Wilmington Savings v. 7327A West Chester Pk ( 2017 )


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  • J-A23002-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    WILMINGTON SAVINGS FUND                    :   IN THE SUPERIOR COURT OF
    SOCIETY, FSB, S/B/M ALLIANCE               :        PENNSYLVANIA
    BANK                                       :
    :
    :
    v.                             :
    :
    :
    7327A WEST CHESTER PIKE, LP;               :   No. 220 EDA 2017
    7329 WEST CHESTER PIKE, LP;                :
    7331 WEST CHESTER PIKE, LP;                :
    JAMES P. DUFFY; KATHLEEN M.                :
    DUFFY; JOHN F. JOYCE; AND                  :
    COLLEEN A. ATCHASON JOYCE,                 :
    :
    :
    :
    :
    :
    :
    APPEAL OF: JAMES P. DUFFY JR.              :
    AND KATHLEEN M. DUFFY                      :
    Appeal from the Order Entered December 21, 2016
    In the Court of Common Pleas of Delaware County
    Civil Division at No(s): 2015-010226
    BEFORE:      PANELLA, J., DUBOW, J., and FITZGERALD*, J.
    CONCURRING AND DISSENTING MEMORANDUM BY DUBOW, J.
    FILED DECEMBER 12, 2017
    I do not believe that Mr. and Mrs. Duffy have standing in their individual
    capacities to appeal the trial court’s Order. I would, thus, quash this appeal.1
    ____________________________________________
    1 I also agree with the Joyces that the Duffys were not aggrieved by the trial
    court’s December 21, 2016 Order because it directs only WSFS to satisfy
    judgment against the Joyces as it agreed to do in the Loan Sale Agreement.
    ____________________________________
    * Former Justice specially assigned to the Superior Court.
    J-A23002-17
    I recognize, however, that because the Joyces did not object below to the
    Duffys’ participation, i.e., when the Duffys filed an Answer to the Petition to
    Compel, New Matter, and a Sur Reply to Joyces’ Answer to New Matter, the
    issue of standing could be considered waived. In all events, I agree with the
    analysis of the majority and join in the affirmance of the trial court’s Order.
    The parties to the agreement in which the bank agreed to satisfy the
    judgments (“Agreement”) against the defendants were the Duffy Family
    Limited Partnership (“DFLP”) and Wilmington Fund Society (the “Bank”). See
    Loan Sale Agreement, dated March 3, 2016, at 1; RR 78a. Although Mr. and
    Mrs. Duffy signed the last page of the Agreement as individuals, are listed in
    the Agreement as guarantors, and purport to be the only general and limited
    partners in DFLP, Mr. and Mrs. Duffy were not parties to the Agreement. See
    Agreement at 1 and 6 at §9; and Duffys Response to Averments Contained in
    the Reply to New Matter of Joyces, filed 09/01/16, at 7, §10.2         See also
    Pennsylvania’s Revised Uniform Limited Partnership Act, 15 Pa. C.S. § 8620(a)
    (titled “Separate entity” and providing that “[a] limited partnership is an entity
    distinct from its partners.”).
    ____________________________________________
    2In their filings, the Duffys acknowledge several times that DFLP was “the
    purchaser of all rights, title and interest in and to the Loan, the Loan
    Documents and the Judgments,” and “the benefit of the Loan Purchase
    Agreement flows to DFLP[.]” Response to Averments at 8, ¶ 15 (emphasis
    added).
    -2-
    J-A23002-17
    Since the trial court’s decision underlying this appeal interprets the
    Agreement between the Bank and DFLP, and it is DFLP that has the rights and
    obligations that emanate from that Agreement, it is DFLP who is the entity
    who would have standing to assert a grievance allegedly caused by the trial
    court’s decision. See 15 Pa. C.S. § 8633 (providing: “A debt, obligation or other
    liability of a limited partnership is not the debt, obligation or other liability of
    a limited partner. A limited partner is not personally liable, directly or
    indirectly, by way of contribution or otherwise, for a debt, obligation or other
    liability of the partnership solely by reason of being or acting as a limited
    partner, even if the limited partner participates in the management and
    control of the partnership.”). See also CitiMortgage, Inc. v. Barbezat, 
    131 A.3d 65
    , 68 (Pa. Super. 2016) (observing that a “party is a real party in
    interest if it has the legal right under the applicable substantive law to enforce
    the claim in question,” and “where an assignment is effective, the assignee
    stands in the shoes of the assignor and assumes all of his rights.”)(citation,
    quotation marks, brackets omitted)).
    Although the Duffy’s are listed in their individual capacities in the original
    caption under which the Petition to Compel Specific Performance was filed,
    the Petition to Compel was directed to the Bank as the party to the Agreement
    that agreed to “record documents to satisfy or release the Mortgages recorded
    by the Bank against the Property … and to satisfy the Judgments.”              See
    Agreement at 2. While DFLP is the assignee of the Bank’s rights under the
    -3-
    J-A23002-17
    loan, DFLP did not respond to the Petition to Compel. Rather, it was the Duffys
    who responded to the Joyce’s Petition to Compel as defendants listed
    individually in the caption of the underlying action. No one moved to join DFLP
    in the action, and DFLP did not move to intervene. Only DFLP, as the only
    party to the Agreement with WSFS, had the right to assert whatever rights
    DFLP had as assignees under the Agreement, not the Duffys in their individual
    capacities. See 15 Pa.C.S. §8633. Accordingly, I would quash this Appeal
    and affirm the Order.
    -4-
    

Document Info

Docket Number: 220 EDA 2017

Filed Date: 12/12/2017

Precedential Status: Non-Precedential

Modified Date: 12/13/2024