Laroche, A. v. Beers, B. ( 2018 )

J-A08045-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
ALEX LAROCHE, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
BRUCE BEERS AND BEERS & :
ASSOCIATES, INC., GEORGE A. :
KOUNOUPIS, ESQUIRE AND HAHALIS & :
KOUNOUPIS, P.C., :
:
Appellees : No. 3253 EDA 2017
Appeal from the Order Dated September 13, 2017,
in the Court of Common Pleas of Northampton County,
Civil Division at No(s): C-48-CV-2014-11930
BEFORE: PANELLA, LAZARUS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MAY 02, 2018
Alex LaRoche appeals from the order entered on September 13, 2017,
which granted summary judgment against him and in favor of George A.
Kounoupis, Esquire, and Hahalis & Kounoupis, P.C. (collectively, Kounoupis
Defendants). We quash this appeal.
By way of background, in 2008, LaRoche and his wife contracted with
Bruce Beers and his company, Beers & Associates, Inc. (collectively, Beers
Defendants), to construct a home for $1.1 million. On February 11, 2011, the
Beers Defendants, represented by the Kounoupis Defendants, filed a breach
of contract action against LaRoche for allegedly failing to make certain
payments (the 2011 case). On February 22, 2013, the parties filed a praecipe
to discontinue the 2011 case.
*Retired Senior Judge assigned to the Superior Court.
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The instant matter commenced on December 15, 2014[,] with []
LaRoche filing a complaint against [the Beers Defendants and the
Kounoupis Defendants], setting forth a single claim of wrongful
use of civil proceedings as to the [2011 case]…. Then, on July 14,
2017, [the Kounoupis Defendants] filed a motion for leave to file
an amended pleading setting forth a cross-claim against [the
Beers Defendants]. Three days later, on July 17, 2017, [LaRoche]
and [the Beers Defendants] filed a [joint] motion seeking leave of
court for [LaRoche] to discontinue the action as to [the Beers
Defendants]…. On August 15, 2017, the [trial court] entered an
order granting the Kounoupis Defendants’ request to file an
amended pleading and denying the joint petition by LaRoche and
[the Beers Defendants] seeking to allow the termination of the
action to the latter. [On August 17, 2017, the Kounoupis
Defendants filed a cross-claim against the Beers Defendants].
In the interim, the parties appeared before [the trial court]
… to address [LaRoche’s] motion for summary judgment as to
liability against all defendants, and the Kounoupis Defendants’
motion for summary judgment as to the claim against them.
Trial Court Opinion, 9/13/2017, at 2-3 (unnecessary capitalization omitted).
On September 13, 2017, the trial court entered an order denying
LaRoche’s motion for summary judgment and granting the motion filed by the
Kounoupis Defendants. Specifically, the trial court concluded “that [LaRoche]
has failed to adduce sufficient evidence to make a prima facie showing that
the Kounoupis Defendants acted without probable cause or in a grossly
negligent manner in bringing the underlying action on [the Beers Defendants’]
behalf.” Id. at 12.
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LaRoche timely filed an appeal from that order. Both LaRoche and the
trial court complied with Pa.R.A.P. 1925.1
Before we reach the issues presented by LaRoche on appeal, we
consider whether we have jurisdiction over this appeal. LaRoche suggests
that this order is “a final order disposing of all issues and all parties,” and thus
we have jurisdiction pursuant to Pa.R.A.P. 341(a), which provides that “an
appeal may be taken as of right from any final order of a government unit or
trial court.” LaRoche’s Brief at 1.
“Rule 341 is fundamental to the exercise of jurisdiction by this [C]ourt.”
Prelude, Inc. v. Jorcyk, 695 A.2d 422, 424 (Pa. Super. 1997) (en banc).
See also 42 Pa.C.S. § 742 (“The Superior Court shall have exclusive appellate
jurisdiction of all appeals from final orders of the courts of common pleas….”).
The Rule explains the definition of a final order and provides the following.
(b) Definition of final order.--A final order is any order that:
(1) disposes of all claims and of all parties; or
(2) RESCINDED
(3) is entered as a final order pursuant to paragraph (c)
of this rule.
(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
1 The Beers Defendants sent a letter to this Court stating that they “are not
directly involved in the [a]ppeal and will not be filing a [b]rief.” Letter from
Counsel for Beers Defendants, 12/26/2017.
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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 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.
Instantly, the trial court did not include the language required to satisfy
paragraph (c) in its order; so, this order is only appealable as a final order if
it disposes of all claims and all parties. Here, LaRoche filed a single-count
complaint against both the Beers Defendants and the Kounoupis Defendants.
In that complaint, LaRoche requested both joint and several liability against
both the Kounoupis Defendants and the Beers Defendants for wrongful use of
civil proceedings for initiating and maintaining the 2011 case. Complaint,
12/15/2014, at 5. There is no question that the order being appealed from
granted summary judgment as to the Kounoupis Defendants only.
Moreover, when LaRoche and the Beers Defendants requested that the
trial court permit them to discontinue voluntarily this action against the Beers
Defendants, the trial court denied that motion.2 Thus, at the time the trial
court entered summary judgment in favor of the Kounoupis Defendants and
2 “[A] discontinuance may not be entered as to less [sic] than all defendants
except upon the written consent of all parties or leave of court upon motion
of any plaintiff or any defendant for whom plaintiff has stipulated in writing to
the discontinuance.” Pa.R.C.P. 229(b)(1). Here, the Kounoupis Defendants
did not consent to the dismissal of the Beers Defendants.
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against LaRoche, the Beers Defendants were still a party to this action. That
situation has not changed. The Beers Defendants are still parties in this
action; thus, the order being appealed from is not a final order, and we do not
have jurisdiction over this appeal.3
Appeal quashed.
Judge Panella did not participate in the consideration or decision of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/2/18
3 Furthermore, we observe that this order does not satisfy the requirements
for being an interlocutory order appealable as of right pursuant to Pa.R.A.P.
311; LaRoche has not sought or been granted permission for an interlocutory
appeal pursuant to Pa.R.A.P. 312; and this order does not satisfy the
requirements for being a collateral order pursuant to Pa.R.A.P. 313(b) (“A
collateral order is an order separable from and collateral to the main cause of
action where the right involved is too important to be denied review and the
question presented is such that if review is postponed until final judgment in
the case, the claim will be irreparably lost.”).
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