J-S65001-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TERRY SUTTON, BRENDA L. SUTTON, : IN THE SUPERIOR COURT OF
AND CHRIS CINKAJ : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 609 MDA 2018
PEOPLES BANK :
Appeal from the Order Entered April 3, 2018
In the Court of Common Pleas of York County Civil Division at No(s):
2015-SU-000735-67
BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 09, 2019
Appellants, Terry Sutton, Brenda L. Sutton, and Chris Cinkaj, appeal
from the order granting summary judgment in favor of Appellee, Peoples Bank
(“the Bank”). We affirm.
The trial court summarized the facts and procedural history of the case
in its order1 granting summary judgment, as follows:
Plaintiff Terry L. Sutton is a person who does business under
the trade name “Cinkaj Brogue Partnership” and resides in York
County, Pennsylvania. Plaintiff Brenda L. Sutton is also a person
who does business under the trade name “Cinkaj Brogue Limited
Partnership” and resides in York[] County, Pennsylvania. Plaintiffs
Terry and Brenda Sutton are also husband and wife. Plaintiff Chris
Cinkaj is a person who does business under the trade name
“Cinkaj Brogue Partnership” and resides in Langhorne,
Pennsylvania. Plaintiff Brogue Limited Partnership is a
Pennsylvania limited partnership located in York, Pennsylvania.
____________________________________________
1 The trial court’s eighteen-page order is in the nature of an opinion.
J-S65001-18
Defendant Peoples Bank, Codorus Valley Bancorp, Inc.[,] is a one-
bank holding company headquartered in York, Pennsylvania.
Plaintiffs [were] part owners of the Brogue Center
(hereinafter the “Property”), located at 2514 Delta Road,
Chanceford Township, York County, Brogue, PA. The Property
consists of a shopping center in which a number of tenants were
under lease. Defendant operated a branch office in Suite #8 in
the Property and had a signed lease with Plaintiffs. On February
13, 2006, Plaintiff Cinkaj executed an open end[ed] mortgage line
of credit from Defendant in the sum of one million dollars[,] and
Plaintiffs Terry and Brenda Sutton borrowed from Defendant the
sum of $150,000 from a line of credit for commercial purposes.
Plaintiff Cinkaj had unlimited unrestricted access to the first
$500,000 of the open ended mortgage line of credit and the
second $500,000 was restricted to a prior notice from Plaintiff
Cinkaj to Defendant and consent of Defendant bank.
On or about June 15, 2010, Plaintiff Cinkaj withdrew
$500,000 from his line of credit from Defendant to finance future
construction projects. On August 30, 2011, Kent Ketterman,
Senior Vice President of Defendant, sent an email to Plaintiff
Cinkaj stating that he had withdrawn money from his restricted
$500,000 line of credit without Defendant’s consent. On
November 1, 2011, Kent Ketterman sent correspondence to
Plaintiff Cinkaj stating that Defendant put his line of credit in
default and that the line of credit must be paid to a maximum
balance of $500,000 by June 5, 2012. Plaintiffs Terry and Brenda
Sutton’s line of credit would remain frozen until additional
collateral could be provided or when the line was paid back to the
required level.
On or about February 1, 2012, Plaintiffs began to research
the possibility of opening an adult entertainment business[2] at
their Property. On that same date, Plaintiffs allege that they
entered into oral negotiations with Jeff Levy, representing
Spearmint Rhino Entertainment, to purchase a space at the
Property known as “The Office” to run an adult entertainment
business. On March 5, 2013, Plaintiffs alleged that they entered
____________________________________________
2 A related lawsuit described this business as “a cabaret featuring nude
dancing in the shopping center.” Sutton v. Chanceford Twp., 298
F.Supp.3d 790, 793 (M.D. Pa. 2018) (“Sutton II”).
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J-S65001-18
into a lease with Terry Thompson to open “the Office,” an adult
entertainment business, in a vacant space at their Property.
On March 12, 2013, Plaintiffs submitted an Application for
Special Exception to the Chanceford Township Zoning Hearing
Board [“Zoning Board”] seeking to make use of their Property as
an Adult Oriented Facility. Plaintiffs allege that the application
met all of the criteria of the Ordinance as set forth in order for
Chanceford Township Zoning Hearing Board members to approve
the application for special exception.
On April 16 2013, the Chanceford Township Planning
Commission held a meeting. During this meeting, Plaintiffs allege
that Defendant’s agent, Paul Minnich, stated during the public
comment period that Plaintiffs failed to meet the condition of
harmony with orderly and appropriate development of the zone.
Plaintiffs also allege that Paul Minnich stated that the adult
oriented facility would adversely impact the bank’s branch office
operation.
On May 1, 2013, at another Chanceford Township Planning
Commission meeting, Defendant, through its agent Paul Minnich,
presented testimony and dissenting opinion based on morality-
based arguments against Plaintiffs’ application for special
exemption. On May 2, 2013, Defendant filed confessed
judgments against Plaintiffs Terry and Brenda Sutton in the
amount of $79,415.03 and against Plaintiffs Cinkaj and Brogue
Limited Partnership in the amount of $1,024,749.06.
On May 13, 2013, the Chanceford Township Planning
Commission recommended that the Chanceford Township Zoning
Hearing Board reject Plaintiff[s’] application.
On May 24, 2013, Plaintiffs filed a Petition to Strike
Confessed Judgment in the Court of Common Pleas of York
County, Pennsylvania.
On May 23, 2013, the Chanceford Township Zoning Hearing
Board meeting took place. During the meeting, Plaintiffs allege
that Defendant’s agent, Paul Minnich, asked that the application
for a special exemption be denied because Plaintiffs proposed
adult-oriented facility was “immoral,” “criminal,” “outside the
character and nature . . . in the neighborhood,” and “not
appropriate for the community.”
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On June 17, 2013, Plaintiff Sutton,3 with counsel, appeared
before the Chanceford Township Zoning Hearing Board meeting
and argued that the denial of Plaintiffs’ application for special
exception would be a violation of their rights protected by the
Constitution of the United States. At this meeting, Plaintiff alleges
that Paul Minnich stated that Plaintiff Sutton “won’t even tell [sic]
us who these people are . . . It goes directly to the heart of this
gentleman’s (Sutton) credibility or lack thereof.” (See Plaintiffs’
Second Amended Complaint ¶ 86). Plaintiffs also allege that Paul
Minnich informed the Zoning Hearing Board that Plaintiffs were in
default on their loan obligations to Defendant and have been sued
for a million dollars.
On July 22, 2013[,] and July 25, 2013, during two meetings
of the Chanceford Township Zoning Hearing Board, Plaintiffs
allege that Defendant, through Paul Minnich, argued that the
Plaintiffs’ application should be denied. Plaintiffs allege that Paul
Minnich made numerous arguments for the denial of Plaintiffs’
application. At the conclusion of the July 25, 2013 meeting,
Chanceford Township Zoning Hearing Board members voted to
unanimously reject Plaintiffs’ Application for Special Exception.
Plaintiffs allege that the board members informed the audience
that they had denied the application based on arguments made
by Paul Minnich, who Plaintiffs allege is the Defendant’s agent and
special legal counsel. On August 15, 2013, the Chanceford
Township Zoning Hearing Board issued a written decision that
memorialized the denial.[4]
On or about August 15, 2013, Plaintiffs allege that because
of the denial of Plaintiffs’ application, Jeff Levy decided not to
purchase “the Office” space at the Property. On or about August
31, 2013, Plaintiffs allege that because of the denial of Plaintiffs’
application, Terry Thompson announced that he purchased a
____________________________________________
3 Our review of the record reveals that the trial court was referring to
Appellant Terry Sutton.
4 The Bank points out that while Appellants’ claims center on the denial of
zoning relief, the Reproduced Record does not include the Zoning Board’s
August 15, 2013 decision. The Bank’s Brief at 3 n.3. We note that the Second
Amended Complaint, as well, merely attaches newspaper articles regarding
the denial as evidence of its occurrence. Second Amended Complaint, 2/5/16,
at Exhibits 27 and 28.
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location in Atlantic City, New Jersey[,] instead of the location at
the Property. The Property was eventually foreclosed on and sold
at a Sheriffs sale on April 10, 2014.
On March 10, 2015, Plaintiffs filed their complaint in a civil
action initially naming as Defendants Peoples Bank, Larry J. Miller,
Kent Ketterman, Harry Swift, Susan Holtzinger, Scott Weaver,
Brittany Crispens, and Paul Minnich. The initial complaint alleged
intentional interference with existing contractual relations,
intentional interference with prospective contractual relations,
defamation of character, slander, breach of the implied covenant
of good faith and fair dealing, and false light invasion of privacy.
On March 30, 2015, the Peoples Bank Defendants, except for
Defendant Paul Minnich, filed preliminary objections to Plaintiff[s’]
Complaint. On April 6, 2015, Defendant Paul Minnich filed
preliminary objections to Plaintiff[s’] Complaint. On June 10,
2015, the Honorable Judge Stephen P. Linebaugh sustained the
Defendants’ preliminary objections and dismissed all of Plaintiffs’
counts, without prejudice. On June 17, 2015, the parties filed a
Discontinuance of Action as to Defendant Paul Minnich.
On June 26, 2015, Plaintiffs filed their First Amended
Complaint and alleged counts of intentional interference with
existing contractual relations and intentional interference with
prospective contractual relations against Defendants Peoples
Bank, Larry Miller, Kent Ketterman, Scott Weaver, Harry Swift,
Susan Holtzinger, and Brittney Crispens. On July 16, 2015,
Defendants filed preliminary objections to Plaintiffs’ Amended
Complaint. On December 18, 2015, the Honorable Judge Stephen
P. Linebaugh heard oral argument on Defendants’ preliminary
objections. On January 6, 2016, Judge Linebaugh granted, in
part, and denied, in part, Defendants’ preliminary objections. The
order dismissed, with prejudice, the actions filed against Larry
Miller, Kent Ketterman, Harry Swift, Susan Holtzinger, Scott
Weaver, and Brittney Crispens. The case was allowed to continue
against Defendant Peoples Bank.
On February 5, 2016, Plaintiffs filed their Second Amended
Complaint, which again alleges only “intentional interference with
existing contractual relations and intentional interference with
prospective contractual relations.” On March 11, 2016, Defendant
Peoples Bank filed an answer with new matter to the complaint.
On April 21, 2016, Plaintiffs filed a reply to Defendant’s new
matter. On December 15, 2017, Defendant filed a motion and
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memorandum of law in support of summary judgment. On
February 9, 2018, Plaintiffs filed a response and brief in opposition
to Defendant’s motion for summary judgment.
Opinion and Order Granting Defendant’s Motion for Summary Judgment,
4/3/18, at 2–8.
The trial court granted the Bank’s motion for summary judgment on
April 3, 2018. Appellants filed a notice of appeal on April 13, 2018. Both
Appellants and the trial court complied with Pa.R.A.P. 1925.5
Appellants frame the same six issues asserted in their Rule 1925(b)
statement in the Statement of Questions Involved in their appellate brief:
1. Did the Court err and abuse its discretion by determining
that the record is void of sufficient evidence that
demonstrates a genuine issue for trial that statements and
allegations made by [the Bank] during zoning board
hearings went beyond the scope of fair argument and
opposition?
2. Did the Court err and abuse[] its discretion by determining
that the record is void of sufficient evidence that
demonstrates a genuine issue for trial that [the Bank] did
more than exercise its opinion in opposition to [Appellants’]
zoning request?
3. Did the Court err and abuse its discretion by determining
that the record is void of sufficient evidence that
demonstrates a genuine issue for trial that [the Bank’s]
interference was not proper under Reinstatement (Second)
of Torts § 767?
4. Did the Court err and abuse its discretion in determining
that the record is void of sufficient evidence that
____________________________________________
5 The trial court relied upon its reasoning in the April 3, 2018 order granting
summary judgment in lieu of further explanation in a Pa.R.A.P. 1925(a)
opinion.
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J-S65001-18
demonstrates a genuine issue for trial that [the Bank’s]
interference was not without privilege or justification under
Reinstatement (Second) of Torts § 768?
5. Did the Court err and abuse its discretion, as well as deny
[Appellants’] due process by failing to credit sufficient
evidence that contradicted its key actual conclusion that
[the Bank’s] conduct was proper, privileged and justified by
improperly weighing the sufficient evidence and resolving
disputed issues in favor of the moving party, a clear
misapplication of Pennsylvania Rule of Civil Procedure
1035.2?
6. Did the Court err and abuse its discretion by failing to
address and offer its opinion on other issues advanced by
[the Bank] to support its request for Summary Judgment
and disputed by [Appellants]?
Appellants’ Brief at 4–5.
Our standard of review is settled:
It is well settled that “summary judgment is appropriate only in
those cases where the record clearly demonstrates that there is
no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law.” Truax v. Roulhac, 126
A.3d 991, 996 (Pa. Super. 2015) (en banc) (quoting Summers v.
Certainteed Corp., 606 Pa. 294, 997 A.2d 1152, 1159 (2010)).
In ruling on such a motion, “the trial court must take all facts of
record and reasonable inferences therefrom in a light most
favorable to the non-moving party” and “resolve all doubts as to
the existence of a genuine issue of material fact against the
moving party.” Id. “Where the non-moving party bears the
burden of proof on an issue, he may not merely rely on his
pleadings or answers in order to survive summary judgment.”
Babb v. Ctr. Cmty. Hosp., 47 A.3d 1214, 1223 (Pa. Super. 2012)
(citations omitted). “Failure of a non-moving party to adduce
sufficient evidence on an issue essential to his case and on which
he bears the burden of proof establishes the entitlement of the
moving party to judgment as a matter of law.” Id. Thus, “a
proper grant of summary judgment depends upon an evidentiary
record that either (1) shows the material facts are undisputed or
(2) contains insufficient facts to make out a prima facie cause of
action or defense.” Basile v. H & R Block, Inc., 777 A.2d 95,
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J-S65001-18
100 (Pa. Super. 2001) (quoting McCarthy v. Dan Lepore & Sons
Co., Inc., 724 A.2d 938, 940 (Pa. Super. 1998)).
Dunlap v. Fed. Signal Corp., 194 A.3d 1067, 1069 (Pa. Super. 2018)
(footnote omitted). On appeal, this Court may reverse a grant of summary
judgment if there has been an error of law or an abuse of discretion.
Summers, 997 A.2d at 1159. “But the issue as to whether there are no
genuine issues as to any material fact presents a question of law, and
therefore, on that question our standard of review is de novo.” Truax, 126
A.3d at 996. “To the extent that this Court must resolve a question of law,
we shall review the grant of summary judgment in the context of the entire
record.” Wells Fargo Bank v. Joseph, 183 A.3d 1009, 1012 (Pa. Super.
2018).
All of Appellants’ issues assert that the trial court failed to credit their
evidence contradicting the trial court’s “key actual conclusion that [the Bank’s]
conduct was proper, privileged, and justified by improperly weighing the
sufficient evidence and resolving disputed issues in favor of” the Bank.
Appellants’ Brief at 12. We disagree.
We note initially that Appellants’ brief does not comply with our rules of
appellate procedure. Specifically, as noted supra, Appellants list six issues in
their Statement of Questions Involved, which they identify as issues one
through six. Appellants’ Brief at 4–5. However, in their brief, Appellants
provide argument for only two issues, labeled A and B, which refer to the
topics suggested by issues three and five, with a subpart that tracks language
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of issue one. Clearly, Appellants’ brief violates Pa.R.A.P. 2119, which
mandates that “[t]he argument shall be divided into as many parts as there
are questions to be argued . . . .” Pa.R.A.P. 2119(a). The reason for the rule
is readily apparent, and compliance with the rule aids this Court in identifying
and addressing Appellants’ claims. Indeed, this Court will not consider an
argument that has been abandoned. See Koller Concrete, Inc. v. Tube
City IMS, LLC, 115 A.3d 312, 320 321 (Pa. Super. 2015) (Superior Court will
not address issue presented in the statement of questions involved where no
corresponding analysis is included in the brief); Lechowicz v. Moser, 164
A.3d 1271, 1276 (Pa. Super. 2017) (Superior Court will not consider argument
that is not properly developed). Thus, issues two, four, and six, which have
been abandoned in the brief, are waived and will not be addressed.6
In issue A, subpart one, in the argument section of Appellants’ brief,
Appellants maintain that the trial court abused its discretion by determining
that the record lacks sufficient evidence demonstrating a genuine issue that
the Bank’s “interference was not proper under Reinstatement (Second) of
Torts §767.” Appellants’ Brief at 12. In subpart two, Appellants maintain that
the trial court did not consider Appellants’ evidence in concluding that the
Bank’s statements to the Zoning Board “went beyond the scope of fair
argument and opposition.” Id. at 21. Finally, Appellants contend the trial
____________________________________________
6 To the extent the abandoned issues were addressed by the trial court, we
would rely on its disposition and explanation.
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court abused its discretion in disregarding Appellants’ “additional arguments.”
Id. at 34. In conjunction, Appellants suggest the trial court failed to credit
contradicting evidence to its determination that the Bank’s conduct was proper
and justified, thereby misapplying Pa.R.C.P. 1035.2 Id.7
____________________________________________
7 We note that there was a discrepancy between the parties concerning
Appellants’ actions regarding the Zoning Board’s decision. See Bank’s
Application for Relief in the Nature of a Motion to Correct the Record, filed
10/18/18. After their application was denied by the Zoning Board, Appellants
forewent an appeal in state court and instead, filed the instant complaint
against the Bank and others on March 10, 2015, and a federal complaint on
August 12, 2014, against Chanceford Township and others challenging the
zoning ordinance regarding adult-oriented businesses. Appellants claimed
their application for a special exception was denied due to moral objections to
adult entertainment, and that the ordinance and the denial of their application
violated the First Amendment to the United States Constitution. Sutton v.
Chanceford Twp., 186 F.Supp.3d 342, 345 (M.D. Pa. 2016) (“Sutton I”).
Appellants sought “monetary damages, a declaration that the zoning
ordinance was unconstitutional, and an injunction against the ordinance’s
future enforcement.” Id. at 345–346. Ultimately, the federal district court
granted the township’s summary-judgment motion, stating:
[A]lthough the plaintiffs are plainly aggrieved by the denial of their
application, we do not find sufficient evidence to show that this
denial was so arbitrary or improper that it shocks the conscience.
Instead, it appears to be little more than a local land-use decision
pitting a frustrated business against the [Zoning Board] and other
local officials who had legitimate, objective, and content-neutral
reasons for their adverse decision.
Sutton II, 298 F.Supp.3d at 810.
In its brief to this Court, the Bank asserted that Sutton II, because it
was an unappealed decision, put to rest any attempt by Appellants to persuade
us of the veracity of their position in the instant case. In actuality, however,
Appellants did appeal the district court’s decision to the Third Circuit Court of
Appeals on April 18, 2018. Sutton v. Chanceford Twp., Case Number 18-
1846 (3d Cir. 2018). Nevertheless, our decision today is based solely on the
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J-S65001-18
We have considered Appellants’ arguments, the Bank’s responses,
reviewed the applicable law, and carefully examined the record certified to us
on appeal. We conclude that the April 3, 2018 Order granting summary
judgment, as relied upon in the June 7, 2018 statement pursuant to Pa.R.A.P.
1925(a) in lieu of an opinion by the Honorable Richard K. Renn, sufficiently
addresses the issues raised on appeal, and we rely upon it in affirming this
case. The parties are directed to attach the April 3, 2018 Order in the event
of future proceedings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/9/2019
____________________________________________
propriety of the trial court’s decision in the case sub judice and not in reliance
upon the federal lawsuit by Appellants against Chanceford Township.
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Circulated 12/12/2018 04:25 PM
OFFICE OF PROTHONOTARY
20t8APR -3 PM 2: 58
.JiJD!CiAL CENTER
YORK, PA
IN THE COURT OF COMMON PLEAS YORK COUNTY
PENNSYLVANIA
TERRY SUTTON, BRENDAL
SUTTON and CRRJS CINKAJ No. 2015-SU-000735-67
Plaintiffs
CIVIL DIVISION
v.
PEOPLES BANK
Defendant
l
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT
AND NOW, this 3r<1 day of April, 2018, the Court has before it Defendant
; .
Peoples Bank's motion for summary.judgment pursuant to Pennsylvania Rule of
!
Civil Procedure 1�35.2. We GRANT
.
Defendant's motion
.
for summary judgment
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because Plaintiffs \have failed to raise a genuine issue of material fact that
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Defendant's cond�ct of speaking against Plaintiffs, Application for special
exception at the Chanceford Township Zoning Hearing Board meetings was
;
improper and without privilege or justification .
.
Plaintiffs' claims are dismissed, with prejudice. ·
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.. .. • l. ' • C, ••
Factual and Procedural History
Plaintiff Terry L. Sutton is a person who does business under the trade
name "Cinka] Brogue Partnership" and resides in York County, Pennsylvania.
Plaintiff Brenda IL. Sutton is also a person who does business under the trade name
"Cinkaj Brogue Limited Partnership" and resides in York, County, Pennsylvania.
Plaintiffs Terry and Brenda Sutton are also husband and wife. Plaintiff Chris
Cinkaj is a person who does business under the trade name "Cinkaj Brogue
I
j .
Partnership" and resides in Langhorne, Pennsylvania. Plaintiff Brogue Limited
;
I . .
Partnership is a Pennsylvanla limited partnership located in York, Pennsylvania.
i
Defendant Peoples Bank, Codorus Valley Bancorp, Inc. is a one-bank holding
company headquartered
. in York, Pennsylvania.
.
Plaintiffs �re part owners of the Brogue Center (hereinafter the "Property"),
located at 2514 D�lta Road, Chanceford Township, York County, Brogue, PA.
The Property consists of a shopping center in which a number of tenants were
under lease. Defendam operated a branch office in Suite #8 in the Property and
i
had a- signed leastj with Plaintiffs. On February 13, 2006, Plaintiff CiI1kaj executed
!
an open end mortgage line of credit from Defendant in the sum of one million
!
dollars and Plaintiffs Terry and Brenda Sutton borrowed from Defendant the sum
\ .
(
of $150,000 from ja line of credit for commercial purposes. Plaintiff Cinkaj had
2
A-:Z..
unlimited unrestricted access to the first $500,000 of the open ended mortgage line
of credit and the second $500,000 was restricted to a prior notice from Plaintiff
Cinkaj to Defendant and consent of Defendant bank.
i
On or about' June 15, 2010, PlaintiffCinkaj withdrew $500,000 from his
line of credit from Defendant to finance future construction projects. On August
i
30, 2011, Kent Ketterman, Senior Vice President of Defendant, sent an email to
Plaintiff Cinkaj stating that he had withdrawn money from his restricted $500,000
! .
line �-f credit wit�out Defendant's consent. On November 1, 2011, Kent Ketterman
sent correspondence to Plaintiff Cinkaj stating that Defendant put his line of credit
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in default and that the line of credit must be paid to a maximum balance of
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$500,000 by June 5, 2012. Plaintiffs Terry and Brenda Sutton's line of credit
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would remain froken until additional collateral could be provided or when the line
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. was paid back to fhe required level,
!
On or about! February I, 2012, Plaintiffs began to research the possibility of
opening an adult entertainment business at their Property. On that same date,
Plaintiffs allege tbat they entered into oral negotiations with Jeff Levy,
I
representing Spearmint Rhino Entertainment, to purchase a space at the Property
I
! .
known as "The Office" to run an adult entertainment business. On March 5, 2013,
3
A-3 -"--· ... - ..
Plaintiffs alleged that they entered into a lease with Terry Thompson to open "the
Office", an adult entertainment business, in a vacant space at their Property.
On March 12, 2013, Plaintiffs submitted an Application for Special
Exception to the Chanceford Township Zoning Hearing Board seeking to make
use of their Property as an Adult Oriented Facility. Plaintiffs allege that the
application met all pf the criteria of the Ordinance as set forth in order for
j
Chanceford Township Zoning Hearing Board members to approve the application
,
'
for special excepticn.
I
On April 16J 2013, the Chanceford Township Planning Commission held a
!
meeting. During th�s meeting, Plaintiffs allege that Defendant's agent, Paul
Minnich, stated during the public comment period that Plaintiffs failed to meet the
i
[
condition of harmosy with orderly and appropriate development of the zone.
Plaintiffs also aJleg� that Paul Minnich stated that the adult oriented facility would
j
adversely impact the; bank's branch office operation.
' .
On May 1, 2013, at another Chanceford Township Planning Commission
meeting, Defendant.r through its agent Paul Minnich, presented testimony and
. .
dissenting opinion 9ased on morality-based arguments against Plaintiffs'
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application for special exemption. On May 2, 2013, Defendant filed confessed
judgments against P!laintiffs Terry and Brenda Sutton in the amount of $79,415.03
�
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A-4
and against Plaintiffs Cinkaj and Brogue Limited Partnership in the amount of
$1,024, 749.06.
On May l�, 2013, the Chanceford Township Planning Commission
recommended that the Chanceford Township Zoning Hearing Board reject
Plaintiffs application.
On May 24, 2013, Plaintiffs filed a Petition to Strike Confessed Judgment
in the Court of Common Pleas of York County, Pennsylvania.
�
I
On May 2�, 20 I J, the Chanceford Township Zoning Hearing Board
'
meeting took place. During the meeting, Plaintiffs allege that Defendant's agent,
;
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Paul Minnich, asked that the application for a special exemption be denied because iI
! I
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Plaintiffs proposed adult-oriented facility was "immoral", "criminal", "outside the
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character and nature ... in the neighborhood", and "not appropriate for the
!; rI
community. ''
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On June l fl, 2013, Plaintiff Sutton, with counsel, appeared before the
Chan.ceford Toiship Zoning Hearing Board meeting and argued that the denial
of Plaintiffs' application for special exception would be a violation of their rights
I
protected by the yonstitution of the United States. At this meeting. Plaintiff
i
alleges that Paul fviinnich stated that Plaintiff Sutton "won't even [tell] (sic] us
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who these peopl� are ... It goes directly to the heart of this gentleman's [Sutton] l
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II
5
. A-�
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.. : .. ............. t ....... . :. • • • -· • ,£.l ...........�--
f
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cre�ibility or lack thereof," (See Plaintiffs' Second Amended Complaint ,r 86).
Plaintiffs also allege that PauJ Minnich informed the Zoning Hearing Board that
Plaintiffs were i� default on their loan obligations to Defendant and have been
'
i
sued for a million dollars.
On July 22, 2013 and July 25, 2013, during two meetings of the Chanceford
Township Zoning Hearing Board, Plaintiffs allege that Defendant, through Paul
;'
Minnich, argued that the Plaintiffs' application should be denied. Plaintiffs allege
j
that Paul Minnicij made numerous arguments for the denial of Plaintiffs'
i
application. At th� conclusion of the July 25, 2013 meeting, Chanceford Township !
�
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Zoning Hearing Board members voted to unanimously reject Plaintiffs'
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Application for Special Exception. Plaintiffs allege that the board members I
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informed the audjence that they had denied the application based on arguments f· .....
. I
!
made by Paul Minnich, who Plaintiffs allege is the Defendant's agent and special
!
legal counsel. On'August 15, 2013, the Chanceford Township Zoning Hearing
i
1
Board issued a written decision that memorialized the denial.
1
On or abo4t August 15, 2013, Plaintiffs allege that because ofthe denial of
Plaintiffs' appllcstion, Jeff Levy decided not to purchase "the Office" space at the
t
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Property. On or about August 31, 2013, Plaintiffs allege that because of the denial
. i
of Plaintiffs' applfcation� Terry Thompson announced that he purchased a location
l
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A.-�.
in Atlantic City, New Jersey instead of the location at the Property. The Property
was eventually foreclosed on and sold at a Sheriffs sale on April 10, 2014.
On Maren 10, 2015, Plaintiffs filed their complaint in a civil action initially
naming as Defendants Peoples Bank, Larry J. Miller, Kent Ketterman, Harry
Swift, Susan Holtzinger, Scott Weaver, Brittany Crispens, and Paul Minnich. The
initial complaint alleged intentional interference with existing contractual
relations,
. .
intentional interference with prospective
.
contractual relations,
l
'
'
defamation of character, slander, breach of the implied covenant of good faith and
fair dealing, and false light invasion of privacy. On March 30, 2015, the Peoples
BankDefendants; except for Defendant Paul Minnich, filed preliminary objections
t
to Plaintiff's Complaint. On April 6, 2015, Defendant Paul Minnich filed
'
preliminary objec,'tions to Plaintiff's Complaint. On June 10, 2015, the Honorable
'·
}'
Judge Stephen P. linebaugh sustained the Defendants' preliminary objections and
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dismissed all of Plaintiffs' counts, without prejudice. On June 17, 2015, the parties
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filed a Discontinuance of Action as to Defendant Paul Minnich.
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On June 2�, 2015, Plaintiffs filed their First Amended Complaint and
alleged counts of intentional interference with existing contractual relations and
intentional interference with prospective contractual relations against Defendants
Peoples Bank, Larry Miller, Kent Ketterman, Scott Weaver, Harry Swift, Susan
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Holtzinger, and Brittney Crispens. On July 16, 2015, Defendants filed preliminary ·
objections to Plaintiffs' Amended Complaint. On December 18, 2015, the
Honorable Judge Stephen P. Linebaugh heard oral argument on Defendants'
preliminary objections. On January 6, 2016, Judge Linebaugh granted, in part, and
denied, in part, Defendants' preliminary objections. The order dismissed, with
prejudice, the actions filed against Larry Miller, Kent Ketterman, Harry Swift,
. Susan Holtzinger, Scott Weaver, and Brittney Crispens. The case was allowed to
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continue against Defendant Peoples Bank.
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On February 5, 2016, Plaintiffs filed their Second Amended Complaint,
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which again alleges only "intentional interference with existing contractual
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relations and intentional interference with prospective contractual relations." On
March 11, 2016, Defendant Peoples Bank filed an answer with new matter to the
complaint. On April 21, 2016, Plaintiffs filed a reply to Defendant's new matter.
On December 15, 2p17, Defendant filed a motion and memorandum of law in
support of summary judgment. On February 9, 2018, Plaintiffs filed a response
and briefin opposition to Defendant's motion for summary judgment.
8
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Discussion
"Pursuant to Pa.R.C.P. 1035.2(2), a trial court shaJI enter judgment if, after
the completion of discovery, an adverse party who will bear the burden of proof at
trial fails to produce 'evidence of facts essential to the cause of action or defense
which in a jury trial would require the issues to be submitted to the jury." Phillips
v. Selig, 959 A.24 420, 427 (Pa. Super. 2008); citing Rapagnani v, Judas Co., 736
A.2d 666, 668-69 (Pa. Super. 1999). "A motion for summary judgment is based
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on an, evidentiary'record that entitles the moving party to a judgment as a matter of
law." Id.; citing S�ords v. Harleysville Ins. Cos., 883 A.2d 562, 566·67 (Pa.
Super, 2005).
"In considering the merits of a motion for summary judgment, a court
�
views the record i� the light most favorable to the nonrnoving party, and all doubts i ··
as to the existence'. of a genuine issue of material fact must be resolved against the
moving party." Id.; citing Hayward v. Medical Center ofBeaver County, 608 A.2d
1040, 1042 (Pa. Super. 1992). "The party with the burden of proof on an issue
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may not rely merely on the allegations in its pleadings, but rather must produce
evidence of facts demonstrating a genuine issue for trial." Id.; Fennell v.
Nati�nwide Mut. Frre Ins. Co., 603 A2d 1064, 1067 (Pa. Super. 1992).
9
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In its motion for summary judgment, Defendant raises numerous reasons
for why Plaintiffs have failed to meet their burden of proof, including: (1)
Plaintiffs failed t(]) demonstrate they have a contractual interest in the Office Lease;
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(2) the non-binding letter is not sufficiently concrete to create liability; and (3)
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Defendant's actions were with privilege and/or justification. Plaintiffs have.
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responded to all of these arguments in their brief in opposition to summary
judgment and arte that there are genuine issues of material fact present in this
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case and Defendant is not entitled to judgment as a matter of law. For the reasons
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stated below, evep viewing the record in a light most favorable to the Plaintiffs, we l
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find Plaintiffs have failed to produce facts essential to demonstrate that i
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Defendant's conduct was improper and without justification or priviJege.
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Therefore, Defendant is entitled to judgment as a matter of law. t. --
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A. Plaintiffs hav� not demonstrated that Defendant's conduct was improper and
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without justification or privilege.
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Plalntlffs'[allegations for intentional interference with existing contractual
relations and intesrtional interference with prospective contractual relations are
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alleged to have o;ccurred based on the same conduct of the Defendant. Plaintiffs
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allege that they �ad an existing contract wi� Terry Thompson and a prospective
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... A-to
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contract with Jeff Levy to purchase and operate at the "Office" location at r
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Plaintiffs' Property an adult oriented busi�ess. I
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Plaintiffs aJl,ge that Defendant was aware of these contracts, did not .
support Plaintiffs' �lans, and intended to disrupt the performance of the contracts
between Plaintiffs, Jeff Levy, and Terry Thompson by sending its agent, Paul
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Minnich, to the Chanceford Township Zoning Hearing Board meetings and
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speaking against Plaintiffs
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Application for Special Exemption to open the adult
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oriented facility. The Zoning Board denied Plaintiffs' application for a special I
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exemption and Plai�tiffs allege that .it was Defendant's conduct withou� privilege·
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or justification that/resulted in the Zoning Board denying the application. As a
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result, Plaintiffs sustainedmoney damage when Jeff Levy and Terry Thompson iI
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terminated th�ir agfeements to open the adult oriented facility at Plaintiffs' r
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Property. Furthermore, Plaintiffs allege that Defendant's actions resulted in
Plaintiffs losing their property and future earnings to foreclosure.
The tort of !'interference with existing contractual relations" requires that a
Plaintiff demonstrate "an intent on the part of the defendant to harm the plaintiff
by interfering withi[an existing] contractual relationship [and] the absence of a
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privilege or justifidation on the part of the defendant. Restatement (Second) of
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To�s § 766 (1979�; Small v. Juniata College, 689 A..2d 235 (Pa.1997). !
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-, "Interference with prospective contractual relations" requires that a Plaintiff
dem�nstrate "the purpose or intent [by the Defendant] to harm the Plaintiff by
preventing the [prospective] relation from occurring [and] the. absence of a
privilege or justificetion on the part of the Defendant." Restatement (Second) of
Torts§ 766B (1979,); Thompson Coal Co. v. Pike Coal cs; 412 A.2d 466, 471
(Pa. 1979).
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The Restatement (Second) of Torts Section 767 provides the following
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analysis in determining whether an actor's conduct-is "improper":
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In determining whether an actor's conduct in intentionally interfering with a
a
contract or prospective contractual relation of another is improper or not,
consideration is given to the following factors:
(a) the nature of the actor's conduct,
(b) the actor] s motive,
(c) the interests of the other with which the actor's conduct interferes,
(d) the interests sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of the actor and
. the contractual interests of the other,
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· (t) the proximity or remoteness of the actor's conduct to the interference
and ; 1.
(g) the relations between the parties.
Id
In addition, Restatement (Second) of Torts Section 767, Comment (b)
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states:
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The issue in kach case is whether the interference is improper or not under
the circumstsnces; whether, upon a consideration of the relative
significance pf the factors involved, the conduct should be permitted
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· without liability, despite its effect ofhann to another. The decision
therefore depends upon a judgment and choice of values in each situation.
This Section states the important factors to be weighed against each other
and balance in arriving at a judgment; but it does not exhaust the list of
possible factors.
Since the dbtennination of whether an interference is improper is under the ·
. particular dircumstances, it is an evaluation of these factors for the precise
facts of the case before the court; and, as in the determination of whether
conduct is negligent, it is usually not controlling in another factual
situation. On the other hand, factual patterns develop and judicial decisions
regarding tpem also develop patterns for holdings that begin to evolve
crystallizedI privileges or rules defining conduct that is not improper. The
rules stated in §§ 768- 774 shows the results of the balancing process in
some specific situations that have been the subject ofjudicial decision; but
they do not constitute an exhaustive list of situations in which it has been
· determined that an intentional interference with ·contractual relations is riot
improper. i
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Id. I
As stated Jnder the Restatement, the analysis of whether the conduct of a i
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imprope�
party is is heavily dependent upon the circumstances of each individual .
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case. It is our dut.y to look at the factors, look at the conduct, and determine
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whether this conduct should be permitted without liability despite harm that can
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occur to another party.
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L RJlations Between the Parties:
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Initially, observe that the relations between the parties would be a factor
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that could weig� in favor of the Plaintiffs. Defendant rented Suite·#8 at the
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Plaintiffs' property. , Plaintiffs' lines of credit were in default and Defendant had
filed confessed judgments
. against Plaintiffs. to recover these amounts. It is fair to
say that the relations between the parties were strained during the conduct alleged
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by Plaintiffs in theirl complaint. We must admit, though, that we fail to see how it
would be in the hank's economic interests to "interfere" in a potential business
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deal which might lead to the bank being repaid what it was apparently owed .
. Be that as it �ay, we find that some of the other factors weigh heavily
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against the Plaintiffs and in favor of the Defendant and guide our decision to grant
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summary judgment ?n favor of the Defendant because Plaintiffs have not
demonstrated that rlefendant's conduct was improper. .
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IL Socia{ Interests In Protecting Defendant's Action I Motive:
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Restatement (Second) of Torts §767 Comment g. discusses the social
interests factor in determining whether a party's conduct is improper, stating: !
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Appraisal oflthe private interests of the persons involved may lead to a
stalemate unless the appraisal is enlightened by a consideration of the social
utility of these interests ... The social interest in this enterprise may
frequently require the sacrifice of the claims of the individuals to the
freedom froQ'l interference with their pursuit of gain. Thus, it is thought that
the social interest in competition would be unduly prejudiced if one were to
be prohibited from in any manner persuading a competitor's prospective
customers nqt to deal with him. On the other hand, both social and private
interests concur in the determination that persuasion only by suitable means
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is permissible, that predatory means like violence and fraud are neither
necessary nor desirable incidents of competition. (See further § 768). ·
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Id.
· We find that this factor heavily influences our decision to grant the
Defendant's motion for summary judgment Plaintiffs' causes of action essentially
allege that Defendant interfered with Plaintiffs' existing and prospective contracts
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an1 Terry Thompson by sending Paul Minnich to the Chanceford
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with Jeff Levy
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Township ZoningHearing Board meetings and speaking out against Plaintiffs'
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application for a special exception to put an adult oriented facility at the Brogue
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Center. i
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In this case, however, Defendant is not alleged to have gone-to a party to
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any contract, prospective or otherwise, and urged that party not to enter into the
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arrangement. Instead, Defendant went to an independent body charged with
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making an independent decision on the merits of a zoning application, and in a ·
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public forum, spoke against that application, which it had a right to do. (See
discussion belowh Ifwe were to hold that such conduct was improper, it would i
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unduly prejudice �e social interest of anyone to freely speak and voice one's i
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opinion on zonin¥ issues at a publicly advertised and public zoning hearing board I
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meeting. Plaintiffs! have failed to demonstrate to this Court that Defendant's
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actions were Impermissible and improper when analyzed in the context of
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expressing one's opinion at a zoning hearing board meeting. The fact that the
zoning decision would impact the contractual relations of Plaintiffs is unfortunate
for them, but if Pfaintiffs believe that the zoning decision was arbitrary, capricious,
or otherwise contrary to law, their remedy is to appeal the decision, not sue
members of the public who attend and comment.
Regarding �efendant bank's motive, Defendant rented space at �laintiffs'
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Property and adv�ced legitimate reasons for opposing the opening of an adult
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oriented facility near its business. The record is void of any statements or
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allegations made �y the Defendant during the meetings that would be seen as
fraudulent, threatihing, or going beyond the scope of fair argument and opposition
1
to a zoning reque�t. Defendant had a right to protect its business interests at a
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· zoning meeting which could affect the character of the surroundings of its business
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location. CloverleafDevelopment v, Horizon Financial, F.A., 500 A2d 163
(Pa.Super. 1985).i Defendant was free to voice its opinion at the zoning hearing·
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board meeting regarding Plaintiffs' application just as any other citizen or business
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would, and the re�ord does not show any evidence that it did more than exercise its
opinion in that forum.
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.A.-. ft, .... - . . .
111 The Nature ofDefendant's Conduct
Restatement (Second) of Torts §767 Comment c. discusses the nature of the
actor's conduct factor in determining whether a party's conduct is improper,
stating in part:
The nature of the actor's conduct is a chief factor in determining whether
the conduct is improper or not, despite its harm to the other person ...
Some of them, like fraud and physical violence, are tortious to the person
immediatelr affected by them; others, like persuasion and offers of benefits,
are not tortious to him. Under the same circumstances interference by some
means is not improper while interference by other means is improper; and,
likewise, th� same means may be permissible under some circumstances·
while wrongful in others. The issue is not simply whether the actor is
justified in causing the harm, but rather whether he is justified in causing it
in the manner in which he does cause it ...
Id
We find nothing in the record that would demonstrate to this Court that
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Defendant's appeasance at, statements or conduct during any of the Chanceford
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Township Zoning Hearing Board meetings was improper. Defendant opposed
Plaintiffs' plans to open an adult oriented facility by arguing that the facility would
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not be in harmony with the surrounding area, which they, along with any member
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of the public with standing, had a right to do.
. Plaintiffs argue that Defendant violated a fiduciary relationship with
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Plaintiffs.by appeJ{ng at the meetings. We find, however, that no such
17
relationship exists in the context of this case under Pennsylvania Law. Federal
land Bank ofBaltimore v. Fetner, 410 A.2d 344 (Pa.Super. 1979).
Defendant rented space at Plaintiffs' property and had a legitimate interest
in arguing against opening an adult oriented facility near the vicinity of its
property. There is nothing in the record to demonstrate that Defendant attempted
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to bribe, threaten,