Altman, T. v. Russo, R.

J-A17036-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THOMAS ALTMAN, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ROBERT RUSSO, INDIVIDUALLY AND :
T/B/A NEW YORK JEWELRY :
EXCHANGE, LLC AND NICOLE :
RUSSO, INDIVIDUALLY AND T/B/A :
NEW YORK JEWELRY EXCHANGE, LLC : No. 1878 WDA 2017
Appeal from the Judgment entered January 17, 2018
in the Court of Common Pleas of Westmoreland County
Civil Division at No(s): 3062 of 2014
BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 08, 2019
Thomas Altman (“Altman”) appeals from the Judgment entered against
him and in favor of Robert Russo (“Russo”) and Nicole Russo (“Ms. Russo”)
(collectively, “the Russos”), in their individual capacities, but against the
Russos trading and doing business as New York Jewelry Exchange, LLC
(sometimes referred to as “the Exchange”). We affirm.
The trial court summarized the relevant history underlying the instant
appeal as follows:
The original Complaint [brought] suit against both “[Russo],
individually, and t/d/b/a New York Jewelry Exchange, LLC.” The
Amended Complaint add[ed Ms. Russo] as a Defendant, as she
“was or is a principal or member of the entity known as “New York
Jewelry Exchange, LLC.” The [Russos] were the sole members of
the LLC, a separate legal business entity; the Russos were not
simply using the fictitious name of “New York Jewelry Exchange.”
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As members of the [limited liability company], the Russos were
engaged in the business of buying and selling gold and silver.
[Altman] agreed to invest in this business enterprise[,] with
periodic infusions of financial support.
* * *
At one point[,] the parties contemplated a more formal
business relationship, with [Altman] intending to purchase a one-
half interest in the Limited Liability Company. The consummation
of this purchase never came to fruition.
When [Altman] was repaid $20,000 on a loan, the “Receipt
of Payment,” dated May 13, 2011, states “New York Jewelry
Exchange[,] LLC[,] of Greensburg, Pennsylvania,” is the
payor/debtor.
Trial Court Opinion, 11/16/17, at 1-2 (citations omitted).
By his Complaint, Altman averred that on or about February 1, 2011,
Russo, in his individual capacity, promised Altman that, if Altman provided
Russo with funds, Altman “would insure a return on [Altman’s] money by
either obtaining gold and silver for [Altman], or, that [Altman] would receive
any funds [that Altman had] provided to [Russo] ‘back with interest.’”
Complaint, ¶ 5. According to Altman, Russo promised that if Altman provided
$9,900 to Russo, Altman “would receive a return of the sum of money.” Id.,
¶ 6. Altman claimed that he loaned Russo $9,900, but Russo did not
reimburse or compensate Altman for the funds. Id., ¶¶ 7-8.
Altman additionally averred that on or about June 27, 2011, Russo
asked Altman for assistance in purchasing silver coins. Id., ¶ 9. According
to Altman’s Complaint, Russo represented that he had inspected the coins,
and valued them at over $30,000. Id. Further, Altman averred that he was
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led to believe that he would receive either the coins, or a “high return” on any
payment made by Altman to Russo. Id., ¶ 10. Based upon Russo’s promises,
Altman claimed, he loaned $10,000 to Russo, in his individual capacity. Id.,
¶ 12.
According to Altman’s Complaint, Russo again approached Altman on or
about July 21, 2011, promising Altman a partnership or equity interest in the
Exchange, in return for a cash investment. Id. Altman stated, in his
Complaint, that Russo had promised to keep the funds in escrow, until Russo
invested the funds into the Exchange. Id., ¶ 13. Altman averred that he
issued a check to the Exchange, in the amount of $2,500. Id., ¶ 14. Russo
has not reimbursed or compensated Altman for these funds. Id., ¶ 15.
Altman averred that on or about July 26, 2011, Russo urged him to
purchase silver or gold at current prices. Id., ¶ 16. Altman stated that Russo
represented that any funds provided by Altman would be used by the
Exchange to purchase the gold or silver. Id. Altman issued a check to the
Exchange in the amount of $22,000, for the purchase of gold or silver. Id., ¶
18. Russo has not reimbursed or compensated Altman for these funds. Id.,
¶ 19. Finally, on September 12, 2011, Altman loaned Russo $9,000, which
Russo has not repaid. Id., ¶¶ 22-23.
Following a non-jury trial, the trial court entered a verdict in favor of
Altman and against New York Jewelry Exchange, LLC. However, the trial court
entered a verdict against Altman, and in favor of the Russos, in their individual
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capacities.1 Altman filed Post-Trial Motions, which the trial court denied.
Thereafter, Altman filed a Notice of Appeal of the trial court’s Order denying
Post-Trial Motions. On January 17, 2018, the trial court entered Judgment on
its verdict.2
Altman presents the following claims for our review:
1. [Whether the trial court] erred or abused it[s] discretion by
entering [J]udgment against the entity known as the New York
Jewelry Exchange[,] when judgment should have been entered
against the individually named defendants[?]
2. [Whether the trial court’s] findings of fact and conclusions of
law are not supported by the record[?]
Brief for Appellant at 2.
We first observe our limited scope of review following a non-jury trial.
During a non-jury trial, the trial court acts as the finder of fact and has the
____________________________________________
1 After the entry of the verdict, but prior to Altman’s filing of the Notice of
Appeal, Russo filed a Petition for relief pursuant to Chapter 7 of the federal
Bankruptcy Code. See 11 U.S.C.A. §§ 701-784. Altman’s civil action against
Russo, individually, was stayed pending the outcome of the bankruptcy
proceeding.
2 “An appeal from an order denying post-trial motions is interlocutory. An
appeal to this Court can only lie from judgments entered subsequent to the
trial court’s disposition of post-verdict motions, not from the order denying
post-trial motions.” Fanning v. Davne, 795 A.2d 388, 391 (Pa. Super. 2002)
(citations omitted). Although Altman’s appeal of the trial court’s Order
denying his Post-Trial Motions was prematurely filed, the appeal subsequently
was perfected when the trial court entered Judgment on the verdict. See
Pa.R.A.P. 905 (stating that “[a] notice of appeal filed after the announcement
of a determination but before the entry of an appealable order shall be treated
as filed after such entry and on the day thereof.”).
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authority to make credibility determinations and resolve conflicts in evidence.
Ruthrauff, Inc. v. Ravin, Inc., 914 A.2d 880, 888 (Pa. Super. 2006). The
court may believe all, part or none of the evidence. Id.Issues of credibility and conflicts in evidence are for the trial court
to resolve; this Court is not permitted to reexamine the weight
and credibility determinations or substitute our judgment for that
of the factfinder. Furthermore, the findings of the judge in a non-
jury trial are given the same weight and effect as a jury verdict
such that the court’s findings will not be disturbed on appeal
absent an abuse of discretion, error of law, or lack of support in
the record. We will not disturb the court’s factual findings merely
on the basis we would have reached a different conclusion; rather,
our task is to determine whether there is competent evidence in
the record that a judicial mind could reasonably have determined
to support the finding.
Id. at 887 (citations and quotations omitted).
We will address Altman’s claims together. Altman first claims that New
York Jewelry Exchange, LLC, was not specifically named as a party to the case,
and not served with process. See Brief for Appellant at 10. Altman posits
that the case proceeded against “the individually named” Russos, “and styled
as ‘doing business as’ to reflect that sums of money given to [Russo] were
diverted for his personal use or that of his wife, [Ms. Russo].” Id. According
to Altman, any funds earmarked for New York Jewelry Exchange, LLC, “were,
in actuality, retained by the Russos.” Id. at 10-11.
Russo contends, “the evidence at trial clearly revealed, without
contradiction, that Russo illicitly obtained [Altman’s] funds outside the
Exchange sales.” Id. at 12. According to Altman, he gave Russo funds so
that Russo could purchase items at “estate sales.” Id. Altman asserts that
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the Exchange was not involved in these events, only Russo, in his individual
capacity. Id. Thus, Altman contends, although the funds were issued to the
Exchange, the Exchange had no involvement in the transactions. Id. at 13.
Altman argues that the Exchange was merely a façade for the operations of
Russo, as its dominant shareholder. Id. Because the Exchange failed to
adhere to corporate formalities, “substantial intermingling of corporate and
personal affairs and use of the corporate form to perpetrate a fraud should
justify the [trial court] in ignoring [the Russos’] post hoc argument.” Id. at
14.
In his second claim, Altman challenges the trial court’s findings and
conclusions as not supported by the record. See id. Altman argues that the
trial court failed to articulate why it had rejected Altman’s testimony, or
explain its credibility determinations. Id. at 15. Altman asserts that the trial
court further violated Pa.R.C.P. 2177 and Pa.R.C.P. 2176, precluding the entry
of judgment against an entity that is not specifically named as a party
defendant. Id. Altman points out that the trial court’s judgment against the
Exchange is in the exact amount claimed by Altman against the Russos,
individually. Id. at 16. Thus, he argues, the trial court recognized that Altman
is entitled to receive the full sum of money that the Russos had obtained from
him. Id.
In its Opinion, the trial court addressed Altman’s claims as follows:
At trial, evidence and testimony established that all of the
financial transactions in which the parties engaged concerned the
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business of [the Exchange]. When [Altman] made investments in
the business, invoices were issued on [the Exchange’s] letterhead
(see Plaintiff’s Exhibit 1; and Defendants’ Exhibit C), and checks
were made payable to [Exchange]. (See Plaintiff’s Exhibit 4,
check dated 7/21/2011 for $2,500; and Plaintiff’s Exhibit 5, check
dated 7/26/2011 for $22,000.)
At one point the parties contemplated a more formal
business relationship, with [Altman] intending to purchase a one-
half interest in the Limited Liability Company. (See Defendants’
Exhibit A, entitled “Agreement to Sell and Purchase a Fifty (50%)
Percent Interest in New York Jewelry Exchange, LLC.”) The
consummation of this purchase never came to fruition.
When [Altman] was repaid $20,000 on a loan, the “Receipt
of Payment,” dated May 13, 2011, states “New York Jewelry
Exchange LLC of Greensburg, Pennsylvania,” is the payor/debtor.
(See Defendants’ Exhibit B).
Based upon the foregoing evidence, there is sufficient
evidence to support a finding that a verdict must be entered
against [Exchange] LLC[,] as the LLC is the responsible party….
Trial Court Opinion, 11/15/17, at 2. We agree with and adopt the sound
reasoning of the trial court, as set forth above, with regard to Altman’s claims.
See id. Accordingly, Altman is not entitled to relief on his claims. See id.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/8/2019
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