Troubleshooting Real Estate Transaction Problems Seminar in Philadelphia, PA

Troubleshooting Real Estate Transaction Problems Seminar in Philadelphia, PA on March 2, 2015

Harper J. Dimmerman, Attorney at Law, focuses his law practice of real estate law. He handles both litigation and transactional matters: (215) 545-0600. If you need an attorney for settlement, negotiation, For Sale by Owner (FSBO) transactions or litigation (mechanics’ liens, confession of judgment, partition, trespass, landlord tenant, foreclosure defense, ejectment, quiet title, breach of contract, contract litigation, seller disclosure fraud, home inspection cases, realtor negligence cases, amongst others).

Mr. Dimmerman will be lecturing to other attorneys on the topic of real estate law and ethics. The full outline (copyright NBI 2015) may be accessed here:

The outline for the ethics portion is as follows:

  1. Applying Rules of Professional Conduct in Real Estate Practice
  2. Multiple Representation and Conflicts of Interest
  3. Disclosure Requirements
  4. Dealing with Unrepresented Parties
  5. Attorney Fees


Philadelphia Quiet Title Lawyer

Philadelphia Quiet Title Lawyer

Harper J. Dimmerman, Attorney at Law, focuses his law practice of real estate law. He handles both litigation and transactional matters: (215) 545-0600. If you need an attorney for settlement, negotiation, For Sale by Owner (FSBO) transactions or litigation (mechanics’ liens, confession of judgment, partition, trespass, landlord tenant, foreclosure defense, ejectment, quiet title, breach of contract, contract litigation, seller disclosure fraud, home inspection cases, realtor negligence cases, amongst others).

According to the Philadelphia Common Pleas Court, an suit to quiet title may be used for the following purpose:

“Quiet Title

An action to quiet title is a lawsuit brought in a court having jurisdiction over land disputes, in order to establish a party’s title to real property against anyone and everyone, and thus “quiet” any challenges or claims to the title. It comprises a complaint that the ownership (title) of a parcel of land or other real property is defective in some fashion, typically where title to the property is ambiguous. A typical ground for complaint includes the fraudulent conveyance of a property, perhaps by a forged deed or under coercion. Unlike acquisition through a deed of sale, a quiet title action will give the party seeking such relief no cause of action against previous owners of the property.”

Keep in mind that if you believe you have been the victim of deed fraud, you have recourse and should act at once.

Philadelphia Confession of Judgment Defense

Philadelphia Confession of Judgment Defense

Harper J. Dimmerman, Attorney at Law, focuses his law practice of real estate law. He handles both litigation and transactional matters: (215) 545-0600. If you need an attorney for settlement, negotiation, For Sale by Owner (FSBO) transactions or litigation (mechanics’ liens, confession of judgment, partition, landlord tenant, foreclosure defense, ejectment, quiet title, breach of contract, contract litigation, seller disclosure fraud, home inspection cases, realtor negligence cases, amongst others).

Pennsylvania’s Rules of Civil Procedure does permit a defendant to challenge a confession judgment, which is mechanism employed by commercial lenders and landlords in the Commonwealth of Pennsylvania. Upon default, the lender or landlord may confess judgment, assuming that the proper contractual disclosures have been made. This remedy is generally perceived as highly draconian, in that the party alleging a default may have the ability to take an immediate judgment against the other party and for substantial sums of money. If you are the defendant in this type of action, it is imperative that you act promptly and assert any and all defenses. A party’s failure to do this could easily result in a crippling judgment against the defendant.

The pertinent Rule of Civil Procedure provides the following:

“Striking off or Opening Judgment. Pleadings. Procedure

(a)(1)  Relief from a judgment by confession shall be sought by petition. Except as provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment.

(2)  The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only

(i)   in support of a further request for a stay of execution where the court has not stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and

(ii)   as provided by Rule 2958.3 or Rule 2973.3.

(3)  If written notice is served upon the petitioner pursuant to Rule 2956.1(c)(2) or Rule 2973.1(c), the petition shall be filed within thirty days after such service. Unless the defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied.

(b)  If the petition states prima facie grounds for relief the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file an answer on or before the return day of the rule. The return day of the rule shall be fixed by the court by local rule or special order

(c)  A party waives all defenses and objections which are not included in the petition or answer.

(d)  The petition and the rule to show cause and the answer shall be served as provided in Rule 440.

(e)  The court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment.

(f)  The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending.

(g)(1)  A judgment shall not be stricken or opened because of a creditor’s failure to provide a debtor with instructions imposed by an existing statute, if any, regarding procedures to follow to strike a judgment or regarding any rights available to an incorrectly identified debtor.

(2)  Subdivision (g)(1) shall apply to (1) judgments entered prior to the effective date of subdivision (g) which have not been stricken or opened as of the effective date and (2) judgments entered on or after the effective date.”

Philadelphia Foreclosure Defense Lawyer

Philadelphia Foreclosure Defense Lawyer

Harper J. Dimmerman, Attorney at Law, focuses his law practice of real estate law. He handles both litigation and transactional matters. If you need an attorney for settlement, negotiation, For Sale by Owner transactions or litigation (mechanics’ liens, confession of judgment, partition, landlord tenant, foreclosure defense, ejectment, quiet title, breach of contract, contract litigation, seller disclosure fraud, home inspection cases, realtor negligence cases, amongst others).

It is critical that you defend the foreclosure litigation immediately, even if you may be endeavoring to achieve a short sale or work out some other agreement with the lender. Failure to respond accordingly will lead to a default judgment being taken against you, thereby making the prospect of resolving the situation amicably far more challenging. The failure to answer the complaint in foreclosure will be viewed by a court as an admission of the truth of all of the bank’s averments, some of which may not be entirely accurate. Finally, assuming that a court will simply permit the borrower to open that judgment and have a second bite at the apple, if you will, is a highly risky assumption.

Philadelphia Real Estate Lawyer

Philadelphia Real Estate Lawyer

Harper J. Dimmerman, Attorney at Law, focuses his law practice of real estate law. He handles both litigation and transactional matters. If you need an attorney for settlement, negotiation, For Sale by Owner transactions or litigation (mechanics’ liens, confession of judgment, partition, landlord tenant, foreclosure defense, ejectment, quiet title, breach of contract, contract litigation, seller disclosure fraud, home inspection cases, realtor negligence cases, amongst others).


Philadelphia’s tax abatement program is a wonderful incentive for homebuyers. However, even when these abatements have been approved and advertised as such, buyers are running into a major problem upon taking ownership if the seller/selling entity has other outstanding tax liabilities with the City of Philadelphia. In these instances, the innocent buyer may not receive the benefit of the abatement, potentially costing that buyer(s) tens of thousands of dollars in unanticipated taxes. Thus, even with title insurance, it is essential that a real estate lawyer be engaged prior to closing to ensure that written documentation be obtained from the City of Philadelphia to confirm that the abatement is ripe.

Philadelphia Legal Malpractice Lawyer

Philadelphia Legal Malpractice Lawyer

Harper J. Dimmerman, Attorney, is a seasoned litigator and has recently added legal malpractice law as a new area of practice.

Statutes of limitation in any litigation matter in Pennsylvania oftentimes present serious roadblocks for otherwise viable claims. In the realm of legal malpractice, generally two years is the operative time frame which an aggrieved party has to bring a claim. Potential plaintiffs frequently ask when this clock begins to run, if you will. The simple answer is that this period commences as soon as the conduct which forms the basis of the action occurs: the happening of the alleged breach of duty. For practical purposes then, this clock may start even during the representation period, with the lawyer or law firm that could possibly be the subject of that very legal malpractice suit.


Partition and Philadelphia Real Estate Law

Partition and Philadelphia Real Estate Law by Harper J. Dimmerman, Attorney at Law. Mr. Dimmerman handles real estate litigation and partition matters. Contact him now for a consultation – (215) 545-0600. His office is located in center city Philadelphia, Pennsylvania.

Co-owners of real estate have a right to partition. This is supported by the Pennsylvania Rules of Civil Procedure.

In a Philadelphia Common Pleas Court decision handed down in November, 2012, the trial court was asked to consider a partition claim by an ex-husband. More specifically, ex-husband argued that he still have a right to real estate, despite not having perfecting his economic claims during the divorce proceeding. Post-divorce, ex-husband filed a suit in partition (approximately one year later) and contended that an oral agreement existed which required the preparation and recording of a deed during the marriage; this never happened. The ex-wife denied the existence of such an agreement. The Philadelphia trial court analyzed the statute of frauds, in light of the claim that there was an oral contract. That statute prohibits the creation of interests in any land by parol evidence. This is particularly true where a spouse seeks to compel the specific performance of such a contract by the other spouse. Also, the payments of repairs and mortgage installments does not take the case away from the statute of frauds. Here the ex-husband could not meet the particularly high burden of proof required to prove the existence of an oral contract. These parties were not even tenants by the entireties while they married, stated the trial court.

Bottom line: always get every deal in writing.  

Philadelphia Defamation Law

Philadelphia Defamation Law

The following Philadelphia County court opinion demonstrates the complexities in mounting a defamation case. This opinion is very useful for its analysis of the admissibility of expert reports and should certainly be considered in assembling a case on behalf of a plaintiff. Harper J. Dimmerman, Attorney at Law, handles defamation litigation and provides free, initial consultations: (215) 545-0600

Plaintiff, :
: No. 01223
v. :
Defendants. :
Plaintiff Carl Greene sued Defendants, Philadelphia Media Network, Inc., and
Philadelphia Media Network (Newspapers), LLC, for monetary damages for defamation,
false-light invasion of privacy, and commercial disparagement based on seventeen
articles and editorials concerning Mr. Greene’s tenure as Executive Director at the
Philadelphia Housing Authority, which were published in the Philadelphia Inquirer and
Daily News between November 1, 2010 and August 9, 2011. Defendants filed a motion
for summary judgment asserting that Plaintiff Greene, who is a public figure, did not
show by clear and convincing evidence that the articles were materially false or that
Defendants published them with actual malice, that is “with knowledge that [they were]
false or with reckless disregard of whether [they were] false or not.” N.Y. Times Co. v.
Sullivan, 376 U.S. 254, 279–80 (1964). Defendants argued that the First Amendment

This brief memorandum opinion is drafted without the benefit of the written transcript. If there is an
appeal, this Court may amplify this opinion with citations to the evidentiary hearing and further analysis. 2
protects publishers from liability for defamation for unreasonable interpretations of
articles’ meanings, claimed unfairness in presentation, opinions, immaterial
inaccuracies or truthful articles.2
Movants also argued3
that Plaintiff Greene could not
overcome the fair report privilege, which provides that when “it is in the public interest
that information be made available as to what takes place in public affairs, a newspaper
has the privilege to report the acts of the executive or administrative officials of
government.” Sciandra v. Lynett, 187 A.2d 586, 588 (Pa. 1963). Once Defendants filed
their summary judgment motion, the law required Plaintiff Greene to refute with actual
evidence any facts essential to the cause of action that Defendants asserted were not
disputed. Pa.R.C.P. 1035.3(a)(2). At this stage, the Plaintiff “may not rest upon the
mere allegations or denials of the pleadings” but must respond with more. Pa.R.C.P.
1035.3(a). Plaintiff Greene offered Dr. Timothy Habick as an expert in linguistics to
provide his primary evidence that Defendants published the articles with actual malice.
Defendants challenged Dr. Habick’s proffered expertise and report and requested a
Frye hearing. (Defs.’ Reply in Supp. of Mot. Summ. J. at 11, n.5.)
This Memorandum addresses this Court’s findings and conclusions on the legal
admissibility of Dr. Habick’s testimony under Pennsylvania Rule of Evidence 702 and
accompanying case law following a Frye hearing on July 28, 2014. Plaintiff Carl

See, e.g., Tucker v. Phila. Daily News, 848 A.2d 113, 133 (Pa. 2004) (“[A]n article is not made
defamatory by being unfair . . . .”); Baker v. Lafayette Coll., 532 A.2d 399, 402 (Pa. 1987) (“[O]pinion
without more does not create a cause of action in libel.”); Thomas Merton Ctr. v. Rockwell Int’l Corp., 442
A.2d 213, 216 (Pa. 1981) (“[W]e must consider the full context of the article to determine the effect the
article is fairly calculated to produce, the impression it would naturally engender, in the minds of the
average persons among whom it is intended to circulate.”) (internal quotations omitted); Kilian v.
Doubleday & Co., 79 A.2d 657, 660 (Pa. 1951) (a statement that is “substantially true” cannot be
defamatory); ToDay’s Hous. v. Times Shamrock Commc’ns, Inc., 21 A.3d 1209, 1215 (Pa. Super. Ct.
2011) (finding an absence of material falsity and explaining, “The law does not require perfect truth, so
long as any inaccuracies do not render the substance and ‘gist’ of the statements untrue.”).
3Defendants also argued that Greene did not show evidence that any of the statements caused him injury
to his reputation, emotional distress or economic loss. 3
Greene’s proffered expert, Dr. Timothy Habick, submitted a report stating that, upon
review and analysis of all of the allegedly defamatory articles written by numerous
authors, he concluded that the writing showed that the Defendants “willfully,
maliciously, without substantiation, and with reckless disregard for the truth, defamed”
Plaintiff Carl Greene. (Pl.’s Answer in Opp’n to Defs.’ Mot. Summ. J. Ex. L, at 3.)
Plaintiff’s counsel offered Dr. Habick’s testimony as a linguist for two reasons: (1) to
explain what the articles mean to the average reader, and (2) to show that Defendants
published the articles with actual malice, that is, “with knowledge that [they were] false
or with reckless disregard of whether [they were] false or not.” Sullivan, 376 U.S. at
279–80. In short, Plaintiff has offered a linguist to testify as an expert to what an
average reader thinks, and to what the mental state of the Defendants’ seven authors
and editorial board was when they published allegedly false statements. Defendants
challenged Dr. Habick’s qualifications, the relevance of his testimony, and the reliability
of his methods, claiming that they were not “generally accepted in the relevant field” of
linguistics. Pa.R.Evid. 702; Grady v. Frito-Lay, 839 A.2d 1038, 1047 (Pa. 2003).
Given the considerable clout that the term “expert” imbues to a jury,
Pennsylvania law requires that the judge serve as a gatekeeper before proffered expert
testimony is provided at trial. The judge must screen to ensure that the witness has
demonstrated qualifications in the field offered, the testimony provides information that
an average juror would not already possess, the testimony is relevant and the methods
used are reliable. Pennsylvania Rule of Evidence 702 provides:
“A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge is
beyond that possessed by the average layperson;4
(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
Pa.R.Evid. 702. In examining the admissibility of expert witness testimony, the
Pennsylvania Supreme Court has recently held:
“[T]his Court has recognized the influential nature of expert testimony on
complex subjects, and the potential that distortions have to mislead
laypersons. . . . [W]e conclude that a Frye hearing is warranted when a
trial judge has articulable grounds to believe that an expert witness has
not applied accepted scientific methodology in a conventional fashion in
reaching his or her conclusions.”
Betz v. Pneumo Abex LLC, 44 A.3d 27, 53 (Pa. 2012). Plaintiff’s counsel conceded that
the type of “unique” testimony offered here rendered a Frye hearing appropriate. Trach
v. Fellin, 817 A.2d 1102, 1109 (Pa. Super. Ct. 2003) (“Frye only applies when a party
seeks to introduce novel scientific evidence.”). Plaintiff Greene, as the proponent of the
evidence, bears the burden of establishing “all of the elements for its admission under
Pa.R.E. 702, which includes showing that the Frye rule is satisfied.” Grady v. Frito-Lay,
839 A.2d 1038, 1045 (Pa. 2003).
In explaining the idea of “methodology,” the Pennsylvania Superior Court has
explained that replicability, or reproducibility, lies at the heart of the scientific method:
“[T]he scientific method is a method of research in which a problem is
identified, relevant data are gathered, a hypothesis is formulated from
these data, and the hypothesis is empirically tested. Within the meaning
of the definition of the scientific method, ‘empirical’ means ‘provable or
verifiable by experience or experiment.’ Key aspects of the scientific
method include the ability to test or verify a scientific experiment by a
parallel experiment or other standard of comparison (control) and to
replicate the experiment to expose or reduce error.”5
Trach, 817 A.2d at 1113 (internal citations omitted). “Frye only applies to
determine if the relevant scientific community has generally accepted the
principles and methodology the scientist employs, not the conclusions the
scientist reaches. . . .” Id. at 1112.
An expert must be qualified in the field in which they testify.
This Court found that Dr. Habick was not qualified in the areas for which his
testimony was offered. Dr. Habick was offered as an expert in linguistics and logic to
offer an opinion about (1) how average readers would read the articles and (2) how
linguistic and logical analysis shows that Defendants and their reporters “willfully,
maliciously, without substantiation, and with reckless disregard for the truth, defamed”
Plaintiff Carl Greene. (Pl.’s Answer in Opp’n to Defs.’ Mot. Summ. J. Ex. L, at 3.)
Dr. Habick testified that he has spent the bulk of his career developing test
questions for graduate school admissions tests, initially at the Educational Testing
Service (ETS) and then at his business, Reasoning, Inc., which he founded after his
departure from ETS in 2001. He used his linguistic expertise to develop questions that
achieved the “highest level of fairness” for test-takers. Dr. Habick’s venture into the field
of forensic linguistics is a fascinating tale of serendipity.
Dr. Habick testified that he
met Dr. Marilyn Lashner’s daughter in 2009 and later met Dr. Lashner. When Dr.
Lashner died the next year, her children gave Dr. Habick her business, Media Analysis
and Communications Research. Prior to being bequeathed this forensics linguistics
business, Dr. Habick had never worked in the area of forensics linguistics, nor had he
done any linguistic analysis in the area of defamation. Dr. Habick was assisted in this

4 Dr. Habick testified that he met Dr. Lashner when her daughter came by his home in 2009, notified him
that Dr. Lashner had previously lived in his home and asked whether Dr. Lashner could visit her former
home. Thereafter, he developed a relationship with the family. 6
new venture by reviewing Dr. Lashner’s prior reports and analyses after her death.
Though Dr. Habick’s resume lists among his accomplishments that he “[p]rovided
forensic linguistic services in support of Dr. Marilyn Lashner’s case evaluations,
analyses and reports, discovery assistance, and testimony,” he admitted in his
testimony that he had never actually worked with Dr. Lashner but instead had been only
an acquaintance. (See Frye Hr’g Defs.’ Ex. 7, Aff. of Timothy Habick, Schnitt v. Cox
Radio, Inc., et al., Case No. 08-05738 (Fla. Cir. Ct.).)
Dr. Habick testified that he analyzed the logical structures and identified
fallacious arguments in the articles in question. However, he is not a logician. Dr.
Habick claims expertise in this area due to having worked alongside and collaborating
with logicians during his 27 years of writing exam questions. This assertion has faulty
logic: a nurse is not qualified to do surgery just because the nurse has worked
alongside a surgeon for many years and may be familiar with much of what occurs in
the operating room. Dr. Habick has insufficient expertise under the law to give
testimony in the area of logic.
Dr. Habick uses the term defamatory and defamation throughout his report but
his testimony showed that he did not know the correct legal definition of defamation5
public figures. A public figure is not defamed under the law just because embarrassing
facts are publicized and opined about by writers. True statements, even if unflattering,

In Pennsylvania, any person bringing a defamation claim bears the burden of proving:
“(1) The defamatory character of the communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its defamatory meaning.
(5) The understanding by the recipient of it as intended to be applied to the plaintiff.
(6) Special harm resulting to the plaintiff from its publication.
(7) Abuse of a conditionally privileged occasion.”
Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899, 903 (Pa. 2007) (citing 42 PA. CONS. STAT. ANN. §
8343(a)). 7
do not constitute defamation. Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 775
(1985); Spain v. Vicente, 461 A.2d 833, 836 (Pa. Super. Ct. 1983). A public-figure
plaintiff such as Carl Greene must show by clear and convincing evidence that the
allegedly defamatory statements were materially false and made with actual malice.
Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974). Dr. Habick is not qualified to
render an opinion concluding that Defendants “defamed” Plaintiff when he does not
know how defamation is defined under the law.
Dr. Habick also misunderstands the application of the actual malice standard in
defamation cases: falsity is a precondition to actual malice. N.Y. Times Co. v. Sullivan,
376 U.S. 254, 279–80 (defining actual malice as publishing statements “with knowledge
that [they were] false or with reckless disregard of whether [they were] false or not”).
“Actual malice under the New York Times standard should not be confused with
common-law malice or the concept of malice as an evil intent or a motive arising from
spite or ill will.” See also Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510
(1991). The actual malice requirement is a subjective, not an objective, standard:
showing that a defendant should have seriously doubted the accuracy of her or his story
is insufficient. Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989);
see also Garrison v. Louisiana, 379 U.S. 64, 74 (1964) (a plaintiff cannot prevail without
clear and convincing evidence of a “calculated falsehood”); Am. Future Sys. Inc., v.
Better Bus. Bureau, 923 A.2d 389, 395 n.6 (Pa. 2007) (proving actual malice is difficult
because actual malice “implies at a minimum that the speaker entertained serious
doubts about the truth of his publication, . . . or acted with a high degree of awareness
of . . . probable falsity”); Bartlett v. Bradford Publ’g, Inc., 885 A.2d 562, 564 (Pa. 2005)
(mere departure from journalistic ideals not actual malice).8
Dr. Habick analyzed the Defendants’ articles to assess whether Defendants
published statements intentionally knowing they were false or with recklessness as to
their falsity, even though he had no information as to whether the statements were
actually false. He testified that he talked to Plaintiff’s counsel, read the Complaint, and
relied upon his “common sense”, “common knowledge,” and “verifiable truths.” He
admitted he did no factual research save for some minor internet searches. This
process shows again that he misapprehends the legal definition of actual malice for
public figures. The statements must be proven as false before a publisher can be found
to have actual malice in publishing them. See St. Amant v. Thompson, 390 U.S. 727,
730 (1968) (defamation plaintiff has “the burden of proving that the false statements . . .
were made with actual malice as defined in New York Times Co. v. Sullivan and later
cases” (emphasis added)). Dr. Habick began his analysis with faulty assumptions that
statements were false. Dr. Habick dismissed this concern by testifying that if any of the
allegedly defamatory statements turned out to be true, his opinion should just be
ignored as to those statements and kept intact for the others. Not only is this approach
contrary to sound scientific method but it illustrates a fundamental lack of understanding
of what “actual malice” means in the context of defamation.
Actual malice in the context of public figure defamation is not the same as malice
in common usage. Actual malice does not mean “evil” or “critical.” Masson, 501 U.S. at
510. There is nothing inappropriate about reporters’ publishing unflattering information
that is materially true or they even justifiably think is true. The press must be permitted
to write about public officials like Plaintiff Greene in order to keep the citizenry informed
about the conduct of those serving in their government. Public officials in a democracy
must be open to being evaluated by the press and the public they serve. Muzzling the 9
press from criticizing public officials would threaten good government and ultimately
threaten democracy’s survival.
Dr. Habick also has no training or experience in journalism. He has no
background or experience in empirically testing or scientifically determining the intent of
journalists or any other group of writers to determine whether they have written articles
with malice as defined by defamation law. Though Dr. Habick was being offered for the
purpose of testifying about how an article is read by an average reader, he conceded
that he is unable to read as an average reader himself based on his extensive
experience in linguistics. He also conceded that he has never tested how average
readers interpret journalistic pieces outside the context of high-stakes graduate testing.
Though Dr. Habick has been offered as an expert in prior cases, he has never been
qualified by a court to give his expert opinion in a defamation case.
Thus, Dr. Habick does not have the requisite qualifications to testify as an expert
to what an average reader might think or the subjective intent of Defendants and their
reporters when they published the articles.
An expert’s methodology must be reliable as evidenced by being generally
accepted in the field.
Plaintiff failed to meet his burden of showing that Dr. Habick used methodology
that was generally accepted in the field of linguistics. Plaintiff’s claims of what his
linguistic expert could provide were bold: he claimed that a linguistic expert could use a
scientific method to determine the subjective intent of publishers and reporters when
they wrote and published articles. In short, a linguistic expert could divine by a mere
reading and analysis of articles, and nothing more, whether a publisher and its many
reporters wrote the articles “with knowledge that [they were] false or with reckless 10
disregard of whether [they were] false or not.” N.Y. Times Co. v. Sullivan, 376 U.S. 254,
279–80 (1964). Such a promise, if true, would prove exciting indeed: courts could
reduce the number of trials, police investigations could be shortened, and crimes could
be solved if a linguist could be employed to merely analyze another speaker’s language,
without reference to any facts, and determine the speaker’s mental intent. However, Dr.
Habick’s analysis was not shown to be accepted science to permit its admission in
court. His analysis was not based on factual research, was not replicable, lacked the
requisite degree of certainty, and used methods that were not shown as generally
accepted within the field of linguistics.
Dr. Habick testified that he reached his opinions “solely on the basis of the
examination of the articles” and not on “deposition testimony or other facts contained in
documents that were exchanged by the parties after this case was initiated.” (Pl.’s
Answer in Opp’n to Defs.’ Mot. Summ. J. Ex. L, at 4.) Dr. Habick testified as to what he
did to reach his opinion. He first met with Plaintiff’s counsel, who explained the issues.
Next he read the Complaint but not the Answer. Dr. Habick then applied his linguistic
analysis to the seventeen articles. His linguistic analysis involved looking at the
linguistic structures, including argumentation, logical fallacies, and assumptions. Dr.
Habick testified that he used his “common sense,” “common knowledge,” and “verifiable
reality” to reach his conclusions as to the truth of statements made. Dr. Habick
admitted he did no fact checking, other than some unspecified internet research, to
determine whether statements were true or not. He provided the ultimate disclaimer: if
any statements made by Defendants were found to be false, his conclusions that they
were defamatory and made with malice should be ignored. 11
Dr. Habick also contributed another proviso that compromised the admissibility of
his testimony: he testified he was making the claim only that there was a “likelihood”
that the published statements were defamatory and made with malice, but that he could
not speak with certainty. The law generally requires that experts testify to more than a
mere “likelihood” of the substance of expert testimony to make it admissible as having
any value to a jury. Dr. Habick’s opinion lacked the requisite certainty for expert
testimony. See Hoffman v. Brandywine Hosp., 661 A.2d 397, 402 (Pa. Super. Ct. 1995)
(an expert’s opinion lacks a reasonable degree of certainty if it is based merely upon a
“likelihood” that something “may” have occurred). See also Com. v. Spotz, 756 A.2d
1139, 1160 (Pa. 2000) (experts are not required to use “magic words,” but rather the
Court “must look to the substance of [the expert’s] testimony to determine whether his
opinions were based on a reasonable degree of medical certainty rather than upon
mere speculation”). In addition, Dr. Habick’s conditioning his opinion as finding there
was a mere “likelihood” of actual malice itself compromised Plaintiff’s success in this
case. The law requires that Plaintiff must show by clear and convincing evidence, not
mere likelihood, that Defendants knew the statements were false or published with
reckless disregard of whether they were false to defeat summary judgment. Sullivan,
376 U.S. at 279–80.
Dr. Habick testified that he had no hypothesis for his analysis. He did not retain
or provide any of the underlying notes or data he used for his analysis. He conducted
no surveys or questionnaires of readers as to their interpretations of the articles to
support his opinion as to what “average readers” might conclude upon reading the
articles. With respect to his opinion about the intent of the authors, Dr. Habick testified
that what the authors said about their intent in writing the article was not relevant to his 12
analysis of their subjective intent in terms of actual malice. No validity or replicability
studies were performed or attempted.
When Dr. Habick was pressed to describe how his process of analysis fit within
the methodology used in the field of linguistics, he evaded responding with precision.
He simply insisted that this is what linguists do: they analyze structures. This
vagueness makes it impossible to validate or test his analysis and has been frowned
upon by the Supreme Court when assessing the admissibility of scientific methodology:
“[T]he breadth and character of an expert’s extrapolations are relevant to
the scientific acceptance of his methodology. The alternative is to permit
experts to evade a reasoned Frye inquiry merely by making references to
accepted methods in the abstract.”
Betz v. Pneumo Abex LLC, 44 A.3d 27, 58 (Pa. 2012).
Strikingly, Dr. Habick failed to employ the methods used in linguistics within the
context of test examination questions, for which he has experience to verify or replicate
his results. He conducted no interannotater studies or any other validity studies to verify
his conclusions, as is done in the test-taking field. Not only did he fail to articulate a
clear replicable methodology he employed that could be replicated by others in his field,
he made no attempt to have other linguists verify or evaluate his methods. Plaintiff
failed to provide any evidence that Dr. Habick’s linguistic analysis of a reporter’s articles
to determine if they had satisfactory argumentation, logic, or assumptions could even
reveal an author’s intent or recklessness in writing an article. Even if he could show that
articles have fallacies, he showed no link between poor logic and a writer’s subjective
intent about whether the statements are true or not. Moreover, Dr. Habick’s conclusion
about whether a statement in the article was false seemed to rest not on any proven 13
facts but rather on his personal “common sense,” “common knowledge,” and “verifiable
Dr. Habick conceded that he knew of no peer-reviewed articles endorsing his
method. No defamation cases were presented where a linguist had been qualified as
an expert under Frye standards for using the Dr. Habick’s process of analysis to
establish whether a publisher had actual malice or to educate the jury as to how an
average reader would interpret articles. Indeed, no evidence was provided that linguists
generally accept Dr. Habick’s assertion that a linguist need simply read articles and
apply common sense and knowledge without any factual research or verification to
assess whether an author knowingly wrote a false article or wrote one with reckless
disregard for its truthfulness. Thus, the magical promise of crystal-ball-like insight into
another’s mental state through analysis of a person’s writing failed to be backed by any
generally accepted science.
An expert’s knowledge must be beyond that possessed by the average
layperson and be relevant to a question the jury must answer.
Experts must contribute knowledge that the jurors don’t already have. Pa. R.
Evid. 702(a) (expert’s testimony is admissible only if it provides “scientific, technical, or
other specialized knowledge” that “is beyond that possessed by the average
layperson”). The law does not permit a party to package a witness as an expert to talk
in confusing, technical, or Latin language to tell a juror something that is already within
the realm of common sense and general knowledge. “Expert testimony is permitted
only as an aid to the jury when the subject matter is distinctly related to a science, skill,
or occupation beyond the knowledge or experience of the average layman. Where the
issue involves a matter of common knowledge, expert testimony is inadmissible.” Com. 14
v. O’Searo, 352 A.2d 30, 32 (Pa. 1976) (internal citations omitted). Dr. Habick’s
proffered testimony does not meet these requirements because average jurors are
inherently qualified to read the articles as average readers without the aid of an expert,
and because logical and linguistic structures are irrelevant to the question of whether
false statements are knowingly or recklessly published as truth.
The Superior Court has recently held:
“Admissible expert testimony that reflects the application of expertise
requires more than simply having an expert offer a lay opinion.
‘Testimony does not become scientific knowledge merely because it was
proffered by a scientist.’ Likewise, expert testimony must be ‘based on
more than mere personal belief,’ and ‘must be supported by reference to
facts, testimony or empirical data.’
. . .
The exercise of scientific expertise requires inclusion of scientific authority
and application of the authority to the specific facts at hand. Thus, the
minimal threshold that expert testimony must meet to qualify as an expert
opinion rather than merely an opinion expressed by an expert, is this: the
proffered expert testimony must point to, rely on or cite some scientific
authority—whether facts, empirical studies, or the expert’s own research—
that the expert has applied to the facts at hand and which supports the
expert’s ultimate conclusion. When an expert opinion fails to include such
authority, the trial court has no choice but to conclude that the expert
opinion reflects nothing more than mere personal belief.”
Snizavich v. Rohm & Haas Co., 83 A.3d 191, 195 (Pa. Super. Ct. 2013) (internal
citations omitted), allocatur denied July 29, 2014 (88 EAL 2014). Dr. Habick’s testimony
reflects his personal beliefs and, by his own admission, his common sense and
knowledge. It does not provide specialized knowledge beyond what the average jury
already possesses.
First, Dr. Habick’s testimony was offered to provide insight as to what an average
reader would conclude. A jury provides a perfect sampling of average readers. Dr.
Habick’s allegedly expert testimony provides nothing that the average jury does not 15
have. Indeed, Dr. Habick testified that based on his extensive experience in linguistics,
he lacks the ability to even read an article as an average reader would. Jurors are
already endowed with the ability to read newspaper articles and need no expert
assistance, especially from an expert like Dr. Habick who confesses that he can no
longer read articles through the lens of an as average reader and that he rarely even
reads the newspaper.
Second, Dr. Habick claims to use his linguistic analysis coupled with his
“common sense,” “common knowledge,” and “verifiable reality” to tell the jury what the
many reporters and the collective editorial board must have thought when they wrote
and published the articles he assumes to be false. Dr. Habick claims that he can
determine in a scientific way that the Defendants subjectively must have known or been
reckless in not knowing that the articles they wrote were false. He claims to know this
based on analyzing Defendants’ reporters’ articles and their allegedly faulty
argumentation, logic, and assumptions, coupled with his “common sense,” “common
knowledge” and “verifiable reality” that the articles are false. Jurors are known and
valued for their “common sense” and “common knowledge”; having a so-called expert
tell them what is common sense and common knowledge would be invading their
province by purporting to provide them information that the average layperson already
possesses. Average jurors also can assess the validity of arguments, logic, and
assumptions without an expert, even though they may not be able to assign the proper
Latin terminology to each type with quite the same practiced ease of a linguist like Dr.
Dr. Habick offers extensive critical commentary about the logical and linguistic
structure of the articles in this case. However, there is no element of a defamation case 16
that calls for a linguist’s or logician’s stamp of approval of the writing style. Dr. Habick’s
career has focused on trying to make test questions clear and unambiguous to
prospective graduate student test takers, which is a noble and important task.
However, defamation law is not about whether articles fall into this balanced style where
rigorous rules are applied to ensure clear and uniform understanding. People may
prefer that reporters write with clear logic and structure. However, reporters who may
be perceived by some as not having that gift are not subject to legal liability for
defamation. Moreover, opinions on what constitutes good, clear writing vary as much
as tastes in cuisine. Defamation law requires only that publishers and authors, whether
logical or not, do not knowingly or recklessly publish false statements about public
figures. Latin nomenclature, logical structure and linguistic style are irrelevant to a jury’s
ability to reach a conclusion on that straightforward issue.
Dr. Habick’s testimony would be unfairly prejudicial, confusing and
misleading to the jury.
Dr. Habick’s proffered testimony does not meet minimal legal requirements for its
admissibility. However, even if Dr. Habick’s testimony did meet those standards, this
Court finds that his testimony would be excluded under Pa. R. Evid. 403 as “its
probative value is outweighed by a danger of . . . unfair prejudice, confusing the issues,
[or] misleading the jury.” See, e.g., Betz v. Pneumo Abex LLC, 44 A.3d 27, 52 (Pa.
2012) (affirming that R. 403 gives the trial court a role in screening proffered experts to
exclude unfair prejudice, confusion, and misleading evidence). Dr. Habick’s testimony
reaches into areas that the jury need not decide—(1) that of a so-called sophisticated
linguistic analysis rather than an average juror’s reading, and (2) that of a linguist
speculating about his view as to the likelihood, based on no actual proven facts outside 17
of the articles’ written words, that the articles were written with knowledge of their
alleged falsity or with reckless disregard of their alleged falsity. However, he confuses
the definitions of defamation and actual malice. He uses overly technical vocabulary to
discuss basic concepts. He makes assumptions that statements are false, which is a
jury’s task, and jumps to assessing whether the statements were published intentionally
or recklessly as to whether they are false. Dr. Habick’s testimony, if permitted and
given the imprimatur of being “expert” by the court, would unfairly prejudice, confuse
and mislead the jury. By contrast, the jury will have far more information when they
make their decision than Dr. Habick did in rendering his opinion that statements were
defamatory. In addition to reading the articles, the jury will hear evidence including
testimony from Plaintiff, Defendants, reporters and others who can provide evidence as
to the true facts and the Defendants’ subjective intent. The jury will not be determining
the publishers’ subjective intent based on whether the articles are logical or include
false assumptions. Jurors will be guided by whether there is evidence of actual malice.
This Court finds that Dr. Habick’s testimony and report do not meet legal
requirements under Pa. R. Evid. 702 and caselaw. Dr. Habick is not qualified in the
areas he was offered for—namely, (1) to explain what the articles mean to the average
reader, and (2) to show that Defendants knowingly published false statements or did so
with reckless disregard of their falsity. Sullivan, 376 U.S. 254, 279–80 (1964). Plaintiff
failed to show that Dr. Habick was qualified to testify in these areas, that his
methodology was reliable or scientific and generally accepted within the field of
linguistics, and that his testimony was relevant to the issues the jury would need to 18
decide. Pa.R.Evid. 702.
Further, this Court finds that Dr. Habick’s testimony is not
admissible because it would be unfairly prejudicial, confusing and misleading.
Pa.R.Evid. 403. For the foregoing reasons, Dr. Habick’s testimony and report are not
admissible and may not be used as evidence in support of Plaintiff’s response to the
summary judgment motion nor at trial.
Lisa M. Rau, J.
Date: August 1, 2014

See also Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); Betz v. Pneumo Abex LLC, 44 A.3d 27,
53, 58 (Pa. 2012) (clarifying Court’s gatekeeping role and explaining relevance of the breadth and
character of an expert’s extrapolations); Summers v. Certainteed Corp., 997 A.2d 1152, 1161 (Pa. 2010)
(summary judgment is improper where an expert’s conclusions are sufficiently supported); Grady v. FritoLay,
839 A.2d 1038 (Pa. 2003) (affirming that party proffering expert evidence must show that scientists
in the field generally accept the expert’s methodology for arriving at the expert’s conclusion); Trach v.
Fellin, 817 A.2d 1102, 1113 (Pa. Super. Ct. 2003) (explaining meaning of “methodology”).

Real estate law fraud article co-authored by a Philadelphia attorney

Unauthorized reproduction is expressly prohibited. Copyright ALM 2015

“Proving Fraud in a Residential Real Estate Transaction” by Harper J.  Dimmerman  and  James  M.  Lammendola, ” The  Legal  Intelligencer”, Publication date: January  6,  2015 (Real estate law fraud article co-authored by a Philadelphia attorney. The article discusses Pennsylvania’s disclosure laws in a residential real estate deal).

Litigators  know  that  proving  fraud  against  a  seller  in  the  residential  real  estate  context  can  be  challenging and  being  awarded  damages  for  fraud  even  more  so.  The  recent  decision  in  Floyd  v.  Wigfield,  (Oct.  2014, Lehigh  Co.,  No.  2012-­C-­4131),  handed  down  this  past  October,  provides  a  useful  analysis  of  the  facts and  types  of  claims  that  should  be  considered.  The  case  also  serves  as  a  reminder  that  failure-­to-­disclose cases  continue  to  be  litigated  in  our  state.  This  is  so  despite  the  requirement  in  the  1996  Real  Estate Seller  Disclosure  Law  (68  Pa.C.S.A.  Section  7301)  requiring  material  defects  to  be  disclosed  in  writing before  an  agreement  of  sale  for  residential  real  estate  is  signed  as  well  as  the  1968  Unfair  Trade Practices  and  Consumer  Protection  Law  (73  P .S.  Section  201-­1  et  seq.),  made  applicable  to  residential real  estate  transactions  by  the  Superior  Court  in  1987.

The  facts  are  straightforward  enough:  Shannon  Floyd,  Norman  D’Avanzo  and  Ruth  D’Avanzo  (the buyers),  purchased  property  in  Emmaus,  Pa.,  from  Edward  and  Carol  Wigfield  (the  sellers)  on  Oct.  9, 2010.  During  their  ownership,  the  sellers  made  various  improvements  to  the  property,  including  the conversion  of  a  barn  on  the  site  into  multiple  apartment  units  and  alterations  to  the  wastewater  system. The  sellers  were  the  only  owners  in  the  chain  of  title  prior  to  the  sale  to  the  buyers.  They  listed  the property  and  prepared  various  documents,  including  a  required  seller’s  property  disclosure  statement  that did  not  disclose  any  information  on  any  code  violations.  The  property  was  marketed  as  having  two income-­producing  rental  units,  in  addition  to  the  main  residence  being  ready  for  use.

Post-­settlement,  an  issue  arose  with  the  tenants  (the  rental  units  were  occupied  at  the  time  of  the transfer)  and  an  inspection  by  Upper  Milford  Township  exposed  several  violations.  These  violations included  the  fact  that  the  property  had  never  been  approved  for  multiple  rental  units.  The  buyers  sought zoning  relief,  in  the  form  of  a  variance;;  the  request  was  eventually  granted.  But  the  variance  was conditioned  upon  an  inspection  of  each  of  the  rental  units.  In  the  course  of  this  process,  it  was  discovered that  the  septic  system  servicing  the  dwelling  units  was  non-­compliant,  necessitating  a  new,  compliant system  with  an  approximate  cost  of  $40,000.

As  a  result  of  their  reliance  upon  the  disclosures  either  made  or  omitted  by  the  sellers,  the  buyers commenced  litigation  in  the  Lehigh  County  Court  of  Common  Pleas.  The  multicount  complaint  averred common-­law  misrepresentation  as  well  as  violations  of  both  the  Real  Estate  Seller  Disclosure  Law (RESDL)  and  the  Unfair  Trade  Practices  and  Consumer  Protection  Law  (UTPCPL),  inter  alia.  The  thrust of  the  buyers’  suit  was  that  the  sellers  misrepresented  the  condition  of  the  property,  thereby  entitling  them to  actual  damages  amounting  to  the  cost  of  the  septic  system,  treble  damages  and  attorney  fees.

Notably,  at  the  bench  trial,  the  sellers  stipulated  to  the  fact  that  they  knew  permits  were  required  and intentionally  did  not  obtain  them.  The  court  made  an  additional  finding  of  fact  that  the  sellers  represented on  the  disclosure  statement  that  they  were  unaware  of  any  material  defects  on  the  property.  A  material defect  is  defined  by  case  law,  the  RESDL  and  the  disclosure  statement  as  “a  problem  with  residential  real property  or  any  portion  of  it  that  would  have  a  significant  impact  on  the  value  of  the  property  or  that involves  an  unreasonable  risk  to  people  on  the  property.”  Section  7304-­16  of  the  RESDL  includes  “legal issues  affecting  title  that  would  interfere  with  use  and  enjoyment”  in  its  list  of  what  may  qualify  as  a material  defect.  Section  19-­D  of  the  disclosure  statement  requires  disclosure  of  any  zoning,  housing, building,  safety,  or  fire  code  violations.

In  its  conclusions  of  law,  the  court  relied  heavily  on  the  oft-­cited  Pennsylvania  Supreme  Court  case  Bortz v.  Noon,  729  A.  2d,  555  (Pa.  1999),  in  analyzing  the  sellers’  conduct.  There  is  nothing  in  the  opinion  that mentions  a  defense  for  failing  to  disclose  that  the  apartments  were  in  violation  of  zoning  law  but  the sellers  apparently  tried  to  posit  the  defense  that  the  septic  system  functioned  properly.  The  court  noted that  this  defense  was  only  relevant  to  the  “idea  that  [sellers]  never  thought  their  deceit  would  be uncovered.”

Once  reliance  on  a  misstatement  of  fact,  or  concealment  of  a  material  defect  is  established  as  fact,  then the  intent  to  fraudulently  inflate  the  value  of  the  property  is  established  for  the  purpose  of  finding  a material  defect.  As  a  consequence  of  holding  that  both  the  intentional  misrepresentation  and  a  violation  of the  RESDL  occurred,  the  court  granted  the  plaintiffs  compensatory  damages  in  an  amount  sufficient  to bring  the  septic  system  into  compliance.  The  RESDL  allows  actual  damages  under  Section  7311  but  does not  preclude  punitive  damages  or  “any  other  remedies  applicable  under  other  provisions  of  law.”

The  UTPCPL’s  catch-­all  21st  unfair  trade  practice  definition  is  “any  other  fraudulent  or  deceptive  conduct which  creates  a  likelihood  of  confusion  or  of  misunderstanding,”  which  has  been  interpreted  as  requiring proof  of  common-­law  fraud  by  the  Superior  Court  in  2000  in  Booze  v.  Allstate  Insurance,  750  A.2d  877. Section  201-­9.2  also  provides  that  “the  court  may  in  its  discretion,  award  up  to  three  times  the  actual damages  sustained,”  plus  reasonable  attorney  fees.

As  in  many  cases,  the  court  declined  to  award  treble  damages,  which  is  discretionary  under  UTPCPL Section  201-­9.2(a),  despite  an  explicit  finding  of  intentional  conduct,  coupled  with  the  finding  of  fact  that one  of  the  sellers  was  a  former  township  zoning  officer  who  “was  familiar  with  zoning  hearing  procedures, zoning  laws,  building  laws,  and  septic  system  laws.”  The  court  found  treble  damages  inappropriate  but did  not  explicitly  state  its  reasoning.  Nonetheless,  the  court  did  award  about  $20,126  in  attorney  fees, which  was  the  exact  amount  prayed  for  since  said  sum  met  the  four  factors  under  McCauslin  v.  Reliance Finance,  751  A.2d  683  (Pa.  Super  2000).

Floyd  serves  as  yet  another  reminder  of  the  multiple  causes  of  action  available  in  a  residential  failure-­to-­ disclose  case,  the  specific  remedies  attached  to  the  various  claims,  and  that  treble  damages  are  not awarded  as  a  matter  of  course.  Although  the  threat  of  treble  damages  did  not  serve  as  a  deterrent  to  this litigation,  the  threat  of  treble  damages  and  counsel  fees  makes  the  UTPCPL  a  necessary  supplement  to RESDL  and  common-­law  failure-­to-­disclose  claims.

Harper  J.  Dimmerman  is  an  adjunct  professor  at  Temple  University’s  Fox  School  of  Business.  His  office represents  clients  in  various  litigation  and  real  estate  law  matters  and  he  can  be  reached  at  or  215-­545-­0600.

James  M.  Lammendola  is  an  assistant  professor  at  Temple  University’s  Fox  School  of  Business  who was  in  private  practice  for  20  years.  He  can  be  reached  at  or  215-­204-­ 4124.

Philadelphia Real Estate Law Lecture

I have included a link to the wonderful real estate law seminar at which I will be presenting to other lawyers after the New Year –

Program Summary:

With constantly fluctuating legislation and an unpredictable economy, managing rental property or counseling those who do can often seem like more risk than it’s worth. Having a firm grasp on the essential legal and practical aspects of landlord-tenant law can give you the advantage, whether you are writing your first lease or managing multiple properties. Our speakers are ready to answer your questions and share practical, workable solutions to help you plan ahead and prevent problems before they start. If you are involved in any aspect of property rentals, you will benefit from this seminar.

Program Highlights:

  • Collecting what’s due
  • The process of eviction
  • Obligations of the landlord and tenant
  • Lease provisions
  • How to properly screen applicants
  • Important updates on case law and legislation
Who Should Attend:

  • Property Managers
  • Attorneys – General Practice
  • Attorneys – Bankruptcy/Debtor-Creditor
  • Attorneys – Real Estate
  • Attorneys – Landlord-Tenant/Evictions
  • Other Real Estate Professionals
  • Landlords/Tenants
  • Developers
  • Real Estate Brokers
  • Building Owners
  • Attorneys – Lease or Leasing
  • Leasing Agents
  • Attorneys – Litigation

– See more at: