Cersosimo, R. v. Keystone Group of Companies

J-S25034-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RUSSELL CERSOSIMO, JR. AND : IN THE SUPERIOR COURT OF
RUSSELL CERSOSIMO, SR. : PENNSYLVANIA
:
:
v. :
:
:
KEYSTONE GROUP OF COMPANIES, :
LLC, KEYSTONE INTEGRATED CARE, :
LLC, AND THOMAS PERKO :
:
:
APPEAL OF: KEYSTONE GROUP OF :
COMPANIES AND THOMAS PERKO : No. 1093 WDA 2021
Appeal from the Order Entered August 10, 2021
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-20-008252
BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: NOVEMBER 01, 2022
Appellants, Keystone Group of Companies (“KGOC”) and Thomas Perko
(“Perko”), appeal from the order entered in the Allegheny County Court of
Common Pleas that granted the motion of Appellees, Russell Cersosimo, Jr.
(“Russ Jr.”) and Russell Cersosimo, Sr. (“Russ, Sr.”), seeking a special
injunction against KGOC and Perko, and imposing a constructive trust over
funds received from Appellant Keystone Integrated Care, LLC (“KIC”). We
affirm.
In its opinion, the trial court set forth the factual and procedural history
in this case as follows:
In late September and early October 2016, [Russ Jr.] and
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[Perko] founded [KIC and KGOC]. (Amended Complaint,
filed 1/6/21, at 3). KIC’s sole member when founded was
KGOC. KGOC’s sole member when founded was Frequency
Management, LLC, a limited liability company owned equally
by Russ Jr. and Perko. (Id.) Pursuant to the operating
agreement, KIC began as a manager-managed limited
liability company, with a two-member board of managers,
and Russ Jr. and Perko acting as managers. (Id.) Russ Jr.
and Perko founded KIC with the goal of KIC becoming a
medical marijuana organization holding a dispensary permit
and grower permit. In exchange for a $1.35 million capital
infusion, KGOC ceded 27% of its ownership interest in KIC
to the Series A investors. The two leaders of the Series A
investor group were … Dr. J. William Bookwalter, III
(“Bookwalter”), and Mr. Steven D’Achille (“D’Achille”). (Id.)
On or about January 23, 2017, KIC adopted a Second
Amended and Restated Operating Agreement. The Second
Amended and Restated Operating Agreement continued to
list Russ Jr. and Perko as the Managers of KIC and was
approved in writing by Bookwalter and D’Achille. (Id. at 6).
On or about March 24, 2017, KIC submitted its permit
applications to the Pennsylvania Department of Health (“Pa.
DOH”). (Id. at 7).
Approximately seven years earlier, Russ Jr. had been
charged with driving under the influence (DUI), Russ Jr.
entered into the accelerated rehabilitative disposition
program (“ARD”). Successful completion of ARD avoids a
criminal conviction. However, the ARD remained a matter
of public record and had not yet been expunged, even
though Russ Jr. qualified for expungement. (Id.) It was
discovered that certain key personnel associated with the
applicant, KIC, would have to undergo criminal background
checks. (Id. at 8). Permit applications were being
evaluated and ranked by the Pa. DOH on a point system.
Russ Jr.’s indirect ownership of KIC, through KGOC created
a remote risk that could negatively impact the scoring of
KIC’s permit applications. Russ Jr. decided to relinquish any
direct or indirect membership interest in KGOC until such
time as the Pa. DOH ruled on KIC’s permit applications. (Id.
at 9). Russ Jr. notified Bookwalter and D’Achille that he was
temporarily stepping aside and would return at a later date
once the issue was resolved. Id. Appellants contest that
Bookwalter and D’Achille were notified that Russ Jr.’s
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relinquishment was temporary. (Answer and New Matter to
Amended Complaint, filed 6/25/21, at 5). Appellees alleged
that Perko and Russ Jr. agreed that, should the Pa. DOH
grant KIC’s permit application, Perko would return Russ Jr’s
half ownership interest in KGOC back to Russ Jr. (Amended
Complaint at 10). Appellants deny that Perko agreed to
relinquish half of his ownership back to Russ Jr. (Answer
and New Matter at 5).
On June 16, 2017, Russ Jr.’s DUI was expunged, and a
criminal records check showed no criminal record for Russ
Jr. (Amended Complaint at 11). On or about June 29, 2017,
the Pa. DOH granted KIC’s dispensary permit application
and awarded KIC a permit to own and operate three medical
cannabis dispensaries in Western Pennsylvania, specifically
in Greensburg, the Lawrenceville neighborhood of
Pittsburgh, and Cranberry Township. (Id.)
Appellees allege that on August 18, 2018, Russ Jr., Perko,
and KGOC had executed an Agreement to Assign
Membership Interests (“Assignment Agreement”), to
formally reestablish Russ Jr.’s equity in KGOC. (Id. at 18).
Appellants deny that the Assignment Agreement was a
binding contract. (Answer and New Matter at 8). The
Assignment Agreement also made the assignment of a 50%
interest in KGOC to Russ Jr. contingent upon confirmation
from the Commonwealth of Pennsylvania that such an
ownership change within one of KIC’s members will not
jeopardize or otherwise impair KIC’s permit. (Amended
Complaint at 18). The Assignment Agreement further states
if the Pa. DOH does not approve Russ Jr. as an affiliated
person, then Perko would assign Russ Jr.’s 50% interest in
KGOC to [Russ Sr.]. (Id.) Despite repeated demands, KIC
has refused to submit to the Pa. DOH the form necessary to
identify Russ Jr. as an individual affiliated with KIC. (Id. at
19). Appellees allege that Bookwalter and D’Achille directed
the preparation of a purported Third Amended and Restated
Operating Agreement of KIC, with a purported effective date
of April 30, 2019. Appellees allege that the purported Third
Amended and Restated Operating Agreement was never
approved by Perko, KGOC, or at a lawfully constituted
meeting of the board of managers of KIC. (Id.) Appellees
deny that the purported Third Amended and Restated
Operating Agreement recites that on August 26, 2018, the
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Members of KIC had voted on certain amendments to the
Second Amended and Restated Operating Agreement and
voted to amend and restate the Second Amended and
Restated Operating Agreement in its entirety. (Id.) Section
7.01 of the purported Third Amended and Restated
Operating Agreement purports to prohibit an entity owning
a membership interest in KIC from changing its ownership
or governance structure. Appellees allege that this was an
attempt to prevent Perko and KGOC from restoring any
KGOC membership interests to Russ Jr. or Russ Sr. (Id. at
20).
By a letter dated September 20, 2019, Bookwalter, on
behalf of KIC, notified Perko that KIC was dissociating KGOC
(“the Dissociation Letter”). The Dissociation Letter states
that the dissociation was occurring pursuant to § 8861 of
the Pennsylvania Limited Liability Company Act and the
purported Third Amended and Restated Operating
Agreement of KIC. (Id. at 21). The Dissociation Letter
asserts that the Act permits removal of the member where
the company’s operating agreement would so require, and
that KGOC engaged in wrongful acts constituting two
separate events triggering dissociation under the Third
Amended and Restated Operating Agreement. The first
alleged act is that Perko used KIC funds to submit to the Pa.
DOH an application for a medical marijuana grower permit
without disclosing to the Pa. DOH that KIC and its investors
were affiliated with the entity that filed the application.
(Id.) Appellees deny this act. The second alleged act is that
KGOC’s agreement with Russ Jr. to transfer a 50% interest
in KGOC to him was never disclosed to the members of KIC
or the Pa. DOH. (Id. at 22). Appellees claim that the
agreement was disclosed to the members of KIC. Despite
repeated demand by KGOC from the date of the Dissociation
Letter to the present, KIC has not paid KGOC fair value for
its membership interest and has frozen out KGOC of all
matters related to KIC. (Id. at 23).
(Trial Court Opinion, filed 3/24/22, at 2-6). Procedurally:
On August 31, 2020, [Russ Jr. and Russ Sr.] filed their
complaint against [KGOC, KIC, and Perko]. The complaint
contains Five (5) counts. Count I: Breach of Contract
against KGOC and Perko. (Amended Complaint at 23).
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Count II: Interference with Contractual Relations against
KIC. (Id. at 25). Count III: Pennsylvania Uniform Voidable
Transactions Act (PUVTA) against all Appellants. (Id. at
26). Count IV: Declaratory Judgment against all Appellants.
(Id. at 29). Count V: Unjust Enrichment Russ Jr. against all
Appellants. (Id. at 30). On August 6, 2021, Appellees filed
a Motion for Special Relief. The Motion was for a special
injunction against Appellants KGOC and Perko to impose a
constructive trust over funds received from … KIC.[1] On
August 10, 2021, after argument and an evidentia[ry]
hearing, th[e c]ourt granted Appellees’ motion for a special
injunction. On August 19, 2021, Appellants filed a Motion
for Reconsideration which was denied on September 9,
2021. On the same date Appellants appealed to the
Superior Court of Pennsylvania concerning the Order
entered on August 10, 2021. On December 9, 2021, [the
c]ourt ordered Appellants to file a concise statement of
errors complained of on appeal within twenty-one (21) days
of the order pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). Appellants timely filed their 1925(b)
statement on December 23, 2021.
(Id. at 1-2) (some record citations omitted).
Appellants raise the following issues on appeal:
Whether the Trial Court erred in granting [Appellees’]
Motion for Special Injunction Against [Appellants KGOC and
Perko] to Impose Constructive Trust Funds Received from
[KIC] requiring that any funds or proceeds received be
deposited into a court-supervised escrow account, when the
record developed failed to satisfy all, if any, of the standards
required for the imposition of an injunction.
1. Did the Trial Court err in its determination that
Appellees would be subject to immediate and
irreparable harm if the requested preliminary
injunction were not granted when there was
insufficient concrete evidence on the record
____________________________________________
1In a separate case, Perko and KGOC entered into a settlement agreement
with KIC which provided for more than $3 million to be paid from KIC to
Perko/KGOC. (Motion for Special Injunction, filed 8/6/21, at 3).
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supporting establishing the speculative claim that
Appellants might hypothetically dissipate assets in the
absence of an injunction imposing a constructive
trust?
2. Did the Trial Court err in its determination that
Appellees could not be adequately compensated by an
award of damages in the absence of an injunction?
3. Did the Trial Court err by granting the injunction,
causing substantial harm and greater injury to
Perko/KGOC by preventing them from using those
funds for ongoing and productive business and
personal matters than it would have caused to
Appellees by denying the injunction?
4. Did the Trial Court err in its determination that
Appellees’ right to relief is clear and Appellees are
likely to prevail on the merits of the underlying matter
when there are multiple legal insufficiencies in
Appellees’ case as set forth in their Amended
Complaint?
5. Did the Trial Court err in ordering an injunction that
applies to the entire amount of the settlement funds
received by Perko/KGOC from KIC rather than half,
corresponding to the 50% ownership in KGOC claimed
by Appellees?
(Appellants’ Brief at 5-6).
Appellants challenge the trial court’s grant of a preliminary injunction,
which we review for an abuse of discretion. Morgan Trailer Mft. Co. v.
Hydraroll, Ltd., 759 A.2d 926, 932 (Pa.Super. 2000).
[I]n reviewing preliminary injunction orders, “an appellate
court is to conduct a searching inquiry of the record.
Accordingly, … the scope of review in preliminary injunction
matters is plenary.” Warehime v. Warehime, 580 Pa.
201, 209 n.7, 860 A.2d 41, 46 n.7 (2004). With regard to
the standard of review, appellate review of a trial court’s
order granting or denying preliminary injunctive relief is
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“highly deferential.” Summit Towne Centre, Inc. v. Shoe
Show of Rocky Mount, Inc., 573 Pa. 637, 646, 828 A.2d
995, 1000 (2003).
Hendricks v. Hendricks, 175 A.3d 323, 329-30 (Pa.Super. 2017) (footnote
omitted).2
Under this “highly deferential” standard of review, this Court must
“examine the record to determine if there were any apparently reasonable
grounds” for granting the preliminary injunction. Duquesne Light Co. v.
Longue Vue Club, 63 A.3d 270, 275 (Pa.Super. 2013). “Only if it is plain
that no grounds exist to support the decree or that the rule of law relied upon
was palpably erroneous or misapplied will we interfere with the decision of the
[trial court].” Summit Towne Centre, Inc., supra at 645-46, 828 A.2d at
1000 (citation omitted; brackets in original).
A court has apparently reasonable grounds to support the issuance of a
preliminary injunction where it finds that the party seeking the injunction
established the following six essential elements:
1) that the injunction is necessary to prevent immediate and
irreparable harm that cannot be adequately compensated
by damages; 2) that greater injury would result from
refusing an injunction than from granting it, and,
concomitantly, that issuance of an injunction will not
substantially harm other interested parties in the
proceedings; 3) that a preliminary injunction will properly
restore the parties to their status as it existed immediately
prior to the alleged wrongful conduct; 4) that the activity it
____________________________________________
2 “Because of the many similarities between preliminary and special
injunctions, the two types tend to merge into one and the words are used
interchangeably.” Id. at 329 n.9 (citation omitted).
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seeks to restrain is actionable, that its right to relief is clear,
and that the wrong is manifest, or, in other words, must
show that it is likely to prevail on the merits; 5) that the
injunction it seeks is reasonably suited to abate the
offending activity; and, 6) that a preliminary injunction will
not adversely affect the public interest.
Hendricks, supra at 330 (quoting Warehime, supra at 209-10, 860 A.2d
at 46–47).
Appellants’ first two issues concern the first element; therefore, we
discuss them together. First, Appellants claim that the court erred in finding
that Appellees would be subject to immediate and irreparable harm if the
injunction were not granted. Appellants claim that Appellees’ assertion, that
they would be subject to irreparable harm because the funds were at risk of
dissipation, does not amount to concrete evidence of actual damage.
(Appellants’ Brief at 18-21). Second, Appellants argue that Appellees failed
to show that they could not be adequately compensated by an award of
damages if they did suffer irreparable harm. Appellants insists this case is
about money damages and their remedy will be a monetary judgment if they
are successful. (Id. at 25-26). We disagree.
This Court has affirmed the grant of a preliminary injunction to prevent
the dissipation of assets in anticipation of litigation, concluding that an
injunction is necessary to prevent immediate and irreparable harm. See
Ambrogi v. Reber, 932 A.2d 969, 975 (Pa.Super. 2007), appeal denied, 597
Pa. 725, 952 A.2d 673 (2008) (holding that Pennsylvania law does not
preclude trial court from granting preliminary injunction to prevent dissipation
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of assets); Citizens Bank of Pennsylvania v. Myers, 872 A.2d 827, 836
(Pa.Super. 2005) (listing cases).
Instantly, the trial court found:
… Appellees have produced sufficient evidence to show that
they would suffer immediate and irreparable harm if the
preliminary injunction was not granted. The facts, in this
case, have allowed [the trial court] to infer that absent an
injunction creating a constructive fund, Appellants would
likely dissipate their assets rendering them “judgment
proof”. Dissipation of assets by the Appellants would cause
Appellees to suffer immediate and irreparable harm as
Appellees would have no avenue to collect damages if they
a judgment was made in their favor.
(Trial Court Opinion at 7). The court further explained:
Although Appellants are correct in claiming that this matter
is about money, Appellants are mistaken in claiming
Appellees would be able to be compensated by an award of
damages in the absence of an injunction. In the case of
Citizens Bank of Pennsylvania v. Myers, the court held
a preliminary injunction preventing the dissipation of assets
was proper where the defendants did not provide evidence
of another way to pay the Plaintiff’s award of damages.
Citizens Bank of Pennsylvania, [supra] at 836. In the
present case, Appellants have admitted KGOC does not have
any assets in addition to the proceeds of the settlement
agreement. Appellants have not offered evidence of an
alternate means of paying Appellees if Appellees are
successful in this matter. Absent the proceeds of the
settlement agreement, Appellants do not have the means to
pay damages to the Appellees if damages are awarded.
Therefore, although this case is about money, there is no
money besides the proceeds of the settlement agreement.
Thus, Appellees cannot be adequately compensated by an
award of damages absent this injunction.
(Id. at 8-9) (record citation omitted).
On this record, we see no abuse of discretion concerning the court’s
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determination that Appellees would suffer immediate and irreparable harm if
Appellants dissipated their assets, resulting in no avenue for Appellees to
recover any damages awarded in the instant underlying lawsuit. Appellants
admitted that they had no other funds with which to pay a judgment;
therefore, without the injunction Appellees would be incapable of being fully
compensated by money damages. Therefore, the record supports the court’s
order granting the special injunction and imposing a constructive trust to
prevent Appellants from using the money received from the settlement. See
Morgan Trailer Mft. Co., supra. Appellants’ first and second issues merit
no relief.
In their third issue, Appellants assert that the court failed to recognize
that the injunction will cause greater injury to Appellants by preventing them
from using the funds, than it would cause to Appellees by denying the
injunction. Specifically, Appellants claim the injunction causes significant
disruption to their business interest, completely stopping their ability to
engage in any business activities or investments. (Appellants’ Brief at 27-28).
We disagree.
The second element for a preliminary injunction requires the court to
weigh the harm an injunction would cause each party. In issuing a preliminary
injunction, the court must consider whether “greater injury would result from
refusing an injunction than from granting it.” Warehime, supra at 210, 860
A.2d at 46.
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Instantly, the trial court explained its reasoning as follows:
[T]he order allows future payments to be made from the
constructive trust by either written consent of the parties or
by order of this court. Being specially crafted in this way,
the order places the least possible burden on Appellants. In
contrast, Appellees would suffer substantial harm if the
injunction was denied. As stated previously, absent the
injunction, this [c]ourt believes Appellants will dissipate
funds in an attempt to become “judgment proof,” leaving
Appellees with no means of recovery. This injunction is
carefully crafted to take into account the interest of both
parties. Similar to the case of Ambrogi v. Reber, this
specific injunction is the only way to protect Appellees’ right
to collect a judgment while allowing Appellants to fulfill their
monetary obligations. See Ambrogi[, supra at] 977-78.
Appellees will suffer greater harm by having no means of
recovery than Appellants will suffer by not being able to use
the frozen funds beyond the obligations provided for in the
injunction. Thus, the [t]rial [c]ourt did not err in granting
the injunction as the injunction will not cause Appellants
greater injury than it would cause Appellees by denying the
injunction.
(Trial Court Opinion at 10) (record citation omitted).
Here, the record is clear that the trial court considered the harm that
would be suffered by both parties and crafted the injunction to mitigate this
harm to the extent possible. On this record, we see no abuse of discretion in
the court’s order. See Morgan Trailer Mft. Co., supra. Appellants’ third
issue is meritless.
In their fourth issue, Appellants argue that Appellees failed to establish
that they are likely to prevail on the merits of their underlying claims.
(Appellants’ Brief at 30). Specifically, they contend that Appellees’ right to
relief is not clear because there are multiple legal insufficiencies in Appellees’
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case. Appellants insist the alleged agreement between the parties was invalid
because it lacked consideration, and there was an unsatisfied condition
precedent barring Appellees from succeeding on the merits of their claim. (Id.
at 33-37). Appellants assert that Appellees cannot establish a clear right to
relief, and the trial court erred in issuing the preliminary injunction. We
disagree.
Our Supreme Court has stated, “[t]o establish a clear right to relief, the
party seeking an injunction need not prove the merits of the underlying claim,
but need only demonstrate that substantial legal questions must be
resolved to determine the rights of the parties.” SEIU Healthcare
Pennsylvania v. Com., 628 Pa. 573, 591, 104 A.3d 495, 506 (2014)
(emphasis added). This Court has also observed that “[f]or a right to be
‘clear,’ it must be more than merely ‘viable’ or ‘plausible.’ However, this
requirement is not the equivalent of stating that no factual disputes exist
between the parties.” Ambrogi, supra at 980 (citations omitted). Thus,
[w]e do not attempt to determine whether the party seeking
the preliminary injunction is guaranteed to prevail because
our review of a decision regarding a preliminary injunction
does not reach the merits of the controversy. The proper
question is whether the party seeking the preliminary
injunction produced sufficient evidence to show that
substantial legal questions must be resolved to
determine the rights of the respective parties.
Id. (citations and internal quotation marks omitted; emphasis added).
Here, the trial court reasoned:
Appellants argue Appellees are not likely to prevail on the
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merits due to three legal insufficiencies in Appellees’ case.
First, Appellants claim the contract between Perko/KGOC
and Russ Jr., the Assignment Agreement, is unenforceable
due to lack of consideration, while Appellees claim the
Assignment Agreement is a binding contract. Second,
Appellants claim the contract is unenforceable due to the
condition precedent, that an affiliated individual report must
be filed with the Department of Health, was not satisfied.
Appellees claim KIC was at fault for refusing to submit the
report. (Amended Complaint at 19). Third, that Appellees
did not show that Perko/KGOC has been unjustly enriched.
… The issues raised by Appellants are substantial legal
questions concerning the validity of the Assignment
Agreement. Appellees contest these issues, if they did not,
this matter would not be before the court. Therefore, the
Appellees have met their burden with this element of the
injunction and thus, there was no error in granting the
injunction.
(Trial Court Opinion at 10-11) (some record citations omitted).
We agree with the trial court that there are substantial legal questions
to be resolved concerning the validity of the Assignment Agreement. See
SEIU Healthcare, supra; Ambrogi, supra. Despite Appellants’ assertion to
the contrary, Appellees were not required to prove the merits of their claims;
rather they were only required to produce “sufficient evidence to show that
substantial legal questions must be resolved to determine the rights of the
respective parties.” Id. at 980 (citation omitted). The trial court found that
Appellees met this burden, and we see no abuse of discretion here. See
Morgan Trailer Mft. Co., supra. Appellants’ fourth claim of error is
meritless.
In their last issue, Appellants claim the court erred in granting the
preliminary injunction because it does not restore the parties to their status
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immediately prior to the alleged wrongful conduct. Appellants assert that the
injunction is broader than needed, and only half of the settlement proceeds
should be placed into the escrow account because Russ Jr. alleges that he is
entitled to half of KGOC. (Appellants’ Brief at 41-43). We disagree.
The final prerequisite for the grant of a preliminary injunction is proof
that the injunction would restore the status quo among the parties. “The
status quo to be maintained by a preliminary injunction is the last actual,
peaceable and lawful non-contested status which preceded the pending
controversy.” Allegheny Anesthesiology Assocs., Inc. v. Allegheny Gen.
Hosp., 826 A.2d 886, 894 (Pa.Super. 2003), appeal denied, 577 Pa. 684, 844
A.2d 550 (2004) (citation omitted). Thus, “[t]he relevant standard requires
that an injunction must address the status quo as it existed between the
parties before the event that gave rise to the lawsuit, not to the situation as
it existed after the alleged wrongful act but before entry of the injunction.”
Ambrogi, supra at 979 (citation omitted).
Here, the trial court reasoned:
Appellants assert if Appellees are successful in this matter
that Russ Jr. is entitled to only 50% of the proceeds from
the Settlement Agreement because Russ Jr. was 50% owner
of KGOC before returning his interest to Perko and the
Assignment Agreement stated Perko would give the 50%
interest back to Russ Jr. The purpose of this injunction is to
secure a means by which Appellees can collect a judgment
if they prevail on the merits of the case. Appellees claim
that if successful in this matter the damages will exceed
50% of the funds received by Perko/KGOC from KIC.
Therefore, an injunction creating a constructive trust with
only 50% of the proceeds received by Perko/KGOC from KIC
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would not allow for Appellees to fully recover if damages are
rewarded.
(Trial Court Opinion at 11) (record citation omitted).
We conclude that the trial court did not abuse its discretion in requiring
that Appellants preserve the settlement assets in full in order to satisfy any
judgment that might be entered in this case and to preserve the status quo.
Appellees’ amended complaint sought various damages against Appellants
including, inter alia, damages for breach of contract, claims under the
Pennsylvania Uniform Voidable Transactions Act, and unjust enrichment.
(Amended Complaint at 23-31). In the underlying lawsuit, Appellees claim
they have been wrongfully deprived of their entire interest in KGOC and KIC.
Thus, Appellees’ potential recovery is not limited to half of the proceeds of the
Settlement Agreement; rather, preservation of those assets merely provides
Appellees with an avenue of recovery should they prevail on the merits.
Accordingly, the trial court had apparently reasonable grounds to issue the
preliminary injunction. Duquesne Light Co., supra; Summit Towne
Centre, Inc., supra. Therefore, we affirm the trial court’s order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/01/2022
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