, [where] the issue . . . concerns a question of law, our scope of review is plenary.

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.

Allegheny Energy Supply Co., LLC v. Wolf Run Min. Co., 53 A.3d 53, 60–

61 (Pa. Super. 2012), appeal denied, 69 A.3d 599 (Pa. 2013) (citation and

quotation marks omitted; brackets and ellipses in original). The trial court,

as the finder of fact, is free to “believe all, part or none of the evidence

presented.” Ruthrauff, Inc. v. Ravin, Inc., 914 A.2d 880, 888 (Pa. Super.

2006), appeal denied, 962 A.2d 1197 (Pa. 2008) (citation omitted). “Issues

of credibility and conflicts in evidence are for the trial court to resolve; this

Court is not permitted to reexamine the weight and credibility determination

or substitute our judgment for that of the factfinder.” Id. (citation and internal

quotation marks omitted).

Initially, Mellon’s argument disregards our standard of review, which

requires that we view the evidence in the light most favorable to the Benczes

as verdict winner. Mellon only discusses the evidence in the light most

favorable to itself and ignores all other evidence. (See Mellon’s Brief, at 33-

41). It argues that the trial court erred in crediting the Benczes’ expert

witnesses and not crediting their fact witness, Mark Childs. (See id.). Mellon

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overlooks that this Court does not re-weigh the evidence, nor do we engage

in credibility determinations.

Moreover, to the extent that Mellon argues that the trial court erred in

qualifying the Benczes’ expert witnesses or in not sustaining its objections to

their testimony, (see id. at 35-36), these contentions are not properly before

us, because Mellon did not raise them in its statement of the questions

involved. (See Mellon’s Brief at 4-5); see also Southcentral Employment

Corp. v. Birmingham Fire Ins. Co. of Pa., 926 A.2d 977, 983 n.5 (Pa.

Super. 2007) (holding that issues not explicitly raised in statement of

questions involved are waived); Pa.R.A.P. 2116(a). Lastly, Mellon fails to cite

to any relevant legal authority in support of its propositions. (See Mellon’s

Brief, at 33-41). However, while this Court could find that Mellon’s failure to

argue this issue properly results in waiver, we decline to do so.

We observe that the trial court issued a thoughtful, comprehensive

decision that consisted of approximately eighteen pages of detailed findings

of fact, accompanied by citations to the record supporting each of its findings.

(See Trial Ct. Op., 5/03/17, at 1-18). The court explained which testimony it

found credible and why. (See id.). In particular, it noted the lack of any

problems with the Bencze Property prior to Superstorm Sandy. (See id. at

9). The trial court credited the testimony of the Benczes’ expert, Edward

Pridgen, that there were no problems with either the Benczes’ roof or their

downspout. (See id. at 17).

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With respect to Mellon’s claims that the trial court did not properly credit

the testimony of its witness, our review of the record confirms that Mark Childs

did not personally view the Bencze Property until August 2015, nearly three

years after the first damage to the Property. (See id. at 13-15). The trial

court noted that, during that first inspection on August 20, 2015, while the

Benczes’ expert, Mr. Voories, inspected the Bencze roof, Mr. Childs did not.

(See id. at 14). The trial court particularly pointed out the discrepancies

between Mr. Childs’ contemporaneous notes and reports regarding his three

visits to the two properties and his testimony at trial. (See id. at 14, 16-17).

Thus, the trial court properly explained its reasoning for the weight it gave to

Mr. Childs’ testimony.

The trial court also explained that Mr. Voories did not create his report

in anticipation of litigation and did not write it as a legal document. (See id.

at 15). It stated, however, that Mr. Voories did testify at trial “based upon a

reasonable degree of certainty as a result of his experience, knowledge, and

expertise in construction.” (Id.) (record citation omitted). Because he did

not create his report in anticipation of litigation, the trial court “[did] not find

the report to be inconsistent” with his trial testimony. (Id.). We have

reviewed the record and find no basis to disturb this determination. (See N.T.

Trial, 9/28/16, at 175, 181-86).

Thus, our review shows that the trial court made thorough and well-

supported findings of fact that demonstrated that the Benczes presented

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competent evidence that Mellon caused the damage to their property by its

failure to repair the 2713 Property. (See Trial Ct. Op., at 5/03/17, at 1-18).

Moreover, the trial court discussed why it credited the testimony of the

Benczes and their expert witnesses and explained its reservations regarding

the testimony of Mr. Childs. (See id.). We have no basis to disturb these

credibility findings. See Ruthrauff, supra at 888. Mellon’s second and third

issues are without merit.

In its fourth issue, Mellon complains that the trial court erred and abused

its discretion when it refused to qualify Mark Childs as an expert witness.7

(See Mellon’s Brief, at 42-46). We disagree.

Pennsylvania Rule of Evidence 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;

(b) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and

(c) the expert’s methodology is generally accepted in the relevant field.

Pa.R.E. 702. Further,

7The trial court did permit Mr. Childs to testify as a fact witness. (See N.T. Trial, 11/15/16, at 9-10).

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[d]etermining whether a witness may testify as an expert is a matter within the sound discretion of the trial court, whose decision will only be reversed for a clear abuse of discretion. In order to qualify as an expert in a given field, a witness must possess more expertise than is within the ordinary range of training, knowledge, intelligence, or experience. The test to be applied when qualifying a witness to testify as an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If a witness possesses neither experience nor education in the subject matter under investigation, the witness should be found not to qualify as an expert.

Yacoub v. Lehigh Valley Med. Assoc., P.C., 805 A.2d 579, 591 (Pa. Super.

2002) (en banc), appeal denied, 825 A.2d 639 (Pa. 2003) (citations and

quotation marks omitted; emphasis in original).

Here, Mellon attempted to offer Mr. Childs as an expert witness in

property preservation. (See N.T. Trial, 11/15/16, at 5-10). Mr. Childs

testified that he worked as a regional field services manager for Altisource

Solutions, the company that Mellon hired to provide property preservation for

mortgage servicing companies. (See id. at 5).

However, our review of the record demonstrates that Mellon failed to

establish that Mr. Childs, as a field service manager, had any specialized

knowledge, experience, skills, training or education about the mold,

construction, and water damage problems at issue. Mr. Child’s curriculum

vitae is not included in the certified record and he did not testify that he had

any licensing, training, or education in the fields of mold, water damage, or

construction. (See id. at 5-8).

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Moreover, his work experience was supervisory and concerned with

workflow rather than hands-on work in construction or preservation; he

testified that his job was to “oversee the vendors that are contracted by

Altisource to do the property preservation work and to make sure that work

gets done.” (Id. at 5). He further testified that his work for his previous

employer was identical. (See id. at 6). He did not testify that he had any

specialized knowledge, skill, or expertise with respect to actually remediating

mold or repairing damaged properties only that he had inspected them as part

of his job. (See id. at 7-10). Moreover, he admitted to having minimal

experiences overseeing properties with water damage. (See id. at 7).8

In addition, our review of the record confirms the trial court’s conclusion

that Mellon attempted to qualify Mr. Childs as an expert to provide opinion

testimony on an unauthenticated mold report9 prepared by Amato Field

Services, an entirely separate entity. (See Trial Ct. Op., 8/11/17, at

8 Further, to the extent that Mellon contends that the trial court disqualified Mr. Childs “because [it] believed he was employed by a party and that was disqualifying[,]” (Mellon’s Brief, at 42), this claim is not properly before us. Mellon fails to point to anything in the record that supports this assertion, and candidly concedes that any conversation about this occurred during “off-the- record discussions[.]” (Id. at 44). “This Court does not rely on facts dehors the certified record.” In Re Estate of Tigue, 926 A.2d 453, 459 (Pa. Super. 2007) (citation omitted). Accordingly, we will not address this claim.

9 The report is not included in the certified record and we are unable to ascertain its contents.

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unnumbered page 8; see also Mellon’s Brief, at 45; N.T. Trial, 11/15/16, at

58-59). Amato Field Services based its conclusions on laboratory tests and

results by an independent laboratory, EMLab P&K.10 (See Trial Ct. Op.,

8/11/17, at unnumbered page 8). Leaving aside the hearsay issues raised,

we see nothing in the evidence discussed above which demonstrated that Mr.

Childs had the necessary expertise, given his own experience was purely

supervisory, to offer his opinion regarding laboratory results or someone else’s

conclusions on mold remediation.11 Further, his supervisory experience in

overseeing contractors to make sure projects be completed was insufficient to

demonstrate any specialized knowledge with respect to the issues in the

instant matter. Therefore, we find that the trial court did not abuse its

discretion in failing to qualify Mr. Childs as an expert. See Seels v. Tenet

Health Sys., Hahnemann, LLC, 167 A.3d 190, 204-05 (Pa. Super. 2017)

(holding that trial court did not abuse its discretion in refusing to qualify doctor

who had general expertise in hospital administrative programs as expert in

bloodless medicine where doctor had no specific experience in creating,

operating, or supervising bloodless medicine program, no direct knowledge

10 The trial court offered Mellon the opportunity to bring in someone from either Amato Field Services or the laboratory to testify about the report, so that Mellon could offer it into evidence, but Mellon declined. (See N.T. Trial, 11/15/16, at 59).

11Again, in the absence of the actual Amato Field Services report, it is not entirely clear on what topics Mellon wanted Mr. Childs to opine.

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about using or operating relevant equipment, and no training in correct

standard of care). Mellon’s fourth claim does not merit relief.

In its final claim, Mellon contends that the trial court erred in granting

judgment in favor of the Butterlines on its claims for trespass and contribution.

(See Mellon’s Brief, at 46-49). We disagree.

Again, we briefly note that our standard of review “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.”

Allegheny Energy Supply Co., supra at 60. Under Pennsylvania law,

trespass is an unprivileged, intentional intrusion on land in possession of

another. See Kopka v. Bell Telephone Co., 91 A.2d 232, 235 (Pa. 1952).

The possessor can sue for damages in the form of both equitable relief and/or

monetary damages. See Jones v. Wagner, 624 A.2d 166, 171 (Pa. Super.

1993), appeal denied, 637 A.2d 286 (Pa. 1993). Finally, “[a] trespasser on

land is subject to liability for bodily harm caused to the possessor . . . by any

. . . condition created by the trespasser while upon the land[.]” Kopka,

supra at 236 (emphasis added).

Here, Mellon admits that the trial court did find that the Butterlines

trespassed. (See Mellon’s Brief, at 46; Trial Ct. Op., 5/03/17, at 25).

However, it avers that the trial court erred in not awarding damages on this

claim. (See Mellon’s Brief, at 46). In its brief argument on this issue, Mellon

fails to cite to any portion of the record that supports a contention that the

- 21 - J-A03041-18

Butterlines damaged the 2713 Property. (See id. at 46-49). We have

thoroughly reviewed the record and find no instance where any party ascribed

any particular damages to the Butterlines.

Moreover, it is not this Court’s role to scour the record to find support

for Mellon’s claims. See Commonwealth v. Mulholland, 702 A.2d 1027,

1034 n.5 (Pa. Super. 1997) (“In a record containing thousands of pages, this

[C]ourt will not search every page to substantiate a party’s incomplete

argument.”) (citation omitted).

Perhaps because of this lack of record support, Mellon now claims that

the Butterlines’ illegal occupancy of the 2713 Property itself resulted in

damages to Mellon because it prevented access to the property for

maintenance and repair. (See Mellon’s Brief, at 47).

However, Mellon, in a failure to comply with Pennsylvania Rule of

Appellate Procedure 2117(c), does not document where it raised this claim

with the trial court. On independent review, we have not been able to

ascertain where Mellon raised this claim. The trial court does not address it

in either its May 3, 2017 opinion or in its decision denying Mellon’s post-trial

motions. (See Trial Ct. Op., 5/03/17, at 25; Trial Ct. Op., 8/11/17, at 39-

40). An appellant cannot raise a new theory on appeal; accordingly, we find

- 22 - J-A03041-18

Mellon waived this claim.12 See Andrews v. Cross Atlantic Capital

Partners, Inc., 158 A.3d 123, 129 n.10 (Pa. Super. 2017) (en banc), appeal

denied, 172 A.3d 584 (Pa. 2017) (“Because one cannot raise a new legal

theory on appeal, this claim is waived.”); see also Pa.R.A.P. 302(a); Pa.R.A.P.

2117(c); Pa.R.A.P. 2119(e); Pa.R.A.P. 2101.

Mellon also complains that the trial court erred in finding that the

Butterlines did not owe contribution as joint tortfeasors. (See Mellon’s Brief,

at 47-48). We disagree.

This Court has defined joint tortfeasors as “two or more persons jointly

or severally liable in tort for the same injury to persons or property[.]”

12 In any event, Mellon does not cite to anything in the record that supports a contention that the Butterlines prevented them from accessing the 2713 Property in order to maintain it and make repairs. Rather, the record reflects that the property maintenance company, Altisource, had an internal policy of not performing “property preservation work” if people were living in the property. (N.T. Trial, 11/15/16, at 15). Further, Mellon does not cite to the record to support a contention that it made any efforts to contact the Butterlines to gain access to the property to make repairs. Moreover, the record reflects the Butterlines were removed from the 2713 Property for the first time in January 2014, and did not reenter the property until September 2014, but Mellon made no effort to undertake repairs to the 2713 Property during that period. (See id. at 68). The fact that Mellon failed to maintain the 2713 Property during that approximately ninth-month period is underscored by the fact that the Butterlines were able to retake possession of the 2713 Property in September 2014, because it was unsecured, had been occupied by squatters, and the door was wide open. (See id. at 90-92; see also N.T. Trial, 9/28/16, at 62, 140; N.T. Trial 11/08/16, at 37, 75). Thus, even if Mellon had not waived the claim, it failed to prove that the Butterlines’ occupancy prevented it from maintaining and repairing the 2713 Property.

- 23 - J-A03041-18

Mamalis v. Atlas Van Lines, Inc., 528 A.2d 198, 199 (Pa. Super. 1987),

affirmed, 560 A.2d 1380 (Pa. 1989) (citation omitted).

Here, the trial court found that Mellon was not entitled to contribution

because the Benczes did not name the Butterlines as joint tortfeasors and

Pennsylvania law only authorizes contribution claims among joint tortfeasors.

(See Trial Ct. Op., 5/03/17, at 25). Mellon tacitly acknowledges this, but

argues that it is irrelevant whether the Benczes sued the Butterlines as joint

tortfeasors so long as they are joint tortfeasors. (See Mellon’s Brief, at 47-

48). However, Mellon provides no caselaw in support of this contention, and

merely mis-cites to a statutory definitional section. It fails to develop a

supporting argument. It is well settled that failure to argue and to cite any

authority supporting the argument constitutes a waiver of the issue on appeal.

See Jones v. Jones, 878 A.2d 86, 90 (Pa. Super. 2005). This Court will not

act as counsel and will not develop arguments on behalf of an appellant. See

Bombar v. West Am. Ins. Co., 932 A.2d 78, 94 (Pa. Super. 2007). When

deficiencies in a brief hinder our ability to conduct meaningful appellate

review, we can dismiss the appeal entirely or find certain issues to be waived.

See Pa.R.A.P. 2101. Because Mellon has failed to develop an argument with

pertinent support for its claim that it is entitled to contribution from a party

not named as a joint tortfeasor, it has waived the claim. See id.; Bombar,

supra at 94; Jones, supra at 90. Accordingly, we affirm.

Orders affirmed.

- 24 - J-A03041-18

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/29/18

- 25 - Circulated 08/29/2018 09:37 AM

IN THE COURT OF COMMON PLEAS PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION

LIBERTY MUTUAL INSURANCE. CO. OCTOBER TERM, 2014 A/S/0 MIKAL AND STEPHEN BENCZE NO. 1662 v. SUPERIOR COURT NO. THE BANK OF NEW YORK MELLON CORP 2692 EDA 2017

MIKAL AND STEPHEN BENCZE OCTOBER TERM, 2014

v. NO. 3255

LIBERTY MUTUAL INSURANCE CO. and SUPERIOR COURT NO. THE BANK OF NEW YORK MELLON 2691 EDA 2017

BANK OF NEW YORK MELLON CO., N.A SEPTEMBER TERM, 2015

v. NO. 1529

MARK AND LISA BUTTERLINE SUPERIOR COURT NO. 2690 EDA 2017

OPINION

The above captioned matters were consolidated for trial. Bank of New York

Mellon (''BNYM'') appeals this court's Orders of August 11, 2017, which denied its Post-

Trial Motions and entered judgment. BNYM filed an appeal on each individual case;

Bank Of New York/Mellon Trust Co Vs Bullerli-OPFLD

1111111111111111111111111111 15()!=J()1S?!=l()0077 Ill 'lPll=C:: �l=I\IT Pl IR�I IAI\IT Tn p,:, R (' P ')':tl';lh\ n k'l=I IV 1n1n,nn17 however, as the facts and law of each case are the same, this court submits this

Opinion on all three matters.

FACTUAL and PROCEDURAL HISTORY

Stephen and Mikal Beneze filed an action against their insurance carrier Liberty

Mutual and the Bank of New York Mellon ("BNYM"), to recover for damage sustained to

their home when a wall from the adjacent property collapsed onto their roof (1410-

3255). The address of the adjacent property is 2713 E. Huntingdon Street ("2713

Property"). At the time of the collapse and subsequent thereto, the 2713 Property was

owned by BNYM, who had acquired title at a Sheriff Sale resulting from a mortgage

foreclosure. Subsequently, Liberty filed an action against BNYM for subrogation (1410-

3255). BNYM thereafter filed suit against the previous owners of the 2713 Property,

Mark and Lisa Butterline ("Butterlines"), for 'contribution and trespass (1509-1529).

These cases were consolidated for trial.

Following a bench trial this court found as follows:

1) Beneze v. Bank of New York Mellon (October Term 2014 No. 3255), in favor

of the Benczes and against BNYM in the amount of $236,525.76.

2) Liberty Mutual v. Bank of New York Mellon (October Term No. 1662), in favor

of Liberty and against BNYM in the amount of $27,489.58. 3) Bank of New York Mellon v. Butterline (September Term 2015 No. 1529), in

favor of BNYM and against the Butterlines, but awarded no damages. As to

the claim for contribution, in favor of the Butterlines and against BNYM.

This court issued detailed Findings with its Decision, a copy of which is attached

hereto as Exhibit A.

Thereafter BNYM filed for Post-Trial Relief, which raised the following five issues:

(1) The court erred in finding that BNYM became legally responsible for the condition

of the 2713 Property before BNYM obtained actual possession.

(2) The court erred in refusing to qualify Mark Childs as an expert witness.

(3) The court erred in finding that the Benczes had proved their damages by a

preponderance of the evidence.

( 4) The court erred in its assessment of the evidence related to the water damage on

the Beneze property.

(5) The court erred In finding that BNYM was not entitled to damages stemming from

its trespass claim against the Butterlines.

The court heard oral argument and thereafter denied the Post-Trial Motions and

entered judgment consistent with its original findings. This court issued an Opinion

with its decision, which addressed the five issues raised. The Opinion is attached as

Exhibit B. Additionally, this court granted Benczes' Motion for Delay Damages and

awarded $15,586.40 in delay damages. The Motion for Delay Damages filed by Liberty

was denied. BNYM filed timely appeals. In response to this court's 1925(b) Order, BNYM

filed a Statement of Matters Complained. The issues raised therein are the same as

those raised in the Post Trial Motions.

DISCUSSION

Pa.R.C.P. 227.1 requires parties to file post trial motions in order to preserve

issues on appeal. If an issue has not been raised in a post trial motion, it is waived for

appeal purposes. Diamond Rea Truck Co. v. Mid-Pacific Industries, 806 A.2d 423, 428

(Pa. Super. 2002). In that the issues raised by BNYM are the same as those raised in its

Post Trial Motion, this court submits its Opinion issued therein (Exhibit B) and its

Findings and Decision (Exhibit A) as the basis for its decision in this matter.

/_ DATE:�o_ 3' ,_t /_ I I EXHIBIT A IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION

LIBERTY MUTUAL INSURANCE. CO. OCTOBER TERM, 2014 A/S/0 MIKAL AND STEPHEN BENCZE NO. 1662 v. LEAD CASE THE BANK OF NEW YORK MELLON CORP. :

BANK OF NEW YORK MELLON CO., N.A. SEPTEMBER TERM, 2015

MARK AND LISA BUTTERLINE

FINDINGS AND DECISION This consolidated action concerns property damage and untimely repairs to the

home of Stephen and Mika! Beneze ("Benczes") located at 2715 E. Huntingdon Street in

Philadelphia ("Beneze Property"). The damage initially occurred after the wall of the

adjacent property, 2713 E. Huntingdon Street ("2713 Property") partially collapsed and fell

onto the roof of the Beneze Property during Superstorm Sandy. Thereafter the wall

remained exposed and damage to the wall, roof and flashing was left unrepaired.

The Benczes filed suit against Bank of New York Mellon ("Mellon"), the owner of the

2713 Property for equitable and monetary relief. The claims contained in Counts I and II,

1 Private Nuisance and Trespass, are equitable claims that request the Court to direct Mellon

to repair the roof of the 2713 Property. Count III sounds in Negligence and seeks money

damages as a result of the property damage to the Beneze Property and Mellon's failure to

repair the same. Mellon argues it was not legally responsible for the condition of the 2713

Property until it gained actual possession. Further, Mellon asserts that water damage to

the Beneze Property was caused by an allegedly faulty downspout of the Beneze Property

and a tear in the roof of the Beneze Property. Count IV is a Breach of Contract claim

against the Benczes' homeowner's insurance carrier, Liberty Mutual Insurance Company

("Liberty"), for failing to pay out covered claims1.

Additionally, Liberty separately filed suit against Mellon for Subrogation. Mellon

filed an action against Mark and Lisa Butterline ("Butterlines"), the previous owners of the

2713 Property, for Trespass and Contribution as result of the damage done to the two

properties. The three cases were consolidated and this Court conducted a bench trial.

Thereafter, the parties submitted proposed findings and conclusions. Based on the

testimony and evidence presented at trial, the Court makes the following findings and

reaches various conclusions to find in favor of the Benczes and against Mellon, and various

other findings as set forth herein.

FACTS AND PROCEDURAL HISTORY

The Benczes purchased their Property in July 2009 for $155,000.00 (stipulated), NT

11/8/16 p. 71. The Beneze Property is a single family, two story row home with a flat

roof. At the time of purchase, the Benczes made certain improvements to the home,

I The Court severed this claim to resolve by separate trial. 2 including the installation of new windows. NT 9/28/16 p. 56-57., NT 11/8/16 p. 25-26.

The Beneze Property is insured under a homeowner's insurance policy with Liberty

(stipulated). The adjacent 2713 Property is a single family, three story row home with a

flat roof. The Butterlines owned the 2713 Property prior to the Benczes' purchase

(stipulated) with a mortgage lien. 2 The front of both properties face south, with the 2713

Property immediately to the west of the Beneze Property.

At the first floor levels, the properties are semi-detached, with the first floor wall

separated by a only by alleyway which runs parallel on the side of the two properties.

When entering the front door of the Beneze Property, there is a foyer and living room area

("Living Room"). Directly north of the Living Room is a dining room ("Dining Room"). The

Living Room and Dining Room are separated by a wall with French doors and a north-

facing window to the lett of the French doors ("North Living Room Wall"). The Dining

Room is narrower than the Living Room and has a west-facing wall perpendicular to the

North Living Room Wall ("West Dining Room Wall"). A downspout is located in the

exterior corner of the Beneze Property where the North Living Room Wall and West Dining

Room Wall meet ("Beneze Downspout"). Next to the Dining Roorn is the kitchen, which is

at the rear of the Beneze Property ("Kitchen").

The properties share a party wall at the second floor level ("Party Wall"). Within I

II the Beneze Property, the master bedroom is on the second floor and south end of the

Beneze Property ("Master Bedroom"). The guest bedroom is directly north of the Master

Bedroom ("Guest Bedroom"). The Guest Bedroom has a northern wall with a north-facing

2However, as will be set forth in greater detail, at all times relevant herein the 2713 Property had been foreclosed upon and sold at Sheriff sale to Mellon. 3 window on the left side ("North Guest Bedroom Wall"). The North Guest Bedroom Wall is

above the North Dining Room Wall. Beyond the Guest Bedroom is a bathroom and a third

room. The Party Wall is located in the Guest and Master B·edroorns. The Guest and

Master Bedrooms are directly above the Living Roorn, with the west Living Room wall

under the Party Wall ("West Living Room Wall"). See generally Exhibit Mellon 55.

The 2713 Property's third floor rises above the Beneze Property by one story, which

results in a one story east-facing exterior wall that overlooks and is perpendicular to the

second story flat roof of the Beneze Property ("Third Floor Wall") .. This area of the Beneze

Property roof that meets the Third Floor Wall is located above the Guest and Master

Bedrooms ("Beneze Roof") and Is directly above the Party Wall. Lastly, the 2713 Property

and Beneze Property each have a basement. It is unclear whether the basements share a

Sometime prior to Superstorm Sandy, the Butterlines defaulted under their

mortgage and Mellon commenced an action in foreclosure in November 2007 (stipulated)

(''Foreclosure Action")3. Judgment was entered and the Property went to Sheriff Sale on

November 1, 2011. No other bids being made, Mellon purchased the 2713 Property. The

Sheriff Deed which transferred the 2713 Property to Mellon, was executed on July 23,

2012 and thereafter recorded on October 31, 2012 (stipulated) ("Mellon Deed"). See also

Exhibit Mellon-3.

3 See Bank of New York Trust Co v. Butterlines et al, C.C.P. November Term, 2007, No. 0509; Exhibit Mellon-2. 4 On October 29, 2012, two days before the Mellon Deed was actually recorded,

Superstorm Sandy hit the Philadelphia area (stipulated). During t:he storm, the stucco and

brick from the 2713 Property's Third Floor Wall fell onto and damaged the Beneze property

Roof (stipulated). The Benczes credibly testified as to the wall collapse and the

subsequent visible exterior damage to their property. The testimony revealed that the

falling stucco and brick from the 2713 Property's Third Floor Wall punctured at least flve

holes in the Beneze Roof, each approximately three to five inches in size. NT 9/28/16 p.

47. The falling debris also caused the flashing, which bordered the 2713 Third Floor Wall

and the Beneze roof, to separate from the adjoining 2713 Third floor Wall. Id. The

separated flashing created a gaping hole which allowed debris to fall between the

properties. NT 9/28/16 p. at 47, 50, NT 11/8/16 p. 28. Photos exhibited the collapsed

stucco and the exposed underlying brick work.

The Benczes were home at the time of the incident and heard the stucco fall. NT

11/8/16 p. 28, 73. They first observed the damage from the street. NT 9/28/16 p. 42-44.

After the rain stopped, the Benczes went onto the Beneze Roof, cleaned the debris and

discovered the puncture holes and ripped flashing. NT 9/28/16 p. 45-47, 50, NT 11/8/16

p. 27, 29. They placed a tarp they had over a portion of the roof. Id. at 50. The Benczes

took photographs of the damage, which were admitted into evidence at trial. See Exhibits

PlA-PlK. Water also leaked into the 2713 Property soon alter Superstorm Sandy. NT

11/15/16 p. 89.

The Benczes called Liberty on the evening of the storm to report the damage and

submit a claim. NT 9/28/16 p. 44, NT 11/8/16 p. 27, 29. Shortly thereafter, Liberty

5 inspected the Beneze Property and tarped the puncture holes. NT 9/28/16 p. 51. Arter

the Benczes paid their $1,000 deductible, Liberty made two payments to the Benczes

November 2012 totaling $7,524.76. Id.; NT 11/8/16 p. 27; Exhibits Liberty-1, 2 and 4.

Liberty made another payment of $200 in December 2012 for the tarp used by the

Benczes. Exhibit Llberty-2.

In early November 2012, water started to infiltrate the interior of the Beneze

Property. NT 9/28/16 p. 51. Specifically, in the Guest Bedroom there were water stains

along the Party Wall and balloon-like bubbles in the ceiling. NT 9/28/16 p. 51, 58, NT

11/8/16 p. 30. This area is directly under the portion of the damaged Beneze Roof and

the Third Floor Wall. Id.

At first the Benczes tried to have their roof repaired/replaced, but nothing could be

done until the damaged Third Floor Wall was fixed. The collapsed stucco exposed the

unprotected brick work of the 2713 Property Third Floor Wall. It also compromised the

stucco still remaining on the Wall. NT 11/18/16 p. 29-30. The Benczes immediately

began to contact different sources to have the 2713 Property repaired, including Mellon's

servicer, GMAC Mortgage ("GMAC"). NT 9/28/16 p. 125-126; NT 11/8/16 p. 32. The

Benczes contacted GMAC by letter and explained their roof could not be repaired until the

2713 Property's Third Floor Wall was repaired. Exhibit Mellon-32. Mrs. Beneze

continuously contacted GMAC and/or Mellon by telephone and email. NT 9/28/16 p. 53-

54. In June 2013, the Benczes emailed Mellon's legal department about the disrepair of

the 2713 Property and resulting damage to the Beneze Property. Exhibit Mellon-33.

Throughout a two year period, Mellon informed the Benczes that it would make the

6 repairs. NT 9/28/16 p. 56, 70-71. In 2013 GMAC sent out structural engineers to inspect

the damage, but no repairs were ever made. NT 9/28/16 p. 54-56; NT 11/8/16 p. 32.

Throughout 2013, the interior of the Beneze Property continued to suffer ongoing

damage. Specifically, after rain and snow storms the stains on the Party Wall moved

across the ceiling of the Guest Bedroom and down the North Guest Bedroom Wall. NT

9/28/16 g. 58; NT 11/8/16 p. 30-31. The North Guest Bedroom Wall started to bubble

and break open. NT 9/28/16 p. 58-59; NT 11/8/16 p. 31. An odor developed and the

basement became wet. NT 9/28/16 p. 59. Another large section of stucco fell from the

Third Floor Wall onto the Beneze Roof in July 2013, further exposing the unprotected and

crumbling brickwork of the 2713 Property. NT 11/18/16 p. 28.

The Butterlines occupied the 2713 Property at the time of Superstorm Sandy

(stipulated). Mellon filed an ejectment action against the Butterlines in November 2012

(stipulated)". Mellon was granted possession in October 2013 and the Butterlines were

removed from the 2713 Property on January 31, 2014 (stipulated) ("First Ejectment").

Mellon hired Altisource in 2013 to oversee the ejectment process and preserve the

2713 Property. NT 11/15/16 p. 16, 66. See also Exhibit Mellon-8. Altisource's vendor

installed a digital lock on the 2713 Property once the Butterlines were removed. NT

11/15/16 p. 22-23; Exhibit Mellon-8, lines 89-90. Altisource winterized the 2713 Property,

which was completed by February 21, 2014. Exhibit Butterline-4; NT 11/15/16 p. 85-86.

4 See Bank of New York Trust Co v. Butterline et al, C.C.P. November Term, 2012, No. 2761; Exhibit Mellon-4. 7 In February 2014, a flobd occurred in the 2713 Property after being winterized. Mr. I . Beneze credible testified that as he and his wife returned from dinner, he heard water

running. He looked from their rear yard and observed water gushing along the first floor I the 2713 Property and apparerly flowing in the basement.· NT 9/28/16 p. 59-60; NT

11/8/16 p. 37-38. The Benczes called the water department to have the water shut off in

the 2713 Property. Id. Mrs. Bkncze informed Altisource of the flood. Id. Nineteen days

later, Altisource pumped the water out of the 2713 Property's basement. Id. By that

time, water had leaked into the Beneze Property's basement. Id. This caused further PropeJ. damage to the Beneze NT 11/8/16 p. 38. The Benczes credibly testified that

the flooding in their basement occurred at the time of the flood in the 2713 Property. I . Through January 2014, the Beneze Property continued to sustain damage which �r worsened every time it rained snowed. NT 9/28/16, p. 60-65. Water damage

continued in the Guest Bedroo\ and infiltrated the Living Room walls. NT 11/8/16 p. 39.

Water began to drip through the Living Room ceiling and windows in the West Living

Room Wall directly below the Pdrty Wall and that Third Floor Wall of the 2713 Property. I NT 9/28/16 p. 60-61. Water appeared in the Dining Room, Kitchen and basement. NT \p. 9/28/16 p. 61, 136; NT 11/8/16 39-40. Continuous clean-up was required every time it

rained. NT 9/28/16 p. 61. The hater damage spread through the house over time. NT 31�32. 9/28/16 p. 66; NT 11/8/16 p. The walls of the basement became discolored and

the paint started to peel. NT 9/28/16 p. 67-68. I At some point the Benczes noticed the presence of mold in their Property, which \ caused the Benczes and their animals to become sick. NT 9/28/16 p. 71; NT 11/8/16 p.

8 40, 44. Mold testing in May 2014 confirmed there was mold in the Beneze Property. NT

9/28/16 p. 71; NT 11/8/16 p. 40. The Benczes paid $825.00 for the mold testing. NT

11/8/16 p. 59; Exhibit P-3. The Benczes took photos and videos of the progressing

interior damage to their Property, which were admitted into evidence. See Exhibits Pl-0

though Pl-WW and P-2.

Prior to Superstorm Sandy, there was never water infiltration, water stains or mold

in the Beneze Property. NT 9/28/16 p. 57-58; NT 11/8/16 p. 34-35. Again, the Benczes

made improvements to the their Property when first purchased, including new windows.

NT 9/28/16 p. 57-58. The basement was clean and newly painted with no discoloration.

Id. at 66. The Benczes never made a property claim with respect to the their Property

before to this incident. Id. at 57; NT 11/8/16 p. 8.

The 2713 Property had been illegally entered and occupied after the First

Ejectment. NT 9/28/16 p. 62, 140; NT 11/8/19 p. 37, 75. At times the front door and

windows were unsecure and open. NT 11/8/19 p. 37. Mr. Beneze observed people, who

were not the Butterlines, going in and out of the 2713 Property and he would often call

the police. NT 11/8/16 p. 37, 75. Both Benczes credible testifiecl that each time this

happened they notified Mellon and/or its agents. NT 11/8/16 p. 37.

In early September 2014, Mr. Butterline visited the 2713 Property and found the

front door wide open. NT 11/15/19 p. 90. Inside there was evidence of squatters,

property damage and water damage in the basement. Id. at 90-92. The Butter!ines then

took possession again of the 2713 Property (stipulated). Mr. Butter!ine secured the 2713

Property, restored the utilities, replaced the sheetrock on the third floor. Id. at 91-93.

9 The Butterlines never entered the 2713 Property between the First Ejectment and

September 2014. Id. at 94. They did not turn on the water or cause any damage to the

2713 Property during that time period. Id. The Court finds Mr. Butterllne's testimony

credible.

As Mellon failed to repair the 2713 Property. The Benczes began to remediate the

damage themselves. In the fall of 2014, the Benczes hired a contractor to repair the

stucco of the Third Floor Wall to avoid further damage. NT 9/28/16 p. 70-71; NT 11/8/15

p. 41-42, 97-98. At that time the roof of the 2713 Property was in disrepair. NT 9/28/16

p, 154. The contractor did not fix the flashing of the 2713 Property roof because the

Benczes had received notice from Mellon that the 2713 Property roof was going to be

repaired. NT 9/28/16 p. 150. Dirk Voories of ABO Construction was present during the

repairs to the Third Floor Wall. NT 9/28/16 p. 180. He inspected the exterior and interior

of the Beneze Property and found the Beneze Roof had been well repaired. NT 9/28/16 p.

180, 188. The Benczes paid $8,000.00 for the repairs. NT 9/28/16 p. 71; NT 11/8/15 p.

42; Exhibit P-3. The Benczes also paid $600.00 for tarping, whkh Liberty reimbursed in

June 2014. Exhibits Liberty-2 and 3.

The Benczes next hired a mold remediation company. The remediation cost was

$10,000.00, which was charged to a credit card. NT 9/28/16 p. 72; NT 11/8/16 p. 41;

Exhibit P-3. The mold remediation was unsuccessful because it rained during the process

and water continued to infiltrate the Party Wall. NT 9/28/16 p. 72; NT 11/8/16 p. 41, 43.

The Benczes had a $5,000.00 mold remediation policy that Liberty paid in February 2016.

NT 11/8/16 p. 6, 11-12, 16

10 The Benczes relocated in September 2014 (stipulated), due to the health problems

they experienced while at their Property. NT 11/8/16 p. 43-44. The Benczes found a

small apartment in Malvern that had a short term lease option and allowed animals

("Apartment"). NT 9/28/16 p. 78-79. The rent started at $1,442.00 per month, which

included a $42.00 service charge for using a credit card. Id at 77. The rent increased to

$1,485.26 in February 2015. Exhibits P-3, 4, and 20. From September 2014 to November

2016, the Benczes paid a total of $7,500.00 for rent and fees by check, and $32,781.60

for rent and a move-in fee by credit card, for a total of $40,281.60. NT 9/28/16 p. 77; NT

11/8/16 p. 49-50; Exhibits P-3, 4, and 20. The Benczes used credit cards because of

insufficient liquid funds. NT 11/8/16 p. 50.

The Benczes paid additional costs as a result of this relocation. These include

$3,000.00 in travel costs for Mr. Beneze to drive to work; $2,650.56 in PECO energy costs

for the Apartment; $2,026.46 in storage fees and $350.00 to winterize their Property. NT

9/28/16 p. 77-78; NT 11/8/16 p. 50-57; Exhibits P-5, 7 and 13. These costs were charged

to the Benczes' credit cards, except for the travel fees. Exhibits P-3, 13, and 20. The

Benczes also had to dispose of furniture that was destroyed. The replacement furniture

expense was $12,361.00. NT 9/28/16 p. 83-84, 119. Justine Penetrante Lowe, qualified

by the Court as a CPA, testified concerning the credit card charges and the

accrued interest. NT 9/28/16 p. 206. Between August 2014 and May 2016, the Benczes

incurred interest in the amount of $3,502.64. NT 9/28/16 p. 209; Exhibit P-13.

On December 23, 2014, pursuant to the Benczes Petition for Injunctive Relief filed

under their action against Mellon and Liberty (1410-3255), the Honorable Nina Wright

11 Padilla entered a detailed Order which. directed the Prothonotary to issue a Writ of

Possession to Mellon to allow the ejectment of the Butterlines ("December 2014 Order").

Exhibit Mellon-65• This Order further required Mellon to retain a contractor to commence

work and repair and maintain the 2713 Property within ten days of possession, so as to

prevent damage to the Beneze Property. Id. Mellon was to complete the necessary

repairs as soon as possible and to maintain the 2713 Property. Id. It is stipulated that

Mellon obtained possession on February 5, 2015.

Despite the Order from Judge Padilla and Mellon's assurances given to the Benczes

both before and after the Order, Mellon never really did remediate the problems at the

2713 Property. Further by time Mellon finally began to do some work, the damage had

already been done to the Beneze Property. NT 9/28/16 p. 70; NT 11/8/16 p. 36, 41; NT

11/15/16 p. 67-68. Between the time of the storm and 2015, Mellon never made any

attempt to repair the damaged 2713 Property. Mellon had access to the exterior of the

Property and therefore had the ability to make the repairs to the Third Floor Wall, the

party wall flashing, and the 2713 Property roof. Neither Mellon, its servicing agents, nor its

designated property maintenance agents contacted the Butterlines to enter the 2713

Property, nor contacted the Benczes to access the Beneze Property to make or even

attempt repairs. There was one uneventful visit by the engineers in 2013. NT 9/28/16 p.

150; NT 11/15/16 p. 78-79, 94-95. Mellon had a policy not to enter occupied properties.

NT 11/15/16 p. 20, 86. However, Mellon as owner of the 2713 Property never sought

5 In January 2015 Mellon had filed a second ejectment action against the Butterlines Bonk of New York v. Butterline, et al. CCP January Term 2015. This became moot as a result of Judge Padilla's Order

12 emergency or injunctive relief to request access to inspect and/or make repairs. Neither

the Benczes nor the Butterlines interfered with Mellon's ability to remediate the damage.

Mellon also did not make a timely attempt to repair or maintain the 2713 Property alter

having actual possession in early February 2015. Mellon claims that in February 2015

Altisource contacted the Butterlines and Benczes to gain access to the properties by

leaving notes in their mailboxes. NT 11/15/16 p. 32. However, at that time the

Butterlines and the Benczes were no longer in their properties. Altlsource did not make

any phone calls to gain access to the Beneze Property. NT 11/15/16 p. 79. Also, in late

February 2015 Altisource generated an internal email to have the Third Floor Wall repaired

to allow flashing to be installed to prevent water incursion between the properties. Exhibit

P-23. However, Mellon never repaired the Third Floor Wall and waited until January 2016

to repair the flashing, as explained infra.

In May 2015, Mr. Beneze stayed overnight at the Beneze Property and credibly

testified that he became sick from what he believed to mold. NT 11/8/16 p. 61-62. He

had itchy eyes and skin, a cough, wheezing and nausea. Id It took three to four days for

these symptoms to pass. Id

An Order was issued on July 21, 2015 requiring the parties, within ten days, to

arrange a time to access each property and to allow Mellon's contractor to evaluate and/or

assess water damage and the cost of repairs. Exhibit Mellon-52. On August 20, 2015, a

joint inspection of the properties took place. NT 19/28/16 p. 177; NT 11/15/16 p. 43.

Present at the Joint Inspection were the Benczes, Mr. Voories, Gary Landis, an architect

from ABD Construction, Mark Childs, a regional field service manager for Altisource, and

13 an Altisource vendor. NT 9/28/16 p. 82; NT 11/15/16 p. 33-34. Mr. Voories and Mr.

Childs generated reports based on their inspections, both of which were admitted into

evidence at trial with the exception of a portion of Mr. Voories' report. Exhibits P-9 and

Mellon-25, NT 9/28/16 p. 204.

As to the Beneze Property, only Mrs. Beneze and Mr. Voorles went onto the Beneze

Roof, and they observed the prior repairs. NT 9/28/16 p. 82; 179, NT 11/5/16 p. 69, 71.

Though granted access to do so, no one from Altisource inspected the Beneze Roof. NT

9/28/16 p. 82; NT 11/5/16 p. 69. Both Mr. Voories and Mr. Childs inspected the

remainder of the Beneze Property's exterior. NT 9/28/16 p. 203; NT 11/15/16 p. 43. At

trial Mellon contended that some (or most) of the damage to the Beneze Property was due

to an external downspout in the wall in the rear yard. Mr. Voories did not find the Beneze

downspout was faulty. NT 9/28/16 p. 197, 203. Mr. Child's January 2016 report does not

mention the Beneze downspout. NT 11/15/16 p. 72; Exhibit Mellon-25. Mr. Voories and

Mr. Childs inspected the interior of the Beneze Property and both observed the water

damage throughout. NT 9/28/16 p. 177; NT 11/15/16 p. 43; Exhibit Mellon-25. Mr.

Voories traced the Beneze Property from the bottom up to determine the source of water.

NT 9/28/16 p. 177, 184-185. Mr. Voories also testified that he observed mold in the

Beneze Property. Id. at 19; Exhibit P-9.

As to the interior of the 2713 Property, Mr. Beneze was present during the

inspection. Mr. Beneze observed the repairs on the third floor, damage to the second floor

Party Wall, first floor water damage to the wall adjacent to the Beneze Property, and water

damage to the floors and ceilings. NT 11/8/16 p. 48-49.

14 As a result of the Joint Inspection, Mr. Voories concluded the water was coming

from the 2713 Property. NT 9/28/16 p. 181, 184-185. Specifically, he determined that

due to the condition of the 2713 Property roof, water was cominq behind the Third Floor

Wall and into the Beneze Property. Id. Mr. Voories' opinions at trial were given based

upon a reasonable degree of certainty as a result of his experience, knowledge, and

expertise in construction. Id. at 175. While the report at Exhibit P-9 uses language such

as "seems" and "most likely" to describe the 2713 Property .as the source of water, the

Court finds that the report was not created in anticipation of litigation and was not written

as a legal document. NT 9/28/16 p. 186. The Court does not find the report to be

inconsistent with Mr. Voories' testimony at trial.

Mr. Childs' report of the Joint Inspection concluded that he: could not state with

certainty that any of the damage to the Beneze Property occurrecl after the First Ejectment

on January 31, 2014 or after the Second Ejectment on February 5, 2015, i.e., when Mellon

had possession of the 2713 Property. NT 11/15/16 p. 40; Exhibit Mellon-25. Mr. Childs,

however, failed to state whether or not the water damage to the Beneze Property was

caused by water infiltration from the 2317 Property during any period when Mellon did not

have possession of the 2317 Property, e.g., between Super Storm Sandy and January 31,

2014. Mr. Childs was also unfamiliar with the condition of the Beneze Property after the

storm and prior to Altisource being hired in 2013. NT 11/15/16 p. 62-67.

Soon after the Joint Inspection, Mr. Voories inspected the interior and exterior of

the Beneze Property for a third time. NT 9/28/16 p. 190. At all visits, Mr. Voories did a

thorough inspection of the exterior of the Beneze Property to look for other conditions that

15 could have contributed to the damage, including the Beneze downspout. Id. at 203. Mr.

Voories did not find that the Beneze Downspout was faulty. Id. at 197, 203.

On or around January 20 2016, Mellon repaired and replaced the roof to the 2713

Property. NT 11/15/16 p. 40; Exhibit Mellon-24. This was nearly a year after Mellon had

possession of the 2713 Property in February 2015 and five months after the Joint

Inspection.

In April 2016, Mr. Beneze installed foam at the base of the Beneze downspout. NT

11/8/16 p. 82. This was done to ensure that the Beneze downspout did not loosen from

the drainpipe while the Benczes were away from the Beneze Property. Id. at 64. The

Beneze downspout has never become loose from the drainage. ld.

Mr. Childs revisited both properties on three occasions. In late June, early July

2016, Mr. Childs stood on the 2713 Property's roof and looked down to observe the roof of

the Beneze Property. NT 11/15/16 p. 46. Mr. Childs opined there was a tear in the

Beneze Property roof, of which he took a photo. Id.; Exhibit Mellon-24; Exhibit P-21.

However, Mr. Childs only observed the roof of the Beneze Property from the 2713

Property's roof and never inspected it. NT 11/15/16 p. at 46. There was also no mention

of a tear in his previous January 2016 report. Id. at 72; Exhibit Mellon-25.

On July 22, 2016, Mr. Childs reinspected the inside and outside of the Beneze

Property. Moisture readings were also taken at this time. NT 11/15/16 p. at 49, Exhibit

Mellon-34. In early August 2016, he inspected the exterior of the Beneze Property and

noted that the Beneze downspout appeared to be disconnected from the drainpipe. NT

11/15/16 p. 50. Mr. Childs' August 2016 report reflects his observation that the moisture

16 readings were greater around the area of the Beneze downspout. Id. at 51; Exhibit

Mellon-34. Again, however, Mr. Childs never mentioned the Beneze downspout in his

previous reports. Exhibits Mellon-24 and 25.

Edward Pridgen, a civil and mechanical engineer, also inspected both properties.

He testified at trial and was qualified as an expert in construction. NT 11/8/15 p. 106.

Mr. Pridgen's first visit was in the summer of 2015. Id. at 107. He inspected the roof of

the 2713 Property and determined the cause of damage to the Beneze Property was the

Third Floor Wall. Id. at 108. Capping and flashing were missing or in disrepair. He also

contends that the 2713 Property roof needed to be replaced. Id. at 108, 115-116. Mr.

Pridgen inspected the inside of the Beneze Property and observed the water damage

throughout. Id. at 114-115. He prepared an initial cost estimate to repair the Beneze

Property, which totaled $71,570. Id. at 109-112, 115-118; Exhibit P-10.

Mr. Pridgen reinspected the properties in May 2016. NT l:L/8/16 p. 119. As to the

Beneze Property's roof, Mr. Pridgen reviewed Mr. Childs' photo of the alleged tear at

Exhibit P-21, but saw nothing that caused concern. Id. at 136. His own inspection

revealed no issues with the Beneze Property's roof. Id. On both visits, Mr. Pridgen viewed

the Beneze downspout and found it was damaged but was installed correctly and intact.

Id. at 137, 162. However, the roof.of the 2713 Property had not been properly repaired in

January 2016 and water still infiltrated the Beneze Property. Id. at 123-125. Mr. Pridgen

prepared an updated report and cost estimate to repair the Beneze Property, which totaled

$224,005.00. Id. at 125-133; Exhibit P-11. His opinions at trial were given based upon a

reasonable degree of certainty given his experience and knowledge in the field of

17 construction. NT 11/8/16 p. 139. Mellon has not provided any cost estimate for repairs to

Mr. Beneze credibly testified that as of the time of trial, it ts uncomfortable to be in

his Property and one cannot be inside for more than a few minutes due to what he

believes to be the presence of mold. NT 9/28/16 p. 82-83. Also, the casements around

the windows that had been installed when they first purchased the Property, have popped

out and cracked. The alleyway wall has cracked and peeled. Id. at 83, 88-89.

The Benczes' claim with Liberty is currently still open. NT 11/8/16 p. 6. Liberty's

adjuster revisited the Beneze Property in late 2015 and early 2016 to observe additional

damage since the 2012 visits. Id. at 10, 17, 21. The adjuster observed damage in the

Master and Guest Bedrooms, Living Room, Dining Room, Kitchen ceiling and basement.

Id. at 17. As a result, Liberty made two more payments in early 2016 totaling $14,164.82.

Id. at 16; Exhibit Liberty-2. Overall, Liberty has paid the Benczes $22,489.58 for building

and dwelling coverage, and $5,000.00 for mold coverage, for a total of $27,489.58.

CONCLUSIONS

Mika/ and Stephen Beneze v. Bank of New York Mellon et al

The Benczes' claims against Mellon sound in Equity and Negligence. The equitable

claims for Private Nuisance and Trespass request an order requiring Mellon to repair the

2713 Property's roof. The granting of equitable relief "depends not so much on the want

of a common-law remedy, as upon its inadequacy and its exercise is a matter which often

rests within the discretion of the court; in other words the court may take upon itself to 18 say whether the common-law remedy is, under all the circumstances and in view of the

conduct of the parties, sufficient for the purpose of complete justice .... " Cohen v.

Pe/agatti, 342 Pa. Super. 626, 634-35, 493 A.2d 767, 771 (1985) (citation omitted). Here,

the Court concludes that Benczes' equitable relief is not warranted and declines to grant

such relief.

The Benczes next set forth a claim for Negligence against Mellon. As to Mellon's

ownership of the 2713 Property, "[a] sheriffs sale is made without warranty; the

purchaser takes all the risk, and the rule of caveat emptor applies in all its

force." CSS Corp. v. Sheriff of Chester County, 352 Pa. Super. 256, 259, 507 A.2d

870, 872 (1986). The purchaser at a sheriff's sale receives all the right, title, and interest

in the property that the debtor mortgagor held, and such rights of the purchaser, who

later completes settlement, become fixed when the property is knocked down to the

highest bidder. Id. Further, the recording of a deed is not essential to its validity or the

transition of the title. A'ore v. Fiore, 405 Pa. 303, 306, 174 A.2d 858, 859 (1961).

Accordingly, Mellon owned the 2713 Property as of the date of Superstorm Sandy on

October 29, 2012, despite the Mellon Deed not being recorded until October 31, 2012.

Next, Mellon as owner of the 2713 Property had a duty to use and maintain its land

so as to not injure adjoining landowners. McArthur v. Balas,. 402 Pa. 116, 122, 166 A.2d

640, 643 (1961). See also McCarthy v. Ference, 358 Pa. 485, 58 A.2d 49 (1948); Barker

v. Brown, 236 Pa.Super. 75, 340 A.2d 566 (1975). An adjoining landowner may be held

liable in damages for "harm caused by the disrepair of a structure or other artificial

condition thereon, if the exercise of reasonable care by the possessor or by any person to

19 whom he entrusts the maintenance and repair thereof (a) would have disclosed the

disrepair and the unreasonable risk involved therein, and (b) would have made it

reasonably safe by repair or otherwise." Restatement (Second) Torts §365; Barker, supra.

Disrepair includes "dilapidations caused by the usual forces of nature, by wear and tear, or

by a sudden and previously unexpectable change caused by an unusual and unexpectable

natural force ... or negligent acts of the possessor .... " Restatement (Second) Torts §365,

Comment a. Further, the Pennsylvania Suggested Standard Civil .Jury Instructions set

forth the duty and resulting liability of an adjoining landowner, and states:

One who [owns][occupies] land in a developed or residential area has a duty to make reasonable inspections of the property, and to correct any conditions unreasonably dangerous to others that could be discovered by use of reasonable care and that could be reasonably safe by repair or otherwise. Therefore, if you find that the location of the defendant's property was in a developed or residential area, and that the plaintiff was caused harm by a dangerous condition on the defendant's property, and that the defendant by using reasonable care could have discovered the defect and the risk arising from it and could have made it reasonably safe by repair or otherwise, you may find the defendant liable for the resulting damage.

Pa. SSJI (Civ), §18.110 (2014).

Mellon argues that it had no duty to maintain the 2713 Property when it was not in

possession because a mortgagee cannot be liable in tort for failin9 to maintain a

mortgaged property unless the lender had actual possession thereof. See Zisman v. City

of Duquesne, 143 Pa. Super. 263, 18 A.2d 95, (1941). However, the Court finds that

Zisman and the other cases cited by Mellon are distinguishable. In Zlsman, the bank was

still the mortgagee and did not own the property at issue. Though the mortgagor was in

default, the mortgagor still owned the property. The bank had never commenced a

foreclosure action and the property never went to sheriff sale. Here Mellon filed a

20 foreclosure action, judgment was entered, and the 2713 Property was sold to Mellon at

sheriff's sale. Although Mellon and the Butterlines previously helcl a mortgagee/mortgagor

relationship based on the note and mortgage, once the foreclosure judgment was entered,

"the parties' mortgage agreement was extinguished." EMC Mortg., LLC v. Biddle, 114 A.3d

1057, 1064 (Pa. Super. Ct. 2015); see also id. at 1065 (explaininq that, under the doctrine

of merger of judgments, upon entry of a foreclosure judgment, "the terms of [the]

mortgage are merged into a foreclosure judgment and thereafter no longer provide the

basis for determining the obligations of the parties" (quoting In re Stendardo, 991 F.2d

1089, 1095 (3d Cir. 1993) Accordingly, Mellon was no longer the mortgagee or lender

after the entry of judgment because the mortgage and the foreclosure judgment had

merged. Mellon became the lawful owner at the November 2011 Sheriff's Sale and the

"mortgagee out of possession" standard does not apply. The "landlord out of possession"

standard is also inapplicable, in that there was no contractual relationship between Mellon

and the Butterlines once title passed to Mellon. Throughout litigation, Mellon has treated

this action as a mortgage foreclosure case wherein Mellon would still be mortgagee and

need possession in order to maintain and repair the 2713 Property. However, at all

relevant times Mellon has been the owner of the 2713 Property, not mortgagee, and has

had the duty and responsibility to use reasonable care in maintaining the 2713 Property

whether it was in or out of possession thereof. Further, as the owner of the 2713 Property

Mellon took no action to remediate or cure those problems that were causing the damage

to the Beneze property. Instead Mellon took the position that it had no responsibility

because it wasn't in possession. Mellon made no attempt to work with the Benczes to

gain access to the Benczes' roof, the 2713 Third Floor Wall, nor the damaged flashing. All

21 of which could be accessible from the Benczes' Property by climbing on a ladder from the

front or rear to the second story roof. Mellon made no contact with the Butterlines to gain

access to the 2713 Property roof and make repairs. Instead, Mellon contends that it is the

company policy to not go to a foreclosed property until it has possession. Mellon continued

to act as though its only concern was the mortgaged property, nnt as the owner hut as

the mortgagee. That would be tine but tor the facl LI rat its decision resulted in damage lo

the adjacent property. Mellon never sought relief from the court for access to the 2713

Property or the Beneze Property to make the repairs.

Accordingly, Mellon breached its duty and is negligent for failing to maintain and

repair the 2713 Property so as to prevent continuous water infiltration to the Beneze

Property. As indicated above, Mellon had notice of the damage to the 2713 Property and

Beneze Property soon after Superstorm Sandy. Mellon never repaired or attempted to

repair the Third Floor Wall or the flashing attached thereto. Mellon also failed to

sufficiently repair the 2713 Property's roof.

Furthermore, the overwhelming evidence submitted at trial shows that the condition

of the 2713 Property caused the water infiltration in the Beneze Property and the resulting

damage. The Benczes credibly testified that they had no issues with water infiltration

prior to the collapse of the Third Floor Wall. However, after the storm and resulting

collapse, water infiltrated the west side of the Beneze Property under the exposed Third

Floor Wall and substantial water and mold damage resulted, which continued to spread

throughout. The Benczes also credibly testified that the flooding in the basement of the

Beneze Property happened at the time the 2713 Property flooded. Although Mellon now

22 claims that most, some, or all of the water damage to the Beneze home is from the

allegedly defective downspout, this court finds that Mellon has failed to establish that tthis

was the cause of the extensive damage to the Benze property. Mellon's failure to

maintain and repair the 2713 Property was the factual cause of the Benczes' property

damage and financial loss.

As the Benczes have proven their claim for Negligence, the Benczes are entitled to

the resulting damages. The damages are calculated as follows6:

Deductible: $ 1,000.00 Mold testing: $ 825.00 Stucco and roof repair: $ 8,000.00 · Mold remediation: $ 10,000.00 Rent and fees: $ 40,281.60 Travel expenses: $ 3,000.00 Storage fees: $ 2,026.46 Furniture replacement: $ 12,361.00 PECO energy: $ 2,650.56 Winterization: $ 350.00 Credit card interest: $ 3,502.64 Proge[t:'. remediation: $152,528.507 Total damages: $236,525.76

6 The Court declines to award damages for the Comcast internet fees, and security system fees. There is no credit card interest associated with these fees. 7 The Court declines to award remediation damages for the cost of mold remediation and removal, kitchen/bath replacement and plumbing as set forth in Exhibit P-11. The percentaged fees on the fifth page of Exhibit P-11 have been reduced accordingly. The Court also declines to award damages for the packing/moving/storage cost allowance. See id. 23 Liberty Mutual Ins. Co. A/S/0 Beneze et al v. Bank o.f New York Mellon

Liberty seeks equitable and contractual subrogation from Mellon for payments made

to the Benczes as a result of Mellon's failure to make necessary repairs to the 2713

Property. Subrogation involves the right of legal substitution which is granted "'as a

means of placing the ultimate burden of a debt upon the one who in good conscience

ought to pay it, and is generally applicable when one pays out of his own funds a debt or

obligation that is primarily payable from the funds of another.'" Panea v. lsdaner, 2001

Pa. Super. 108, ,J16, 773 A.2d 782, 791 (2001).

Here, Liberty issued payments to the Benczes totaling $27.,489.58. As Mellon is

responsible for failing to make timely repairs to the 2713 Property so as to prevent

damage to the Beneze Property, Liberty is entitled to subrogate against Mellon in the

amount of $27,489.58.

Bank of New York Mellon v. Mark and Lisa Butterline

Mellon's action against the Butterlines requests money damages for Trespass and

Contribution. As to the claim for Trespass, under Pennsylvania law, a trespass is defined

as an unprivileged, intentional intrusion upon land in possession of another. Kopka v. Bell

Telephone Co., 371 Pa. 444, 91 A.2d 232 (1952).

A possessor of land can seek damages in the form of equitable relief or consequential

damages. Jones v. Wagner, 425 Pa. Super. 102, 112 (1993). "'�. trespasser on land is

subject to liability for harm caused to the possessor ... by any ... condition created by the

trespasser while upon the land." Kopka at 451, 236.

24 Here, the Butterlines intentionally reoccupied the 2713 Property between

September 2014 and Second Ejectment. The Butterlines therefore trespassed during this

period. Mellon had already exercised its right to equitable relief when it ejected the

Butterlines. However, as to consequential damages Mellon failed to produce any

competent evidence of monetary damage resulting from the trespass. There is no

evidence that the Butterlines caused any damage to the 2713 Property or Beneze Property

during their occupancy, including the flood which occurred before the Butterlines

reentered. In fact, the evidence shows that the Butterlines attempted to repair the 2713

Property and make it more habitable. Mellon also offered no evidence as to what

apportioned damage occurred while the Butterlines occupied the 2713 Property or the

resulting monetary amount. Accordingly, the Court is unable to award any damages for

the trespass. The damage caused to the Beneze Property was due to Mellon's negligence

in failing to maintain and repair Mellon's property.

Lastly, Mellon seeks contribution from the Butterlines. A contribution claim is

defined as "[a] defendant's claim to recover part of his or her liability to a plaintiff from

another defendant or some third party who, it is asserted, should share in the liability."

Black's Law Dictionary (10th ed. 2014). In Pennsylvania, contribution claims are only

authorized amongst joint tortfeasors. Kemper Nat'l P & C Companies v. Smith, 419 Pa.

Super. 295, 309, 615 A.2d 372, 380 (1992). Here, the Butterlines and Mellon were not

named as joint tortfeasors, and as set forth above, the Butterlines are not responsible for

damages in trespass. Therefore, Mellon cannot be awarded damages for Contribution.

25 ORDER

AND NOW, this J.r.; of May, 2017, for the reasons set forth above, this

Court finds as follows:

• In the matter of Beneze v. Bank of New York Mellon (October Term 2014 No.

3255)the Court finds in favor of Plaintiffs Mika! and Stephen Beneze and

against Defendant Bank of New York Mellon for Neqllqence In the amount of

$236,525.76.

• In the matter of Liberty Mutual v. Bank of New York Mellon (October Term

No. 1662) the Court finds in favor of Plaintiff Liberty Mutuul Insurance

Company, as Subrogee of Mika! and Stephen Beneze, and against Defendant

Bank of New York Mellon in the amount of $27,489.58.

• In the matter of Bank of New York Mellon v. Butterline (September Term

2015 No. 1529) the Court finds in favor of Plaintiff E:ank of New York Mellon

and against Defendants Lisa and Mark Butterline for Trespass but awards no

damages, and finds against Plaintiff Bank New York Mellon and in favor of

Defendants Lisa and Mark Butterline in the claim for Contribution.

IDEE C. FOX, J.

26 Circulated 08/29/2018 09:37 AM

EXHIBIT B DOCKETED COMPLEX LIT CENT

IN THE COURT OF COMMON PLEAS PHILADELPHIA COUNTY AUG 11 2017 FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION J.STEWART

LIBERTY MUTUAL INSURANCE. CO. OCTOBER TERM, 2014 A/S/0 MIKAL AND STEPHEN BENCZE NO. 1662 v. LEAD CASE THE BANK OF NEW YORK MELLON CORP CONTROL NO. 17051754 & 17060288

LIBERTY MUTUAL INSURANCE CO. and CONTROL NO. 17051755 THE BANK OF NEW YORK MELLON & 17051734

MARK AND LISA BUTTERLINE CONTROL NO. 17051756

ORDER // AND NOW, this day of August, 2017, upon consideration of the

Motion for Post Trial relief filed by Bank of New York Mellon, and any response thereto,

for the reasons set forth in the attached Opinion, the Motion is DENIED.

It is further ordered that the Motion for Delay Damages filed by Mikal and

Stephen Beneze is GRANTED and they are awarded delay damages of $15,586.40 for

total award of $252, 112.16 in favor of Mika I and Stephen Beneze and against Bank of

New York Mellon. The Motion for Delay Damages filed by Liberty Mutual Insurance

L1beny Mutual Insurance Co vs Bank ot I..Jy!M·ORDER

Ill Ill lll l II IIII I I II I I 14100166200137 COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) J. STEWART 08/14/2017 Company is DENIED. Liberty Mutual as Subrogee of Mika! and Stephen Beneze is

awarded $27,489.58.

Judgment is entered. IN THE COURT OF COMMON PLEAS PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION

LIBERTY MUTUAL INSURANCE. CO. OCTOBER TERM, 2014 A/S/0 MIKAL AND STEPHEN BENCZE NO. 1662 v. LEAD CASE THE BANK OF NEW YORK MELLON CORP CONTROL NO. 17051754 & 17060288

LIBERTY MUTAL INSTURANCE CO. and CONTROL NO. 17051755 THE BANK OF NEW YORK MELLON & 17051734

MARK AND LISA BUITERLINE CONTROL NO. 17051756

OPINON

The above captioned matters were consolidated for trial. After a bench trial this

Court entered an Order finding against The Bank of New York Mellon (Mellon) and

awarding damages in the amount of $236,525. 76. The Court issued detailed Findings

with its Decision. Mellon timely filed a Motion for post trial relief, raising five issues. For

the reasons set forth below, the Motion is denied. FACTUAL AND PROCEDURAL SUMMARY

This consolidated action concerns property damage and untimely repairs to the

home of Stephen and Mikal Beneze located at 2715 E. Huntingdon Street in Philadelphia

("Beneze Property"). The damage initially occurred after the wall of the adjacent

property, 2713 E. Huntingdon Street ("2713 Property") partially collapsed and fell onto

the roof of the Beneze Property during Superstorm Sandy. After additional damages

were incurred, the Benczes flied suit against Bank of New York Mellon ("Mellon"), the

owner of the 2713 Property, seeking equitable and monetary relief. The Benczes also

sued their homeowner's insurance carrier, Liberty Mutual Insurance Company

("Liberty"), for breach of contract. Subsequent actions were filed by Liberty against

Mellon, for subrogation, and by Mellon against the previous owners of the 2713

Property, Mark and Lisa Butterline ("Butterlines"), for contribution and trespass. The

three cases were consolidated.

After a bench trial this Court issued its decision with an Opinion that contained

detailed Findings. This Court found as follows:

• In the matter of Beneze v. Bank of New York Mellon (October Term 2014

No. 3255) the Court finds in favor of Plaintiffs Mikal and Stephen Beneze

and against Defendant Bank of New York Mellon for Negligence in the

amount of $236,525.76.

• In the matter of Liberty Mutual v. Bank of New York Mellon (October Term

No. 1662) the Court finds in favor of Plaintiff Liberty Mutual Insurance Company, as Subrogee of Mika! and Stephen Beneze, and against

Defendant Bank of New York Mellon in the amount of $27,489.58.

• In the matter of Bank of New York Mellon v. Butterline (September Term

2015 No. 1529) the Court finds in favor of Plaintiff Bank of New York

Mellon and against Defendants Lisa and Mark Butterline for Trespass but

awards no damages, and flnds against Plaintiff Bank New York Mellon and

in favor of Defendants Lisa and Mark Butterline in the claim for

Contribution.

Mellon promptly filed this Motion for Post Trial relief. This Court adopts the

Findings contained in its decision

Additionally, the Benczes and Liberty Mutual both filed Motions for Delay

Damages. The Benczes Motion for Delay Damages was filed promptly, while Liberty

Mutual's Motion was filed thirty days after this Court's Finding and Decision was

docketed. The Benczes seek delay damages of $15,586.40 against Mellon, in addition

to the initial verdict of $236,525.76. Liberty Mutual seeks delay damages of $1,907.51

in addition to the initial verdict of $27,489.58. Mellon fried Responses to both Motions,

along with a New Matter arguing Liberty Mutual's Motion is barred due to untimeliness.

Liberty Mutual filed a Response to that New Matter. For the reasons set forth below,

the Court awards delay damages to the Benczes in the amount sought, and declines to

award any delay damages to Liberty Mutual. DISCUSSION

The Motion for Post-Trial relief alleges that in regard to the Bencze's negligence

claim and Liberty Mutual's subrogation claim, the Court erred for the following reasons:

I. Finding Mellon "became legally responsible for the condition of the [2713 Property]

before [Mellon] obtained actual possession"; II. "Refusing to qualify [Mellon's witness]

Mark Childs as an expert"; II. "Finding that the Benczes had proven their damages by a

preponderance of the evidence"; and IV. "[G]iving improper weight to the Bencze's

purported evidence of water damage." In regard to Mellon's case against the

Butterlines, Mellon contends that the Court erred in declining to award damages to

Mellon in its trespass and contribution claims.

I. BNYM IS ENTRY OF JUDGMENT/JNOV IN ITS FAVOR OR, IN THE ALTERNATIVE, BNYM IS ENTITLED TO A NEW TRIAL, BECAUSE THE COURT ERRED IN FINDING THAT BNYM BECAME LEGALLY RESPONSIBLE FOR THE CONDITION OF THE BUTIERLINE PROPERTY BEFORE BNYM OBTAINED ACTUAL POSSESSION.

Mellon became owner of the 2713 Property by virtue of a foreclosure action filed

by Mellon against the Butterlines. Pursuant to that foreclosure action, the 2713

Property was sold at Sheriff's Sale, where Mellon was the sole bidder. The Deed

transferring the Property to Mellon was executed before Superstorm Sandy, but not

recorded until two days afterward. Mellon argues that it is not liable for the condition

of the Property prior to the .recording of the Deed. The purchaser at a sheriff's sale receives all the right, title, and interest in the

property that the debtor mortgagor held, and such rights of the purchaser, who later

completes settlement, become fixed when the property is knocked down to the highest

bidder. CSS Corp. v. Sheriff of Chester County, 352 Pa. Super. 256, 259, 507 A.2d 870,

872 (1986). Further, the recording of a deed Is not essential lo its validity or transition

of the title of property. Fiore v. Fiore, 405 Pa. 303, 306, 174 A.2d 858. 859 (1961). As

such, Mellon inherited the duty to maintain the 2713 Property when the Sheriff's Sale

concluded, not when the Deed was recorded.

Alternatively, Mellon argues it cannot be liable for the condition of the Property

prior to Mellon receiving "actual possession" of the 2713 Property, which was occupied

by the Butterlines at the time of Superstorm Sandy and for a significant time afterward.

Mellon did not obtain "actual possession" of the 2713 Property until after ejectment

proceedings were filed by Mellon against the Butterlines. Mellon contends that "a

lender cannot be liable to third persons in tort for failure to properly maintain the

mortgaged premises unless the lender had actual control and possession of the

property." Welz v. Wong, 605 A.2d 368, 372 (Pa. Super. 1992). However, once Mellon purchased the 2713 Property at Sheriff Sale, Mellon ceased to be the mere

lender/mortgagee of the Property and instead became its owner. There is an inherent

duty placed upon landowners to maintain their land so as not to injure adjoining

landowners. Baker v. Brown, 236 Pa. Super. 73, 340, A.2d 566 (1975). As such, Mellon

was responsible for maintaining the 2713 Property regardless of whether Mellon was in

"actual possession." Similarly, Mellon argues the Court cannot assess liability on Mellon for the

condition of the Property because of the December 23, 2014 Order issued by the

Honorable Nina Wright-Padilla pursuant to the Bencze's Petition for Injunctive Relief.

The Order states "the Sheriff of Philadelphia County to deliver actual possession of the

[2713 Property] to [Mellon] using force if necessary" and "within ten (10) days of actual

possession ... Mellon shall retain a contractor to commence work to correct any and all

violations issued by the City of Philadelphia and repair and maintain the [2713 Property]

in such a way as to prevent damage to Plaintiff's property." Mellon therefore argues

that this Court's Findings and Decision violates the rule of coordinate jurisdiction,

because Judge Padilla "determined that [Mellon's] obligation to make repairs

commenced upon its receipt of actual possession of the [2713 Property]." The rule of

coordinate jurisdiction mandates that "judges of coordinate jurisdiction sitting in the

same case should not overrule each other's decisions on the same issue." In re De · Facto Condemnation & Taking of Lands of WFB Associates, LP., 588 Pa. 242, 268

(2006). Here, the Bencze's Petition for Injunctive Relief was filed against Mellon, years

after the initial damage to their Property. Judge Padilla's Order did not limit Mellon's

liability. Instead, Judge Wright-Padilla's Order was a means of enforcement, meant to

ensure that Mellon, as owner of the 2713 Property, would comply with its pre-existing

obligations and prevent further damage to the Beneze Property. As such, this Court's

decision to find Mellon liable for failing to maintain the 2713 Property from the time of

the Sheriff's Sale was not a violation of the coordinate jurisdiction rule. Mellon has

argued throughout this case that it cannot be held responsible because it was the mortgagee and not in possession of the Property which caused the damage. Mellon

owned the property. Its relationship to the Benczes was as an adjoining property

owner with a duty to not do damage to their neighbor. The mortgagor/mortgagee

relationship that had existed was between the Buttelerlines and Mellon. The Benczes

were entitled to be safe and secure from the negligent behavior of the adjacent

property owner. Mellon was the owner when title was transferred to it. In addition

Mellon neglects this Court's finding that the repairs necessary to prevent damage and

continued damage to the Beneze property could have been done without possession.

Further, after the Butterlines moved from the property, Mellon did not secure and/or

maintain the property. Mellon saw itself as a mortgage holder and not a property

owner. That was not their relationship with the Benczes.

II. BNYM IS ENTITLED TO A NEW TRIAL BECAUSE THE COURT ERRED IN REFUSING TO QUALIFY MARK CHILDS AS AN EXPERT WITNESS.

At trial Mellon requested that witness Mark Childs be qualified as expert in

property preservation. The opposing parties did not object, but this Court only allowed

Childs to testify as a fact witness and not an expert witness. Mellon now argues that

Childs' expert testimony was improperly barred, "seemingly because" Childs was

employed by a company that has a relationship with Mellon.

The power to determine whether a witness has been properly qualified to give

expert testimony is vested in the discretion of the trial court. West Philadelphia Therapy

Center v. Erie Ins. Group, 2000 PA Super 94, 751 A.2d 1166, 1167 (Pa.Super. 2000). This Court did not qualify Mark Childs as an expert witness because the Court found his

purported expert testimony was really an attempt to offer evidence it deemed hearsay

because it was the opinion of a separate inspector's findings/non findings regarding

mold. Specifically, Mr. Childs was asked to read portions of a report pertaining to mold,

prepared by not Mr. Childs but a certified mold remediation company Armato Field

Services and an independent laboratory EMLab P&K. This Court found the field of mold

remediation to be distinct from Mr. Child's professed expertise, property preservation,

and thus the Court properly excluded Mr. Child's testimony on the subject. Further, the

Court offered Mellon an opportunity to return the next day with the representative from

Armato Field Services. Mellon declined.

III. BNYM IS ENTITLED TO JUDGMENT IN ITS FAVOR ON THE BENCZES' NEGLIGENCE CLAIM AND LIBERTY MUTUAL'S SUBROGATION CLAIM BECAUSE THE COURT ERRED IN FINDING THAT THE BENCZES HAD PROVEB THEIR DAMAGES BY A PREPONDERANCE OF THE EVIDENCE.

Mellon argues that this Court erred in its credibility determination of the

witnesses presented by Plaintiff to prove damages. Specifically, Mellon contends that

the Court erred in relying on the testimony of Edward Pridgen, whose repair estimates

tripled between his initial inspection and a subsequent inspection. As this was a bench

trial, the Court acted as the fact finder. It is the fact-finder, and only the fact-finder,

that may determine credibility. See Commonwealth v. Blackham, 909 A.2d 315, 320

(Pa.Super. 2006), appeal denied, 919 A.2d 954 (Pa.2007). As noted in the Court's Findings and Decision, the Court found the testimony of

Mr. Pridgen (a civil and mechanical engineer) and his assessment of damages credible.

With regard to the large increase in his estimate, Mr. Pridgen testified that during his

initial visit he was not aware that the water infiltration had been taking place for years.

NT 11/8/15 p. 113-114. Upon learning this fact, Mr. Pridgen revisited the Property

because he believed the mold problem was likely to be far more pervasive than he

previously thought. The updated June 2016 estimate reflects Mr. Pridgen's opinion that

"water infiltration for that period of time" would result in "the growth of mold

throughout that entire house". Id. at 125. As the Court found Mr. Pridgen's reason for

increasing the estimate credible, the Court did not err in relying on Mr. Pridgen

testimony in assessing damages.

In the alternative, Mellon argues that the damages awarded by the Court are

improper because damages for Injury to property may not exceed the value of the

property. Wade v. S.J. Groves & Sons Co., 424 A.2d 902 (Pa. Super. 1981). Mellon

argues that the Benczes were awarded $160,528.50 for property remediation and

stucco/roof repairs when the value of the Beneze Property at the time of purchase was

only $155,000.00. However, as noted in the Court's Findings and Decision, $8,000.00

of the Court's award represented the cost of repairs to the wall of the 2713 Property

(repairs which Mellon did not make, despite a legal responsibility) paid for by the

Benczes to prevent further damage to their home. As a result, the Court did not err in

the amount of damages in awarded. Also, the Benczes' purchase price isn't market value. Husband and Wife both testified as to the work they had done on the house

after purchase.

IV. The BNYM IS ENTITLED TO JUDGMENT IN ITS FAVOR ON THE BENCZES' NEGLIGENCE CLAIM AND LIBERTY MUTUAL'S SUBROGATION CLAIM BECAUSE THE COURT ERRED IN ITS ASSESSMENT OF THE EVIDENCE RELATED TO WATER DAMAGE.

Mellon argues that the only credible evidence regarding the cause of water

damage to the Beneze Property was provided by Mark Childs and his conclusion that the

water damage originated from a faulty downspout installed by the Benczes. Again, the

case at hand was a non-jury trial wherein this Court acted as the fact finder. Only the

fact-finder may determine credibility. See Commonwealth v. Blackham, supra. Here,

the Court found that the Benczes, Dirk Voones (an individual with experience,

knowledge, and expertise in construction) and Mr. Pridgen credibly testified that there

were no issues with water infiltration at the Bencze's home prior to Superstorm Sandy

and the later basement flood of the 2713 Property. This Court also heard evidence to

suggest that water infiltrated the west side of the Beneze Property, which is under the

2713 Property's exposed third floor wall, which resulted in substantial water and mold

damage. The inspection by Mark Childs occurred years after Superstorm Sandy and the

later 2713 Property flood.

Mellon argued at trial that the water damage was caused by the Benczes

themselves, but failed to present sufficient evidence to support thls. The Court found

that Mr. Childs failed to directly state whether or not the water damage to the Beneze property was caused by water infiltration from Mellon's property. Instead Mr. Childs

merely noted that the Bencze's downspout was disconnected from the pipe. The

representative from Altisource concluded that the downspout "could" be a source of

water intrusion but did not testify directly that it was the cause of damages to the

Bencze's Property. Accordingly, the Court's assessment of the evidence was not in

error.

V. BNYM IS ENTITLED TO AN AWARD OF DAMAGES IN ITS FAVOR ON ITS TRESPASS CLAIM AGAINST THE BUTTERLINES OR BECAUSE THE COURT ERRED IN FINDING THAT BNYM WAS NOT ENTITLED TO SUCH DAMAGES.

Mellon contends that it is entitled to "damages resulting from the Butterline's

"trespass", including but not limited to the costs to repair the damage to the Beneze

Property." Alternatively, Mellon contends "at the very least, the Butterlines owe

contribution to BNYM as joint tortfeasors." Generally, "a trespasser on land is subject

to liability for harm caused to the possessor by any condition created by the trespasser

while upon the land." Kopka v. Bell Telephone Co., 371 Pa. 444, 91 A.2d 232 (1952).

Joint tortfeasor "means two or more persons jointly or severally liable in tort for the

same injury to persons or property." 42 Pa.CS.A. §8322.

Here, it is undisputed that the Butterlines occupied the 2713 Property for some

time after the Sheriff's Sale, after ownership transferred to Mellon and without Mellon's

permission. However no evidence was presented, by Mellon or any other party, that

the Butterlines caused harm or injury to the Beneze Property. The damage was caused by the failure to repair alter the wall collapsed and a later flood alter the Butterlines

moved out. Mellon claims that actual possession was necessary to make repairs to the

2713 Property. However, Mellon presented no evidence that the Butterlines prevented

access. Further the flood at the 2713 Property was during a time that the Butterlines

were not in possession of the property. Without specific proof that the Butterlines

created harmtul conditions during their trespass or contributed to the negligent

maintenance of the 2713 Property, the Court did not err in finding against Mellon in its

claim against the Butterlines.

Delay Damages

Mellon does not dispute the calculation of the delay damages sought by the

Benczes and Liberty Mutual. Instead, Mellon argues that delay damages are not

warranted because Mellon is not liable for any property damage. Additionally, with

regard to Liberty Mutual, Mellon argues that no delay damages should be awarded

because Liberty Mutual were untimely in its filing. Pa.R.C.P. 238(c) requires a Motion

for Delay Damages be filed within ten days of the verdict or notice of decision. Liberty

Mutual argues that its delay in filing the Motion for Delay Damages does not prejudice

Mellon, and should therefore be excused.

The Benczes are entitled to delay damages. In regard to Liberty Mutual's Motion

for Delay Damages, the Court finds that Liberty Mutual's Motion should be denied as

untimely for failing to comply Pa.R.C.P. 238(c), regardless of whether there is prejudice to Mellon. See Brocklehurst v. Watson, 597 A.2d 631, 409 Pa.Super. 1, (Pa.Super.

2001), appeal denied 612 A.2d 983, 431 Pa. 644; see also Dougherty v. Edward J.

Meloney, Inc., 661 A.2d 375, 661 A.3d 375 (Pa.Super. 1994), holding "a motion

for Rule 238 damages must be filed timely since a Rule 238 motion is an affirmative

request for assessment of damages and since Rule 238 is designed as a punishment for

non-settling litigants." As such, the Court awards delay damages to the Benczes in the

amount sought and declines to award any delay damages to Liberty Mutual.