Shannon Invsmts, L.P. v. Joyce Outdoor Advertising ( 2021 )

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2021 PA Super 138SHANNON INVESTMENTS, L.P. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOYCE OUTDOOR ADVERTISING :
WALLSCAPES, LLC :
: No. 1177 MDA 2020
Appellant :
Appeal from the Order Entered August 10, 2020
In the Court of Common Pleas of Lackawanna County Civil Division at
No(s): 2019-CV-4553
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
OPINION BY MURRAY, J.: FILED JULY 06, 2021
Joyce Outdoor Advertising Wallscapes, LLC (Appellant) appeals from the
order granting the “Motion to Strike Appellant’s Praecipes for Writs to Join
Additional Defendants and to Amend the Caption” filed by the plaintiff
Shannon Investments, L.P. (Shannon), in this declaratory judgment action.
Upon review, we quash.
The trial court described the factual history as follows:
On July 12, 2017, [Shannon] purchased property located at
730-734 Wyoming Avenue, Scranton, Lackawanna County,
Pennsylvania (“730-734 Wyoming Avenue”), from Scranton-
Dunl[o]p, Inc. (“Scranton-Dunlop”). [Shannon] received a special
warranty deed which was filed in the office of the Lackawanna
County Recorder of Deeds.
On or about August 26, 2015, Sandone Tire’s (“Sandone
Tire”) warehouse was destroyed by a massive fire. As a result of
the fire, the warehouse located at 722 Wyoming Avenue,
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* Retired Senior Judge assigned to the Superior Court.
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Scranton, Lackawanna County, Pennsylvania (“722 Wyoming
Avenue”), was demolished. Consequently, the outer-most wall on
this block of Wyoming Avenue was now 732-734 Wyoming
Avenue.
Around the same time, [Appellant] was in communication
with Patrick W. Sandone, Jr. (“Sandone Jr.”) to lease the rights to
access the outside wall of the building at 704 Wyoming Avenue
for advertising. [Appellant] and Great Penna Tire Co. LLC
[(Pennsylvania Tire)] entered into an outdoor advertising sign
lease agreement (“Lease”) on July 5, 2016. The Lease[, which
was signed by Sandone Jr.,] granted [Appellant] the right to utilize
the side of the building at 704 Wyoming Avenue (“704 Wyoming
Avenue”) “for the purpose(s) of erecting and maintaining an
outdoor advertising structure(s). . . .”
Rather than posting its advertising on 704 Wyoming
Avenue, [Appellant] placed advertising on the buildings at 730-
734 Wyoming Avenue. Prior to the sale [of the latter properties]
to [Shannon], Scranton-Dunlop challenged the presence of the
sign and requested that it be removed. . . . After the purchase,
[according to Shannon, it] “directed [Appellant] to remove the
billboard sign from the premises but [Appellant] has failed and
refused to remove the billboard sign, claiming it had the right to
maintain the billboard sign at the Premises by virtue of the []
Lease with [Pennsylvania Tire].”
Trial Court Opinion, 5/6/20, at 1-3 (footnotes, citations, and some quotes
omitted).
On July 31, 2019, Shannon filed a complaint against Appellant under
the Declaratory Judgments Act (DJA), 42 Pa.C.S.A. §§ 7531-7541, seeking a
declaration of rights and obligations. Shannon essentially sought a declaration
that Appellant has no right to maintain the billboard on Shannon’s property at
730-734 Wyoming Avenue.
Appellant filed preliminary objections on August 22, 2019, asserting
Shannon improperly failed to join certain indispensable parties to the action.
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See Pa.R.C.P. 1028(a)(5). Appellant sought dismissal of the complaint on this
basis, or, alternatively, an order directing Shannon to file an amended
complaint naming the following entities as co-defendants: Sandone Jr.,
Sandone Tire, Pennsylvania Tire, and Scranton-Dunlop (collectively, “the
Sandone Entities”).
On September 25, 2019, Shannon filed an answer to Appellant’s
preliminary objections. On the same date, Shannon moved to compel
Appellant to produce certain documents in discovery.
On May 6, 2020, the Honorable James Gibbons overruled Appellant’s
preliminary objections. The court rejected any claim that the Sandone Entities
are indispensable parties to the action, reasoning:
There is no suggestion at this juncture that the Sandone Entities
own 730-734 Wyoming Avenue[, i.e., the property Shannon
purchased bearing Appellant’s billboard]. Further, the Lease,
which [Appellant] contends is the basis for the Sandone Entities’
inclusion, clearly identifies the relevant premises as 704 Wyoming
Avenue and 722 Wyoming Avenue. In addition, the Lease
included paragraphs specifically to deal with the sale of the
property, as well as successors and assigns.
Ultimately, [Shannon’s] suit pertains to 730-734 Wyoming
Avenue and whether [Appellant] impermissibly constructed a
billboard advertising sign on that property. The purpose of the
present litigation is not to review the validity of the Lease
between [Appellant] and Pennsylvania Tire, but to
determine whether [Appellant] has an interest in 730-734
Wyoming Avenue. Additionally, [Shannon] does not assert
claims against the Sandone Entities. Therefore, the Sandone
Entities are not indispensable parties.
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Trial Court Opinion, 5/6/20, at 6 (emphasis added, footnote and citations to
record omitted).1
Despite this ruling, on June 16, 2020, Appellant filed praecipes for writs
to join the respective Sandone Entities as additional co-defendants in the
action. Appellant also sought to join HJSS Enterprises, LLC – which appears
to be the successor to Pennsylvania Tire. On the same date, Appellant filed
an answer and new matter to Shannon’s complaint.
On July 2, 2020, Appellant filed a motion requesting to amend the
caption to add the Sandone Entities (motion to amend).
Shannon moved to strike Appellant’s praecipes to join the Sandone
Entities, as well as the motion to amend, on July 2, 2020. Shannon argued
Appellant’s repeated attempt to join the Sandone Entities improperly sought
to set aside Judge Gibbons’ May 6, 2020 ruling.
Thereafter, Appellant served interrogatories on Shannon and requested
the production of documents. On July 28, 2020, Shannon filed an answer to
Appellant’s motion to compel discovery.2 The Honorable Carmen D. Minora
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1 Judge Gibbons further determined the Sandone Entities are not “necessary”
parties to the action. See id. at 6-7 (citing Pa. Human Relations Comm’n
v. Sch. Dist., 651 A.2d 177, 184 (Pa. Cmwlth. 1993) (stating “a necessary
party is one whose presence, while not indispensable, is essential if the court
is to resolve completely a controversy and to render complete relief.”)).
2 The motion to compel is not entered on the trial court docket or contained
in the certified record.
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conducted a hearing on August 6, 2020; Judge Minora granted the motion to
compel on August 10, 2020.
By separate order entered August 10, 2020, Judge Minora granted
Shannon’s motion to strike and denied Appellant’s motion to amend. The
court concluded Judge Gibbons’ May 6, 2020 ruling that the Sandone Entities
are neither indispensable nor necessary parties constituted the law of the case
and was binding on the court. The court also stated, “there is now an
inconclusive service of process on the parties sought to be joined thus denying
them notice and due process.” Order, 8/10/20, at ¶ 5. Appellant timely filed
a notice of appeal from this order on September 9, 2020.
In the interim, on August 18, 2020, Appellant filed a motion seeking
reconsideration of the August 10, 2020 order, or, in the alternative, a
“determination of finality” pursuant to 42 Pa.C.S.A. § 702(b) and Pa.R.A.P.
341(c).
It is well-settled that appellate courts typically have jurisdiction over
final orders. See Pa.R.A.P. 341(a). “A final order is generally one which
terminates the litigation, disposes of the entire case, or effectively puts the
litigant out of court.” Joseph F. Cappelli & Sons, Inc. v. Keystone Custom
Homes, Inc., 815 A.2d 643, 648 (Pa. Super. 2003) (citation omitted); see
also Pa.R.A.P. 341(b)(1).
Here, Appellant invoked Rule of Appellate Procedure 341(c), which
states:
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(c) Determination of finality.-- When more than one claim for
relief is presented in an action, . . . or when multiple parties are
involved, the trial court . . . 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 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). Rule 341(c) further provides that if the trial court does not
act on the application for a determination of finality within 30 days after it is
filed, it shall be deemed denied. Pa.R.A.P. 341(c)(2).
Further, 42 Pa.C.S.A. § 702(b) provides:
When a court or other government unit, in making an interlocutory
order in a matter in which its final order would be within the
jurisdiction of an appellate court, shall be of the opinion that such
order involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an immediate
appeal from the order may materially advance the ultimate
termination of the matter, it shall so state in such order. The
appellate court may thereupon, in its discretion, permit an appeal
to be taken from such interlocutory order.
Id.
In this case, the trial court never ruled on Appellant’s motion for finality,
nor did it act pursuant to 42 Pa.C.S.A. § 702(b). Thus, the motion for finality
was deemed denied on September 9, 2020, pursuant to Pa.R.A.P. 341(c)(2),
supra.
On October 8, 2020, Shannon filed with this Court a motion to quash
Appellant’s appeal as interlocutory. Shannon emphasized the denial of the
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motion for finality and argued the August 10, 2020 order is neither final nor
appealable as of right.
This Court, on October 29, 2020, issued a rule for Appellant to show
cause concerning our jurisdiction over the August 10, 2020 order. We stated:
Pa.R.A.P. 311(a)(8) provides that an “appeal may be taken as of
right and without reference to Pa.R.A.P. 341(c)[, supra,] from . .
. [a]n order that is made final or appealable by statute or
general rule, even though the order does not dispose of all claims
and of all parties.” [(emphasis added)]. Section 7532 of the [DJA]
. . . provides that courts of record have the power to declare the
rights, status, and other legal relations and that “such declarations
shall have the force and effect of a final judgment or decree.” [42
Pa.C.S.A.] § 7532 [(emphasis added)].
In its docketing statement, Appellant claims that the [August 10,
2020] Order is appealable under Pa.R.A.P. 311(a)(8).
Rule to Show Cause, 10/29/20.
Appellant timely filed a response to the rule to show cause. Appellant
cited Pa.R.A.P. 311(a)(8), section 7532 of the DJA, and the Pennsylvania
Supreme Court’s decision in Nationwide Mut. Ins. Co. v. Wickett, 763 A.2d
813 (Pa. 2000). The Wickett Court held: “the Superior Court erred in finding
that the trial court’s orders sustaining preliminary objections in the nature of
demurrers in actions brought pursuant to [section 7532 of the DJA] were not
immediately appealable final orders” pursuant to the predecessor to Pa.R.A.P.
311(a)(8). Id. at 815; see also id. at 818 (order dismissing some defendants
in DJA action from the case was a final, appealable order, even though claims
against other defendants remained outstanding). Wickett explained that an
order relative to a request for declaratory relief is final and appealable if it
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“either affirmatively or negatively declares the rights and duties of the
parties.” Id. at 818 (footnote omitted).
On December 7, 2020, this Court denied Shannon’s motion to quash
without prejudice to its right to raise the issue again on appeal. Accordingly,
we address Shannon’s renewed challenge to this Court’s jurisdiction. See Pa.
Manufacturers’ Assoc. Ins. Co. v. Johnson Matthey, Inc., 188 A.3d 396,
398 (Pa. 2018) (per curiam) (“Whether this Court has jurisdiction to entertain
this appeal presents a threshold issue. Such an issue raises a question of law;
accordingly, our standard of review is de novo, and our scope of review is
plenary.” (citations omitted)).
Shannon argues this appeal must be quashed pursuant to our decision
in Techtman v. Howie, 720 A.2d 143 (Pa. Super. 1998). Appellee’s Brief at
16. There, we held “[a]n order denying joinder of a party does not constitute
a basis for an interlocutory appeal as of right within [Pa.R.A.P. 311]. Thus,
petitioner does not have the right to appeal the order denying joinder pursuant
to Rule 311.” Techtman, 720 A.2d at 146. Techtman, unlike the instant
case, was not a declaratory judgment action and it is thus distinguishable.
Shannon further argues the holding in Wickett, supra does not render the
August 10, 2020 order appealable as of right under Pa.R.A.P. 311(a)(8) and
section 7532 of the DJA. Appellee’s Brief at 16.
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Appellant counters that the August 10, 2020 order is “effectively a final
order that puts [Appellant] out of court as it pertains to [Appellant’s] claims
against the Sandone Entities.” Appellant’s Brief at 12. Appellant argues:
While an order permitting a defendant in an action to join an
additional defendant is interlocutory, an order sustaining
preliminary objections to the joinder of an additional defendant,
dismissing defendant’s complaint as to the additional defendant,
and dropping the additional defendant from the suit is a “final
order.”
Id. at 11-12 (quoting Zakian v. Liljestrand, 264 A.2d 638, 640 (Pa. 1970)).
Pertinently, the Pennsylvania Supreme Court has limited the breadth of
the general rule announced in Wickett, holding:
If the order in question merely narrows the scope of the litigation
and does not resolve the entirety of the parties’ eligibility for
declaratory relief, then the order is interlocutory and not
immediately appealable.
Pa. Manufacturers, 188 A.3d at 400 (emphasis added); see also id.
(quashing appeal as interlocutory where order did not resolve all of the parties’
competing claims for declaratory relief).
Here, the August 10, 2020 order “does not resolve the entirety of
[Shannon’s] eligibility for declaratory relief.” Id. Indeed, none of Shannon’s
claims for declaratory relief against Appellant have been resolved, and
Shannon did not file any claims against the Sandone Entities. The August 10,
2020 order merely reaffirmed the trial court’s prior rejection of Appellant’s
attempt to join the Sandone Entities, none of which hold any interest in
Shannon’s property at issue in this action. See id. (an order that “merely
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narrows the scope of the litigation” is interlocutory); see also Trial Court
Opinion, 5/6/20, at 6. Finally, we conclude Zakian, supra is unavailing and
distinguishable. See Zakian, 264 A.2d at 642-43 (holding trial court properly
denied appellant/defendant automobile operator’s petition to nunc pro tunc
join an additional defendant in the personal injury action under Pa.R.C.P.
2253, supra).
In sum, the August 10, 2020 order is interlocutory and non-appealable.
See Pa. Manufacturers, 188 A.3d at 400; see also Schmitt v. State Farm
Mut. Auto. Ins. Co., 245 A.3d 678, 685-86 (Pa. Super. 2021) (distinguishing
Wickett and its progeny and quashing appeal as interlocutory where trial
court resolved plaintiff’s declaratory judgment claims upon summary
judgment but did not resolve the claims seeking damages); Cf. Nationwide
Mut. Ins. Co. v. Arnold, 214 A.3d 688, 694 (Pa. Super. 2019) (distinguishing
Pa. Manufacturers and reaching merits of appeal where “[t]he trial court’s
order resolves the entirety of the parties’ eligibility for declaratory relief”).
Under these circumstances, and “in light of our well-established policy of
avoiding piecemeal litigation,” Pa. Manufacturers, 188 A.3d at 400, we
agree with Shannon that quashal is proper.
Appeal quashed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/06/2021
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