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JOYCE FORMAN v. CHELTENHAM NATIONAL BANK (12/27/85)

filed: December 27, 1985.

JOYCE FORMAN, APPELLANT,
v.
CHELTENHAM NATIONAL BANK



Appeal from the Order of June 18, 1981 in the Court of Common Pleas of Montgomery County, Civil Division, No. 77-7330.

COUNSEL

Alvin Freiberg, Philadelphia, for appellant.

Mark F. Bideau, Philadelphia, for appellee.

Wickersham, Beck and Cercone, JJ. Beck, J., files a concurring opinion.

Author: Cercone

[ 348 Pa. Super. Page 561]

This is an appeal from an Order of the Court of Common Pleas, Montgomery County, denying appellant's exceptions filed nunc pro tunc.

To understand our holding, a recitation of the complicated factual scenario is necessary. On April 26, 1977, the appellant commenced this action by a complaint in trespass for Slander of Title to certain real estate she had once owned.

Appellant's husband had been involved in two businesses, World Wide Research, Ltd. and Chemcraft, Ltd. She was an officer in World Wide Research. The corporations negotiated a series of loans with the appellee bank, defendant below, which were secured by judgment notes endorsed by appellant and her husband individually. On March 14, 1975 the balances of the corporate loans were consolidated and secured by a new note to appellee in the amount of $45,000. This note was endorsed by appellant and her husband. Appellant alleges that her endorsement on the March 14, 1975 note was fraudulent. The lower court found that she did not execute the endorsement on that note but that her signatures on the previous note endorsements were valid.

On March 18, 1975, judgment was entered on the March 14, 1975 refinancing note in favor of the appellee and against appellant and her husband. Approximately two months later, appellant's husband was found dead, the victim of an apparent suicide.

Appellant sold her home and appellee required her to satisfy the judgment from the proceeds of the sale. She asserts that the appellee/bank, especially the officer who handled the Forman business, Paul Brenner, was aware of the fact that the plaintiff's signature was forged. By filing of record the Judgment based on a known forged signature of appellant, she alleges that appellee deterred and prevented her from being able to convey clear title to her home. Appellant asserted that her actual damages were $45,432.31 plus interest and she requested punitive damages as well.

[ 348 Pa. Super. Page 562]

Disparagement of title is the false and malicious representation of the title or quality of another's interest in goods or property. Triester v. 191 Tenants Association, 272 Pa. Super. 271, 277, 415 A.2d 698, 701 (1979). In order to prevail in an action for slander of title, a plaintiff must show malice by the defendant.*fn1 Hygienic Fleeced Underwear Co. v. Way, 35 Pa. Super. 229 (1908). Malice may be understood as the lack of good faith belief in the right to publish the allegedly slanderous utterance. Id. at 233. A person is conditionally privileged to disparage another's property in land, chattels or intangible things by an assertion of an inconsistent legally protected interest in himself. See Restatement, Second, Torts § 647 (1977). Comment (b) to section 650A of the Restatement explains the meaning of "malice" required for a finding of an abuse of that conditional privilege. That comment states:

The exception stated in § 647 deals with the conditional privilege of a rival claimant to disparage another's property by an honest assertion of his own claim, even though he has no reasonable ground for believing his claim to be valid. Since the privilege itself extends to an action based upon a reasonable belief, it is not abused when the publication is made without reasonable grounds for belief in its truth, but is abused only when the claimant ...


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