Gleba, Inc. v. Tri-State Auto Auction, Inc. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GLEBA, INC. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TRI-STATE AUTO AUCTION, INC., : No. 2108 EDA 2019
DAVID BOWE AND JEROME COMBS :
AND THOMAS J. PUHL :
Appeal from the Order Entered May 16, 2019
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2017-19677
GLEBA INC., : IN THE SUPERIOR COURT
: OF
Appellant : PENNSYLVANIA
:
:
v. :
:
:
TRI-STATE AUTO AUCTION INC., :
THOMAS PUHL, DAVID BOWE AND : No. 3200 EDA 2019
JEROME COMBS :
Appeal from the Order Entered May 10, 2019
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2017-19677
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED: FEBRUARY 19, 2021
Gleba, Inc. (“Gleba”) appeals at docket No. 2108 EDA 2019 from the
May 16, 2019 order granting the cross-motion for summary judgment of Tri-
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* Former Justice specially assigned to the Superior Court.
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State Auto Auction, Inc. (“Tri-State”), David Bowe, and Jerome Combs
(collectively “Tri-State Appellees”), and dismissing its amended complaint in
its entirety with prejudice.1 Gleba further appeals at docket No. 3200 EDA
2019 from the May 10, 2019 order granting summary judgment in favor of
Thomas J. Puhl (“Appellee Puhl”) and dismissing its amended complaint in its
entirety with prejudice.2 Gleba challenges the trial court’s dismissal of its
lawsuit on the grounds of res judicata. After careful review of the record, we
affirm, but remand for the correction of a clerical error.3
This appeal arises from a dispute over a non-residential lease entered
into between Tri-State, as lessor, and Gleba, as lessee. Gleba initiated this
action on August 9, 2017, with the filing of a complaint against Tri-State and
Appellee Puhl, as an interested party, in the Court of Common Pleas of
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1 By order dated May 10, 2019, the trial court granted Tri-State Appellees’
cross-motion for summary judgment and dismissed Gleba’s amended
complaint with prejudice. Upon consideration of Gleba’s application for a
determination of finality pursuant to Pa.R.A.P. 341(c), the court amended the
May 10, 2019 summary judgment order as entered, by order dated May 16,
2019, which restated that Gleba’s amended complaint is dismissed in its
entirety, with prejudice, and declared the order final to facilitate an immediate
appeal pursuant to Pa.R.A.P. 341(c).
2 The trial court initially denied as moot Gleba’s Rule 341(c) application for
finality of the order in favor of Appellee Puhl; however, by per curiam order
dated November 21, 2019, this Court granted Gleba’s petition for review,
pursuant to Pa.R.A.P. 702(b), and directed this matter to proceed before this
Court as an appeal from the May 10, 2019 order.
3Since these consecutively listed appeals stem from a single civil action in the
court below and raise identical issues, we consolidate the above-captioned
cases sua sponte for ease of disposition.
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Montgomery County. On March 30, 2016, however, prior to the
commencement of the instant matter, Tri-State filed a complaint against
Gleba,4 seeking a declaratory judgment pertaining to the same lease
(“Declaratory Judgment Action”).5
The trial court’s dismissal of Gleba’s amended complaint in the instant
action was based on the following factual findings made in the Declaratory
Judgment Action, which are incorporated in its Pa.R.A.P. 1925(a) opinion: 6
1. [Tri-State] is a Pennsylvania corporation with its registered
office in Conshohocken, Montgomery County.
2. [Gleba] is a Pennsylvania corporation with its registered office
in West Conshohocken, Montgomery County.
3. Tri-State is the title owner of an approximately 5.4 acre parcel
of improved land located at 538 Swedeland Road (“538
Swedeland”), Upper Merion Township, Montgomery County
(“the Premises”).
4. COBOCO, LP (“COBOCO”) is a limited partnership formed with
Tri-State as the general partner and the two individual
principals of Tri-State as the limited partners.
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4See Tri-State Auto Auction, Inc. v. Gleba, Inc., No. 2016-06133 (Pa. Ct.
Com. Pl., Montgomery County filed March 3, 2016), appeal quashed, 2679
EDA 2018 (Pa. Super. Sept. 25, 2018), appeal docketed 1846 EDA 2020 (Oct.
15, 2020).
5 Tri-State also filed confessions of judgment against Gleba on June 24, 2016
and December 9, 2016, at docket Nos. 2016-13334 and 2016-29319,
respectively, seeking possession of the leased premises and recovery of
unpaid rent and taxes. On May 2, 2017, the trial court issued an order
consolidating Tri-State’s actions at docket No. 2016-06133.
6 See Trial Court Opinion (“TCO”), 6/4/20, at 2-9.
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5. COBOCO owns a contiguous, approximately five (5) acre parcel
of improved land located at 504 Swedeland Road (“504
Swedeland”), Upper Merion Township, Montgomery County.
6. The COBOCO property at 504 Swedeland has no street frontage
and access is limited to a small driveway that is an easement
across the Premises at 538 Swedeland.
7. Tri-State owned and operated an automobile auction company
and used the entire ten (10) acres of the two (2) parcels to
operate the business. Once Tri-State stopped their automobile
auction business in 2008, [its] goal was to eventually sell the
parcels.
8. In December 2010, Tri-State, as lessor, leased the Premises at
538 Swedeland to Gleba, as lessee, pursuant to a lease with a
rider and a subsequent addendum (“the Lease”). David []
Bowe, President, and Jerome [] Combs, Secretary, signed the
Lease on behalf of Tri-State[,] and Walter C. Gleba, President
and Secretary, signed on behalf of Gleba.
9. Counsel for Gleba, including John D. Maida, Esquire (“Attorney
Maida”), drafted the Lease without speaking to [c]ounsel for
Tri-State. Specifically, there was no direct communication
[between] Mitchell Russell, Esquire[,] on behalf of Tri-State
and [Attorney] Maida, [c]ounsel for Gleba.
10. Counsel for Tri-State, [Attorney] Russell, … provided
comments regarding the draft [proposed] to Tri-State, but did
not participate in the negotiation of the Lease.
11. The Lease is a fully integrated instrument setting forth all of
the provisions thereof.
12. Paragraph (k) of the Rider provides as follows:
The Lessee shall have the right to extend the term of this
Lease, for two [(2)] additional terms of two (2) additional
years each by notifying the Lessor of the Lessee’s election
to exercise such right at least three (3) months prior to the
expiration of the then current term of this Lease provided
that at the time of the exercise of such right and at the time
of such renewal, the Lessee shall not be in default in the
performance of any of the terms, covenants or conditions
herein contained, and that this Lease shall not have been
terminated prior to the commencement of such extended
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term. Lessee’s minimum annual rent during the option
terms shall be increased to $1,800.00 per month during the
first option lease term and to $1,900.00 per month during
the second option lease term. Notwithstanding the
foregoing and with respect to the entire term of this Lease
(initial and renewal), Lessor shall have the right to terminate
this Lease at any time during any term upon ninety (90)
days prior written notice of termination to Lessee and
payment to Lessee of a termination fee of $100,000.00.
13. Paragraph (p) of the Rider provides:
Lessor hereby grants Lessee a right of first refusal[7] to
purchase the leased [P]remises for the purchase price to be
determined as herein set forth; such right of first refusal
shall exist upon the occurrence of either of the following
events only:
1. Any attempted transfer of Premises, whether
voluntary or involuntary, by operation of law or
otherwise, including but not limited to, all executions
or legal processes attaching Premises and all
processes affecting the interest of Lessor therein; or
2. The receipt by Lessor of a bona fide offer from a third
party legally entitled to purchase[] Premises, which
offer Lessor desires to accept.
Immediately upon the occurrence of any of the events
herein before set forth, the Lessor shall send written notice
by certified mail to the Lessee of such fact. If Lessor desires
to sell Premises as a result of a bona fide offer, such written
notice shall contain the name, address and qualifications of
the person who made the offer and all of the terms of such
offer. During the period that shall begin with the occurrence
of such event and shall end thirty (30) days after such
written notice is given, the Lessee shall have the right to
exercise its option to purchase the Premises upon any terms
and conditions that are more beneficial to the Lessor than
those set forth in the offer to purchase so presented. If
Lessee does not exercise its option to purchase Premises or
waives such right in writing, this option shall terminate and
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7The right of first refusal is sometimes referred to herein as the “right of first
purchase.”
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be of no further force and effect. If any event occurs
pursuant to which Lessee may exercise its option to
purchase Premises and it fails to so exercise its option to
purchase Premises, within the allocated time, said option to
purchase Premises shall terminate; provided, however, in
the event a proposed transfer or sale is not consummated
in accordance with the price and on the terms set forth in
the notice sent to Lessee as required hereby, the Lessor
shall not be entitled to sell Premises unless re-offered to
Lessee under the terms of this Agreement at any different
price and/or on any different terms. Moreover, if the
Premises is not sold pursuant to the notice within six (6)
months after the notice is given, the Premises may not be
sold unless re-offered pursuant to this Agreement.
Any notice required to be given hereunder or any exercise
of an option granted herein must be made in writing, sent
by either registered or certified mail, return receipt
requested and addressed as required by the Lease.
14. Gleba paid Tri-State a security deposit in the amount of Two
Thousand Dollars ($2,000.00) upon execution of the Lease.
15. Even prior to Gleba[’s] expressing an interest in leasing 538
Swedeland[,] and at all times material hereto, there had been
a “For Sale” sign located on the Premises and the COBOCO
parcel (together “the Sale Properties”)[,] as they were jointly
offered for sale.
16. At one time, the Sale Properties were offered for sale for the
sum of $3,750,000.00.
17. Tri-State never offered the Premises for sale as a parcel
separate and apart from the Sale Properties.
…
27. Following an exchange of correspondence [between Attorney
Russell and Attorney Maida, concerning an agreement for the
purchase of the Sale Properties entered into with a third party
on April 24, 2014], Tri-State understood Gleba’s position to be
that a properly constructed offer that would give rise to Gleba’s
obligation to exercise or waive the right of first refusal would
need to be limited to the leased Premises alone[,] and that if
Tri-State attempted to sell the leased Premises in any manner
outside of that understanding, Gleba would take legal action.
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28. The April 24, 2014 purchase agreement terminated pursuant
to its “due diligence” provisions.
…
30. Tri-State ceased marketing of the Sale Properties at that time.
31. On advice of counsel, the principals determined that it was
best to wait until the Lease naturally expired in April of 2016
to pursue a sale of the Sale Properties.
32. Although [c]ounsel for Tri-State received two (2) nonbinding
letters of intent, dated October 2, 2015[,] and November 27,
2015, respectively, from a broker2 on behalf of [Appellee] Puhl
and Kristen F. Puhl [(collectively “the Puhls”)], [c]ounsel
determined that they never amounted to an offer and
instructed the broker to inform the Puhls that the Sale
Properties were off the market. Attorney Russell did not
communicate the existence of these letters or the potential
interest in the Sale Properties to the principals of Tri-State at
this time.
2 The broker, Paul French, did not have a listing
agreement on the Sale Premises at the time. Mr.
French subsequently entered into a commission
agreement for the Sale Properties after February 2,
2017.
33. In early 2016, Gleba exercised its option to renew the Lease.
34. As a result, Tri-State made the economic decision to pay Gleba
$100,000.00 to terminate the Lease early in order to market
the Sale Properties as a combined parcel.
35. On March 9, 2016, [c]ounsel for Tri-State, Michael Clement,
Esquire (“Attorney Clement”), sent a letter on behalf of [Tri-
State] dated March 8, 2016 (the “[March 8, 2016] Letter”)[,]
by certified mail, return receipt requested, to Walter C. Gleba
as President of Gleba…. Counsel enclosed a check in the
amount of $100,000.00 with the March 8, 2016 [L]etter.
36. The March 8, 2016 Letter and $100,000.00 check to Gleba
constituted Tri-State’s notice of termination of the Lease
pursuant to [paragraph] (k) of the Rider. [Tri-State] also
sought “written adequate assurance” within ten (10) days that
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Gleba would vacate the leased Premises within ninety (90)
days.
37. The term “adequate assurance” is not defined in the Lease.
38. Attorney Russell explained that the reasons in support of the
decision to request adequate assurance from Gleba were two-
fold. The first reason being the very large $100,000.00
payment made up front in light of a $1,800.00[-]a[-]month
lease[,] … before Gleba was required to vacate the [P]remises.
The second reason being the history of communications with
Attorney Maida regarding the right of first refusal.
39. Gleba received the [March 8, 2016 L]etter on March 13, 2016.
40. Attorney Clement’s office also mailed a copy of the [March 8,
2016] Letter to [Gleba’s c]ounsel, Attorney Maida, on March
8, 2016.
41. Counsel[] for Tri-State sent two (2) emails to [c]ounsel for
Gleba seeking a response, on March 21, 2016, and March 22,
2016, respectively. Because Gleba failed to respond with an
assurance, Tri-State filed [its Declaratory Judgment Action] on
March 30, 2016.
42. Gleba filed an Answer with New Matter to the Complaint on
April 22, 2016, and Tri-State filed an Answer to the New Matter
on May 5, 2016.
43. In Gleba’s Answer with New Matter, [it] avers “no controversy
exists as to the provisions of an integrated Lease” and “[b]y
the terms of the Lease, Gleba’s right of first refusal is binding
upon [Tri-State] until the actual termination of the Lease.”
44. On May 13, 2016, [Tri-State’s c]ounsel sent a letter to [Gleba’s
c]ounsel [(“May 13 Letter”)], which provided a modification of
the notice and granted Gleba until June 13, 2016, to vacate
the Premises.
45. The May 13, 2016 [L]etter also informed Gleba that Tri-State
would declare Gleba in breach of the Lease and seek monetary
and exemplary damages[,] including recovery of the
$100,000.00 it had paid to Gleba[,] should Gleba not vacate
on or before June 13, 2016.
46. Gleba paid, and Tri-State accepted, all base rent due up to and
including April 30, 2016.
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47. On June 9, 2016, Gleba deposited the $100,000.00 check
enclosed with the March 8, 2016 Letter from Attorney
Clement.
48. On June 13, 2016, Attorney Maida, on behalf of Gleba[,] wrote
to Attorney Clement, as counsel for Tri-State, to state, inter
alia, that Gleba rejected the March 8, 2016 [L]etter as being
of no force and/or effect; the Lease, as an integrated
instrument, speaks for itself; Attorney Clement’s May 13,
2016 [L]etter was accepted as adequate notice to exercise the
option to terminate the Lease ninety (90) days hence and
Gleba has accepted payment of $100,000.00 in consideration
of the Lease termination on August 11, 2016.
49. Gleba did not vacate the Premises by June 13, 2016, nor did
Gleba vacate the Premises by August 11, 2016, as represented
in Attorney Maida’s June 13, 2016 letter.
50. Tri-State obtained possession of the [Premises] through a writ
of possession served on July 12, 2016, with possession taken
on October 13, 2016.[8] However, Gleba did not vacate the
Premises until October 28, 2016.
51. Gleba tendered payment of base rent to Tri-State from May
2016 through September 2016.
52. Tri-State did not cash any of the checks Gleba tendered to Tri-
State for base rent from May 2016 to September 2016.
53. By letter from Attorney Maida dated September 20, 2016,
Gleba informed Tri-State that it was stopping payment on the
rent checks previously tendered.[9]
…
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8See Tri-State Auto Auction, Inc. v. Gleba, Inc., No. 2016-13334 (Pa. Ct.
Com. Pl., Montgomery County filed June 24, 2016), consolidated at Tri-State
Auto Auction, Inc., No. 2016-06133.
9 Tri-State confessed judgment against Gleba on December 9, 2016, in the
amount of $19,801.70, for unpaid rent and taxes, plus fees and costs. See
Tri-State Auto Auction, Inc. v. Gleba, Inc., No. 2016-29319 (Pa. Ct. Com.
Pl., Montgomery County filed Dec. 9, 2016), consolidated at Tri-State Auto
Auction, Inc., No. 2016-06133.
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55. Tri-State and COBOCO entered into a purchase agreement for
the Sale Properties with the Puhls dated February 2, 2017, for
the purchase price of $3,900,000.00.
56. Gleba has never made an offer for any portion of the Sale
Properties, large or small….
Tri-State Auto Action, Inc., No. 2016-06133, unpublished memorandum at
1-12 (Pa. Ct. Com. Pl. filed Aug. 14, 2018) (“Amended Decision”) (citations to
record omitted).
A two-day bench trial was held regarding the Declaratory Judgment
Action on August 14, 2017, and April 19, 2018, during which,
[t]he [trial judge] found Attorney Russell’s testimony on direct and
cross[-]examination highly credible. After Tri-State rested its
case, [c]ounsel moved for a partial directed verdict on the
termination of the [L]ease being proper, including the termination
of the right of first refusal. Counsel for Gleba did not object
procedurally to the oral motion and instead moved to dismiss the
case or direct the addition of the potential buyer, Thomas Puhl[,]
as an indispensable party. The court reiterated what had been
discussed in conference earlier in the day, that after the testimony
was transcribed, the court would issue an order for [c]ounsel to
file their submissions.
Counsel filed briefs on their respective motions, and the
[c]ourt entered its [d]ecision on January 24, 2018. Gleba filed
post-trial motions on February 2, 2018, arguing that it had not
had the opportunity to present its witnesses. Although the court
disagreed with Gleba’s position as presented, the [court] entered
an order on March 2, 2018, opening the record in the interest of
justice to proceed with Gleba’s witnesses.4
4 Also on March 2, 2018, the court entered its order denying
Gleba’s motion in limine alleging the failure to join an
indispensable party and oral motion to dismiss.
On April 19, 2018, the undersigned presided over a second
day of trial. Attorney Maida started his argument in support of a
motion for nonsuit by stating that at the first day of trial, [as well
as pleadings filed since then and the stipulated facts,] the case
went beyond what he had filed in his pretrial statement….
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Referring to the document entitled “Joint Stipulation of Facts—
Declaratory Judgment Action Only[,”] [c]ounsel then went on to
state[:] “But the stipulated facts were predicated on the
consolidation of all the cases.” He continued[,] “it was stipulated
as to all the cases, these are the facts which—because it was a
consolidated matter.”
In response, Attorney Clement argued[:] “[W]e’re here
today because there is a dispute between the parties related to a
[L]ease and a right of first refusal contained within the [L]ease.
And, as Mr. Maida indicated, this is a fully integrated document.
My client believes the [L]ease was properly terminated. They
came to this [c]ourt to have the [c]ourt confirm for them that the
[L]ease was properly terminated.”
The [c]ourt denied Gleba’s motion for compulsory nonsuit.
Gleba then presented witnesses[:] Jerome Combs and David
Bowe of Tri-State, broker Paul French[,] and Attorney Russell.
While the court found all of these witnesses credible, the court
specifically found … Mr. French’s testimony highly credible.
TCO at 11-12 (quoting Tri-State Auto Auction, Inc., 2679 EDA 2018,
unpublished memorandum (Pa. Super. filed Nov. 19, 2019) (some internal
brackets omitted)).
After considering all of the evidence presented at trial, the lower court
issued its Amended Decision on August 14, 2018, which contained the
following determinations:
18. In this action, [Tri-State] seeks a declaration that 1) Tri-
State properly terminated the Lease; 2) Gleba’s right of first
refusal set forth in the Lease terminated contemporaneously with
the Lease; 3) a repudiation of the Lease by Gleba occurred[;] and
4) an anticipatory breach of the Lease by Gleba occurred.
19. This court opines that the Lease is unambiguous.
20. Both [p]arties concede that the Lease contains an
integration clause that is binding.
21. A fair reading of the complaint in combination with the
evidence admitted at trial results in the court[’s] determining that
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[Tri-State] properly terminated the Lease pursuant to paragraph
(k) of the Lease [R]ider[,] as of Monday, June 13, 2016, by mailing
the written March 8, 2016 Letter with the enclosed check in the
amount of $100,000.00 by certified mail on March 9, 2016, and
as admittedly received by [Gleba] on March 13, 2016.[10]
22. The right of first refusal contained within paragraph (p) of
the Lease [R]ider also terminated as part of the Lease on or before
June 13, 2016.
23. The court concludes that Gleba’s actions and failure to
provide what [Tri-State] terms “adequate assurance[,”] while no
doubt frustrating, did not constitute an “absolute and unequivocal
refusal to perform[.”]
24. Therefore, the court finds for Gleba and against [Tri-State]
on the claims of repudiation and anticipatory breach.
25. The court also concludes that Gleba did not vacate the
Premises pursuant to the terms of the Lease, which failure
constituted a breach of that Lease. The court will issue a separate
order scheduling argument and a hearing, if necessary, to hear
Gleba’s petition to open the judgment and to assess damages
including, inter alia, Gleba’s failure to pay rent and taxes, together
with costs, interest[,] and an attorney’s commission, in a
subsequent proceeding under docket [No.] 2016-29319, now
consolidated [at No. 2016-06133].[11]
26. [Tri-State’s c]omplaint in [c]onfession for [j]udgment for
possession filed under docket [No.] 2016-13334, now
consolidated [at No. 2016-06133], is moot.
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10 “The [p]arties had raised [these] issues at pretrial conferences, in their
pretrial statements, at trial[,] and in their post-trial submissions.” TCO at 13.
11 Paragraph 25 of the Amended Decision was amended by order dated
September 1, 2020, to omit the first sentence regarding the trial court’s
determination that Gleba’s failure to vacate the Premises constituted a breach
of the Lease. See Tri-State Auto Auction, Inc., No. 2016-06133 (order
granting in part and denying in part motion for post-trial relief).
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Amended Decision at 16-17. Gleba filed a timely post-trial motion on August
21, 2018.12 Tri-State filed its response on September 10, 2018. Before the
court could issue an order scheduling argument on Gleba’s motion, [c]ounsel
for Gleba filed a notice of appeal on September 10, 2018.13 The appeal was
subsequently quashed.
On August 9, 2017, while the Declaratory Judgment Action was still
pending and awaiting trial, Gleba initiated the present action with the filing of
its complaint against Tri-State and Appellee Puhl. Gleba amended its
complaint on October 23, 2017, naming David Bowe and Jerome Combs as
additional defendants. In its amended complaint, Gleba averred that Tri-State
never offered it the right to first purchase of the Premises upon receiving the
Puhls’ November 2, 2015 letter of intent, as required under the terms of the
Lease. See Amended Complaint, 10/23/17, at 2-3. Gleba further alleged that
during the period of October 2015 through May of 2016, Tri-State and its
counsel purposefully engaged in a course of conduct that enabled Tri-State to
deny knowledge of the Puhls’ offer to purchase the Premises. Id. at 4. Gleba
contended that it executed the Lease in reliance on Tri-State’s representations
that it would offer Gleba the right of first refusal upon the receipt of any bona
fide offer that it wished to accept, and that this agreement would extend
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12The trial court noted that “Gleba did not challenge [its] decision to deny
Gleba’s motion in limine alleging the failure to join Mr. Puhl as an indispensable
party.” TCO at 12 n.5.
13See Tri-State Auto Auction, Inc. v. Gleba, Inc., 2679 EDA 2018 (Pa.
Super. Sept. 25, 2018), quashed.
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throughout the entire duration of the Lease, including any periods of renewal.
Id. at 5. Gleba averred that it only learned on July 12, 2016, that Tri-State
had effectively denied it the right of first refusal by jointly listing 504
Swedeland and the Premises for sale. Id. at 6.
On January 26, 2018, Tri-State Appellees filed an answer, new matter,
and counterclaim. Appellee Puhl separately filed an answer and new matter
on the same date. Each of the appellees raised the affirmative defenses of
prior pending action or lis pendens, collateral estoppel, res judicata, and gist
of the action, inter alia, in their respective new matters, based on the assertion
that Gleba is attempting to raise the same claims in the instant matter that it
has already raised in the Declaratory Judgment Action. On February 15, 2018,
Gleba filed replies to the new matters.
The trial court further provided:
On August 8, 2020, Gleba filed a partial motion for summary
judgment[,] arguing that [it] was entitled to judgment as a matter
of law based on the purported expert testimony of Attorney
Russell that Gleba’s right of first refusal would survive a
termination by Tri-State and survive for the entire stated term of
the [L]ease. (Gleba’s Memorandum of Law in Support of its
Motion for Summary Judgment, … 8/8/18, at 2).7 Gleba’s motion
relied extensively on the testimony and other evidence presented
in the [Declaratory Judgment Action]. [Tri-State Appellees] filed
an answer to [Gleba’s] motion as well as a cross[-]motion for
summary judgment on September 7, 2018. Appellee Puhl
followed suit on September 10, 2018. The [trial court] heard oral
argument by [c]ounsel on the three motions on November 8,
2018.
7 Gleba’s memorandum of law misstates the evidence of
record. For example, contrary to Gleba’s assertions,
Attorney Russell never “revised the [L]ease[,”] nor did
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Gleba have a “right of first purchase[.”] Moreover, at trial
in the 2016 matter, Attorney Russell specifically testified as
follows:
The right of first refusal is a clause within a lease.
When that lease terminated, the right of first refusal
terminated. There was no separate filed instrument
of right of first refusal[,] which you sometimes see in
a commercial transaction that might have terms
outside of the lease. When the lease goes away, the
right of first refusal goes away. It would be
preposterous to think that the right of first refusal
extends out beyond the term of the lease.
To imply that Attorney Russell opined that the right of first
refusal survived the termination of the [L]ease in 2016 is
disingenuous at best.
On May 10, 2019, this court entered three companion orders
denying [Gleba’s] motion for partial summary judgment; denying
[Tri-State] Appellees’ motions for summary judgment on their
counterclaims, but granting [Tri-State Appellees’] cross[-]motion
for summary judgment, and granting Appellee Puhl’s cross[-
]motion for summary judgment[,] dismissing Gleba’s amended
complaint in its entirety, with prejudice….8
8 Although the [court] denied [Tri-State] Appellees’
counterclaims as also having been previously litigated, in
hindsight, the court should also have dismissed the
counterclaims as was its intention.[14]
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14 We direct the trial court to modify its order denying summary judgment on
Tri-State Appellees’ counterclaims to reflect a dismissal of the counterclaims,
as the court intended. See Commonwealth v. Thompson, 106 A.3d 742,
766 (Pa. Super. 2014) (recognizing the trial court’s inherent, common-law
authority to correct clear clerical errors in its orders, even after the 30-day
time limitation for the modification of order expires) (citing 42 Pa.C.S. §
5505)). See also Commonwealth v. Holmes, 933 A.2d 57, 66 (Pa. 2007)
(noting that the court’s inherent power to correct obvious errors is not limited
to those errors evident on the face of the order, but extends to the trial court’s
correction of a mistake that was only made apparent by viewing the record).
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Gleba filed two notices of appeal, one on May 17, 2019, [from]
the order in favor of [Tri-State Appellees], and one on June 28,
2019, regarding the order in favor of Appellee Puhl. The Superior
Court quashed the notice regarding the order in favor of Appellee
Puhl[,] but later reinstated the appeal under docket number 3200
EDA 2019.
TCO at 15-17 (citations to record and unnecessary capitalization omitted).
Following its timely notices of appeal, Gleba filed timely, court-ordered
Pa.R.A.P. 1925(b) concise statements of errors complained of on appeal.15 As
the issues raised in both statements were essentially the same, the trial court
noted that it addressed the statements jointly in its Rule 1925(a) opinion. See
TCO at 17 n.9.
Gleba now presents the following issues for our review:
1. Did the lower court commit reversible error by dismissing the
action upon the doctrine of res judicata when[:] (1) the
identity of the thing sued upon or for were [sic] not the same;
(2) the identity of the causes of action is totally different, the
former being a declaratory judgment action4 and the latter for
____________________________________________
15 We note with disapproval Gleba’s failure to conform its concise statements
to the dictates of Rule 1925(b). Rule 1925(b)(4) provides that the statement
“shall concisely identify each error that the appellant intends to challenge” and
“should not be redundant or provide lengthy explanations as to any error.”
Pa.R.A.P. 1925(b)(4)(ii), (iv) (emphasis added). Gleba’s Rule 1925(b)
statements are anything but concise, consisting of 40 paragraphs and 46
paragraphs, respectively, with subparts and footnotes. The statements are
lengthy, rambling, and contain unnecessary procedural history, as well as the
development of legal argument and citations to case law, making it difficult to
ascertain the basis for Gleba’s appeal. Nevertheless, we do not deem the
issues waived, as Gleba’s summary of the questions it intended to present on
appeal in paragraph 40 of each of its Rule 1925(b) statements aided in the
trial court’s addressing of the appropriate issues. See Karn v. Quick & Reilly
Inc., 912 A.2d 329, 335 (Pa. Super. 2006) (stating that the failure to comply
with Rule 1925(b)(4) may result in waiver of all issues, particularly where the
trial court is impeded in its preparation of a legal analysis of the issues) (citing
Pa.R.A.P. 1925(b)(4)(vii)).
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alternatively specific performance and/or tort and assumpsit
damages; (3) the identity of the persons or parties to the
actions are [sic] different as herein three of the four defendants
were not party [sic] to the prior action; and (4) the identity of
the quality or capacity of one party being sued so differed
herein because that party, i.e.[,] [Appellee] Puhl, was not
joined in the former action, whereby [his] absence in [the
Declaratory Judgment A]ction rendered that case void for lack
of subject matter jurisdiction?
4 Although in [its o]pinion, the lower court for the first
time is suggesting that the former action sought more
that [sic] declaratory judgment on two very specific
controversies, which it did not. The court entered a
verdict in Gleba’s favor on both controversies.
2. Did the lower court commit reversible error by deciding that
the ultimate and controlling issues presented in the instant
action had theretofore been decided in the [D]eclaratory
[J]udgment [A]ction, when neither of the two following and
only “controversies” set forth as counts 1 and 2 in the
[Declaratory Judgment A]ction were presented in the instant
action on appeal:
Count 1: “An actual controversy exists among the parties since
Gleba has refused to accept Tri-State’s tender of the
$100,000.00 termination fee under subparagraph (k) of the
Rider to [the] Lease, and since Gleba has refused to provide
assurance that it will comply with Tri-State’s Notice of
Termination and vacate the Premises by June 7, 2016, thereby
repudiating the Lease contract.”
And:
Count 2: “Gleba’s failure and/or refusal to accept Tri[]State’s
termination fee in the amount of $100,000.00 pursuant to
subparagraph (k) of the [R]ider, and failure and/or refusal to
provide assurance that it will comply with Tri-State’s Notice of
Termination by vacating on or before June 7, 2016, are a
repudiation and breach of material terms of the Lease entered
into by Gleba and Tri[]State.”
3. Did the lower court commit reversible error by deciding that
Gleba had the opportunity to appear and assert its rights in the
[Declaratory Judgment A]ction from which a final judgment on
the merits has not been entered, when the issues in the
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[Declaratory Judgment A]ction are[:] (1) neither identical to or
presented in the action on appeal; (2) the verdict on the
controversies rendered in the [Declaratory Judgment A]ction
were in Gleba’s favor; (3) three of the four parties in the instant
action for whom collateral estoppel is to benefit[] were not
parties to the [Declaratory Judgment A]ction nor in privy with
Tri[-]State;6 and[] (4) Gleba, the party against whom collateral
estoppel is to be imposed a) was upon order of the lower court
precluded from a full and fair opportunity to litigate the facts
Judge Rogers[] seeks to collaterally estopped [sic] against
Gleba’[s] interest; b) the issues raised in the instant action had
yet to occur when the [Declaratory Judgment A]ction7
commenced; and c) the findings of the lower court on the
merits in the [Declaratory Judgment A]ction were in Gleba’s
favor?
6 Of note is that the lower court determined [Appellee]
Puhl to be indispensable as a party to the [Declaratory
Judgment A]ction, but in the action on appeal by
bestowing benefits to [Appellee] Puhl arising [from] the
[Declaratory Judgment A]ction admits the court lacked
subject matter jurisdiction in the [Declaratory Judgment
A]ction.
7 The complaint in the [Declaratory Judgment A]ction was
never amended to include any issues that were first
discovered after the proceeding came to issue by all
parties or actually occurred post[-]filing thereof.
4. By [the trial court’s granting of] separate summary judgment
for [Appellee] Puhl[,] did the lower court commit reversible
error by so ruling because [Appellee] Puhl’s judgment
established that [his] absence in the [Declaratory Judgment
A]ction (by implication of the summary judgment8), proved
that the lower court lacked subject matter jurisdiction in his
absence, resulting in [the court’s] inability to enter any
judgment, summary or otherwise, predicated upon the
amended decisions of the [Declaratory Judgment A]ction?
8 And was incorporated into and [was] the basis of the
orders entered in this appeal and also entered in … 3200
EDA 2019.
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Gleba’s Brief at xiv–xvii (unnecessary capitalization omitted; emphasis in
original; some footnotes omitted).
Before delving into the merits of these issues, we again admonish Gleba
for its lack of compliance with our Rules of Appellate Procedure. Although it
sets forth four questions for our review, the argument section of its brief
contains only one section, in violation of Rule 2119(a). See Pa.R.A.P. 2119(a)
(“The argument shall be divided into as many parts as there are questions to
be argued; and shall have at the head of each part—in distinctive type or in
type distinctively displayed—the particular point treated therein….”).
Additionally, Gleba’s statement of the questions, which spans four pages, fails
to “state concisely the issues to be resolved,” and contains “unnecessary
detail[,]” in violation of Rule 2116(a). See Pa.R.A.P. 2116(a).
Moreover, Gleba’s prolix statement of questions makes it challenging to
discern the issues being raised. After careful review of its brief, however, we
deduce the following issues posed by Gleba for our review: (1) whether
Gleba’s amended complaint was properly dismissed under the doctrine of res
judicata; (2) whether the controlling issues presented here have already been
decided in the Declaratory Judgment Action; (3) whether Gleba had a full and
fair opportunity to litigate the instant controlling issues in the Declaratory
Judgment Action; and (4) whether the fact that Appellee Puhl was not a party
to the Declaratory Judgment Action renders the Amended Decision void for
lack of subject matter jurisdiction. Despite Gleba’s clear violations of the
Rules, we consider the questions presented, as we do not deem the violations
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an impediment to our ability to undertake a meaningful review of the issues
at hand. See Long v. Ostroff, 854 A.2d 524, 527 (Pa. Super. 2004) (citations
omitted). We address Gleba’s first three issues together herein, as each of
these claims relates to whether res judicata was properly applied in the instant
matter.
Applying the doctrine of res judicata presents an issue of law for which
our standard of review is de novo and our scope of review is plenary. Gregg
v. Ameriprise Financial, Inc., 195 A.3d 930, 935 (Pa. Super. 2018).
“[T]he doctrine of res judicata holds that a final valid judgment
upon the merits by a court of competent jurisdiction bars any
future suit between the same parties or their privies on the same
cause of action.” Dempsey v. Cessna Aircraft Co., … 653 A.2d
679, 680-81 ([Pa. Super.] 1995) (en banc). “A judgment is
deemed final for purposes of res judicata or collateral estoppel
unless or until it is reversed on appeal.” Shaffer v. Smith, … 673
A.2d 872, 874 ([Pa.] 1996) (citation omitted).
Khalil v. Cole, 240 A.3d 996, 1000 (Pa. Super. 2020). “The purpose of the
doctrine is to minimize the judicial energy devoted to individual cases,
establish certainty and respect for court judgments, and protect the party
relying on the prior adjudication from vexatious litigation.” Dempsey, 653
A.2d at 681 (internal quotation marks and citations omitted).
This Court recently explained:
The doctrine of res judicata subsumes the doctrine of issue
preclusion, also known as collateral estoppel.[16] Chada v.
____________________________________________
16 Collateral estoppel applies where these four elements are present:
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Chada, 756 A.2d 39, 42 (Pa. Super. 2000). Thus, res judicata in
Pennsylvania encompasses issue preclusion and claim preclusion.
Res judicata “bars the relitigation of issues that either were raised
or could have been raised in the prior proceeding.” McArdle v.
Tronetti, … 627 A.2d 1219, 1222 ([Pa. Super.] 1993) (citations
omitted; emphasis added). This has long been the case.” In our
opinion, the doctrine of res judicata … covers all matters which
could have been raised or presented in the former action as well
as those actually litigated.” Miller v. Dierken, … 41 A.2d 438,
439 ([Pa. Super.] 1945) (citations omitted; emphasis added).
For res judicata to apply, there must be four common elements
between the two actions: “(1) identity of the thing sued upon; (2)
identity of the cause of action; (3) identity of the parties; (4)
identity of the capacity of the parties.” Dempsey, 653[] A.2d at
681. When examining these elements, “a court may consider
whether the factual allegations of both actions are the same,
whether the same evidence is necessary to prove each action and
whether both actions seek compensation for the same damages.”
Id. (citation omitted). “Res judicata may bar a second action
based upon the same transaction even if additional grounds for
relief are presented.” Id. at 682.
Khalil, 240 A.3d at 1001-02.
First, Gleba argues that res judicata cannot be applied to the instant
matter because a “final judgment has not been entered” in the Declaratory
Judgment Action. Gleba’s Brief at 4 (citing Cellucci v. Laurel
Homewowners Association, 142 A.3d 1032, 1049 (Pa. Cmwlth. 2016)
____________________________________________
(1) An issue decided in a prior action is identical to the one
presented in a later action; (2) The prior action resulted in a final
judgment on the merits; (3) The party against whom collateral
estoppel is asserted was a party to the prior action, or is in privity
with a party to the prior action; and (4) The party against whom
collateral estoppel is asserted had a full and fair opportunity to
litigate the issue in the prior action.
Columbia Medical Group, Inc. v. Herring & Roll, P.C., 829 A.2d 1184,
1190 (Pa. Super. 2003).
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(providing that where a final judgment exists, technical res judicata precludes
a future lawsuit on the same cause of action)). Contrary to its assertion,
however, a final decision was entered in the Declaratory Judgment Action on
August 14, 2018. See Amended Decision at 16-17. Pursuant to 42 Pa.C.S. §
7532, declarations made by a court in a declaratory judgment action “shall
have the force and effect of a final judgment or decree.” Moreover, a
judgment remains final for the purpose of res judicata “unless or until it is
reversed on appeal.” Shaffer, 673 A.2d at 874. Despite Gleba’s insinuation
that its pending motion for reconsideration in the Declaratory Judgment Action
would materially jeopardize the “erroneous declarations” made by the trial
court, as of this writing, the Amended Decision has not been reversed.17
Instantly, the record clearly supports the trial court’s conclusion that the
present action is barred by res judicata. There is no question that the claims
raised in both Gleba’s amended complaint and Tri-State’s Declaratory
Judgment Action arise from the same Lease. The crux of the claims in both
____________________________________________
17 At the time Gleba filed its brief, it had a pending motion for reconsideration
regarding the Amended Decision issued in the Declaratory Judgment Action.
On September 1, 2020, the trial court granted Gleba’s motion only to the
extent that it amended Paragraph 25 of the Amended Claim to omit the
determination that Gleba’s failure to vacate the Premises constituted a breach
of the Lease. All remaining claims in Gleba’s motion for post-trial relief were
denied. See discussion and order cited supra n.12. To the extent that Gleba
continues to assert that the trial court erred regarding its declarations in the
Amended Decision, any such claims should be raised on direct appeal in the
Declaratory Judgment Action. In fact, Gleba did file a notice of appeal on
September 10, 2020, from the denial of post-trial relief, which currently
remains pending before this Court at 1846 EDA 2020.
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matters is the termination of the Lease and the right of first refusal contained
within the terms of the Lease.18 Moreover, the facts averred here in the
amended complaint are the same facts presented in the Declaratory Judgment
Action. In fact, Gleba even admits in its own words that “[t]he facts and laws
addressed in the instant appeals did not arise in the underlying action….
Rather, they are found in the Amended Decision[] entered in [the Declaratory
Judgment Action].” Gleba’s Brief at 1 (emphasis added).
Next, the trial court concluded that, whether applying res judicata or
collateral estoppel, “the ‘same parties’ element is satisfied[,] because David
[] Bowe, President, and Jerome [] Combs, Secretary, signed the Lease on
behalf of Tri-State, just as Walter C. Gleba, President and Secretary, signed
on behalf of Gleba. Hence[,] they are the same parties or in privity.” TCO at
41. It is well-established that the parties are considered to meet the identical
____________________________________________
18 Gleba attempts to argue that the trial court “could not and did not” make a
determination in the Declaratory Judgment Action regarding whether the
Lease terminated, as this issue was not before the court. Gleba’s Brief at 7.
Its assertion relies, however, on its misleading claim that Tri-State sought to
resolve only two controversies in the Declaratory Judgment Action—whether
Gleba committed repudiation or anticipatory breach of the Lease—and
“nothing more.” Id. at 5. Contrarily, the trial court expressly found that in
addition to its claims of repudiation and anticipatory breach, Tri-State also
sought declarations that it “properly terminated the Lease,” and that “Gleba’s
right of first refusal set forth in the Lease terminated contemporaneously with
the Lease[.]” See Amended Decision at 16 ¶ 18. After a two-day trial on the
matter, the trial court found, inter alia, that the Lease was properly terminated
as of June 13, 2016, and that the right of first refusal terminated as part of
the Lease on the same date. See id. at 16-17 ¶¶ 21, 22.
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parties requirement of res judicata “if the party against whom the plea is
asserted was a party or in privity with a party to the prior adjudication.”
Khalil, 240 A.3d at 1002-03 (quoting Safeguard Mut. Ins. Co. v. Williams,
345 A.2d 664, 668 (Pa. 1975) (internal quotation marks omitted; emphasis
added)). Generally, parties are in privity if one is vicariously responsible for
the conduct of another, such as principal and agent. See Day v.
Volkwagenwerk Aktiengesellschaft, 464 A.2d 1313, 1317 (Pa. Super.
1983) (citing Restatement (Second) of Judgments § 51). David Bowe and
Jerome Combs clearly signed the Lease as the principal’s (Gleba) agents;19
thus, we agree with the trial court’s determination regarding Tri-State
Appellees.
As for Appellee Puhl, we note that only count I of the amended complaint
is directed towards him.20 In count I, Gleba seeks a decree nisi directing Tri-
____________________________________________
19In Yocabet v. UPMC Presbyterian, 119 A.3d 1012 (Pa. Super. 2015), this
Court stated:
A corporation is a creature of legal fiction, which can act or “speak”
only through its officers, directors, or other agents. Where a
representative for a corporation acts within the scope of his or her
employment or agency, the representative and the corporation
are one and the same entity, and the acts performed are binding
on the corporate principal.
Id. at 1028.
20Count II is a breach of contract claim solely against Tri-State, in which Gleba
seeks a determination that Tri-State breached the terms of the Lease by failing
to offer Gleba its right of first refusal regarding the purchase of the Premises.
Amended Complaint at 18-19. Count III is a contractual and tortious fraud
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State and Appellee Puhl to comply with the terms of the Lease, the entry of
an order stating the fair market value of the Premises is $835,033.60, and a
decree nisi directing Tri-State to sell Gleba the Premises upon its exercising
its right to first purchase under the terms of the Lease. Amended Complaint
at 18. In light of the trial court’s finding in the Declaratory Judgment Action
that the Lease terminated on June 13, 2016, we agree with the lower court
that Gleba is estopped from making a claim for specific performance of said
Lease. See McNeil v. Owens-Corning Fiberglas Corp., 680 A.2d 1145,
1147-48 (Pa. 1996) (providing that “when an issue of fact or of law is actually
litigated and determined by a valid final judgment, and determination of the
issue was essential to judgment, the determination on that issue is conclusive
in a subsequent action between the parties, whether on the same or a different
claim”) (footnote and citation omitted).
The trial court further opined:
All parties agree that the [L]ease was fully integrated. The
two lawsuits are sufficiently similar as to constitute the same
“cause of action” and “rights asserted” to invoke lis pendens
because the “ultimate issues” in this case are and always have
been whether … Tri-State properly terminated the [L]ease, when
[the Lease was terminated], and whether Gleba’s right of first
refusal contemporaneously terminated with the [L]ease. The
____________________________________________
claim against Tri-State Appellees, in which Gleba seeks damages for lost
income, tortious damage to its reputation, and attorneys’ fees and costs. Id.
at 19-20. In count IV, a claim for fraud in the inducement against Tri-State
Appellees, Gleba seeks unliquidated, compensatory, and punitive damages in
excess of $2,000,000.00, as a result of the failure to inform Gleba in 2010
that Tri-State allegedly never had any intention of selling the Premises
separate and apart from 504 Swedeland, while knowing that Gleba’s right of
first refusal and interest was only in the leased Premises. Id. at 20-23.
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court answered those questions in the affirmative. Because the
court previously determined that … Tri-State properly terminated
the [L]ease before Appellee Puhl submitted a new offer for the
purchase of the [Sale Properties], Gleba is estopped from making
a claim for specific performance pursuant to the right of first
refusal as set forth in count I[,] or breach of contract as set forth
in count II of its amended complaint. Gleba’s claims of fraud in
counts III and IV of the amended complaint could have been
litigated in the prior action. Counsel for Gleba raised the issues
and elicited testimony in the prior action but made the tactical
decision not to pursue those assertions when Gleba had the
opportunity by moving to amend its answer and new matter in the
prior action.
TCO at 41 (emphasis added; unnecessary capitalization omitted).
Nevertheless, Gleba attempts to differentiate the issues raised in the
instant action from those litigated—or which could have been litigated—in the
Declaratory Judgment Action. The claims raised in the present matter are all
premised on Gleba’s assertions that Tri-State never intended to sell the
Premises separately, that it had intended to deny Gleba its right of first refusal
at the time the Lease was executed, and that David Bowe and Jerome Combs
intentionally orchestrated plausible deniability on the part of Tri-State
regarding the offer received from the Puhls. Gleba argues that none of the
claims raised in the instant action can be estopped because none of the events
giving rise to its amended complaint occurred before the filing of Tri-State’s
Declaratory Judgment Action.21 This claim is completely without merit.
____________________________________________
21 Gleba emphasizes that it did not learn of Tri-State’s fraudulent
representations or the alleged scheme to provide Tri-State with plausible
deniability until July 12, 2016. We acknowledge that this occurred after the
commencement of Tri-State’s action; however, we note that Gleba became
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We are perplexed by Gleba’s insistence that it did not have the
opportunity to litigate the issues raised herein during the Declaratory
Judgment Action. The record indicates that Gleba expressly raised its theory
of fraudulent misrepresentation on the part of Tri-State, as well as its
allegations regarding an intentionally orchestrated scheme of plausible
deniability, in its pretrial statement,22 motion in limine,23 and trial brief,24 all
____________________________________________
aware of the relevant facts well before the trial, which took place on August
14, 2017, and April 19, 2018.
22 Gleba provided in its Declaratory Judgment Action pre-trial statement that
it would produce evidence at trial that “Tri[-]State breached the Lease by
fraudulently orchestrating a plot via it[s] agent and attorney, Paul French and
[Attorney] Russell[,] to purposely conceal from Tri[-]State the identity of
[b]uyers … while they addressed with unscrupulous means to terminate
Gleba’s right of [first p]urchase[.]” Gleba’s Reply Brief, Exhibit A, at 2 ¶
3(B)(b).
23See Gleba’s Reply Brief, Exhibit B, at 2 (stating that Tri-State “engaged in
a scheme with its agent and lawyer that commenced on May 2, 2015, to
defraud Gleba of its rights to purchase the Premises”).
24 In its trial brief filed in the Declaratory Judgment Action, Gleba argued:
Tri-State’s reasons to unilaterally attempt to amend the Lease, for
reasons Gleba now knows was [sic] specifically to defraud Gleba
of its right of first refusal, was [sic] vexatious and a breach of the
Lease by Tri[-]State. The fraud was first discovered by Gleba
during discovery of Mr. French when Gleba first learned … that
there were multiple buyers trying to purchase the Premises
(including [Appellee] Puhl, as early as October 2015, then
negotiating with French). Gleba also by discovery learned that
the buyers’ identities and even their very existence was
intentionally hidden from Tri[-]State by its counsel and agent,
enabling Tri[-]State to plausibly deny the existence of such
[b]uyers as of March 8, 2016.
Gleba’s Reply Brief, Exhibit C, at 6 (emphasis omitted).
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filed in the Declaratory Judgment Action, and all of which Gleba attaches to
its Reply Brief in the present matter. Moreover, Gleba notes that it also pled
fraudulent representation as an affirmative defense in its new matter. See
Gleba’s Reply Brief, Exhibit C, at 6. Accordingly, we deem Gleba’s present
action to be a complete waste of judicial resources and a clear attempt by
Gleba for a second bite at the apple.
As the trial court so aptly concluded:
This court has already decided the rights and responsibilities
under the [L]ease in a prior action now on appeal, which involves
the same parties or those in privity. Gleba fully litigated or had
the opportunity to fully litigate those rights and responsibilities in
the prior lawsuit. The [p]arties, including Gleba, argued these
facts and issues at the prior action’s pretrial conferences, in their
pretrial submissions, at trial[,] and in their post-trial findings of
fact and conclusions of law. This court properly ruled that the
doctrines of lis pendens and estoppel bar Gleba from proceeding
with this lawsuit.
TCO at 42. We discern no abuse of discretion or error of law by the trial court.
Lastly, to the extent that Gleba avers that the failure to join Appellee
Puhl in the Declaratory Judgment Action as an indispensable party renders the
Amended Decision void due to a lack of subject matter jurisdiction, we deem
this issue to be waived due to Gleba’s failure to develop its argument. See
Pa.R.A.P. 2119(b). Despite several references to this issue in its statement
of questions, the only mention Gleba makes of the subject in the entire
argument section of its brief is the following single, nonsensical statement:
“[B]y granting [s]ummary [j]udgment for [Appellee] Puhl, supposedly reliant
upon the Amended Decision, the lower court implicitly found him to be an
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indispensable party; whereby the lower court presently lacks subject matter
jurisdiction ab initio and the [Declaratory Judgment A]ction must be dismissed
as such.” Gleba’s Brief at 4. Gleba provides no further discussion and fails to
cite to any legal authority whatsoever in support of its argument. “The Rules
of Appellate Procedure state unequivocally that each question an appellant
raises is to be supported by discussion and analysis of pertinent authority.”
Estate of Haiko v. McGinely, 799 A.2d 155, 161 (Pa. Super. 2002) (citing,
inter alia, Pa.R.A.P. 2119(b)). “Without a reasoned discussion of the law …
our ability to provide appellate review is hampered. It is not this Court’s
function or duty to become an advocate for [the appellant].” Id. (internal
citations and quotation marks omitted).25
Accordingly, we affirm the orders granting summary judgment in favor
of Tri-State Appellees and Appellee Puhl, and dismissing Gleba’s amended
complaint, in its entirety, with prejudice.
Orders affirmed. Case remanded for the correction of a clerical error.
Jurisdiction relinquished.
____________________________________________
25 Moreover, as the trial court opined, “it is insincere on Gleba’s part” to
suggest that it did not have a full and fair opportunity to litigate whether the
trial court lacked subject matter jurisdiction due to the absence of Appellee
Puhl as an indispensable party, because this claim could have been pursued
in the prior litigation. TCO at 42. “In fact, Gleba did raise the absence of
[Appellee] Puhl in the Declaratory Judgment [A]ction in a motion in limine,
which the court denied.” Id.- 29 -
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/21
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