Brown, J. v. Halpern, M.

J-A21020-18

2019 PA Super 5

JOHN F. BROWN, JR., ESQUIRE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK S. HALPERN, ESQUIRE, :
HALPERN & LEVY, P.C. AND LYNNE :
BOGHOSSIAN : No. 1496 EDA 2017
:
:
APPEAL OF: MARK S. HALPERN, :
ESQUIRE, AND HALPERN & LEVY, :
P.C. :

Appeal from the Judgment Entered May 5, 2017
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): June Term, 2013 No. 01428

JOHN F. BROWN, JR., ESQUIRE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK S. HALPERN, ESQUIRE, :
HALPERN & LEVY, P.C. AND LYNNE :
BOGHOSSIAN : No. 1714 EDA 2017
:
:
APPEAL OF: LYNNE BOGHOSSIAN :

Appeal from the Judgment Entered May 5, 2017
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): June Term, 2013 No. 01428

BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.

OPINION BY OLSON, J.: FILED JANUARY 04, 2019
J-A21020-18

I. Introduction

Mark S. Halpern, Esquire (“Halpern”), Halpern & Levy P.C. (“the Firm”),

and Lynne Boghossian (“Boghossian” and, together with Halpern and the Firm,

“Appellants”) appeal from the May 5, 2017 judgment entered in favor of John

F. Brown, Esquire (“Plaintiff”) in an action filed by Plaintiff under the

Dragonetti Act.1 After careful consideration, we affirm.

A. Underlying Facts

Plaintiff was previously married to Leslie Brown (“Brown”). Brown is

Boghossian’s sister. Brown’s and Boghossian’s aunt, Hilda Kilijian (“Kilijian”),

was wealthy. Kilijian added Boghossian’s name to certain stock certificates

she held. Thereafter, Kilijian asked Boghossian to remove her name from the

stock certificates. Boghossian refused and, eventually, Boghossian and Kilijian

agreed to a 50/50 split of the stock certificates. Kilijian placed her remaining

assets in an irrevocable trust. Brown and Kilijian were named trustees of the

irrevocable trust. The trust documents provided that the entire trust would

pass to Brown and her issue upon Kilijian’s death.

B. Underlying Lawsuit

The procedural history relating to this Dragonetti action begins with an

underlying lawsuit involving the same parties. On January 8, 2009,

Boghossian, through Halpern and the Firm, filed the underlying lawsuit in the

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1 42 Pa.C.S.A. §§ 8351-8355.

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Court of Common Pleas of Delaware County against Plaintiff, Brown, and

Kilijian.2 The case was later transferred to the Court of Common Pleas of

Montgomery County. The premise of the lawsuit was that Kilijian intended to

leave Boghossian her estate until Plaintiff and Brown intervened. The

underlying lawsuit accused Plaintiff of conversion, tortious interference with

contractual relations, defamation, intentional infliction of emotional distress,

and negligent infliction of emotional distress. Boghossian, through Halpern

and the Firm, filed an amended complaint. Plaintiff, who is admitted to

practice law in Pennsylvania, sent Halpern letters detailing why the lawsuit

violated the Dragonetti Act.

On September 30, 2011, Boghossian, through Halpern and the Firm,

filed a second amended complaint. The second amended complained added

the irrevocable trust as a defendant. When depositions were scheduled in the

underlying lawsuit, Halpern attempted to delay proceedings. Plaintiff moved

for judgment on the pleadings. Boghossian, through Halpern and the Firm,

did not file a response to Plaintiff’s motion for judgment of the pleadings and

____________________________________________

2 In addition to the underlying lawsuit, in 2009 Boghossian, through Halpern
and the Firm, instituted three additional actions: guardianship proceedings,
accounting proceedings, and competency proceedings in orphan’s court. The
orphan’s court used the competency proceedings as the vehicle through which
to adjudicate those three cases. It issued commissions and at least three
depositions, including depositions of Kilijian’s trust attorney, banker, and
investment advisor, were taken in Florida as part of the competency
proceedings. The orphan’s court eventually determined that Kilijian was
competent to create the irrevocable trust.

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instead filed a praecipe to discontinue the claims against Plaintiff, Brown, and

Kilijian. On January 31, 2013, the Court of Common Pleas of Montgomery

County dismissed the claims against Plaintiff, Brown, and Kilijian with

prejudice. On October 10, 2013, the Court of Common Pleas of Montgomery

County granted summary judgment to the irrevocable trust. This Court

affirmed and our Supreme Court denied allowance of appeal. In re Hilda

Kilijian Irrevocable Tr., 116 A.3d 639, 2014 WL 10750741 (Pa. Super.

2014) (unpublished memorandum), appeal denied, 116 A.3d 605 (Pa. 2014).

C. Procedural History

On June 11, 2013, Plaintiff instituted this litigation by filing a complaint

against Appellants under the Dragonetti Act. On April 24, 2014, the trial court

ordered Appellants to answer Plaintiff’s requests for discovery. Appellants

appealed and this Court affirmed. Brown v. Halpern, 120 A.3d 1062, 2015

WL 7455920 (Pa. Super. 2015) (unpublished memorandum).

On September 1, 2016, Halpern and the Firm filed a motion in limine

seeking to exclude the expert testimony of Attorney George Bochetto

(“Bochetto”). The trial court denied that motion prior to trial. Voir dire was

scheduled to commence on September 16, 2016. Halpern, who was

representing himself and the Firm, did not appear for voir dire. On September

19, 2016, the trial commenced in the morning at which time another attorney

for the Firm requested a continuance and showed the trial court an email from

Halpern stating that he was ill and unable to attend the proceedings. The trial

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court did not continue the proceedings and trial began without Halpern

present.

At trial, Appellants objected to a reference in Plaintiff’s counsel’s closing

argument to a potential damages calculation and the trial court responded by

issuing a cautionary instruction. Appellants never requested a mistrial or

other relief. On September 30, 2016, the jury returned a verdict in favor of

Plaintiff and against Appellants. The jury awarded Plaintiff $250,000.00 in

compensatory damages and apportioned 65% of the liability to Halpern and

the Firm and 35% of the liability to Boghossian. The jury also awarded

$1,750,000 in punitive damages against Halpern and the Firm and

$300,000.00 against Boghossian. Hence, it awarded Plaintiff a total of

$2,300,000.00 in compensatory and punitive damages.

Appellants filed post-trial motions. Appellants argued, for the first time

in their post-trial motions, that the trial court erred by admonishing

Boghossian’s counsel while the jury was present. The trial court denied

Appellants’ post-trial motions and entered judgment in favor of Plaintiff and

against Appellants on May 5, 2017. These timely appeals followed and this

Court consolidated the appeals.3

D. Questions Presented

Combined, Appellants present ten issues for our review:

____________________________________________

3 Appellants and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.

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J-A21020-18

1. Whether the trial court erred in permitting [Plaintiff to pursue] a
Dragonetti Act [c]laim for punitive damages against [Halpern and
the Firm] and then refusing to strike the punitive damages award
against [Halpern and the Firm] as being unconstitutional as to
attorneys[?]

2. Whether the trial court erred in failing to grant a new trial due to
[Plaintiff’s] counsel’s improper suggestion to the jury during
closing argument that it award $2,000,000[.00] in damages[?]

3. Whether the trial [c]ourt erred when it failed to order a new trial
as a result of the prejudice [Appellants] suffered by the trial
[court]’s improper admonishment of Boghossian’s counsel in front
of the jury[?]

4. Whether the trial court erred and abused its discretion when it
denied [Halpern and the Firm’s r]equest for [a c]ontinuance of the
[t]rial due to the emergency unavailability of [Halpern], lead trial
counsel and a party defendant, who was suffering from a serious
health issue[?]

5. Whether the trial court erred by [] deciding as a matter of law that
the [underlying lawsuit terminated] in [Plaintiff’s] favor[?]

6. Whether the trial court erred when it failed to enter [judgment non
obstante veredicto (“JNOV”)] or grant a new trial when it was
undisputed at trial that Boghossian relied upon [Halpern’s] advice
that she had a valid and viable claim against [Plaintiff] in the
[underlying lawsuit?]

7. Whether the trial court erred in permitting [Bochetto], a witness
with a long history of bias against [Halpern and the Firm], from
testifying as an expert and then permitting him to present
testimony that was both perjurious and based almost entirely
upon facts not of record, based upon inadmissible hearsay, or
simply manufactured by Bochetto[?]

8. Whether the trial court erred by permitting [Plaintiff’s] expert to
base expert opinion on hearsay statements made by persons not
present at trial or otherwise subject to cross-examination [] where
the hearsay statements were offered for the truth of the matter
asserted[?]

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J-A21020-18

9. Whether the trial court erred by [] permitting [Plaintiff] to testify
at trial as to, and read into evidence, certain hearsay statements
made by persons not present at trial or otherwise subject to cross-
examination [] where the hearsay statements were offered for the
truth of the matter asserted; [however,] precluding [Appellants]
from introducing hearsay statements at trial . . . ?

10. Whether the trial court erred by [refusing to find] as a matter of
law, that [Plaintiff] did not suffer damages from Boghossian’s
alleged conduct and by [refusing to reduce] the amount of the
jury’s award against Boghossian[?]

Boghossian’s Brief at 3-4; Halpern’s and the Firm’s Brief at 5-6.4

II. Waived Arguments

A. Constitutionality of the Dragonetti Act

Halpern and the Firm argue that the Dragonetti Act is unconstitutional

to the extent that it subjects attorneys to punitive damages. This argument

is waived. Pennsylvania Rule of Appellate Procedure 521 provides that:

It shall be the duty of a party who draws in question the
constitutionality of any statute in any matter in an appellate court
to which the Commonwealth or any officer thereof, acting in his
official capacity, is not a party, upon the filing of the record, or as
soon thereafter as the question is raised in the appellate court, to
give immediate notice in writing to the Attorney General of
Pennsylvania of the existence of the question; together with a
copy of the pleadings or other portion of the record raising the
issue, and to file proof of service of such notice.

____________________________________________

4 We have combined and renumbered the issues for ease of disposition.

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J-A21020-18

Pa.R.A.P. 521. Halpern and the Firm did not file a proof of service with this

Court evidencing their compliance with Rule 521.5 Accordingly, their

constitutional challenge is waived. See Fotopoulos v. Fotopoulos, 185 A.3d

1047, 1055 (Pa. Super. 2018).6

B. Plaintiff’s Counsel’s Closing Argument

Appellants argue that the trial court erred by not declaring a mistrial

after Plaintiff’s counsel’s closing argument. At trial, Plaintiff’s counsel argued

that, “You folks have to consider the damages to [Plaintiff]. And I would

submit that your springboard for this, if they thought it important enough to

do this, to get [$2,000,000.00] from [Kilijian] and [] Halpern strip a

$650,000.[00] fee. That is where you start.” N.T., 9/29/16, at 52.

____________________________________________

5 Compliance with Rule 521 is only required where a party makes a facial
challenge to the constitutionality of a statute. Pollock v. Nat’l Football
League, 171 A.3d 773, 783 (Pa. Super. 2017), appeal denied, 181 A.3d 1074
(Pa. 2018) (citation omitted). In Villani v. Seibert, 159 A.3d 478 (Pa. 2017),
our Supreme Court considered a challenge to the constitutionality of the
Dragonetti Act to be a facial challenge. Id. at 480 n.2; see also id. at 494
n.2 (Baer, J. concurring) (“this case involves only a generalized challenge to
the Dragonetti Act as applied to attorneys”). The party challenging the statute
in Villani notified the Attorney General of the constitutional challenge.
Halpern and the Firm facially challenge the constitutionality of 42 Pa.C.S.A. §
8353(6). Hence, as noted in Villani, they were required to comply with Rule
521.

6 Halpern attempted to file the notice “nunc pro tunc” after a decision was
announced in this case. This attempt at preservation fails for two reasons.
First, this Court struck the filing. Second, even if the filing were not struck,
there is no case law, rules, or other legal authority for such a filing preserving
the issue.

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J-A21020-18

This argument is waived. It is well-settled that issues raised for the first

time in a post-trial motion are waived. E.S. Mgmt. v. Yingkai Gao, 176 A.3d

859, 864 (Pa. Super. 2017). After Plaintiff’s counsel’s closing argument,

Boghossian’s counsel argued that

During [Plaintiff’s counsel’s] clos[ing argument], when he was
talking about the emotional distress and reputational damage, he
suggested to the jury that you start with $2 million.

That’s inappropriate. He cannot suggest to the jury a number.
That’s for the jury to determine. And I believe that the Court
needs to address that issue when we begin again.

N.T., 9/29/16, at 58-59 (emphasis added). The trial court responded that it

would give a cautionary instruction. Id. at 59. Boghossian’s counsel

responded, “Thank you.” Id. He did not request a mistrial and he did not

object to the remedy chosen by the trial court.

When the jury returned after lunch, the trial court gave the cautionary

instruction. Id. at 61. Again, Boghossian’s counsel did not object to this

cautionary instruction.7 See id. As such, the first time Appellants sought a

mistrial based on Plaintiff’s counsel’s closing argument was in their post-trial

motions. Accordingly, they waived this issue.

C. Admonishment of Boghossian’s Counsel During Trial

____________________________________________

7Halpern’s and the Firm’s counsel never objected to this portion of Plaintiff’s
counsel’s closing argument nor did they object to the remedy the trial court
chose.

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J-A21020-18

Appellants argue that the trial court erred in admonishing Boghossian’s

counsel during trial. Despite a careful review of the record, we have not

located an objection or filing which raised this issue before post-trial motions.

We are unaware of case law directly addressing what is necessary to preserve

this type of issue for appellate review. After careful review, we hold that

raising the admonishment of counsel for the first time in a post-trial motion is

insufficient to preserve the issue for appellate review.

Pennsylvania Rule of Civil Procedure 227.1 provides that “post-trial relief

may not be granted unless the grounds therefor, (1) if then available, were

raised in pre-trial proceedings or by motion, objection, point for charge,

request for findings of fact or conclusions of law, offer of proof[,] or other

appropriate method at trial[.]” Pa.R.C.P. 227.1(b)(1). We find instructive this

Court’s interpretation of Rule 227.1 in Croyle v. Dellape, 832 A.2d 466 (Pa.

Super. 2003). In that case, a judge recused after a bench trial but prior to

rendering a verdict. After a replacement jurist was assigned, the appellants

did not request a new trial, which they were entitled to under Pennsylvania

law. Cf. Labyoda v. Stine, 441 A.2d 379, 380 (Pa. Super. 1982), citing

Hyman v. Borock, 235 A.2d 621, 622 (Pa. Super. 1967) (trial court serving

as replacement fact-finder may not issue factual findings with respect to

testimony given before a different trial judge if a party objects to that

procedure). After the replacement judge rendered a verdict, the appellants

filed a post-trial motion seeking a new trial.

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This Court found the issue waived because of the appellants’ failure to

raise the issue when the replacement judge was assigned the case. See

Croyle, 832 A.2d at 473.8 This Court reasoned that Rule 227.1(b)(1)

prohibited granting relief on the appellants’ claim because of the failure to

request a new trial when the replacement judge was assigned to the case.

See id. Hence, the issue was waived for purposes of appellate review under

Pennsylvania law.

The same is true of the situation presented in this case. Appellants were

aware of the trial court’s admonishment of Boghossian’s counsel and did not

raise the issue during trial. They could have moved for a mistrial, moved for

recusal, or requested a curative instruction. Instead, they waited until trial

was complete and the jury returned a verdict in Plaintiff’s favor to challenge

the trial court’s admonishment of Boghossian’s counsel. Rule 227.1 prohibited

the trial court from granting Appellants relief on this aspect of the post-trial

motions.

This finding of waiver is consistent with the purpose of post-trial

motions. This Court has explained that the purpose of Rule 227.1 “is to

provide the trial court the first opportunity to review and reconsider its earlier

rulings and correct its own error.” Chalkey v. Roush, 757 A.2d 972, 975

(Pa. Super. 2000) (en banc), aff’d, 805 A.2d 491 (Pa. 2002) (cleaned up). In

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8 The appellants knew that the replacement judge planned to rule based on
the cold record. See Croyle, 832 A.2d at 473-474 (citation omitted).

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this case, Appellants never gave the trial court an opportunity to make an

earlier ruling. Thus, permitting Appellants to preserve their claim of error by

raising it for the first time in their post-trial motions would frustrate the

purpose of Rule 227.1. Accordingly, we hold that Appellants waived this issue

by raising it for the first time in their post-trial motions.

III. Preserved Arguments

A. Continuance Request

Halpern and the Firm argue that the trial court erred in denying their

request for a continuance. Halpern and the Firm contend that Halpern was so

ill on the morning trial began that he was unable to appear. They argue that

one of the Firm’s attorneys showed an email, evidencing Halpern’s illness, to

the trial court when requesting a continuance on the morning of trial. We

review a trial court’s decision to deny a continuance for an abuse of discretion.

Rutyna v. Schweers, 177 A.3d 927, 933 (Pa. Super. 2018) (citation

omitted).

The trial court did not abuse its discretion in denying Halpern’s and the

Firm’s motion for a continuance. First, Halpern and the Firm failed to comply

with Pennsylvania Rule of Civil Procedure 216(A)(2). That rule provides that

a continuance may be granted because of “[i]llness of counsel of record, a

material witness, or a party. If requested a certificate of a physician shall be

furnished, stating that such illness will probably be of sufficient duration to

prevent the ill person from participating in the trial[.]” Pa.R.C.P. 216(A)(2).

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Halpern and the Firm provided a certificate of a doctor. That certificate,

however, was only for voir dire and it did not state that the illness would be

of sufficient duration to prevent him from participating in trial. See Halpern’s

and the Firm’s Brief in Support of Post-Trial Motion, 12/29/16, at Exhibit C

(certifying that, three days prior to trial, Halpern was to see a specialist).

Halpern and the Firm argue that the trial court did not request such a

doctor’s certification pursuant to Rule 216. This argument, however, is

waived. It is axiomatic that an appellant is responsible for ensuring the

certified record is complete for appellate review. Commonwealth v.

Williams, 176 A.3d 298, 320 n.9 (Pa. Super. 2017), appeal denied, 187 A.3d

908 (Pa. 2018) (citation omitted). Halpern and the Firm failed to ensure that

a court reporter was present for voir dire. Moreover, Halpern and the Firm

did not prepare and file a statement in absence of transcript pursuant to

Pennsylvania Rule of Appellate Procedure 1923. The only facts included in the

certified record are that voir dire occurred on Friday, Halpern and the Firm

forwarded the doctor’s note to the trial court on Sunday, and that trial began

on Monday. See N.T., 9/19/16, at 6. Based on the record before us, we

cannot conclude, as Halpern and the Firm suggest, that the trial court did not

request a doctor’s certification pursuant to Rule 216.

Moreover, even if we overlooked the lack of a factual record to support

Halpern’s and the Firm’s argument, we would conclude that the trial court did

not abuse its discretion by denying the continuance request. This was a

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complex case that took two weeks to try to a jury. Plaintiff, his counsel, and

his witnesses cleared their schedules for this trial and then, on the morning of

voir dire, Halpern allegedly became unavailable for the entire two week trial.

Notably, Halpern had similar ailments very recently but did not request a

continuance at that point. See N.T., 9/19/16, at 6. Instead, Halpern and the

Firm requested the continuance on the morning of trial. See id.

Halpern and the Firm also misapprehend the law with respect to the trial

court’s obligation once Halpern and the Firm requested a continuance. Our

Supreme Court has explained that

the burden is upon the party requesting a continuance to support
that request; the trial court does not have an obligation to
assume that the request must be granted, and then probe the
party . . . for support for the request, or to find weaknesses
in the request. This is particularly so if the trial court—which has
the advantage of familiarity with the case and its history, and of
observing in person the [person] requesting a continuance . . .
believes that further delay is the real reason for a day-of-trial
request[.]

Commonwealth v. Brooks, 104 A.3d 466, 477 (Pa. 2014) (emphasis

added). Hence, the trial court did not have an obligation to probe counsel

regarding the factors weighing in favor of, or against, a continuance. Instead,

it was counsel’s obligation to make a record as to each of those factors and

why those factors weighed in favor of granting the requested continuance.

Counsel failed in this respect. See N.T., 9/19/16, at 6-8. Counsel merely

stated that he received an email informing him that Halpern was ill and would

not be attending trial that morning. See id. Counsel did not explain how or

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why the relevant factors weighed in favor of granting the request. Moreover,

and importantly, the attorney representing Halpern and the Firm stated that

he “was prepared for trial.” N.T., 9/26/16, at 331.9

The trial court found that counsel’s failure to make a compelling

argument for a continuance, the requirements of managing its docket, and

Halpern’s past conduct in seeking to unnecessarily delay the proceedings,

weighed against granting a continuance. This was consistent with well-

established precedent from our Supreme Court. See Brooks, 104 A.3d at

477. We conclude that this decision by the trial court was not an abuse of

discretion.10

B. Termination of Underlying Lawsuit in Plaintiff’s Favor

A party is liable under the Dragonetti Act if that party:

takes part in the procurement, initiation or continuation of civil
proceedings against another [and]
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9 We note that, after the trial court denied Halpern’s and the Firm’s
continuance request, it permitted the parties to depose Halpern while he was
in bed at home. Halpern, however, declined this invitation and conducted the
deposition at his office, without a break, for four and one-half hours. See
N.T., 9/21/16, at 5, 219-220, 261. If he were capable of being questioned in
his office for this length of time, it would seem that, at a minimum, he would
have been capable of testifying in the courtroom during trial.

10 To the extent that Halpern and the Firm argue that denial of their
continuance request violated their constitutional right to be present at trial,
this argument is waived. See Pa.R.A.P. 302(a). Similarly, to the extent
Halpern and the Firm argue that the trial court erred by declining to give a
requested jury instruction about Halpern’s absence, this argument is waived.
See Pa.R.A.P. 2116(a).

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(1) [the party] acts in a grossly negligent manner or without
probable cause and primarily for a purpose other than that of
securing the proper discovery, joinder of parties or adjudication of
the claim in which the proceedings are based; [and]

(2) [t]he proceedings have terminated in favor of the person
against whom they are brought.

Kit v. Mitchell, 771 A.2d 814, 819 (Pa. Super. 2001), appeal dismissed, 842

A.2d 368 (Pa. 2004), quoting 42 Pa.C.S.A. § 8351(a). Appellants argue that

the evidence was insufficient as a matter of law to prove that the underlying

lawsuit terminated in Plaintiff’s favor.11 We review an argument that the

evidence was insufficient as a matter of law de novo and our scope of review

is plenary. See Tong-Summerford v. Abington Mem’l Hosp., 190 A.3d

631, 659 (Pa. Super. 2018) (citation omitted). When reviewing the sufficiency

of the evidence, we examine the evidence in the light most favorable to the

verdict winner, in this case Plaintiff. Krishnan v. Cutler Grp., Inc., 171 A.3d

856, 891 (Pa. Super. 2017).

As noted above, Boghossian, through Halpern and the Firm, filed a

praecipe to discontinue her claims against Plaintiff in the underlying lawsuit

after Plaintiff filed a motion for judgment on the pleadings. Appellants argue

that this withdrawal of the claims against Plaintiff was not a favorable

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11 In their statement of questions presented, Appellants frame the issue as
though the trial court made this determination as a matter of law. The record
reflects, however, that the jury made a factual finding that the underlying
lawsuit terminated in Plaintiff’s favor. See Jury Verdict Form, 9/30/16, at 1.

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termination of the underlying lawsuit in Plaintiff’s favor as is required under

the second element of the Dragonetti Act. Plaintiff argues that this withdrawal

was a termination in his favor. “Generally, when considering the question of

favorable termination in a [Dragonetti Act] case, whether a withdrawal or

abandonment constitutes a favorable, final termination of the case . . . initially

depends on the circumstances under which the proceedings are withdrawn.”

Clausi v. Stuck, 74 A.3d 242, 246 (Pa. Super. 2013) (cleaned up).

First, Appellants argue that the claims against Plaintiff were withdrawn

because of a settlement with Plaintiff. Cf. Elec. Lab. Supply Co. v. Cullen,

712 A.2d 304, 311 (Pa. Super. 1998) (“settlement agreements are often not

considered favorable termination for purposes of a [Dragonetti Act claim]”).

This argument is based on a misrepresentation of the procedural history of

this case. Plaintiff and Boghossian never entered into a settlement

agreement. Instead, the record reflects that Halpern and the Firm, on behalf

of Boghossian, spoke to Plaintiff’s counsel regarding the litigation but never

reached a settlement agreement. See Plaintiff’s Memorandum of Law in

Support of Plaintiff’s Response in Opposition to Boghossian’s Motion for

Summary Judgment, 8/1/16, at Exhibit JJ. Accordingly, Appellants’ argument

that the claims against Plaintiff were withdrawn as a result of a settlement are

without merit.

Alternatively, Appellants argue that they made a tactical decision to

withdraw the claims against Plaintiff and their decision to withdraw the claims

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was therefore not a favorable termination in Plaintiff’s favor. As noted above,

we must consider the circumstances under which Boghossian, through Halpern

and the Firm, withdrew the claims to determine if the withdrawal were a

favorable termination in favor of Plaintiff. Clausi, 74 A.3d at 246. Appellants

argue that three circumstances indicate they withdrew the claims against

Plaintiff for strategic reasons; i.e., first, the increased cost associated with

pursuing claims against Plaintiff, second, the obstructionist behavior by

Plaintiff, and third, the prior rulings in favor of Boghossian. Appellants also

rely on persuasive authority in support of their argument that Plaintiff did not

receive a favorable termination in the underlying lawsuit for purposes of the

Dragonetti Act. Our review of the record confirms that Halpern and the Firm,

on behalf of Boghossian, chose to withdraw the claims against Plaintiff because

they realized that continued litigation could subject them to liability under the

Dragonetti Act. It was too late, however, to avoid liability under the

Dragonetti Act as Boghossian, through Halpern and the Firm, maintained the

action well after it became clear that it lacked a reasonable basis in fact and

law. Hence, after carefully considering the totality of the circumstances

surrounding each of these alleged strategic reasons for withdrawing the

claims, we hold that Plaintiff received a favorable termination in the underlying

lawsuit.

Appellants first argue that the increased costs associated with

prosecuting the case against Plaintiff caused them to withdraw those claims.

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The record belies this assertion. Boghossian, through Halpern and the Firm,

did not seek to withdraw the claims against Plaintiff until four years after the

underlying lawsuit was initiated. During this time, extensive discovery and

motions practice occurred. At the conclusion of this period, Appellants already

had absorbed the vast bulk of all expenses associated with their pursuit of

claims against Plaintiff. Going forward, Boghossian, through Halpern and the

Firm, could have litigated the claims against Plaintiff with relatively little

additional cost beyond that incurred in pursuing claims against the irrevocable

trust. The responses to motions for judgment on the pleadings, motions for

summary judgment, and trial strategy would have been almost identical with

respect to Plaintiff and the irrevocable trust. Appellants concede this point in

their briefs to this Court. See Boghossian’s Brief at 20; see also Halpern’s

and the Firm’s Brief at 49. Hence, contrary to Appellants’ argument, cost was

not a compelling strategic factor leading to withdrawal of the claims against

Plaintiff.

Appellants’ argument that they voluntarily dismissed the claims because

Plaintiff was being an obstructionist is also without merit. The record reflects

that Plaintiff was not being more of an obstructionist than the irrevocable

trust. Cf. In re Hilda Kilijian Irrevocable Tr., 2014 WL 10750741 at *3

(emphasis added) (Boghossian “attempted to commence discovery by serving

interrogatories but none of the defendants complied with her request.”).

Instead, the record reflects that the only thing that differentiated Plaintiff from

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the other defendants in the underlying lawsuit was the fact that he was a

respected trial attorney in the Philadelphia area and had warned Halpern and

the Firm that continued litigation of the case on Boghossian’s behalf would

subject Appellants to liability under the Dragonetti Act.

Appellants also rely on the fact that the Court of Common Pleas of

Montgomery County overruled Plaintiff’s preliminary objections on two

occasions in support of their argument that Plaintiff did not receive a favorable

termination in the underlying lawsuit. This fact, however, is inapposite when

considering whether the underlying lawsuit terminated in Plaintiff’s favor.

Preliminary objections, a motion for judgment on the pleadings, and a

summary judgment motion are all pre-trial filings and the standard for

sustaining preliminary objections or granting motions for judgment on the

pleadings or summary judgment are different than that followed in decisions

on the merits following trial. For example, summary judgment may be denied

because there is a genuine issue of material fact and not because the

underlying claims have merit. Thus, even if Plaintiff were unsuccessful at

getting the case dismissed at the preliminary objection, judgment on the

pleadings, and summary judgment stages, he could still have received a

favorable termination if he prevailed at trial in the underlying lawsuit.

Moreover, as noted above, the irrevocable trust was eventually granted

summary judgment on almost identical claims to those brought against

Plaintiff and this Court affirmed that determination.

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J-A21020-18

Appellants also rely on the United States District Court for the Eastern

District of Pennsylvania’s decision in Hyldahl v. Denlinger, 124 F.Supp.3d

483 (E.D. Pa. 2015) in support of their argument that withdrawal of a claim

under circumstances similar to this case does not constitute a favorable

termination. Hyldahl is a well-reasoned decision that correctly states and

applies Pennsylvania law with respect to favorable terminations under the

Dragonetti Act. Nonetheless, we conclude that the factual scenario presented

in that case differs in significant and material ways from the facts of this case.

In Hyldahl, Janet Denlinger and Endre Balazs previously brought

arbitration proceedings against Christian Hyldahl and Morgan Stanley, a

multibillion dollar financial services firm. Prior to the arbitration hearing,

Denlinger and Balazs settled with Morgan Stanley. At the same time, Hyldahl

informed Denlinger and Balazs that he was judgment proof and they would be

unable to recover from him if they prevailed in the arbitration proceedings.

Finally, Hyldahl implicitly threatened physical harm to Denlinger and Balazs.

Eventually, Denlinger and Balazs withdrew their claims against Hyldahl and

Hyldahl instituted Dragonetti Act proceedings. Denlinger and Balazs moved

for summary judgment and, based on these surrounding facts, the United

States District Court for the Eastern District of Pennsylvania held that

withdrawing the request for arbitration was not a favorable termination in

favor of Hyldahl. Hyldahl, 124 F.Supp.3d at 488-489.

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J-A21020-18

There are three key factual differences between the facts in this case

and the facts in Hyldahl. First, in Hyldahl the withdrawal of the claims

completely ended the arbitration proceedings so there was a financial

incentive to withdraw the claims against Hyldahl. In this case, Boghossian

continued the litigation against the irrevocable trust and, as discussed above,

there was little financial incentive for her to discontinue the case against

Plaintiff while pursuing the claims against the irrevocable trust. Second,

Plaintiff was a successful partner at a large Philadelphia law firm and there

was no evidence presented that he was judgment proof. Hence, unlike in

Hyldahl, where Hyldahl was judgment proof, Boghossian could have

recovered if she prevailed against Plaintiff in the underlying lawsuit. Third,

there is no evidence that Plaintiff ever physically threatened Boghossian,

Halpern, or members of the Firm. Hence, the facts presented in Hyldahl are

significantly different from the facts in this case as there were several non-

substantive factors that led to the withdrawal of the claims against Hyldahl.

The jury (as fact-finder) was “free to believe all, part[,] or none of the”

testimony presented by Appellants with respect to why they dropped the

claims against Plaintiff. Shaner v. Harriman, 189 A.3d 1088, 1090 (Pa.

Super. 2018) (citation omitted). In this case, the jury did not credit the

testimony Appellants offered regarding the reasoning behind withdrawing the

claims against Plaintiff. This factual finding by the jury was a reasonable

decision based on the evidence presented at trial. Accordingly, for the reasons

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set forth above, we hold that, when considering the totality of the

circumstances, the evidence was sufficient to find that the underlying lawsuit

terminated in Plaintiff’s favor.

C. Boghossian’s JNOV and Weight of the Evidence Claims

In her statement of questions presented, Boghossian argues that the

trial court erred in denying her motion for JNOV because she relied on

Halpern’s and the Firm’s advice in pursuing the underlying lawsuit. See

Boghossian’s Brief at 4. In the argument section of her brief, however, she

does not argue that the trial court erred with respect to the sufficiency of the

evidence or that no reasonable jury could have returned a verdict in favor of

Plaintiff. Cf. Murray v. Janssen Pharm., Inc., 180 A.3d 1235, 1241 (Pa.

Super. 2018) (stating the two reasons a trial court may grant JNOV). Instead,

she only argues that the trial court erred in denying relief on her weight of the

evidence claim. See Boghossian’s Brief at 46-51. Hence, Boghossian waived

any argument that the trial court erred in denying her motion for JNOV. See

Pa.R.A.P. 2101, 2119(a).

Having determined that Boghossian only preserved her argument that

the verdict was against the weight of the evidence (and she is entitled to a

new trial), we turn to the merits of that argument. We review a trial court’s

ruling on a post-trial motion challenging the weight of the evidence for an

abuse of discretion. See Guntrum v. Citicorp Tr. Bank, 2018 WL 4519813,

*5 (Pa. Super. Sept. 21, 2018). A party is entitled to a new trial based on the

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J-A21020-18

“weight of the evidence where the verdict is so contrary to the evidence it

shocks one’s sense of justice. [A party] is not entitled to a new trial where

the evidence is conflicting and the finder of fact could have decided either

way.” Stapas v. Giant Eagle, Inc., 153 A.3d 353, 359 (Pa. Super. 2016),

appeal granted on other grounds, 171 A.3d 1283 (Pa. 2017) (citation

omitted); see Miller v. St. Luke’s Univ. Health Network, 142 A.3d 884,

897 (Pa. Super. 2016), appeal denied, 164 A.3d 479 (Pa. 2016) (A Dragonetti

Act verdict “will be upheld if the trier of fact could reasonably conclude that

the defendant initiated the underlying lawsuit without probable cause.”).

As noted above, in order to prove his Dragonetti Act claim against

Boghossian, Plaintiff was required to show that Boghossian acted “in a grossly

negligent manner or without probable cause[.]” Kit, 771 A.2d at 819, quoting

42 Pa.C.S.A. § 8351(a)(1). With respect to a litigant, such as Boghossian,

A person who takes part in the procurement, initiation or
continuation of civil proceedings against another has probable
cause for doing so if [s]he reasonably believes in the existence of
the facts upon which the claim is based, and . . . believes to this
effect in reliance upon the advice of counsel, sought in good faith
and given after full disclosure of all relevant facts within [her]
knowledge and information[.]

42 Pa.C.S.A. § 8352(2). Hence, in order to find that Plaintiff satisfied his

burden of proof with respect to Boghossian, the jury was required to find: (1)

she did not reasonably believe in the existence of the facts on which the claims

against Plaintiff were based; (2) she did not seek counsel from Halpern and

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J-A21020-18

the Firm in good faith; or (3) she did not disclose all relevant facts within her

knowledge to Halpern and the Firm.

Boghossian argues that the evidence was so weak with respect to this

element of Plaintiff’s case against her as to shock one’s sense of justice. We

conclude that the trial court did not abuse its discretion in finding that the

jury’s weighing of the evidence in this respect met the requisite standard.

Based on Appellants’ and neutral third-party witnesses’ testimony, together

with the documentary evidence presented at trial, a reasonable fact-finder

could conclude that Boghossian lacked a reasonable belief in the facts on which

the claims against Plaintiff were based.

Boghossian’s theory in the underlying lawsuit was that Kilijian planned

on bequeathing her a substantial part of her estate. One of the underlying

facts that Boghossian relied on when filing the underlying lawsuit was that she

had an amicable relationship with Kilijian. The evidence, however, showed

that Boghossian was aware that this critical factual assumption was false.

Specifically, contrary to the averments made in the underlying lawsuit,

Boghossian admitted on cross-examination that she failed to disclose to

Kilijian her second marriage. See N.T., 9/19/16, at 135-136.

After Plaintiff told Kilijian about Boghossian’s second marriage,

Boghossian forged her attorney’s letterhead and signature on correspondence

meant to allay Kilijian’s fears about who would benefit from her inheritance.

See N.T., 9/13/16, at 9 (Boghossian’s attorney testifying that Boghossian lied

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J-A21020-18

when she informed Halpern and the Firm that the letter bearing Boghossian’s

attorney’s signature was authorized by Boghossian’s attorney). Boghossian

sent this letter to Kilijian in an attempt to resolve the dispute that had arisen

between the two. In other words, Boghossian was aware that she harmed her

relationship with Kilijian by failing to inform Kilijian of her second marriage

and committed fraud and forgery in an attempt to repair the relationship.

Hence, one of the key premises of Boghossian’s underlying lawsuit, that she

had a great relationship with Kilijian, was knowingly false. Boghossian could

not have reasonably believed in the existence of a solid relationship with

Kilijian, which was a critical factual component of her underlying lawsuit

against Plaintiff.

Stock certificates titled jointly to Kilijian and Boghossian were a separate

source of contention in the relationship between the two. In May 2006, Kilijian

twice sent letters to Boghossian demanding the return of her stock certificates.

Thereafter, Kilijian’s attorney sent two letters to Boghossian’s attorney

demanding the same. At this point, Boghossian’s attorney realized that the

only way the relationship between Kilijian and Boghossian could be salvaged

was if Boghossian agreed to turn over the stock certificates. See N.T.,

9/13/16, at 20-21. As noted in the factual recitation above, Boghossian still

refused to turn over the stock certificates. This led to a lengthy negotiation

ending in the 50/50 split of the stock certificates. Boghossian’s concealment

of her second marriage, together with her refusal to return the stock

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J-A21020-18

certificates, gave the jury ample grounds upon which to conclude that

Boghossian did not reasonably believe that she had a good relationship with

Kilijian. Hence, the trial court did not err in finding that the jury’s verdict in

favor of Plaintiff did not shock it’s sense of justice.

Boghossian’s answer to Plaintiff’s new matter in the underlying lawsuit

further supported the jury’s verdict. Boghossian admitted in her response to

Plaintiff’s new matter in the underlying lawsuit that she misled Kilijian about

having an agreement with her second husband. See N.T., 9/20/16, at 49.

Halpern testified that he was unaware that Boghossian forged her prior

attorney’s letterhead and signature and lied by stating that she had an

agreement with her second husband. See N.T., 9/21/16, at 151. A

reasonable fact-finder could construe Halpern’s testimony as showing

Boghossian did not reveal all relevant facts to her attorney prior to instituting

the underlying lawsuit. This is a separate and independent ground on which

the jury could have found against Boghossian. The trial court exercised

reasonable discretion in concluding that such a finding did not shock its sense

of justice.

There was overwhelming evidence supporting the jury’s finding that

Boghossian did not reasonably believe the facts supporting the underlying

lawsuit. There was also evidence that Boghossian did not present all of the

necessary facts to Halpern and the Firm. Hence, the trial court found that the

jury’s factual finding did not shock its sense of justice. Contrary to

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J-A21020-18

Boghossian’s assertions on appeal, her alleged reliance on Halpern’s and the

Firm’s advice was immaterial because of these two factual findings.

Accordingly, we conclude that the denial of Boghossian’s post-trial motion

based on the weight of the evidence was not an abuse of discretion. As

Boghossian also waived her JNOV arguments for the reasons set forth above,

she is not entitled to relief on this claim of error.

D. Bochetto’s Alleged Bias

Halpern and the Firm argue that Bochetto’s expert testimony was

inadmissible because of his alleged bias. In support of this argument, Halpern

and the Firm misstate the law with respect to expert testimony. It is well-

settled that we will only reverse a trial court’s decision to qualify a witness as

an expert if the trial court abused its discretion. See Commonwealth v.

Powell, 171 A.3d 294, 307 (Pa. Super. 2017), appeal denied, 183 A.3d 975

(Pa. 2018).

Pennsylvania Rule of Evidence 702 provides that:

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.

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J-A21020-18

Pa.R.Evid. 702. Notably absent from the list of requirements for qualification

of an expert witness is a requirement that the witness be unbiased.

Halpern and the Firm miscite cases in support of their argument that

[a] proffered witness who is personally biased or prejudiced
against a defendant is not permitted to testify as an expert
because it puts into question the integrity of the expert testimony
and defeats the purpose of and need for an expert - to wit, to
assist the fact -finder in understanding facts of record that require
more specialized training and education.

Halpern’s and the Firm’s Brief at 38 (emphasis removed), citing Cooper v.

Schoffstall, 905 A.2d 482 (Pa. 2006) and Grutski v. Kline, 43 A.2d 142 (Pa.

1945). Cooper did not address qualifications for an expert witness. Instead,

our Supreme Court addressed what discovery was appropriate to enable a

party to meaningfully cross-examine, i.e., not disqualify, another party’s

expert witness. Cooper, 905 A.2d at 493-496. The same is true of Grutski.

In that case, as in Cooper, our Supreme Court explained why cross-

examination and inquiry into an expert witness’ potential bias is critical in our

adversarial process. Grutski, 43 A.2d at 144. In other words, both Cooper

and Grutski stand for the proposition that, while bias may be a proper subject

for cross-examination of an expert witness at trial, it is not grounds for

excluding the testimony of the witness. Ultimately, a witness’ alleged bias

goes to his or her credibility, which the fact-finder must assess when deciding

what weight to accord to the witness’ testimony.

There are dozens, if not hundreds, of reported cases in Pennsylvania

holding that the proper way to explore an expert witness’ potential bias is

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J-A21020-18

through cross-examination. E.g., J.S. v. Whetzel, 860 A.2d 1112, 1120 (Pa.

Super. 2004), citing Coward v. Owens-Corning Fiberglas Corp., 729 A.2d

614, 627 (Pa. Super. 1999); Smith v. Celotex Corp., 564 A.2d 209, 213 (Pa.

Super. 1989), citing Grutski, 43 A.2d 142. Halpern’s and the Firm’s argument

that the trial court must act as the arbiter of the truthfulness of a witness is

wholly frivolous.

Halpern and the Firm also argue that the trial court erred by admitting

evidence relating to Bochetto’s alleged bias. Specifically, they argue that the

trial court erred by permitting Bochetto to testify that he had previously been

asked to testify against Halpern in Dragonetti actions. Halpern and the Firm

argue that this constituted hearsay evidence. Hearsay is a statement that

“(1) the declarant does not make while testifying at the current trial or

hearing; and (2) a party offers in evidence to prove the truth of the matter

asserted[.]” Pa.R.Evid. 801(c). Bochetto’s testimony was not hearsay

because it was not offered for the truth of the matter asserted. Instead, it

was offered to explain how Bochetto was familiar with Halpern’s work and

address Bochetto’s potential bias.

Halpern and the Firm also argue that the trial court erred by not holding

an evidentiary hearing to determine if Bochetto perjured himself. This

argument is also without. Halpern and the Firm essentially argue that there

was after-discovered evidence, i.e., that Bochetto lied when he stated that he

had been asked to work on previous Dragonetti actions against Halpern. In

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J-A21020-18

their brief, Halpern and the Firm state that they “first learned of Bochetto’s

testimony when [Halpern] reviewed the trial transcripts.” Halpern’s and the

Firm’s Brief at 18.

“After-discovered evidence, to justify a new trial, must have been

discovered after the trial, be such that it could not have been obtained at the

trial by reasonable diligence, must not be cumulative or merely impeach

credibility, and must be such as would likely compel a different result.” Drake

Mfg. Co., Inc. v. Polyflow, Inc., 109 A.3d 250, 262 (Pa. Super. 2015)

(cleaned up). In this case, the fact that Bochetto was contacted in the past

to testify against Halpern was learned during the trial and not after the trial.

It is of no moment that Halpern did not learn of Bochetto’s trial testimony until

after the trial concluded and he reviewed the trial transcripts. Halpern and

the Firm had counsel present during the trial who had an obligation to inquire

as to the truth of Bochetto’s testimony at the time it was elicited. Bochetto’s

statement that he had been contacted in the past to testify against Halpern

does not qualify as after-discovered evidence and the trial court did not err in

not holding an evidentiary hearing after the trial ended to determine the truth

of Bochetto’s testimony. Furthermore, the evidence only went to Bochetto’s

credibility. Hence, for two independent reasons the trial court correctly

declined Halpern’s and the Firm’s request to hold an evidentiary hearing to

determine the truthfulness of Bochetto’s testimony.

E. Bochetto’s Reliance on Inadmissible Evidence

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J-A21020-18

Appellants argue that the trial court erred by permitting Bochetto to rely

on inadmissible hearsay when forming his expert opinion. This argument is

without merit. Under Pennsylvania Rule of Evidence 703:

An expert may base an opinion on facts or data in the case that
the expert has been made aware of or personally observed. If
experts in the particular field would reasonably rely on those kinds
of facts or data in forming an opinion on the subject, they need
not be admissible for the opinion to be admitted.

Pa.R.Evid. 703.

Courts in Pennsylvania have long held that opinions based on

inadmissible evidence, e.g. hearsay, are admissible. E.g, Commonwealth

v. Brown, 139 A.3d 208, 218 (Pa. Super. 2016), aff’d, 185 A.3d 316 (Pa.

2018) (collecting cases). Hence, assuming arguendo that Bochetto relied on

inadmissible hearsay evidence in forming his expert opinion, the trial court

correctly concluded that such reliance did not bar Bochetto from offering those

opinions.

F. Plaintiff’s Alleged Hearsay Testimony

Appellants argue that the trial court erred by permitting Plaintiff to offer

hearsay testimony while barring their witnesses from offering hearsay

testimony. “Questions concerning the admission and exclusion of evidence

are within the sound discretion of the trial court and will not be reversed on

appeal absent an abuse of discretion.” Renninger v. A & R Mach. Shop,

163 A.3d 988, 996 (Pa. Super. 2017), appeal denied, 179 A.3d 7 (Pa. 2018)

(citation omitted). At trial, Plaintiff was asked how he came to learn about a

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certain letter. N.T., 9/27/16, at 21. Plaintiff answered the question and, at

the end of that answer, stated that Kilijian told Brown that Boghossian was

robbing her. Id. at 22. Counsel objected and the trial court instructed the

jury that “you are not to consider this for the truth of the matter asserted but

in regards to the context of how [Plaintiff] acted and what he did.” Id. Thus,

contrary to Appellants’ assertions, the trial court did not permit Plaintiff to

offer hearsay statements that Kilijian believed Boghossian was robbing her.

The trial court specifically excluded this evidence and instead permitted the

jury to consider the testimony for the limited purpose of explaining how

Plaintiff learned of the letter. Cf. Maya v. Johnson & Johnson, 97 A.3d

1203, 1222 (Pa. Super. 2014), appeal denied, 112 A.3d 653 (Pa. 2015) (“The

law presumes that the jury will follow the instructions of the court.”). Viewed

in this light, Plaintiff’s testimony was not hearsay as it was not offered for the

truth of the matter asserted but, instead, a limited purpose, i.e., explaining

how Plaintiff learned of the letter in question.

In an attempt to avoid this straight-forward application of settled law,

Appellants argue that how Plaintiff learned of the letter was not relevant. This

argument, however, is waived. In order to preserve a claim that the trial court

erred in overruling an objection, a party must state the specific grounds of the

objection. Pa.R.Evid. 103(a)(1)(B). In this case, Appellants only objected to

Plaintiff’s statement on the basis of hearsay. N.T., 9/27/16, at 22. They did

not object on the basis of relevance. See id. Thus, Appellants waived their

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J-A21020-18

argument that the evidence was inadmissible notwithstanding the trial court’s

instruction regarding the scope of the admission of the evidence. See

Pa.R.A.P. 302(a); Pa.R.Evid. 103(a)(1)(B).

When Plaintiff was asked what he learned from the letter, he stated that

“I called [Kilijian]. And I said, [Kilijian], here’s what we’ve done, and I went

through the transfer agents. And she immediately launched into a discussion

of the ‘babies’ and ‘biggies.’ She said look, [Plaintiff.]” N.T., 9/27/16, at 28-

29. Appellants objected and the trial court once again informed the jury that

it could not consider Plaintiff’s testimony for the truth of Kilijian’s statement

but could only consider it in relation to how Plaintiff acted. Id. at 29.

Again, contrary to Appellants’ assertions, the trial court did not permit

Plaintiff to offer hearsay statements that Kilijian discussed “babies and

biggies.” The trial court specifically excluded this evidence and instead

permitted the jury to consider the testimony for the limited purpose of

explaining what Plaintiff learned from the letter. Viewed in this light, Plaintiff’s

testimony was not hearsay as it was not offered for the truth of the matter

asserted but was offered for another purpose, i.e., explaining Plaintiff’s

actions.

Next, Appellants objected to Plaintiff stating that Boghossian told Brown

to “stay out of [the dispute between herself and Kilijian.]” N.T., 9/28/16, at

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J-A21020-18

35.12 We agree that the trial court abused its discretion by admitting this

statement as it was offered for the truth of the matter asserted. We thus turn

to whether admission of this statement was harmless error.

“To constitute reversible error, a ruling on evidence must be shown not

only to have been erroneous but harmful to the party complaining. An

evidentiary ruling which did not affect the verdict will not provide a basis for

disturbing the [fact-finder]’s judgment.” Renninger, 163 A.3d at 999

(cleaned up). In this case, this one sentence of Plaintiff’s testimony did not

affect the verdict. It was obvious from the properly admitted evidence that

Boghossian did not want Brown involved in the dispute between herself and

Kilijian. Moreover, it was not prejudicial for the jury to learn of Boghossian’s

statement to Brown. Accordingly, we conclude that admission of this

statement was harmless error.

Appellants argue that admission of deposition testimony given in the

underlying lawsuit was inadmissible. We disagree. The testimony was

admissible under Pennsylvania Rule of Evidence 804(b)(1) which provides

hearsay is admissible if the declarant is unavailable and the

[t]estimony [ ] was given as a . . . lawful deposition, whether
given during the current proceeding or a different one; and [] is
____________________________________________

12 In the argument section of her brief, Boghossian quotes an extensive part
of Plaintiff’s testimony that included this statement. See Boghossian’s Brief
at 26. After that quotation, however, she only objects to her own statement
to Brown being admitted at trial. She does not argue that Plaintiff’s testimony
regarding what Brown said to her was inadmissible hearsay. See id. at 26-
27. Hence, any such argument is waived. See Pa.R.A.P. 302(a).

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J-A21020-18

now offered against a party who had--or, in a civil case, whose
predecessor in interest had--an opportunity and similar motive to
develop it by direct, cross-, or redirect examination.

Pa.R.Evid. 804(b)(1).

On September 30, 2010, in the competency proceedings, Appellants

stipulated that evidence obtained pursuant to the orphans’ court’s May 6, 2010

order permitting testimony to be gathered outside the Commonwealth of

Pennsylvania could include any future proceeding concerning the nexus of

facts surrounding the creation of the irrevocable trust. See Exhibit P-44, at

3. That stipulation was entered as an order of court. See id. at 5. In light

of this order, three depositions were taken in Florida. Appellants do not

dispute the fact that those witnesses were unavailable to testify at the trial in

this case.13 Instead, they argue that they lacked the opportunity and motive

to develop the testimony through cross-examination. Both of these

arguments are meritless.

An attorney from the Firm represented Boghossian at all three

depositions. See N.T., 3/11/11, at 2 (Jackqueline Lowthert at the Michael

Striar deposition); N.T., 3/10/11, at 2 (Jackqueline Lowthert at the Toni

____________________________________________

13Boghossian makes the argument in her reply brief that the witnesses were
available to testify at trial. See Boghossian’s Reply Brief at 5. However, it is
axiomatic that arguments raised for the first time in a reply brief are waived.
Okeke-Henry v. Sw. Airlines, Co., 163 A.3d 1014, 1019 n.7 (Pa. Super.
2017). Moreover, Appellants did not object to the admission of the depositions
at trial on this basis. See N.T., 9/23/16, at 179-185. Hence, even if the
argument were made in Boghossian’s principal brief, instead of her reply brief,
the issue would be waived. See Pa.R.A.P. 302(a).

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J-A21020-18

Weston-Paulson deposition); N.T., 3/9/11, at 2 (Jackqueline Lowthert at the

Adam Karron deposition). Hence, Appellants had an opportunity to cross-

examine all three witnesses. The extent of the cross-examination that they

chose to utilize was a strategic decision that they made. Clearly, however,

Appellants had the opportunity to cross-examine the three witnesses at their

depositions in Florida.

Appellants further argue that even if they had an opportunity to cross-

examine these three witnesses, they lacked the necessary similar motive to

develop this testimony. Again, we disagree. The three depositions were taken

in a case to determine Kilijian’s competency. All three witnesses testified that

Kilijian was competent at the time she placed most of her wealth in the

irrevocable trust. The competency proceeding involved Kilijian’s susceptibility

to influence and the underlying lawsuit charged defendants with undue

influence. Therefore, there was substantial overlap of claims and facts and,

thus, motive to fully cross-examine the witnesses. In other words, Appellants

had incentive to fully cross-examine the three witnesses during the

depositions. The depositions did not explore matters that were unrelated to

the competency proceedings. Again, the extent to which they cross-examined

the witnesses was a strategic decision that they made. The trial court properly

refused to bar Plaintiff from offering these depositions at trial. Accordingly,

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J-A21020-18

we conclude that the trial court did not abuse its discretion by overruling

Appellants’ objection.14

Appellants argue that the trial court erred in sustaining Plaintiff’s

objections to the following questions to, and answers by, Boghossian:

[Question:] And isn't it true that Blake Boghossian confirmed the
facts to Mark Halpern and/or Carmen Finegan[, one of the Firm’s
attorneys,] that you relayed to Mark Halpern and Carmen
Finegan?

***

[Question:] Isn't it true that you brought certain individuals to the
office to confirm facts that you stated to Mark Halpern?

***

[Question:] And you were very upset to Mark Halpern and Carmen
Finegan; you cried about that?

[Answer:] Yes. I initially called them from Sunrise[, the assisted
living facility Kilijian was living]. I went to visit my aunt and this
was the second time. The first time when I went, the Sunrise
home did not know who I was and I asked to visit with a Hilda
Kilijian. They brought her down. She welcomed me, hugged and
kissed, and it was like a nice family reunion. This is the first time
I had seen her since she was brought up to Philadelphia from
Florida without me knowing. But I was able to find out where she
was by calling the homes in the neighborhood where I just took a
chance I might be able to find her. The second time I went back,
the manager came over. She was very apologetic, and she said
I'm terribly sorry

***
____________________________________________

14Appellants also argue that the depositions were inadmissible because they
were not given proper notice that the depositions would be offered at trial.
This argument is waived because Appellants failed to object on this basis. See
Pa.R.A.P. 302(a); Pa.R.Evid. 103(a)(1)(B).

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[Question:] Do you recall a time that you told Mark Halpern that
you were present when your sister walked in and kind of tapped
your mother on the head and screamed at her at the top of her
lungs saying . . . make Lynne --

***

[Question:] And you believed she was taken against her will?

[Answer:] Lourdes told me that.

N.T., 9/20/16, at 12-32. Appellants argue that each of these questions went

to their state of mind when they instituted the underlying lawsuit and, thus,

were not offered for the truth of the matter asserted. We conclude that the

trial court did not abuse its discretion in sustaining Plaintiff’s objections.

As to the first question, whether or not Blake Boghossian “confirmed”

the facts that Boghossian told Halpern is immaterial to determining

Boghossian’s state of mind. What was at issue in this case was whether

Boghossian had a reasonable basis in fact and law for commencing the

underlying lawsuit. Appellants were not attempting to elicit information

regarding their state of mind. Rather, they were attempting to elicit

information regarding irrelevant evidence regarding whether Blake

Boghossian “confirmed” facts to Halpern. Cf. Dean v. Bowling Green-

Brandywine, 192 A.3d 1177, 1182–83 (Pa. Super. 2018) (“We may affirm

the trial court's order on any basis, regardless of the reasoning relied upon by

the trial court.”). The same rationale applies to the second question quoted

above.

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As to Boghossian’s answer to the third question above, whether a

member of an assisted living home staff was apologetic to Boghossian was

irrelevant when considering Boghossian’s state of mind when she instituted

the underlying lawsuit or why she continued to maintain the suit long after it

became clear that it lacked a basis in fact or law. As to the last two answers,

they were offered for the truth of the matter asserted, i.e., to show that Brown

and Plaintiff acted against Kilijian’s will. They were not offered to show

Appellants’ state of mind. Accordingly, we conclude that the trial court did

not err in sustaining the objections during Boghossian’s testimony.

G. Sufficiency of Damages Evidence

In their final issue, Appellants argue that the evidence was insufficient

as a matter of law to sustain the jury’s damages award. As noted above, we

review the sufficiency of the evidence de novo and our scope of review is

plenary. See Tong-Summerford, 190 A.3d at 659. We must view the

evidence in the light most favorable to Plaintiff as the verdict winner.

Krishnan, 171 A.3d at 891.

The jury awarded Plaintiff $250,000.00 in compensatory damages;

$200,000.00 for emotional distress and $50,000.00 for reputational harm.

Appellants argue that the evidence was insufficient to support both of these

damages awards. These arguments, however, are based on a misapplication

of well-established Pennsylvania law. Specifically, Appellants err in viewing

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the evidence in the light most favorable to themselves instead of in the light

most favorable to Plaintiff.

Appellants contend that Plaintiff failed to prove he suffered emotional

distress because he offered only his testimony and not that of third parties

and/or medical experts. An en banc panel of this Court previously rejected

this line of argumentation. See Cruz v. Princeton Ins. Co., 972 A.2d 14,

19 (Pa. Super. 2009) (en banc) (“neither impact nor medical documentation

of distress related symptoms is necessary to [prove emotional distress in

Dragonetti Act cases]”); see id. at 19 n.5. This Court explained that because

of “the absence of a need to prove physical impact or to introduce medical

testimony to establish emotional harm, [a plaintiff may] prove their

[damages] by way of any admissible evidence.” Id. at 19.

Plaintiff testified to the emotional distress he suffered as a result of the

underlying lawsuit. For example, he testified that he was worried that he

would be investigated by the Disciplinary Board of the Supreme Court of

Pennsylvania because of the allegations contained in the underlying lawsuit.

N.T., 9/26/16, at 299. He further testified that this worry was exacerbated

by the fact that he had just left a large Philadelphia law firm to start his own

firm. See id. at 297-299. He also testified that even if he were not

investigated by the Disciplinary Board, he was worried that competing law

firms might learn of the allegations and hinder his new firm from building a

book of business. See id. at 299. Plaintiff testified he could not “even really

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describe the impact of trying to go through this kind of lawsuit with these

accusations, you know, when you’re trying to start a new venture.” Id. at

298. Plaintiff also testified he felt “[w]orried” as a result of the lawsuit and

starting his own firm. Id. at 301. Plaintiff testified that the “physical feeling

I had was like having a policeman pull up behind me at night and the bubble

is running and your heart starts pounding[.]” Id. at 300.

Plaintiff testified extensively about the emotional distress that he

suffered as a result of the underlying lawsuit. Because emotional distress was

not the tort he pursued, but was only the basis for which he sought damages,

under this Court’s en banc Cruz decision, he was not required to offer medical

evidence or third-party testimony regarding that emotional distress. Viewed

in the light most favorable to Plaintiff as the verdict winner, there was

sufficient evidence for the jury to award Plaintiff $200,000.00 in compensatory

damages for emotional distress.

We next turn to Appellants’ argument that there was insufficient

evidence to award Plaintiff $50,000.00 in damages for reputational harm.

Contrary to assertions in Boghossian’s brief, Plaintiff offered testimony from

which the jury could reasonably conclude that competing law firms learned of

the underlying lawsuit. Specifically, Plaintiff testified that the court in which

the underlying lawsuit was originally filed sent information regarding the case

to his old law firm instead of his home address or his new law firm’s address.

N.T., 9/26/16, at 301. The next day Plaintiff explained that he knew that,

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because of these mailings, his old law firm was aware of the claims made

against him in the underlying lawsuit. N.T., 9/27/16, at 140. Plaintiff also

testified that other large Philadelphia law firms learned the allegations made

by Boghossian, through Halpern and the Firm, in the underlying lawsuit. Id.

at 141.

In addition to reputational harm suffered in the legal community,

Plaintiff testified that he suffered reputational harm in the ethnic Armenian

community. See id. He testified that he knew others in that community were

aware of the underlying lawsuit and the allegations contained therein. See

id. The jury was entitled to consider this testimony in evaluating the

reputational harm suffered by Plaintiff.

It is hornbook law that when examining a challenge to the sufficiency of

the evidence we must examine the evidence in the light most favorable to the

verdict winner. In this case, the jury found in favor of Plaintiff and, therefore,

we must view the evidence in the light most favorable to him. When viewed

in this light, there was sufficient evidence for the jury to award Plaintiff

$50,000.00 in compensatory damages for reputational harm. Accordingly,

Appellants are not entitled to relief on their claim that the evidence was

insufficient as a matter of law for the jury to award Plaintiff significant

compensatory damages.

Appellants’ challenge to the punitive damages is based solely on their

argument that compensatory damages were unwarranted. They make no

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independent argument as to why punitive damages, and the specific amount

awarded in this case, were inappropriate. Thus, to the extent Appellants argue

the evidence was insufficient as a matter of law to award punitive damages,

that argument is waived. See Pa.R.A.P. 2101, 2119(a).

IV. Conclusion

In sum, we hold that Appellants failed to preserve three of their claims

for our review. With respect to those issues Appellants preserved, we hold

that there was sufficient evidence for the jury to find that the underlying

lawsuit terminated in Plaintiff’s favor. As Appellants are not entitled to relief

on their remaining claims of error, we affirm the judgment entered in favor of

Plaintiff.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/4/19

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