TMC Development v. American Bridge ( 2021 )

J-S03018-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TMC DEVELOPMENT, INC., A : IN THE SUPERIOR COURT OF
PENNSYLVANIA BUSINESS : PENNSYLVANIA
CORPORATION, AS GENERAL :
PARTNER OF AND TRADING AS TMC :
PARTNERS, L.P., A PENNSYLVANIA :
LIMITED PARTNERSHIP AND DAVID :
F. BAKER, III, EX REL. TMC :
DEVELOPMENT, INC. :
: No. 277 WDA 2020
:
v. :
:
:
AMERICAN BRIDGE COMPANY, A :
DELAWARE CORPORATION; :
RICHARD J. SWARTZ AND TERRI :
BLUMLING, TRUSTEES OF THE :
SWARTZ FAMILY TRUST :
:
:
v. :
:
:
LIBERTY STATE CREDIT, INC. :
:
:
v. :
:
:
TMC PARTNERS, L.P., ET AL. :
:
:
APPEAL OF: TMC DEVELOPEMENT, :
INC. AND DAVID F. BAKER, III, EX :
REL. TMC DEVELOPMENT, INC. :
Appeal from the Order Entered February 13, 2020
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD 08-000324, GD 12-013946
J-S03018-21
BEFORE: DUBOW, J., MURRAY, J., and STRASSBURGER, J.*
MEMORANDUM BY MURRAY, J.: FILED: April 1, 2021
TMC Development, Inc. and David F. Baker, III, ex. Rel. TMC
Development, Inc. (Appellants) appeal from the order granting the motion of
American Bridge Company (American Bridge) for summary judgment. Upon
review, we quash this appeal as interlocutory.
The trial court detailed the underlying facts and procedural history as
follows:
The instant matter involves several commingled entities and the
consolidation of two cases. In the spring of 2004, the Swartz
Family Trust (hereinafter the “Trust”), as lessor, entered into a
ten-year lease agreement with the American Bridge Company
(“American Bridge”), as lessee, for a 5.5 acre parcel of land owned
by the Trust in Coraopolis, Pennsylvania (“Coraopolis property”).
The lease agreement (the “Lease”), which terminated on June 14,
2014, required American Bridge to tender monthly rent payments
in the amount of $7,150.00 to the Trust.
On May 12, 2005, Richard J. Swartz and Terri Blumling, trustees
of the Swartz Family Trust, conveyed[a] the Coraopolis property to
TMC Partners, LP (the “Partnership”) by General Warranty Deed.
. . . The Partnership is, at the minimum, comprised of TMC
Development Inc. (“TMC”), a corporation formed and existing
pursuant to the laws of the Commonwealth of Pennsylvania,
Richard J. Swartz, and David F. Baker III. David F. Baker III has
two capacities in this matter—partner of TMC, Partners L.P., and
Trustee of the Swartz Family Trust.[b] Richard J. Swartz is also a
shareholder of TMC, along with his accountant, one Richard J.
Connell.
[a]The parties are in disagreement as to the extent of
this conveyance. Trustees, Richard J. Swartz and
Terri Blumling, assert this was a temporary
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* Retired Senior Judge assigned to the Superior Court.
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conveyance for the limited purpose of giving the
Partnership collateral to obtain financing. TMC alleges
this was a permanent conveyance.
[b] Plaintiffs have asserted that David F. Baker III is
also President of the Partnership. This, however, is
debated by Defendants. The parties also disagree as
to Mr. Baker’s ownership stake in the Partnership. It
has furthermore been alleged by Liberty State, at oral
argument before this Court on February 13, 2020,
that Richard J. Swartz is the Vice President and
Secretary to the Partnership. The exact composition
of the entities and their management structure is
murky and has been consistently debated factually by
all parties.
Despite the execution of the above-described conveyance,
American Bridge was never formally notified of any transfer of the
Coraopolis property. Moreover, American Bridge never received
a written request for amendment from the Partnership, as
required by the terms of the Lease. Nonetheless, whether by the
terms of the Lease, or by court order, American Bridge
consistently proffered timely rental payments for the entire life of
the Lease. American Bridge, lacking actual knowledge of the
conveyance and abiding by the terms of the Lease, did not pay
rent proceeds to the Partnership.
On October 18, 2006, following the Trust’s conveyance of the
Coraopolis property, the Partnership secured a loan from Liberty
State Mutual (“Liberty State”) in the principal amount of
$342,000.00. This loan was secured by a promissory note and
mortgages on the Coraopolis property. The Partnership was
represented at the closing by David F. Baker III, whom, in addition
to executing the promissory note as the “General Partner,” also
executed a surety agreement in which he personally guaranteed
the obligation to Liberty State. The Partnership ultimately
defaulted on its loan payments, and Liberty State subsequently
filed suit.
***
Liberty State filed a Complaint against the Partnership in 2008 at
GD-08-000324. Liberty State sought an in personam judgment
against David F. Baker III and the Partnership in the amount of
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$403,179.00. Liberty State also sought to impose a constructive
trust or an equitable lien against the mortgaged Coraopolis
property.[c]
[c]The Partnership, while acknowledging that David F.
Baker III authorized the mortgage and promissory
note at issue, nonetheless denies that the Partnership,
in and of itself, ever executed any writings in favor of
Liberty State on the Coraopolis property. The
Partnership argues that David F. Baker III lacked any
authority to sign on behalf of the Partnership and,
therefore, Liberty State is barred from recouping
unpaid monies from the Partnership.
Additional litigation was subsequently filed with this Court in
January 2013, at GD 12-013946—seven years after the transfer
of the Coraopolis property to TMC. TMC brought the action, as
both a general and trading partner, in conjunction with the
Partnership and David F. Baker III, ex rel. TMC commenced the
action, alleging that American Bridge, as the lessee of the
property, improperly paid rent to the Trust instead of TMC. The
Complaint plead five counts against American Bridge: [I]
declaratory judgment; [II] quantum valebat; [III] action for
mesne profits; [IV] in equity; and [V] in contract. The Complaint
also plead several counts against Trustees, Richard J. Swartz and
Terri Blumling: [I] in tort (conversion and conspiracy to convert);
[II] interference with presently existing contractual obligations;
[III] in contract (unjust enrichment); [IV] accounting at law; and
[V] accounting in equity. On August 14, 2015, the Honorable
Christine A. Ward entered an Order consolidating the cases at GD-
12-013946 and GD-08-000324.
On March 28, 2017, the Department of Court Records issued a
Rule to Show Cause why Barbara Fleisher and Michael Ginn should
not be substituted as Plaintiffs in the action at GD-08-000324.
James R. Mail, Esq., accepted service of the Rule to Show cause
on May 17, 2017, for Barbara Fleisher and Michael Ginn. On
November 3, 2017, American Bridge filed a Motion for Summary
Judgment, moving this Court to enter an Order in its favor.
Thereafter, on November 29, 2017, the Partnership filed a Motion
for Summary Judgment as to the claims of Barbara Fleisher and
Michael Ginn. This Court heard oral argument on the Motions for
Summary Judgment on February 13, 2020.
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Following oral argument by the parties, this Court granted
American Bridge’s Motion for Summary Judgment, and denied the
Partnership’s Motion for Summary Judgment as to the claims of
Barbara Fleisher and Michael Ginn. All claims against American
Bridge were dismissed. On February 24, 2020, David F. Baker III,
by his attorney, Albert J. Zangrilli, Esq., subsequently filed a
Notice of Appeal to [the Superior] Court. On March 6, 2020, David
F. Baker III filed a Statement of Errors Complained of on Appeal
Pursuant to Pa.R.A.P. § 1925(b), on behalf of “All Plaintiffs.”
On February 13, 2020, this Honorable Court additionally entered
a second order, in which the trial dates for these consolidated
actions were set for April 15 and April 16, 2020. To this, David F.
Baker III filed a Motion to Vacate, again on behalf of “All Plaintiffs,”
in which he argues that the Superior Court of Pennsylvania has
exclusive jurisdiction over the matter. On March 9, 2020, in
response to the Appeal and Motion to Vacate, the Partnership filed
an Answer and New Matter in which they argue that David F. Baker
III lacks authority to act on behalf of the Partnership and TMC.[d]
[On July 1, 2020, the trial court filed an opinion requesting this
Court quash the appeal as interlocutory.]
The Partnership contends that David F. Baker III
[d]
was removed from his position as an officer of TMC on
August 21, 2008, by a resolution of the corporation’s
Board of Directors.
Trial Court Opinion, 7/1/20, at 1-5, 7 (some footnotes omitted).
On March 9, 2020, this Court issued a rule upon Appellants to show
cause why the appeal should not be quashed; we stated, inter alia:
Appellant has filed this appeal from an order granting summary
judgment as to one, but not all, defendants. Moreover, a trial has
been scheduled for April 2020. Therefore, it appears that the
order is interlocutory and not appealable. See Druot v. Coulter,
946 A.2d 708 (Pa. Super 2008) (Where multiple defendants in a
single action were removed from the case in a piecemeal fashion
each separate judgment becomes appealable when the suit is
resolved against the final defendant).
Additionally, this appeal appears to have been filed from two
different lower court docket numbers. Under Commonwealth v.
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Walker, 185 A.3d 969, 977 (Pa. 2018), Rule 341(a), in
accordance with its Official Note, requires that when a single order
resolves issues arising on more than one lower court docket,
separate notices of appeal must be filed. The failure to do so will
result in quashal of the appeal.
Order, 5/9/20.
Appellants filed a response, emphasizing that the trial court consolidated the
two underlying actions, and the parties in the two actions are different.
Response, 3/15/20, at unnumbered 1-2. Appellants asserted that where the
trial court has consolidated cases and summary judgment has been entered
against one party, they have “the right to an immediate appeal.” Id. at
unnumbered 2, citing Malanchuk v. Tsimura, 137 A.3d 1283 (Pa. 2016).
Appellants further claimed Walker “was not apposite or controlling.” Id. at
unnumbered 3. Then, returning to Malanchuk, Appellants referenced the
Federal Rules of Civil Procedure and federal case law, stating that “the United
States Supreme Court supports the reasoning of Malanchuk.” Id. at 4.
Having received Appellants’ response, this Court entered an order
discharging the rule to show cause, but stating:
This ruling, however, is not binding upon this Court as a final
determination as to the propriety of the appeal. The parties are
advised that the issue may be revisited by the panel to be
assigned to the case, and the parties should be prepared to
address, in their briefs or at the time of oral argument, any
concerns the panel may have concerning this issue.
Order, 3/17/20.
In its brief, American Bridge argues the trial court’s order was not final
and this appeal should be quashed. American Bridge’s Brief at 9-12.
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Conversely, Appellants argue that the court’s order was final and appealable,
and repeat the argument from their response to this Court’s rule to show
cause. Appellants’ Brief at 35-42.
“Generally, only final orders are appealable, and final orders are defined
as orders disposing of all claims and all parties.” Spuglio v. Cugini, 818 A.2d
1286, 1287 (Pa. Super. 2003). See also Pa.R.C.P. 341(b)(1) (“A final order
is any order that . . . disposes of all claims and of all parties, or is entered as
a final order pursuant to [Pa.R.C.P. 341(c) ].”). “‘The finality of an order is a
judicial conclusion which can be reached only after an examination of its
ramifications.’ If the practical effect of an order is to put an appellant out of
court by precluding him from presenting the merits of his claim, the order is
appealable.” West v. West, 446 A.2d 1342 (Pa. Super. 1982) (citations
omitted). “It is beyond cavil in this jurisdiction that an order dismissing some,
but not all, counts of a multi-count complaint is generally interlocutory and
not immediately appealable.” Bell v. State Farm Mut. Auto. Ins. Co., 634
A.2d 1137, 1138 (Pa. Super. 1993). See also Druot, 946 A.2d at 710 (order
that dismissed all counts of original complaint but not seven counterclaims
was not final).
The Pennsylvania Supreme Court carved out an exception in
Malanchuk v. Tsimura, 137 A.3d 1283 (Pa. 2016). The Court addressed the
issue of “whether an order awarding summary judgment in one of two civil
cases consolidated for purposes of discovery and trial was immediately
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appealable as of right.” Malanchuk, 137 A.3d at 1284. The Court held that
where cases are consolidated at the trial level, and the court subsequently
grants summary judgment in one of the actions, the order may be
immediately appealable. Id. at 1284. The Supreme Court explained that
“complete consolidation between actions involving non-identical parties,
subject matter, issues and defenses, is simply untenable.” Id. at 1286. Thus,
“whether a separate-judgment rule pertains hinges upon whether . . .
consolidated actions merge, thereby erasing the separate identities of the
actions.” Id. Merger only occurs when there is “complete identity of parties
and claims. . . .” Id. at 1288.
Here, there is not complete identity of parties and claims with Case GD-
12-013946 (the case arising from the lease), and Case GD-08-00324 (the
case arising from the loan). Thus, merger of the consolidated cases did not
occur. Id. at 1288. However, that does not end our inquiry.
Under Malanchuk, we must examine the order granting partial
summary judgment and determine whether it was a final in case GD-12-
013946. Pennsylvania Rule of Appellate Procedure 341 provides in pertinent
part:
(c) Determination of finality.--When more than one claim for
relief is presented in an action, whether as a claim, counterclaim,
cross-claim, or third-party claim, or when multiple parties are
involved, the trial court or other government unit may enter a final
order as to one or more but fewer than all of the claims and
parties only upon an express determination that an
immediate appeal would facilitate resolution of the entire
case. Such an order becomes appealable when entered. In the
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absence of such a determination and entry of a final order, any
order or other form of decision that adjudicates fewer than
all the claims and parties shall not constitute a final order.
Pa.R.A.P. 341(c) (emphases added).
In Case GD-12-013946, there were three defendants: American Bridge,
Richard J. Swartz, and Terri Blumling. Complaint, 1/25/13, at 3. The trial
court’s February 13, 2020 order only dismissed the claims against American
Bridge, not the remaining two defendants, Swartz and Blumling. Moreover,
the trial court did not certify the order as appealable; to the contrary, it
requests we quash this appeal as interlocutory. Trial Court Opinion, 7/1/20,
at 7. Thus, even under Malanchuk, the order in case GD-12-013946 is not
a final, appealable order because claims remain outstanding against two of
the three defendants. See Adams v. Erie Insurance Co., 238 A.3d 428,
432-33 (Pa. Super. 2020) (holding insured’s separate actions against insurer
and putative insurer did not merge under Malanchuk, but quashing appeal
where no final appealable order existed in either action); see also Pa.R.A.P.
341(c); Druot, 946 A.2d at 710; Bell, 634 A.2d at 1138. Accordingly, we
quash this appeal as interlocutory.1
Appeal quashed.
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1We therefore decline to address whether Appellants have complied with
Walker, supra.
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Judge Dubow joins the memorandum.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/2021
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