Irish, G. v. Farley, T.

J. A32035/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GEORGE P. IRISH AND DIANE STOUGHT, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellants :
:
v. :
:
THOMAS F. FARLEY; BORDEN & FARLEY, :
P.C.; CAVALIER & CAVALIER; KIM :
CAVALIER; AND JAMES E. TRUNZO, :
: No. 483 EDA 2014
Appellees :
Appeal from the Order January 13, 2014
In the Court of Common Pleas of Wayne County
Civil Division No(s).: 315 Civil 1994
BEFORE: PANELLA, OLSON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 03, 2015
Appellants, George P. Irish and Diane Stought,1 appeal from the order
entered January 13, 2014, in the Wayne County Court of Common Pleas
denying their motion for reconsideration of the order entered April 26, 2013
granting the motion for summary judgment filed by Appellees, Thomas F.
Farley, Borden & Farley, P.C., and Kim Cavalier. On January 13, 2014, the
court also granted the motion in limine filed by Appellee James Trunzo and
dismissed all claims against all defendants with prejudice. Appellants
*
Former Justice specially assigned to the Superior Court.
1
Appellant Stought is the step-daughter of Appellant Irish. Compl.,
11/24/92, at 1.
J. A32035/14
present sixteen issues on appeal, contending that the court erred, inter alia,
in (1) violating the law of the case, (2) granting summary judgment to a
party that did not request it, (3) granting summary judgment, and (4)
finding Appellants did not state a claim for civil conspiracy and breach of
fiduciary duty against Appellee Trunzo.2 We affirm. We also grant
Appellants’ motion to accept their reply brief as timely filed.
The trial court summarized the facts and procedural history of this
case as follows:
After an extensive and thorough review of the more
than 350 docket entries, duplicative pleadings, and
thousands of deposition pages produced in this matter, we
grant[ed] Summary Judgment to [Appellees] Farley,
Borden & Borden, P.C., Cavalier & Cavalier, and Kim
Cavalier. We also grant the Motion in Limine filed by
[Appellee] Trunzo.
The long and tortuous procedural history of this case
began in 1992 in Pike County, Pennsylvania. [Appellants]
filed a 172 paragraph Complaint alleging four (4) causes of
action including civil conspiracy against all [Appellees];
breach of fiduciary duty against [Appellee] Trunzo;
conversion against [ ] Farley and Borden & Farley, P.C.
and Peter Cavalier; and, a cause of action for “prima facie
tort” against all [Appellees]. According to the parties,
Count IV for prima facie tort was dismissed by Preliminary
Objections.[FN]
2
Our Supreme Court noted: “[T]he number of claims raised in an appeal is
usually in inverse proportion to their merit and that a large number of claims
raises the presumption that all are invalid. [A]ppellate advocacy is
measured by effectiveness, not loquaciousness.” Commonwealth v. Ellis,
626 A.2d 1137, 1140-41 (Pa. 1993) (quotation marks and citation omitted).
This Court granted Appellants’ motion to exceed the word count limitation in
their brief. Order, 5/19/14.
-2-
J. A32035/14
________________________________
[FN]
The case was transferred to Wayne County in 1994.
We have reviewed the entirety of docket entries and can
find no court Order dismissing count IV. However, all
parties agree that the Count was dismissed by Preliminary
Objections.
________________________________
* * *
Summary Judgment was denied by Senior Judge
John Lavelle in 2005, eight (8) years ago, because
he found material issues of liability and damages in
dispute and discovery was still ongoing. Wayne
County President Judge Hamill denied Summary
Judgment in June of 2012 because the motion was
not timely filed and a trial was scheduled for July of
2012. This trial was continued by Senior Judge Brendan
Vanston, the sixth Judge assigned to this case. We are not
facing the same time constraints as Judge Hamill. No new
date has been set for trial.
The facts we glean from [Appellants’] Complaint, which
are not in dispute, involve a business deal between Irish
and Peter Cavalier[,] which soured.
[Appellants] and the deceased former individual Peter
Cavalier[FN] formed the Lake Region Operating Corporation
(hereinafter “LROC”)[,] which owned and operated an
Arby’s Restaurant in Hawley, Wayne County, Pennsylvania.
Irish was the operating manager of the restaurant;
Stought was a day-to-day manager. Being unhappy with
the operation of the business, Cavalier petitioned for an
involuntary dissolution of LROC on May 16, 1991 . . .
.
________________________________
[FN]
Peter Cavalier was dismissed as a “non-dispensable”
party at the requests of [Appellants].
________________________________
[Appellee] Thomas Farley of [Appellee] law firm . . .
Borden & Farley, P.C. represented Cavalier in the
dissolution action. Upon the filing of the dissolution action,
then Wayne County President Judge Robert Conway issued
-3-
J. A32035/14
a Preliminary Injunction on May 16, 1991[,] which
precluded [Appellants] from managing the day-to-day
operations of LROC and from handling the bank account
and other monies of LROC. Also on that date, Judge
Conway appointed [Appellee] Trunzo as Receiver pendente
lite.
Prior to the scheduled hearing on the Injunction, a
Consent Order/Decree was filed on May 22, 1991[,]
wherein the parties all agreed that they were represented
by [c]ounsel and that [Appellants] were enjoined from
managing or handling the bank accounts and all monies of
LROC, including cash in the register at Arby’s. It further
ordered that Peter Cavalier was enjoined from managing
the day-to-day operations of LROC, or interfering with the
business but that Peter Cavalier was permitted to review
the books and records of LROC through the Receiver or
legal counsel and that he was permitted to enter the
restaurant to review daily operations.
On June 13, 1991, another Consent Order/Decree was
entered that held that all parties were represented by
counsel and agreed to the following: [Appellee] Trunzo’s
appointment as Receiver Pendente Lite would remain in
effect; Irish would be in charge of the day-to-day
operations of LROC subject to the review and control of the
Receiver; that Peter Cavalier was enjoined from managing
the day-to-day operations of LROC, entering the premises
of Arby’s, managing or handling the bank account and
monies of LROC, and direct telephone contact or any other
direct contact with [Appellants] and the staff of the Arby’s
Restaurant.
On December 9, 1991, all parties to the Dissolution
Action including [Appellants] and Peter Cavalier consented
to the relief requested in the Petition for Involuntary
Dissolution of LROC without any admission to the factual
allegations set forth in the Petition.
At the same time, Judge Conway appointed Scott B.
Bennett, Esq.[,] as the Liquidating Receiver of LROC. This
Consent Order also provided that the corporate assets of
LROC were to be sold at private auction with Peter Cavalier
as one bidder and [Appellants] as the second bidder. On
-4-
J. A32035/14
December 23, 1991, [Appellant] Irish was the successful
bidder at a private auction of the assets of LROC.
Prior to [Appellant] Irish’s successful bid at the private
auction, Peter Cavalier filed a Partition Action in Wayne
County [(“Partition Action”)]. This action asked for
partition of the real estate owned by Irish and Cavalier,
individually, including the restaurant land and an adjoining
parcel.
Meanwhile, Liquidating Receiver Bennett stayed the
purchase of LROC assets by Irish because Wayne County
Bank & Trust Co. would not approve the sale. We are not
told in the Complaint why this approval was needed.
On February 21, 1992, the Partition Action was
consolidated with the Dissolution Action by Consent
Order with agreement of the parties. At that time,
Judge Conway signed the Consent Order directing the
assets of LROC and the real estate owned by Irish and
Cavalier be sold at private auction. The Consent Order
provided that all shareholers consented to this process and
outlined the assets to be all equipment, bank accounts,
and “all other tangible assets used in the operation of the
Business regardless of whether title is held by the parities
individually or by [LROC].” Consent Order February 21,
1992 . . . .
At the private auction, pursuant to the Consent
Order, Peter Cavalier and [Appellee] Kim Cavalier
were the successful bidders, and they acquired all of
LROC’s assets and the real estate.
On March 5, 1992, Judge Conway entered an
Order which confirmed the Accounting filed by
[Appellee] Trunzo as Receiver Pendente Lite and
ordered distribution. Neither party filed timely
exceptions to Trunzo’s accounting.
The chronological recitation of facts set forth above are
taken from [Appellants’] complaint and are not in dispute.
-5-
J. A32035/14
Trial Ct. Op., 4/26/13, at 1-2, 3-6 (emphases added and some footnotes
omitted).
The trial court denied Appellants’ praecipe for rule returnable to
substitute Christine Cavalier as a party as a successor to Cavalier &
Cavalier.3 Appellants’ Praecipe for Rule Returnable Pursuant to Rule
2352(b), 7/9/12. The court denied the motion for substitution of Christine
Cavalier. Order, 9/27/12. Appellants sought to involuntarily substitute her
and the trial court found that Appellants had not presented evidence that
Christine Cavalier is the successor of Cavalier & Cavalier, P.C. Id. at 1 n.1.
As stated by Appellants:
The material facts upon which this Praecipe is based are as
follows:
a) Christine M. Cavalier filed preliminary objections
on January 5, 1993, and a brief in support of those
preliminary objections on January 19, 1993, pro se,
on behalf of the [Appellee] Cavalier & Cavalier;
b) Christine M. Cavalier personally appeared on
March 3, 1993, and made argument on behalf of her
preliminary objections; and
c) Christine M. Cavalier, according to her statements
on March 31, 1993, and the Motion to Admit filed on
March 7, 1993, was a partner in the named
[Appellee] Cavalier & Cavalier.
3
Peter Cavalier is deceased. Trial Ct. Op., 4/26/13, at 4 n.3. The trial court
noted that Peter Cavalier was dismissed as a “non-dispensable” party at the
request of Appellants. Id.-6-
J. A32035/14
Appellants’ Praecipe for Rule Returnable Pursuant to Rule 2352(b), 7/9/12,
at 1. The Prothonotary issued a rule “upon Christine M. Cavalier to show
cause why she should not be substituted for Appellee Cavalier & Cavalier.”
Rule Returnable, 9/9/12.
A hearing was held at the request of Appellants “for the purposes of
identifying Christine Cavalier as a successor of Cavalier and Cavalier.” N.T.,
9/26/12, at 2. It was undisputed that Christine Cavalier was a partner in
Cavalier & Cavalier. Id. at 13. Appellants’ counsel contended that “[s]he is
the partnership.” Id. at 15.
On October 1, 2012, Appellee Trunzo filed a motion in limine to
“preclude [Appellants] from presenting any testimony or evidence
concerning alleged civil conspiracy on [his] part . . . .” Appellee Trunzo’s
Mot. in Limine, 10/1/12, at 2-3 (unpaginated). On October 12, 2012,
Appellees Thomas F. Farley, Borden & Farley, P.C., and Kim Cavalier filed a
fifth motion for summary judgment, contending there was no evidence to
support Appellants’ claims for civil conspiracy, conversion, and breach of
fiduciary duty. On April 26, 2013, the trial court granted both the motion for
summary judgment and Appellee Trunzo’s motion in limine.
On May 30, 2013, Appellants filed a notice of appeal. This Court
quashed the appeal sua sponte on July 12, 2013, finding the appeal was
from an interlocutory order because the claims against Trunzo were pending
-7-
J. A32035/14
in the trial court. Irish v. Farley, 1497 EDA 2013 (unpublished order) (Pa.
Super. July 12, 2013).
On July 29, 2013, Appellants filed a motion for reconsideration of the
April 26th order. On January 13, 2014, the trial court denied the motion for
reconsideration and dismissed all claims against all Appellees. Order,
1/13/14. This appeal followed. Appellants filed a ten-page court-ordered
Pa.R.A.P. 1925(b) statement of errors complained of on appeal and the trial
court filed a responsive opinion.
Appellants raise the following issues for our review:4
1[A]. Whether [Appellants] provided evidence for
substituting Christine Cavalier, an admitted partner, for
[Appellee] Cavalier & Cavalier, a New York partnership.
2[B]. Whether the trial court, on the basis that Christine
Cavalier, as a partner and because of her conduct, was a
party, should have compelled her deposition at the request
of [Appellants].
3[C]. Whether the trial court improperly granted summary
judgment to Cavalier & Cavalier, a named and represented
party who made no request of any kind to the court.
4[D]. Whether the trial court improperly granted summary
judgment to a party (receiver, [Appellee] James E. Trunzo)
who filed only a motion in limine.
5[E]. Whether the granting of summary judgment by
Judge Miller violated the law of the case doctrine (which
includes the coordinate jurisdiction rule) when the record
included prior orders denying summary judgment.
4
In the argument section of their brief, Appellants refer to the issues by
letter as indicated in brackets.
-8-
J. A32035/14
6[F]. Whether [Appellees] failed to carry the initial burdens
applicable to motions for summary judgment.
7[G]. Whether [Appellants] identified portions of the
record which stated a claim for civil conspiracy.
8[H]. Whether [Appellants] stated a claim for civil
conspiracy and breach of fiduciary duty against the court
appointed receiver, [Appellee] James E. Trunzo.
9[I]. Whether, in granting summary judgment, the court
improperly ignored the record potentially available at the
time of trial.
10[J]. Whether the court improperly applied the age of the
case to the detriment of [Appellants].
11[K]. Whether the court failed to read the record
completely and properly.
12[L]. Whether the court advocated on behalf of
[Appellees], thereby acting outside of the role of a judge.
13[M]. Whether [Appellants] were denied their rights
under Article I, Section Eleven of the Pennsylvania
Constitution.
14[N]. Whether the court should have excluded evidence
of violations of the Rules of Professional Conduct by
[Appellees] Farley and Borden & Farley, P.C.
15[O]. Whether the court should have excluded evidence
of the out-of-pocket medical expenses incurred by
[Appellant] George P. Irish.
16[P]. Whether the court should have excluded evidence of
the “subsequent action in equity” commenced against
[Appellant] Irish.
Appellants’ Brief at 9-11.
As a prefatory matter, we consider whether the instant appeal was
timely filed. As stated above, on May 22, 2013, Appellants previously filed a
-9-
J. A32035/14
notice of appeal from the April 26, 2013 order. This Court quashed the
appeal on July 12, 2013, docketed on September 13, 2013, as
interlocutory because the claims against Appellee Truzo remained pending
in the trial court. Order, 7/12/13. On July 29, 2013, Appellants filed a
motion for reconsideration of the April 26, 2013 order. The motion for
reconsideration was denied on January 13, 2014, and the court dismissed all
claims against all Appellees.
“[T]he trial court is empowered to reconsider an interlocutory order at
any time.” D'Elia v. Folino, 933 A.2d 117, 120 n.1 (Pa. Super. 2007).
“Where an order does not effectively place the litigant out of court or end
the lawsuit, it is within the trial court’s discretion to entertain a motion to
reconsider the interlocutory order outside the 30–day time limit set forth in
42 Pa.C.S.A. § 5505.” Hutchison v. Luddy, 611 A.2d 1280, 1288 (Pa.
Super. 1992). The trial court had jurisdiction to deny the motion for
reconsideration on January 13, 2014, and dismiss all claims against all
Appellees. See D'Elia, 933 A.2d at 120 n.1; Hutchison, 611 A.2d at 1288.
Appellants then filed the instant notice of appeal within thirty days
thereafter, on February 12, 2014. Therefore, the notice of appeal is timely.
See Pa.R.A.P. 903(a).
Next we consider whether Appellant has waived any issue raised on
appeal. This Court has stated:
“The argument portion of an appellate brief must include a
pertinent discussion of the particular point raised along
- 10 -
J. A32035/14
with discussion and citation of pertinent authorities.” “This
Court will not consider the merits of an argument which
fails to cite relevant case or statutory authority.” Failure
to cite relevant legal authority constitutes waiver of
the claim on appeal.
In re Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (citations
omitted and emphasis added), appeal denied, 69 A.3d 603 (Pa. 2013); see
also Pa.R.A.P. 2119(a). Our review of Appellants’ brief reveals that there is
no discussion with citation to relevant legal authority with respect to issues
2[B], 3[C], 4[D], 10[J], 11[K], 13[M], 15[O], 16[P]. Therefore, these issues
are waived. See In re Whitley, 50 A.3d at 209.
First, Appellants argue the court erred in denying their praecipe for
rule returnable to substitute Christine Cavalier as a party as a successor to
Cavalier & Cavalier.5 Appellants aver that Christine should be involuntarily
substituted pursuant to Rule 2352(b) which provides: “If the successor does
not voluntarily become a party, the prothonotary, upon praecipe of an
adverse party setting forth the material facts shall enter a rule upon the
successor to show cause why the successor should not be substituted as a
party.” See Pa.R.C.P. 2535(b).
Appellants argue that because she was a partner, she was a successor.
Appellants’ Brief at 46. Appellees’ counsel countered that “[u]pon the death
of Peter Cavalier, the partnership dissolved.” Id. at 25.
5
This is denominated as issue 1[A].
- 11 -
J. A32035/14
The Pennsylvania Commonwealth Court has stated:
Because the issuance of a rule to show cause is predicated
on judicial discretion, this Court reviews a trial court’s
discharge of the rule for abuse of discretion. Rosenberg
v. Silver, [ ] 97 A.2d 92, 94 ([Pa.] 1953). Abuse of
discretion occurs when the trial court commits an error of
law or renders a “manifestly unreasonable” judgment. Id.Commonwealth ex rel. Zimmerman v. Auto Mart, Inc., 910 A.2d 171,
174 n.6 (Pa. Cmwlth. 2006).6
In denying the request to substitute Christine Cavalier as a party for
Appellee Cavalier & Cavalier, the trial court opined:
[Appellants] failed to present any evidence as to whether
Christine Cavalier was the successor in interest to
[Appellee] Cavalier & Cavalier. [Appellants] presented
evidence that Christine Cavalier participated pro se on
behalf of [Appellee] Cavalier & Cavalier. Christine
Cavalier, through her attorney . . . admitted that she was
a partner in Cavalier & Cavalier and that she had appeared
pro se on behalf of Cavalier & Cavalier. To their detriment
however, [Appellants] presented no other evidence that
Christine Cavalier was the successor in interest; there was
no evidence or law presented that a living partner becomes
the successor in interest to a lawsuit against the
partnership. Accordingly, this court’s September 27, 2012
Order was proper.
Trial Ct. Op., 4/2/14, at 1-2. We agree no relief is due.
Peter Cavalier is deceased. Trial Ct. Op., 4/26/13, at 4 n.3. The trial
court noted that Peter Cavalier was dismissed as a “non-dispensable”
6
We note “[t]his Court is not bound by decisions of the Commonwealth
Court. However, such decisions provide persuasive authority, and we may
turn to our colleagues on the Commonwealth Court for guidance when
appropriate.” Md. Cas. Co. v. Odyssey Contracting Corp., 894 A.2d 750,
756 n.2 (Pa. Super. 2006) (citations omitted).
- 12 -
J. A32035/14
party at the request of Appellants. Id. It is undisputed that Cavalier &
Cavalier was a New York partnership. Citing New York Partnership Law §
62,7 Appellants concede that pursuant to New York partnership law, the
death of a partner results in the dissolution of the partnership.
Appellants’ Brief at 47. In Pennsylvania, a successor is defined as “anyone
who by operation of law, election or appointment has succeeded to the
interest or office of a party to an action.” Pa.R.C.P. 2351 (emphasis
added). Following the death of Peter Cavalier, there was no partnership.
Therefore, Christine Cavalier is not a successor.
Next, Appellants contend the court erred in granting summary
judgment because it violated the law of the case doctrine.8 They aver that
the April 26, 2013 and the January 13, 2014 orders of Judge Miller “violated
the coordinate jurisdiction rule[9] because they overruled Judge Lavelle’s two
7
Section 62 provides:
§ 62. Causes of dissolution
Dissolution is caused:
* * *
4. By the death of any partner[.]
N. Y. Partnership Law § 62(4).
8
This issue is denominated as issue 5[E].
9
Our Superior Court has stated:
- 13 -
J. A32035/14
orders of August 23, 2005. These two orders denied two motions for
summary judgment.” Appellant’s Brief at 59. We find no relief is due.
On May 18, 2004, Appellees Thomas F. Farley and Borden & Farley,
P.C., filed the first motion for summary judgment, in which they averred
Appellants did not comply with Pa.R.C.P. 4014 because their response to the
request for admissions was not verified or made within thirty days. Farley
and Borden & Farley, P.C.’s Mot. for Summ. J., 5/18/04, at 2 (unpaginated)
(“First Motion”). Appellee Trunzo also filed a motion for summary judgment
on June 3, 2005, in which he averred that Appellants could not sustain a
claim of civil conspiracy against him. Appellee Trunzo’s Mot. for Summ. J.,
6/3/05, at 2 (unpaginated). On August 23, 2005, Judge Lavelle denied both
motions for summary judgment. On June 6, 2005, Appellees Farley and
Borden & Farley, P.C., filed their second motion for summary judgment. The
motion was denied on August 23, 2005.
[W]e today assume the coordinate jurisdiction rule
and all its attendant meanings and limitations
expressed in our previous caselaw into our law of the
case doctrine in an effort to standardize and
streamline the law to which our courts must refer
when considering prior rulings of courts of coordinate
jurisdiction and of courts of appellate jurisdiction in
the same litigated matter.
Thus, our analysis is the same whether it is called the
coordinate jurisdiction rule or the law of the case doctrine.
Cossell v. Cornish, 797 A.2d 981, 982 n.1 (Pa. Super. 2002) (citation
omitted).
- 14 -
J. A32035/14
On April 21, 2008, argument was heard on discovery motions
regarding attorney-client privilege. N.T., 4/21/08, at 2-45. On April 24,
2008, the court granted Appellants’ motion to compel testimony of Appellee
Trunzo. Order, 4/24/08. Appellees Thomas F. Farley, Borden & Farley,
P.C., and Kim Cavalier’s third motion for summary judgment was denied as
untimely. Order, 5/18/09. On June 14, 2012, Appellees Thomas F. Farley,
Borden & Farley, P.C., and Kim Cavalier filed a motion for summary
judgment contending there was no evidence of record to support Appellants’
claims for civil conspiracy or conversion. Appellees’ Farley, Borden & Farley
P.C. & Cavalier’s Mot. Summ. J., 6/14/12, at 1-2 (unpaginated). On June
15, 2012, Judge Hamill dismissed the motion as untimely. Order, 6/15/12.
Appellees were ordered to produce certain records pertaining to Trunzo’s
activities as Receiver to Appellants. Id. Appellee Trunzo filed the instant
motion in limine on October 1, 2012, contending Appellants cannot prove
their claim for breach of fiduciary duty and therefore cannot maintain any
action for civil conspiracy to commit that act. Appellee Trunzo’s Mot. in
Limine, 10/1/12, at 2. Appellees Farley, Borden & Farley, and Kim Cavalier
filed the instant fifth motion for summary judgment on October 12, 2012.
They averred that Appellants failed to state a cause of action for civil
conspiracy, conversion, or breach of fiduciary duty. Appellees’ Farley,
Borden & Farley P.C., & Cavalier’s Mot. Summ. J., 10/12/12, at 2. On April
- 15 -
J. A32035/14
26, 2013, the motions were granted.10 Order, 4/26/13. As discussed
supra, this Court quashed the appeal from the April 26th order as
interlocutory. Appellants filed for reconsideration and the trial court denied
the motion and dismissed all claims against all Appellees on January 13,
2014 in the order from which this appeal is taken.
Our standard and scope of review of an order granting a motion for
summary judgment is well-established:
Our scope of review of a trial court’s order granting or
denying summary judgment is plenary, and our standard
of review is clear: the trial court’s order will be reversed
only where it is established that the court committed an
error of law or abused its discretion.
Summary judgment is appropriate only when the record
clearly shows that there is no genuine issue of material
fact and that the moving party is entitled to judgment as a
matter of law. The reviewing court must view the record
in the light most favorable to the nonmoving party and
resolve all doubts as to the existence of a genuine issue of
material fact against the moving party. Only when the
facts are so clear that reasonable minds could not differ
can a trial court properly enter summary judgment.
Weissberger v. Myers, 90 A.3d 730, 733 (Pa. Super. 2014).
Pennsylvania Rule of Civil Procedure 1035.2 states:
After the relevant pleadings are closed, but within such
time as not to unreasonably delay trial, any party may
move for summary judgment in whole or in part as a
matter of law
10
Appellant refers to the April 26, 2013 order as “Miller One” and the
January 13, 2014 order as “Miller Two.”
- 16 -
J. A32035/14
(1) whenever there is no genuine issue of any
material fact as to a necessary element of the cause
of action or defense which could be established by
additional discovery or expert report, or
(2) if, after the completion of discovery relevant to
the motion, including the production of expert
reports, an adverse party who will bear the burden
of proof at trial has failed to produce evidence of
facts essential to the cause of action or defense
which in a jury trial would require the issues to be
submitted to a jury.
Pa.R.C.P. 1035(1)-(2).
Special note should be taken of the requirement
under Rule 1035.2(2) that the motion be made
after completion of discovery relevant to the
motion, including the production of expert reports.
While Rule 1035.2(2) is prefaced with the statement
that any party may file a motion after the relevant
pleadings have closed, the adverse party must be
given adequate time to develop the case and the
motion will be premature if filed before the adverse
party has completed discovery relevant to the
motion. The purpose of the rule is to eliminate cases
prior to trial where a party cannot make out a claim
or a defense after relevant discovery has been
completed; the intent is not to eliminate meritorious
claims prematurely before relevant discovery has
been completed.
The timing of the motion is important. Under Rule
1035.2(1), the motion is brought when there is “no
genuine issue of any material fact . . . which could
be established by additional discovery or expert
report.”
Pa.R.C.P. 1035.2, 1996 explanatory comment.
This Court has stated:
“The coordinate jurisdiction rule provides that judges
sitting in the same court and in the same case should not
- 17 -
J. A32035/14
overrule the decisions of each other. Only in exceptional
circumstances can this rule be disregarded. These
circumstances are defined as a substantial change in the
facts or evidence giving rise to the dispute involved or
where the prior holding was clearly erroneous and would
create a manifest injustice if followed.”
Cosell v. Cornish, 797 A.2d 981, 982-83 (Pa. Super. 2002) (citations
omitted).
In the case sub judice, the trial court found the coordinate jurisdiction
rule was not applicable in the instant case, citing Cosell. Trial Ct. Op.,
4/26/13, at 3. The trial court opined:
Summary Judgment was denied by Senior Judge John
Lavelle in 2005, eight (8) years ago, because he found
material issues of liability and damages in dispute and
discovery was still ongoing. Wayne County President
Judge Hamill denied Summary Judgment in June of 2012
because the motion was not timely filed and a trial was
scheduled for July of 2012. The trial was continued by
Senior Judge Brendan Vanston, the sixth Judge assigned to
this case. We are not facing the same time constraints as
Judge Hamill. No new date has been set for trial.
Id. at 3-4 (emphasis added).
The trial court granted summary judgment “[a]fter an extensive and
thorough review of the more than 350 docket entries, duplicative pleadings,
and thousands of deposition pages produced in this matter . . . .” Id. at
1 (emphasis added). At the time the court granted summary judgment
there was a substantial change in the evidence before the court. See
Pa.R.C.P. 1035.2(1)-(2); Cosell, 797 A.2d at 982-83. Thus, we agree with
the trial court that the law of the case is inapplicable. See id.- 18 -
J. A32035/14
Next, Appellants claim “the moving [Appellees] failed to carry the
initial burdens applicable to motions for summary judgment.” 11 Appellants’
Brief at 62. We reproduce Appellants’ argument in support of this claim:12
The Miller Orders, while purporting to review the entire
record, failed to address the content of [Appellees’]
motions.
The Miller Orders fail to acknowledge that the moving
[Appellees], in moving for summary judgment, failed to
carry the initial burden of proving that no genuine issue of
fact existed. The Fifth Motion for Summary Judgment,
properly characterized by [Appellants] as “conclusory,” but
granted by Judge Miller, was not even verified; and it
neither contains nor refers to a single affidavit. (R2044a)
It attaches an order from the involuntary Corporate
Dissolution Action, as if the moving [Appellees] had
forgotten that this same order was the basis of, inter alia,
a summary judgment motion denied on June 17, 2011 by
Judge Hamill, on the express basis that there is no identity
of issues between the involuntary Corporate Dissolution
Action and the instant case. Exhibit D, [Appellants’]
Appendix. (R2365a).
Miller Two’s discussion of initial burdens applicable to
the motion for summary judgment states that “[Appellees]
had met the initial burden of establishing that there were
no genuine issues of material fact.” Assuming that is the
initial burden, a review of the Fifth Motion reveals that it
doesn’t even attempt to do so. If it did, it would have
acknowledged prior holdings on summary judgment
and would have addressed the law of the case. The
Fifth Motion does not even attempt to do so. In any event,
establishing the non-existence of genuine issues of
11
This is denominated as issue 6[F].
12
We note that although Appellants cite three cases, there is no discussion
of the legal authority in the argument in contravention of P.R.A.P. 2119(a).
We could find the issue waived. See In re Estate of Whitely, 50 A.3d at
209.
- 19 -
J. A32035/14
material fact is not an initial burden, it is the burden,
and it falls squarely on the moving parties, here
[Appellees] Farley and Kim Cavalier.
Id. at 62-63 (emphases added).
Appellants purport to refer to the specific portions of the record in
support of their argument. However, the reference to the reproduced record
at page 2044a is unavailing, as that page is a proposed order filed with
Appellees’ motion for summary judgment. See Pa.R.C.P. 208.2(a)(3).13
Appellants also refer to the reproduced record at page 2365a, which is
an exhibit to their motion for reconsideration of the April 26, 2013 Order.
This exhibit, however, is of no moment. It is the June 17, 2011 order
denying Appellees’ April 22, 2010 motion for summary judgment. “Failing to
direct this Court to specific portions of the record in support of an argument
violates Pa.R.A.P. 2119(c) [and for] that reason alone, we could conclude
this issue is waived.” Commonwealth v. Fransen, 42 A.3d 1100, 1106
n.11 (Pa. Super. 2012) (en banc), appeal denied, 76 A.3d 538 (Pa. 2013).
Nevertheless, to the extent that we can discern Appellant's argument,
we have addressed it. We have discussed above that Appellants’ claim that
Appellees should have addressed the law of the case is without merit.
Furthermore, Appellants baldly assert that Appellees have failed to
meet their initial burden of establishing that there were no genuine issues of
13
Rule 208.2 provides that a motion shall “set forth material facts
constituting grounds for the relief sought, specify the relief sought and
include a proposed order[.]” Pa.R.C.P. 208.2(a)(3) (emphasis added).
- 20 -
J. A32035/14
material fact. The trial court opined that Appellants “have failed to develop
their argument regarding the initial burden of summary judgment motions.”
Trial Ct. Op., 1/13/14, at 4. We agree with the trial court no relief is due.
Next, Appellants aver they identified portions of the record that stated
a claim for civil conspiracy.14 Appellants baldly assert the following
documents establish the claim:
Any holding that [Appellants] had failed to allege
sufficient facts in support of a civil conspiracy was in error;
this error is shown by materials submitted and previously
submitted in response to [Appellees’] several motions for
summary judgment, materials not acknowledged by the
Opinion and Order of Judge Miller, including sworn
statements of a witness present for the conspiracy
(Vincent Marvelli) and the deposition of [Appellee] Trunzo,
who admitted conduct alleged in the Complaint, and
confirmed the conduct of others alleged in the complaint
all of which were submitted in 2005 and 2013. These facts
established not only other torts, but also illegal acts which
under Pennsylvania law may be a basis for civil conspiracy
and which are named in [Appellants’] Complaint.
As stated elsewhere, [Appellants] turned over a
significant number of documents in 2003 when they
responded to discovery requests, all of which documents
were included in the portion of the Appendix provided in
2005 in response to the then-pending motions for
summary judgment filed in 2004 and 2005. Those
documents are contained in “Volume Two: Records
Previously Produced by” [Appellants], dated, filed and
served June 13, 2005. Directly addressing the conduct
described in the Complaint as civil conspiracy, including
the meetings and written offers of employment in
exchange for false testimony are the following, all
apparently ignored by Judge Miller in both Miller One and
Miller Two:
14
This issue is denominated as 7[G].
- 21 -
J. A32035/14
─ Signed Statement of Vincent Marvelli, October 11, 1991
─ Statement Under Oath of Vincent Marvelli, October 18,
1991
─ Report of Interview of Vincent Marvelli, October 23, 1991
─ Report of Interview of John Bryant, October 24, 1991
─ Letter of John Bryant, October 24, 1991
─ Handwritten Letter of John Bryant
─ Typed Letter of John Bryant
Appellants’ Brief at 64-65 (citations to reproduced record omitted).
This Court has stated:
In order for a claim of civil conspiracy to proceed, a
plaintiff must “allege the existence of all elements
necessary to such a cause of action.” Rutherfoord v.
Presbyterian-University Hospital, [ ] 612 A.2d 500,
508 ([Pa. Super.] 1992) (citation omitted).
The Pennsylvania Supreme Court set forth the
elements of civil conspiracy in Thompson Coal Co.
v. Pike Coal Co., [ ] 412 A.2d 466, 472 ([Pa.]
1979): “It must be shown that two or more persons
combined or agreed with intent to do an unlawful act
or to do an otherwise lawful act by unlawful means.”
Proof of malice, i.e., an intent to injure, is an
essential part of a conspiracy cause of action; this
unlawful intent must also be without justification.
[Id.]. Furthermore, a conspiracy is not actionable
until “some overt act is done in pursuance of the
common purpose or design . . . and actual legal
damage results.”
Id. (quotation omitted). In addition, “[a] single entity
cannot conspire with itself and, similarly, agents of a single
entity cannot conspire among themselves.” Id.- 22 -
J. A32035/14
Grose v. Procter & Gamble Paper Prods., 866 A.2d 437, 440-41 (Pa.
Super. 2005).
The trial court opined:
The Complaint also recites bold and vague assertions of
misconduct and perjury by all [Appellees] during the
course of the dissolution and partition law suits and alleges
that all [Appellees] were part of a huge conspiracy to
defraud [Appellants]. In spite of the volumes of discovery,
[Appellants] have not been able to produce any facts to
support their allegations.
On the contrary, in deposition testimony, [Appellant]
Irish testified the he had Counsel representing him in the
dissolution action, and he also retained Counsel prior to
the hearing on May 21, 1991. (Irish Dep., January [1]1,
2002, pg. 79, 5-15). He further testified, under oath, that
early on in the receivership he thought [Appellee] Trunzo
was not acting appropriately. (p. 92, 6-25). Irish also
testified that he was represented by Counsel throughout
the entirety of the Dissolution action and never filed any
claims against his attorneys and believed that his
attorneys represented him well. (Dep. p. 114, 12-22). In
spite of his beliefs about Trunzo, he never petitioned to
have Trunzo removed. (Dep. p. 116, 1-6). Irish further
testified that Judge Conway never made a finding that
anyone committed perjury at the numerous hearing[s]
held in these two matters. (Dep. p. 130, 2-13).
The Complaint is full of allegations that have no factual
support. In the thousands of documents produced and the
numerous depositions conducted, we can find no evidence
of a conspiracy. To believe that a conspiracy existed, we
would be forced to find that then President Judge Conway
was somehow involved and his entry of the Consent
Decrees somehow furthered this conspiracy. Judge
Conway is not and was never a party in this lawsuit. There
has never been an attempt to add him as a party. There
are countless allegations that he accepted false testimony
as well as allegations that solicitations to commit perjury
occurred. However, all of these complaints are of
- 23 -
J. A32035/14
actions that occurred prior to the Consent Orders
dissolving the corporation.
[Appellant] Irish’s deposition is ripe with allegations and
hearsay, and he gives no basis in fact for any of them. He
gives no information as to how [Appellee] Trunzo
was a party to a civil conspiracy. Trunzo completed
his administration as receiver, presented his report
to the [c]ourt, no one filed timely objections, and the
[c]ourt approved the report.
Trial Ct. Op., 4/26/13, at 6-8 (emphases added). We agree.
Appellants’ bald claim that they have identified portions of the record
which stated a claim for civil conspiracy is without merit. They have not
“shown that two or more persons combined or agreed with intent to do an
unlawful act or to do an otherwise lawful act by unlawful means.” See
Grose, 866 A.2d at 440-41. We find no relief is due.
Next, Appellants contend that they stated a claim for civil conspiracy
and breach of fiduciary duty against Appellee Trunzo.15 As argument, they
refer to “Orders” which did not consider certain materials identified in their
answer to the fifth motion for summary judgment. Appellants’ Brief at 65.
Appellants baldly claim they “have produced sufficient evidence to establish
their causes of action.” Id. at 66. Appellants’ only citation to legal authority
is in support of their assertion that they were not required to present an
expert witness to establish Trunzo’s breach of fiduciary duty. Id. at 68
(citing Rizzo v. Haines, 555 A.2d 58, 66 (Pa. 1989)). This undeveloped
15
This is issue 8[H].
- 24 -
J. A32035/14
argument does not support their contention that they have stated a claim for
civil conspiracy and breach of fiduciary duty against Appellee Trunzo.
Next, Appellant’s claim that in granting summary judgment, the court
improperly ignored the record potentially available at the time of trial.16
Appellants cite, without specificity or development, to various parts of the
record allegedly ignored by the trial court. Appellants claim that the court’s
January 13, 2014 order “conflicts with the content of the Affidavit of George
P. Irish in Opposition to Fifth Motion for Summary Judgment, . . . other
materials submitted in response to prior motions for summary judgment;
and other materials identified in [Appellants’] Answer to Motion for Summary
Judgment.” Appellants’ Brief at 70.
The trial court opined:
[Appellants] assert that this [c]ourt failed to consider
the record potentially possible at the time of trial.
[Appellants’] Brief in Support of the Motion for
Reconsideration asserts that the [c]ourt did not consider
the February 15, 2013 Affidavit of [Appellant] Irish or the
materials submitted in response to prior motions for
summary judgment. As stated in the April 26, 2013
Opinion and Order, this [c]ourt painstakingly reviewed
the entirety of the Record in this matter. . . . Following
this [c]ourt’s review of the entirety of the record and the
failure of [Appellants] to direct the [c]ourt to any evidence
of record to support [Appellants’] causes of action, this
[c]ourt properly granted Summary Judgment.
Trial Ct. Op., 1/13/14, at 3. We agree no relief is due.
16
This is issue 9[I].
- 25 -
J. A32035/14
Next, Appellants contend that the court erred in advocating on behalf
of Appellees, thereby acting outside of the role of a judge. 17 Appellant’s
Brief at 77. In support of this claim, they cite Pa. State Univ. v. Cnty. of
Centre, 615 A.2d 303 (Pa. 1992), which provides that the record must be
viewed in the light most favorable to the nonmoving party. See id. at 304.
Appellants aver that if the court looked at the record in this light, summary
judgment would have been denied. Appellants claim the court “resolved
doubts against the non-moving party, here” Appellants. Appellants’ Brief at
79. Given our finding that the trial court did not err in granting the motion
for summary judgment, this claim fails.
Lastly, Appellants contend the trial court erred in granting Appellees’
motion in limine “to preclude evidence or argument [at trial] of alleged
violations of the Pennsylvania Rules of Professional conduct.” 18 Appellants’
Brief at 82. Appellants object to the following ruling:
1. [Appellees] Motion in Limine to preclude evidence of
alleged violations of the Pennsylvania Rules of Professional
Conduct is GRANTED in that [Appellant] may not assert
that [Appellees] violated the Pennsylvania Rules of
Professional conduct. [Appellant] is PERMITTED to
present evidence and testimony regarding the underlying
17
This is issue 12[L].
18
This is issue 14[N]. We note: “Once an appeal is filed from a final order,
all prior interlocutory orders are subject to review. K.H. v. J.R., [ ] 826 A.2d
863 ([Pa.] 2003).” Bird Hill Farms, Inc. v. U.S. Cargo & Courier Serv.,
Inc., 845 A.2d 900, 903 (Pa. Super. 2004).
- 26 -
J. A32035/14
actions of [Appellees] which may constitute violations of
the Pennsylvania Rules of Professional Conduct.
Order, 9/27/12, at 1 (emphasis in original).
Based upon our finding that the court did not err in granting summary
judgment, this issue is moot.
Order affirmed. Motion to accept reply brief as timely filed granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2015
- 27 -