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J. A10011/12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 HERBERT J. NEVYAS, M.D., ANITA NEVYAS-WALLACE, M.D.

, AND NEVYAS EYE ASSOCIATES, P.C., Appellants v. DOMINIC MORGAN AND STEVEN FRIEDMAN : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 1572 EDA 2011

Appeal from the Judgment, April 28, 2011, in the Court of Common Pleas of Philadelphia County Civil Division at No. November Term, 2003 No. 946

HERBERT J. NEVYAS, M.D., ANITA NEVYAS-WALLACE, M.D., AND NEVYAS EYE ASSOCIATES, P.C. v. DOMINIC MORGAN AND STEVEN FRIEDMAN APPEAL OF: STEVEN FRIEDMAN, ESQUIRE, Appellant

: : : : : : : : : : : : :

IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 1605 EDA 2011

Appeal from the Judgment, April 28, 2011, in the Court of Common Pleas of Philadelphia County Civil Division at No. November Term, 2003 No. 00946 BEFORE: FORD ELLIOTT, P.J.E., BENDER AND COLVILLE,* JJ. FILED AUGUST 21, 2012 * Retired Senior Judge assigned to the Superior Court.

J. A10011/12 MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 21, 2012

Herbert J. Nevyas, M.D., Anita Nevyas-Wallace, M.D., and Nevyas Eye Associates, P.C., plaintiffs in the court below, appeal the judgment in favor of defendant Steven A. Friedman. Following a bench trial, the trial court

found in favor of Friedman in this defamation action. Friedman has filed a cross-appeal. The trial court granted injunctive relief in favor of the

Nevyases and against defendant Dominic Morgan.1 After careful review, we affirm. The Honorable Victor J. DiNubile, Jr., sitting as fact-finder in this matter, has aptly summarized the underlying facts as follows: This matter is a result of a defamation suit brought by Plaintiffs against Morgan, a former patient, and Morgans former lawyer, Friedman. Plaintiffs sought injunctive relief against Morgan to bar him from publishing any defamatory remarks, and sought monetary damages against Friedman for his alleged collusion in these publications. Morgan suffered from a malady that significantly impairs his vision, termed premature retinopathy. After learning of Plaintiffs advertisements for Lasik surgery, he went for treatment and was ultimately operated on by Dr. Anita Nevyas-Wallace in April of 1998, who used an excimer laser developed by Plaintiffs for Lasik surgery. Prior to undergoing the procedure, Morgan was examined by retina specialist Dr. Edward Deglin, who approved him for the surgery. Dissatisfied with the results, Morgan brought suit against the Plaintiffs in this Court in April of 2000, in which he was

Morgan also filed an appeal at No. 1573 EDA 2011, which was quashed on November 18, 2011. -2-

J. A10011/12 represented by Friedman, who is both a physician certified in internal medicine and an attorney. The suit alleged medical malpractice and lack of informed consent. Morgan, through Friedman, asserted that he was not an appropriate candidate for the surgery because his best corrected visual acuity was below standard. They also alleged false advertising, in violation of the Pennsylvania Consumer Protection Law. During the pendency of the underlying malpractice case, Friedman, at the request of his client, authored three letters to the FDA, dated December 20, 2001, January 4, 2002, and August 10, 2002, making complaints against the Plaintiffs for violation of FDA regulations which governed the use of Plaintiffs excimer laser under the investigational device exemption, or I.D.E. He referred to the device as a rogue device, a black box, and further accused the Plaintiffs of false advertising.[Footnote 1] He gave copies of the letters to his client, who published them on his website on or about the summer of 2003.[Footnote 2] Friedman believed that the physicians had used this device without FDA approval. He also believed Plaintiffs later failed to follow proper protocol when they did receive approval to use the laser as an I.D.E. in August of 1997. One of Friedmans allegations involved the failure of the Plaintiffs to report patients adverse events. The evidence at trial indicated Plaintiffs were using this device prior to making an I.D.E. application to the F.D.A. The application was approved in the summer of 1997, prior to Morgans surgery of April of 1998. They had operated on approximately 200 patients prior to approval because they believed that it was a custom device, and therefore the application was not necessary. The evidence presented at trial was insufficient to show that Plaintiffs were ever sanctioned for this conduct.

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J. A10011/12 After Summary Judgment was granted, dismissing the advertising and informed consent claims, the parties agreed to transfer the matter to arbitration/A.D.R. In June of 2003, the arbitrator found in favor of Plaintiffs, and in a high-low agreement, Morgan received the low sum of $100,000.00. Morgan was upset and frustrated by the award. Some time in July of 2003, he created a website, lasiksucks4u.com, in which he defamed the professional ability and integrity of Plaintiffs, writing that they were ruthless, uncaring, and greedy. Later in the summer of 2003, Morgan published another website statement, accusing Plaintiffs of a cover-up.[Footnote 3] [Footnote 4] In November of 2003, upon learning of Morgans internet publications, Plaintiffs filed this suit, seeking an injunction to preclude further publication of defamatory material and statements. Friedman initially represented Morgan in this action, but in 2004, he was joined as an additional defendant, thereby necessitating his withdrawal. Friedman did not learn of the internet publications, including his first three letters, until the middle of November of 2003, after a preliminary injunction request was made by the Plaintiffs. He then authored his fourth and final letter, dated December 4, 2003, to the Office of Criminal Investigation of the FDA. In the letter, he accused the Plaintiffs of possible outright criminal activity. He also made similar complaints, which he had made in his previous letters, of violations of FDA regulations, first by operating without an l.D.E., and then failure to follow proper I.D.E. protocol. At the time Friedman authored this final letter, he believed Plaintiffs were still using the excimer laser, when in fact they had terminated its use sometime in 2001. From extensive discovery in the underlining [sic] malpractice case, he received information that protocol had not been followed, not just for his client, but for two other patients. -4-

J. A10011/12 Friedman was frustrated that he had not received any response from the FDA. He contacted an FDA ombudsman, who advised him to write to the Director of the Office of Criminal Investigation. The letter of December 4, 2003 was precipitated by this discussion. It was authored months before he was joined as an additional defendant in this case. Friedman furnished a copy of this letter to his client without any admonition about publication. Morgan published this letter on the internet, as he had the first three letters, shortly thereafter. On or about this time, Morgan also published a letter dated July 15, 2003, to the Honorable Frederica MessiahJackson, then the President Judge of the Court of Common Pleas of Philadelphia County, complaining about his treatment by the Plaintiffs and the Court System. This letter was also made part of this Courts findings. In 2005, an injunction hearing was held in this Court before the Honorable Eugene Edw. J. Maier. At the hearing, Judge Maier found that there was an agreement between Morgan and Plaintiffs in which Morgan agreed to cease and desist from publishing any further defamatory materials. Morgan appealed to the Superior Court, which affirmed the portion of Judge Maiers finding that there was a valid settlement agreement. The other aspects of Judge Maiers order were reversed and the case was remanded to the Common Pleas Court for trial. See, Nevyas v. Morgan, 921 A.2d []8 (Pa.Super. 2007). After a six-day non-jury trial, this Court issued an Order on March 16, 2011. In the Order, this Court found in favor of Plaintiffs and against Morgan, granted certain injunctive relief to Plaintiffs, and further found in favor of Friedman and against Plaintiffs. This Court found that there existed insufficient evidence to prove that the letters he authored, most particularly the letter of December [4], 2003, were maliciously written and published. After the denial of Post Trial Motions, these appeal and cross appeals follow. -5-

J. A10011/12

This Court found that Friedmans role in the publication of these letters, including the letter of December 4, 2003, was done without malice. It is true that Friedman must have had reason to know that Morgan would publish this letter on his website, because he had done so with the previous three. This knowledge, however, did not constitute malice. First, he was Morgans attorney and he wrote these letters at Morgans direction. As such, his client had a right to these copies. Second, this Court found that Friedman believed that Plaintiffs were in fact violating I.D.E. protocol. Plaintiffs counsel argued that any information involving violations was stale; Plaintiffs had stopped using this device in 2001. This fact was not sufficient to convince this Court that Friedmans aims were malicious in nature. In addition, the demeanor of Friedman, both on the witness stand and throughout the trial, supports this conclusion. Consequently, this Court as factfinder, concluded that Plaintiffs failed to prove malice against Friedman in both the authoring of the letters and his role in the publication of the fourth letter. [Footnote 1] The FDA uses the term black box to indicate a device which does not have FDA approval. [Footnote 2] These letters are part of this Courts Findings of Fact and Conclusions of Law. [Footnote 3] The full text of these publications were incorporated into this Courts Findings of Fact and Conclusions of Law, and made part of the trial record. [Footnote 4] Morgan also owned, operated, controlled, or possessed several other websites. This Court was made aware of the following: lasikdesign.com, flawedlasik.com, nevyaslasik.com, herbertnevyaslasik.com, nevyas-v-morgan.com, lasiksucks4u2.com, lasikliberty.com, and anitanevyaslasik.com.

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J. A10011/12 Trial court opinion, 6/17/11 at 2-6. The Nevyases have raised the following issues for this courts review: 1. Whether two individual doctors and their practice may be held to be limited purpose public figures, required to prove actual malice in a defamation action, based solely on evidence that they advertised their services, when that advertising neither concerned nor prompted a public controversy, when no media outlet ever mentioned these doctors, when no subject-matter nexus exists between the advertising, the defamatory statements and a public controversy, and when the advertising at issue occurred more than five years before the defamatory statements were published? Whether the trial court was required to consider as evidence of actual malice a defamers re-publication of his defamatory statements, his prior and subsequent defamatory statements, evidence that the defamer refused to retract his defamatory statements in the face of evidence of their falsity, evidence that the defamer acted in disregard of the plaintiffs rights, and evidence that the defamer had been put on notice of the falsity of his statements before he made them, and whether the trial courts refusal to consider such evidence rendered its verdict against the weight of the evidence?

2.

Nevyases brief at 3. In this first issue on appeal, the Nevyases argue that the trial court erred in determining that they are limited purpose public figures required to prove actual malice rather than mere negligence. We disagree. [T]he appropriate standard of fault depends on whether the plaintiff is a public or private figure. If the plaintiff is a public official or public figure, and -7-

J. A10011/12 the statement relates to a matter of public concern, then to satisfy First Amendment strictures the plaintiff must establish that the defendant made a false and defamatory statement with actual malice. In contrast, states are free to allow a private-figure plaintiff to recover by establishing that the defendant acted negligently rather than maliciously. American Future Systems, Inc. v. Better Business Bureau of Eastern Pennsylvania, 592 Pa. 66, 83-84, 923 A.2d 389, 400 (2007), cert. denied, 552 U.S. 1076 (2007) (citations and parentheticals omitted). 2 [Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997 (1974)] determined that the classification as a public figure arises in two circumstances: first, referring to an all purpose public figure, the Court explained that, in some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. Id., 418 U.S. at 351, 94 S.Ct. at 3013. Alternatively, a limited purpose public figure, which according to the Court is more common, is an
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As used in this discussion, the term actual malice (sometimes shortened to malice) is a term of art that refers to a speakers knowledge that his statement is false, or his reckless disregard as to its truth or falsity. Thus, it 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. Masson v. New Yorker Magazine, 501 U.S. 496, 510, 111 S.Ct. 2419, 2429, 115 L.Ed.2d 447 (1991) (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968); Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964)). This term should not be confused with the concept of malice as an evil intent or a motive arising from spite or ill will. Id.

Id. at 76 n.6, 923 A.2d at 395 n.6. -8-

J. A10011/12 individual who voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. Id. To determine such status, the Court instructed that it is necessary to consider the nature and extent of an individual's participation in the particular controversy giving rise to the defamation. Id. at 352, 94 S.Ct. at 3013[.] Id. at 86, 923 A.2d at 401 (additional citation omitted). Traditionally, a plaintiff could only be considered a limited-purpose public figure relative to a pre-existing controversy in which he elected to participate. See Rutt [v. Bethlehems Globe Publg Co.], 335 Pa.Super. [163] at 181-82, 484 A.2d [72] at 81 [(1984)]; cf. Hutchinson v. Proxmire, 443 U.S. 111, 134-35, 99 S.Ct. 2675, 2688, 61 L.Ed.2d 411 (1979) (noting that a defamation plaintiff does not become a public figure simply because the news media give him an opportunity to respond). More recently, however, some courts have held that a controversy may be created by a plaintiff's own activities, particularly with respect to widespread public solicitation and advertisements. Id. at 87, 923 A.2d at 401-402. In other words, public figures effectively have assumed the risk of potentially unfair criticism by entering into the public arena and engaging the publics attention. Id. at 88, 923 A.2d at

402, quoting Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 273 (3rd Cir. 1980). Here, the trial court agreed with the Honorable Peter F. Rodgers pre-trial ruling that the Nevyases were limited purpose public figures because of the extensive advertising of their Lasik procedure. (Trial court opinion, 6/17/11 at 7.) -9-

J. A10011/12 In the case sub judice, Plaintiffs engaged in a promotion of Lasik surgery and pursued expensive advertising through television, radio, internet, magazine and journal publications, all of which make them limited purpose public figures. Therefore, in order to impose liability on the part of Friedman, the Plaintiffs were obligated to prove malice in his authoring, publishing, and delivery of [the letters] to Morgan, who subsequently published them on the internet. Id. While the parties disagree somewhat as to the extent of the Nevyases advertising, it is clear that their promotional efforts vis--vis the Lasik procedure and use of the excimer laser were significant. The Nevyases paid to appear in a 30-minute television documentary about Lasik surgery in which they presented themselves as pioneers and experts in the field. This broadcast aired multiple times. The Nevyases repeatedly made

representations that they were uniquely qualified to perform Lasik through radio and print advertising, as well as on internet websites. The Nevyases promoted Lasik as safe and effective, including their particular laser device. The Nevyases published articles extolling the virtues of Lasik surgery and disseminated them over the internet. seminars devoted to Lasik. The Nevyases spoke at educational

The Nevyases utilized a toll-free telephone

number to solicit patients, 1-800-9-LASER-6. In fact, it was alleged that Morgan contacted the Nevyases because of specific representations the Nevyases made on the radio about Lasik surgery and its safety. (Friedmans reply in support of his motion to determine the Nevyases public figure - 10 -

J. A10011/12 status, 7/27/09 at 6; RR (Vol. 2) at 931a.) Therefore, as in American

Future Systems, Inc., there was a subject-matter nexus between the content of the Nevyases public solicitations and advertisements and the allegedly defamatory speech. This supports a determination that the

Nevyases became public figures for the limited purpose of commentary concerning their professional expertise, adherence to industry standards, and performance of the Lasik procedure. See American Future Systems, Inc. (where the appellant, a publishing company which sold business-related newsletters, expended significant time and resources in soliciting business and making its products known, including employing telemarketers, it became a public figure for the limited purpose of commenting upon its sales practices); National Foundation for Cancer Research (NFCR) v. Council of Better Business Bureaus, 705 F.2d 98 (4th Cir. 1983) (where the plaintiff had thrust itself into the public eye through massive solicitation efforts, including direct mail solicitation, and highlighted its judicious use of donated funds for its cancer research, it was a limited purpose public figure in relation to the public controversy surrounding its solicitation and use of funds which was the very topic of the contested report issued by the Better Business Bureau); Steaks Unlimited (finding that the plaintiff was a public figure for the limited purpose of commentary concerning its products and sales practices where it launched an intensive

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J. A10011/12 advertising campaign in attempting to sell its beef products in the Pittsburgh area). The Nevyases contend that there was no public controversy over Lasik and merely advertising their professional services, without more, does not make them limited purpose public figures. As described above, the

Nevyases promotional efforts, including appearing in 30-minute paid television documentaries, were vast. According to Friedman, the Nevyases spent $10,000 per month on radio advertising alone. 24.) (Friedmans brief at

This was not a case of a sole practitioner with an ad in the yellow The Nevyases expended significant time and resources soliciting

pages.

business and touting their expertise in performing Lasik surgery and the use of their excimer laser in particular. As such, they voluntarily exposed

themselves to increased risk of injury from defamatory falsehood concerning them. American Future Systems, Inc., 592 Pa. at 88, 923 A.2d at 402, quoting Steaks Unlimited, 623 F.2d at 273 (additional citations and quotations omitted). Regarding the existence of a public controversy, there was evidence that the safety of Lasik surgery generally, and the use of unapproved lasers such as the Nevyases in particular, was being debated in the public forum at that time. including The Nevyases willingly and vigorously engaged in that debate through the use of advertising and published articles.

Furthermore, as in American Future Systems, Inc., the Nevyases have

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J. A10011/12 greater access to the channels of effective communication than ordinary private citizens for purposes of counteracting statements [they] perceive[] as false. Id. at 92, 923 A.2d at 405. In fact, it is alleged that the

Nevyases hired media relations experts to promote them on websites and monitor how they are being portrayed by others on the internet, which is how they discovered Morgans website. (Friedmans brief at 9-10, 13.) The trial court did not err in finding that the Nevyases were public figures for the limited purpose of commentary concerning their performance and

advertisement of Lasik surgery.

Therefore, to establish their defamation

claim, the Nevyases were required to prove that Friedman and Morgan published their statements with actual malice. In their second and final issue on appeal, the Nevyases claim that the trial courts verdict was against the weight of the evidence where it disregarded certain evidence of actual malice. Specifically, the Nevyases

argue that Friedman effectively republished the December 4, 2003 letter when he failed to admonish Morgan not to put the letter on his website. The Nevyases also argue that actual malice could be imputed to Friedman where he failed to retract his prior allegations in the face of new evidence from the FDA which came to light in 2005. We recognize that, with regard to factual determinations, the trial court acts as the factfinder in a bench trial and may believe all, part or none of the evidence presented. Issues of credibility and conflicts in evidence are for the trial court to resolve; this Court is not permitted to reexamine the weight - 13 -

J. A10011/12 and credibility determinations or substitute our judgment for that of the factfinder. Furthermore, the findings of the judge in a non-jury trial are given the same weight and effect as a jury verdict such that the court's findings will not be disturbed on appeal absent an abuse of discretion, error of law, or lack of support in the record. We will not disturb the court's factual findings merely on the basis we would have reached a different conclusion; rather, our task is to determine whether there is competent evidence in the record that a judicial mind could reasonably have determined to support the finding. Ruthrauff, Inc. v. Ravin, Inc., 914 A.2d 880, 888 (Pa.Super. 2006), appeal denied, 599 Pa. 711, 962 A.2d 1197 (2008) (citations and quotation marks omitted). The Nevyases cite Weaver v. Lancaster Newspapers, Inc., 592 Pa. 458, 926 A.2d 899 (2007), in which the defendant allowed his allegedly defamatory letter in the newspaper to be republished on a website approximately three months after he had been sued for publishing the letter in the first place. Our supreme court held that summary judgment for the defendant was inappropriate where the material fact of republication was in dispute. Id. at 472, 926 A.2d at 907. If, in fact, the defendant granted

permission to a third party to republish the disputed letter to the editor, after the lawsuit put him on notice that his accusation therein might be false, then it was more probable that he either knew the information was false or that he acted recklessly with regard to the truth at the time of the initial publication. Id. at 470, 926 A.2d at 905. This would constitute

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J. A10011/12 sufficient circumstantial evidence of actual malice to survive summary judgment. Id. at 464, 926 A.2d at 902. The Nevyases claim that the trial court failed to consider evidence of republication is belied by the record. The trial court recognized in its

findings of fact that [Friedman] furnished a copy of this letter to his client without any admonition about publication. Morgan published this letter, as he had the first three letters, on the internet shortly thereafter. (Findings of fact and conclusions of law, 3/16/11 at 6, 8.) The trial court noted that the December 4, 2003 letter was written months before Friedman was joined as an additional defendant in this case. (Id. 7.) The trial court found that while Friedman probably knew Morgan would put the letter on his website, Morgan was entitled to a copy of the letter and the Nevyases failed to prove actual malice on the part of Friedman: This Court finds that Friedmans role in the publication of these letters, including the letter of December 4, 2003, was done without malice. It is true that Friedman must have had reason to know that Morgan would publish this letter on his website, because he had done so with the previous three. This knowledge, however, did not constitute malice. First, he was Morgans attorney. He had written these letters at Morgans direction. As such, his client had a right to these copies. Second, this Court finds that there was a belief by Friedman that the Plaintiffs were in fact violating I.D.E. protocol. Plaintiffs counsel argued that any information involving violations was stale in that Plaintiffs had stopped using this device in 2001. This fact is not sufficient to convince this Court that Friedmans aims were malicious in nature. In addition, the demeanor of Friedman, both on the witness stand and - 15 -

J. A10011/12 throughout the trial, supports this conclusion. Consequently, the Plaintiffs have failed to prove malice against Defendant Friedman in both the authoring of the letters, and his role in the publication of the fourth letter. Id. at 6-7, 9. The trial courts findings in this regard are supported by the record and will not be disturbed on appeal. Weaver is readily distinguishable where the defendant allegedly gave permission for his letter to the editor to be reprinted on a website three months after being sued. The defendant in

Weaver was put on notice that his statement therein that the plaintiff had been arraigned for sexually molesting women and children was false. Id. at 469-470, 926 A.2d at 905. Here, the trial court found that Friedman had a good faith belief that the Nevyases were, in fact, in violation of FDA regulations. Furthermore, his client, Morgan, was entitled to a copy of the letter written on his behalf. In addition, to the extent the trial court found Friedman to be a credible witness on the stand, such a determination is unassailable on appeal. Regarding information which was uncovered in 2004 and 2005 pursuant to Freedom of Information Act requests by Friedman, there is no indication these documents exonerated the Nevyases or demonstrated Friedmans allegations to be false and defamatory.3 To the contrary,

Friedman had sought these documents during the underlying malpractice case, but did not obtain them until after the instant lawsuit was filed. - 16 -

J. A10011/12 Friedman moved to admit this evidence on the basis that it supported the allegations leveled in his December 4, 2003 letter to the FDA. (Trial court opinion, 6/17/11 at 9-10.) The trial court conceded that the documents may be admissible as tending to support the truth of the original publications, thereby negating malice, but chose not to admit them on the basis that it could have led to a needless side trial. (Id.) Ultimately, the trial court

found that the Nevyases fell far short of meeting the burden to prove Friedmans liability, i.e., actual malice. (Id. at 8.) For these reasons, we determine that the trial court did not err in assigning the Nevyases limited purpose public figure status, and that the trial courts verdict was amply supported by the evidence. Therefore, we

need not address Friedmans contention on cross-appeal that an absolute judicial privilege applied.4

We note that it is doubtful whether Friedman, as the prevailing party in the court below, has standing to appeal. Generally only an aggrieved party has standing to appeal. Pa.R.A.P. 501. Where a party is successful in the trial court, that party is not aggrieved and, therefore, has no standing to appeal . . . . We have specifically stated that mere disagreement with the . . . legal reasoning [of the tribunal whose order is being reviewed] . . . does not confer standing [to appeal] . . . . Hartman v. City of Allentown, 880 A.2d 737, 747 n.27 (Pa.Cmwlth. 2005), quoting Bldg. Indus. Assn of Lancaster County v. Manheim Township, 710 A.2d 141, 147-148 (Pa.Cmwlth. 1998), quoting Mahanoy Area Sch. Dist. v. Budwash, 604 A.2d 1156, 1159 (Pa.Cmwlth. 1992). However, the Nevyases have not filed a motion to quash Friedmans - 17 -

J. A10011/12 Judgment affirmed. Judgment Entered.

Prothonotary Date: 8/21/2012

cross-appeal. See In re Duran, 769 A.2d 497, 501 n.2 (Pa.Super. 2001) (the issue of standing cannot be raised sua sponte and is waived if not properly raised.) (citations omitted). - 18 -

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