Wilmington Savings v. 7327A West Chester Pk

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 :
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v. :
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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, :
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:
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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
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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.
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* Former Justice specially assigned to the Superior Court.
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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.”).
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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).
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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
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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.
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