Knepper, R. v. Schranze, B.

J-S19018-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RONALD KNEPPER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BENJAMIN SCHRANZE, JOSE A. : No. 2890 EDA 2019
PARJUS, JP POWER COMPANY, :
RONALD A. STURGEON, PE, AND :
CHESMONT ENGINEERING CO., INC. :
Appeal from the Order Entered August 29, 2019
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 2016-09108
BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY McCAFFERY, J.: Filed: May 14, 2020
Ronald Knepper (Appellant) appeals from the order entered in the
Montgomery County Court of Common Pleas granting summary judgment in
favor of Jose A. Parjus and JP Power Company (collectively Appellees).
Appellant contends the trial court erred when it granted Appellees’ motion for
summary judgment, and abused its discretion when it failed to permit
additional discovery. For the reasons below, we quash this appeal.
The facts underlying this appeal are summarized by the trial court as
follows:
[Appellant] brought this action for damages against multiple
Defendants including [Appellees,] claiming they unlawfully sought
to exploit [Appellant’s] invention of a water purification system.
* * *
J-S19018-20
[Appellant] alleged that he and Defendant Benjamin Schranze are
owners of Bencor Teachnology, LLC (“Bencor”), which they formed
pursuant to an LLC Operating Agreement dated November 27,
2011 (“the LLC Agreement”). The LLC Agreement provides that
the “primary purpose” of Bencor was “[d]evelopment of
proprietary technology and equipment for water treatment, waste
water remediation, and other innovative technologies.”
[Appellant] and [ ] Schranze subsequently were awarded a patent
for a residential wastewater purification system (“the System”)
and are listed as inventors and owners of the patent.
[Appellant] claimed that [ ] Schranze breached the LLC
Agreement by developing a prototype of a water purification
system in concert with [Ronald A. Sturgeon, PE and Appellees].
He further asserted that [Schranze, Sturgeon, and Appellees]
excluded him from this business.
Trial Ct. Op., 12/20/19, at 1-2 (record citations omitted).
On May 5, 2016, Appellant filed a complaint asserting claims of breach
of contract, civil conspiracy, and tortious interference with a contract against
the following defendants: Appellees, Schranze, Sturgeon, and Chesmont
Engineering Co., Inc. (Chesmont).1 Appellant filed an amended complaint on
July 29, 2016, and, on September 12th, obtained a default judgment against
Schranze, who failed to respond.
On July 31, 2017, the trial court entered an order directing, inter alia,
that all discovery be completed by December 15, 2017. Order, 7/31/17. The
discovery deadline was extended three times, with the final order, entered on
____________________________________________
1 Appellant averred that the other defendants built the prototype at
Chesmont’s facility in Exton, Pennsylvania, and that if the project succeeds,
Chesmont will “be asked to provide [additional] engineering services[.]”
Appellant’s Amended Complaint, 7/29/16, at ¶¶ 20(a), 21.
-2-
J-S19018-20
April 30, 2018, extending the deadline until July 13, 2018.2 Order, 4/30/18.
On July 23, 2018, Appellant filed a motion for an additional 60-day extension,
citing difficulties in scheduling the parties’ depositions. See Appellant’s Motion
for Further Extension of Deadlines in Court’s April 30, 2018 Discovery
Management Conference Order, 7/23/18, at 3-6. On July 26, 2018, both
Appellees and Sturgeon filed responses opposing any further extension of the
discovery deadlines. On July 31st, Chesmont advised the court it took “no
position with regard to [Appellant’s] motion.” Chesmont’s Response to
Appellant’s Motion for Further Extension of Deadlines in Court’s April 30, 2018
Discovery Management Conference Order, 7/31/18. The trial court did not
rule on Appellant’s motion for an additional extension.
On October 19, 2018, both Sturgeon and Appellees filed motions for
summary judgment. Relevant herein, Sturgeon averred, inter alia, that
Chesmont “settled out of the case on a joint tortfeasor basis,” and attached
Appellant’s response to interrogatories in which Appellant stated he executed
a written release with Chesmont, which paid him $4,000. Sturgeon’s Motion
for Summary Judgment, 10/19/18, at 4 n.1; Exhibit 4, Appellant’s Response
and Objections to Sturgeon’s First Set of Interrogatories, at ¶¶ 45-47.
____________________________________________
2 The April extension was requested by Appellant due to counsel’s ongoing
health issues. Trial Ct. Op. at 2 n.2. The trial court stated in its opinion that
it granted the extension until July 13th based upon counsel’s representation
that the three month postponement would be “sufficient.” Id.
-3-
J-S19018-20
However, no praecipe to discontinue the action against Chesmont was filed of
record. On January 18, 2019, the court held a hearing on the summary
judgment motions. Thereafter, on January 29th, the trial court entered an
order3 granting summary judgment in favor of Sturgeon and Appellees “on all
claims asserted against them[,]” and directed court administration to schedule
a hearing for an “assessment of damages on the default judgment against . .
. Schranze.” Order, 1/29/19, at 1 (footnote omitted). The order did not refer
to the claims against Chesmont.
On August 27, 2019, Appellant filed a praecipe to mark the case against
Schranze “settled, discontinued and ended,” which was docketed on August
29th. Appellant’s Praecipe, 8/29/19. Thereafter, on September 24, 2019,
Appellant filed a notice of appeal from the court’s January 29th order granting
summary judgment, made final by the August 29th discontinuance of the
claims against Schranze4. See Pa.R.A.P. 341(b)(1) (a final order is one that
“disposes of all claims and of all parties”). On October 30, 2019, the trial
court directed Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). No Rule 1925(b) statement is docketed
or included in the certified record.
____________________________________________
3 The order was dated January 25, 2019.
4The January 29th order granted summary judgment to Sturgeon, as well as
Appellees. However, on January 8, 2020, Sturgeon’s counsel sent a notice of
no interest to this Court, stating Surgeon had settled his claims with Appellant,
entered a joint tortfeasor release, and thus would not be filing a brief in this
appeal. See Sturgeon’s Letter to Superior Court Prothonotary, 1/8/20.
-4-
J-S19018-20
Appellant raises the following two issues on appeal:
1. Whether the trial court committed an error of law when
granting summary judgment based on the alleged failure by
[Appellant] to produce evidence of actual damages?
2. Whether the trial court abused its discretion when it failed to
permit further discovery?
Appellant’s Brief at 6.
Before we address Appellant’s substantive claims, we must determine
whether we have jurisdiction to consider this appeal. “In this Commonwealth,
an appeal may only be taken from: 1) a final order or one certified by the trial
court as final [Pa.R.A.P. 341]; 2) an interlocutory order as of right [Pa. R.A.P.
311]; 3) an interlocutory order by permission [Pa.R.A.P. 1311]; or 4) a
collateral order [Pa.R.A.P. 313].” Estate of Considine v. Wachovia Bank,
966 A.2d 1148, 1151 (Pa. Super. 2009) (citation omitted). An order granting
summary judgment to fewer than all defendants does not fall into any of the
classes of appealable orders.5 Id. at 1152-53. Particularly with regard to
Rule 341, an order is not final unless it disposes of “all claims and of all
parties.” Pa.R.A.P. 341(b)(1). Nevertheless, an order granting summary
judgment to some, but not all defendants, is appealable after the claims
against the remaining parties are resolved. Gutteridge v. A.P. Green
Services, Inc., 804 A.2d 643, 650 (Pa. Super. 2002) (order granting
____________________________________________
5 We note the trial court did not make an express determination of
appealability pursuant to Pa.R.A.P. 341(c), nor did Appellant seek permission
from the trial court to appeal pursuant to Pa.R.A.P. 1311(b).
-5-
J-S19018-20
summary judgment in favor of several, but not all, defendants appealable after
“all parties [were] settled, dismissed by order of summary judgment, or
bankrupt”).
In the present case, the January 29, 2019, summary judgment order
concluded the case against Appellees and Sturgeon. As noted supra, a default
judgment was entered against Schranze on September 12, 2016. Although
an assessment of damages was outstanding at the time summary judgment
was granted as to the other defendants, Appellant later settled his claims with
Schranze and entered a praecipe to discontinue as to this defendant on August
29, 2019. See Appellant’s Praecipe, 8/29/19. Appellant’s notice of appeal
averred this matter became “final as to all defendants on August 29, 2019
when the Praecipe to Settle Discontinue and End . . . was entered . . . as to
Defendant Benjamin Schranze.” Appellant’s Notice of Appeal, 9/24/19.
However, as the trial court noted in its opinion, “it appears that
Chesmont remains a Defendant in this action.” Trial Ct. Op. at 3 n.3. The
court explained,
[a]lthough [it] was informally notified during the course of the
proceedings that [Appellant] has settled the claims against
Chesmont, no discontinuance as to Chesmont has been entered
on the docket.
Id. Indeed, Appellant acknowledges this in his brief, stating he “will shortly
file a Praecipe to Settle Discontinue and End.” Appellant’s Brief at 6 n.6. Our
review of the docket, however, reveals no praecipe to discontinue the action
against Chesmont was ever filed. Thus, the claims against Chesmont remain
-6-
J-S19018-20
unresolved on the record, and defeat Appellant’s attempt to render the
January 29, 2019, summary judgment order final. Consequently, we have no
jurisdiction to review the summary judgment order, and are constrained to
quash this appeal. See Considine, 986 A.2d at 1152-53.
Moreover, we note that, in any event, it appears all of Appellant’s claims
are waived as a result of Appellant’s failure to file a timely Rule 1925(b)
statement. As noted supra, on October 30, 2019, the trial court ordered
Appellant “to file on record . . . and serve upon” the court, within 21 days, a
Rule 1925(b) statement, and advised that “[a]ny issue not properly included
in the Statement timely filed and served shall be deemed waived.” Order,
10/30/19. The docket indicates the order was sent to Appellant that same
day. Docket Entry, 10/30/19. Thus, Appellant’s Rule 1925(b) statement was
due on November 20, 2019. See Pa.R.A.P. 108(b) (the date of entry of civil
order is “day on which the clerk makes the notation in the docket that notice
of entry of the order has been given”).
In its opinion, the trial court states that although Appellant served the
court with a Rule 1925(b) statement on November 25, 2019, “[i]t does not
appear that the Concise Statement was filed of record with the Court.” Trial
Ct. Op. at 3 (footnote omitted and emphasis added). Our review of both the
docket and certified record confirms this. Nevertheless, the trial court
proceeded to address the claims purportedly raised in Appellant’s concise
statement. See id. at 7-10.
-7-
J-S19018-20
We note that even if Appellant filed a Rule 1925(b) statement on
November 25th, the date the trial court received a copy, the statement would
have been untimely. An en banc panel of this Court emphasized in Greater
Erie Indus. Development Corp. v. Presque Isle Downs, Inc., 88 A.3d
222 (Pa. Super. 2014) (en banc), that Rule 1925 is a “bright-line rule, such
that ‘failure to comply with the minimal requirements . . . will result in
automatic waiver of the issues raised.” Id. at 224 (citation omitted). These
minimal requirements include filing the statement in the trial court and
serving the statement on the trial judge within the time-frame provided
for in the court’s order. Indeed,
[u]nder current precedent, even if a trial court ignores the
untimeliness of a Rule 1925(b) statement and addresses the
merits, those claims still must be considered waived: “Whenever
a trial court orders an appellant to file a concise statement of
[errors] complained of on appeal pursuant to Rule 1925(b), the
appellant must comply in a timely manner.”
Id. at 225 (citation omitted).
Here, the record reveals the trial court provided Appellant proper notice
of its Rule 1925(b) order. Appellant does not dispute the trial court’s
statement that he failed to file a timely Rule 1925(b) statement. Accordingly,
even if the order on appeal were final, we would be constrained to conclude
he waived all his claims. See Greater Erie, 88 A.3d at 225-27.
Appeal quashed.
-8-
J-S19018-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/14/20
-9-