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Northwest Savings Bank and Financial Services v. Ns First Street LLC and 2200 South Atherton Street LLC

December 12, 2011

NORTHWEST SAVINGS BANK AND FINANCIAL SERVICES,
PLAINTIFF
v.
NS FIRST STREET LLC AND 2200 SOUTH ATHERTON STREET LLC, DEFENDANTS



The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM

Pending before the Court are six separate motions in limine, three of which have been filed by Plaintiff Northwest Savings Bank and Financial Services and three of which have been filed by Defendants NS First Street LLC and 2200 South Atherton Street LLC. This memorandum will address each motion in turn.

I. PLAINTIFF'S MOTION TO EXCLUDE THE OPINIONS OF DEFENDANTS' LAY WITNESSES (DOC. NO. 61)

First, Plaintiff moves to exclude the opinions of Defendants' lay witnesses. (Doc. No. 61.) Plaintiff argues that, "in the event that Defendants seek to introduce the opinions of lay witnesses, such opinions should be precluded pursuant to Rule 701, inasmuch as the witness' purported opinions would not be helpful, are speculative and subjective, and would only confuse, mislead, and prejudice the jury." (Doc. No. 62 at 4.) In response, Defendants argue that Plaintiff's motion should be denied, because Plaintiff fails to point to any "specific testimony which it reasonably anticipates Defendants may offer along these lines." (Doc. No. 79 at 2.) Defendants argue that the motion "is a bullet fired randomly, and aimed at no particular target." (Id.) In Plaintiff's reply brief, Plaintiff specifies that it wishes to preclude Defendants from introducing the opinions of either David Ross or Richard Becker with respect to any issues regarding Plaintiff's costs and damages. (Doc. No. 135.) Because Defendants have not indicated an intention to present any such evidence at trial, the Court finds that the issues raised in this motion in limine are best raised in the form of objections to specific evidence at trial. Accordingly, the Court will deny Plaintiff's motion to exclude opinion testimony at this time, without prejudice to Plaintiff's right to raise the issue at trial in the form of an objection.

II. PLAINTIFF'S MOTION TO EXCLUDE TESTIMONY REGARDING COMMUNICATIONS WITH DENNIS LOWERY (DOC. NO. 63)

Plaintiff next moves to exclude testimony regarding communications between Defendants and Dennis Lowery, who was Plaintiff Northwest's Assistant Facilities Manager. (Doc. No. 63.) Plaintiff argues, "In the event that Defendants should seek to offer testimony regarding communications with the now-deceased Dennis Lowery, they should be precluded from doing so based on the Dead Man's Act." (Doc. No. 64 at 3-4.) In response, Defendants argue that the Dead Man's Act is "fundamentally inapplicable," or has been waived through Plaintiff's affirmative discovery efforts. (Doc. No. 75 at 3.)

The Pennsylvania Dead Man's Act, 42 Pa. Cons. Stat. § 5930, provides:

Except as otherwise provided in this subchapter, in any civil action or proceeding, where any party to a thing or contract in action is dead . . . neither any surviving or remaining party to such thing or contract, nor any other person whose interest shall be adverse to the said right of such deceased . . . party, shall be a competent witness to any matter occurring before the death of said party.

The policy is "to prevent the injustice which might flow from permitting the surviving party to an occurrence to testify favorably to himself and adversely to the decedent, which testimony decedent's representative would be in no position to refute." Perlis v. Kuhns, 195 A.2d 156, 158 (Pa. Super. Ct. 1963).

Three conditions must be satisfied in order for a surviving party's interest to be found to be adverse to the one who is dead: "(1) the deceased must have had an interest in the matter at issue . . . ; (2) the interest of the witness must be adverse; and, (3) a right of the deceased must have passed to a party of record who represents the deceased's interest." In re Rider's Estate, 409 A.2d 397, 399 (Pa. 1979). The Dead Man's Act is an exception to the general rule of evidence in the federal courts and in Pennsylvania that every person is competent to testify as a witness, and thus should be construed narrowly. Fed. R. Evid. 601; 42 Pa. Cons. Stat. § 5921; see also Larkin v. Metz, 580 A.2d 1150, 1152 (Pa. Super. Ct. 1990); Mt. Airy Ins. Co. v. Thomas E. Angst & Assoc., P.C., 954 F. Supp. 1040, 1043 (E.D. Pa. 1997).

Regarding the first factor, Plaintiff argues that Mr. Lowery had an actual right or interest in the matter at issue, as he was Plaintiff's Assistant Facilities Manager. (Doc. No. 64 at 4; Doc. No. 136 at 3.) Defendants respond, however, that "Mr. Lowery was simply a salaried employee with no personal interest or financial stake in the outcome of the parties' dispute." (Doc. No. 75 at 3.) The Court agrees. While Mr. Lowery may have been the "primary representative of Northwest," he is not a predecessor of Northwest, or a party to the lease at issue in this case. The Dead Man's Act refers to a "party or thing to a contract," not to an agent or employee of a party. An "agent is not a party to the thing or contract in action;" rather, the Dead Man's Act is concerned with "the principal for whom the agent acted." Cipriani v. Sun Life Ins. Co. of Am., 757 F.2d 78, 82 (3d Cir. 1985) (quoting Sargeant v. National Life Insurance Company, 41 A. 351, 351 (Pa. 1899)). Because Northwest, rather than Mr. Lowery, was the party to the relevant transactions in this case, the Dead Man's Act is not implicated, and the Court will deny Plaintiff's motion to exclude testimony regarding communications with Mr. Lowery.

III. PLAINTIFF'S MOTION TO EXCLUDE COMMUNICATIONS BETWEEN ZONING OFFICERS (DOC. NO. 71)

Plaintiff next moves to exclude "communications between zoning officers." (Doc. No. 71.) Plaintiff argues that communications between zoning officers are hearsay and that no exceptions to the hearsay rule apply. (Doc. No. 72 at 2-3.) Plaintiff further argues that the communications between zoning officers are not relevant to the extent that they refer to the scope of the work performed, or that their probative value is outweighed by the factors listed in Rule 403 of the Federal Rules of Evidence. (Id. at 4-6.) In response, Defendants first argue that the emails between zoning officers are admissible as either business records, public records, records of past recollections, records of statements against interest, or that the statements are being used to prove that Plaintiffs misled the zoning board and Defendants as to the scope of the work that they were performing rather than the truth of the matter asserted. Defendants further argue that the emails are highly probative, as they evidence that Plaintiff misled the zoning board and the parties with respect to the scope of work that they were performing by stating that they were merely painting and carpeting the Property. Defendants assert that evidence of Plaintiff's "paint and carpet ruse" is probative of various lease violations by Plaintiff.

The communications between zoning officers are inadmissible because Defendants seek to introduce them to prove that Plaintiff breached the lease and the Court has already determined that Plaintiff did not breach the lease. (See Doc. No. 100.) Whether or not Plaintiff breached the lease is no longer a fact of consequence in determining this action, thus the communications between zoning officers are irrelevant. Fed. R. Evid. ...


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