Murphy, R. v. Frank, M.

J-S13018-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
ROBERT J. MURPHY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MICHELE FRANK A/K/A MICHELE : No. 2009 EDA 2022
MARINARI, WESTPORT INS., FRANK :
WILLIAMS, O’DONNELL HAGNER AND :
WILLIAMS, P.C. AND ROBERT :
MORRIS AND MORRIS & CLEMM, P.C. :
Appeal from the Order Entered July 6, 2022
In the Court of Common Pleas of Delaware County
Civil Division at CV-2013-010207
BEFORE: NICHOLS, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED JUNE 9, 2023
Robert J. Murphy (Appellant) appeals pro se from the order sustaining
preliminary objections filed by Michele Frank a/k/a Michele Marinari (Marinari),
and dismissing with prejudice Appellant’s complaint against Marinari, Westport
Insurance Company (Westport), Frank Williams (Williams), O’Donnell Hagner
and Williams, P.C. (the OHW firm), Robert Morris (Morris) and Morris &
Clemm, P.C. (the Morris firm) (Morris, Williams, Westport, the OHW firm and
the Morris firm collectively referenced as “Legal Defendants”; all appellees
collectively referenced as “Defendants”). We affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S13018-23
This case originated with a suit Appellant filed against Marinari (the
Murphy Action). Appellant sued Marinari for damages incurred during the
restoration of Appellant’s car by Marinari and her then-husband. On
September 13, 2006, following a bench trial, Appellant obtained a $35,000
judgment against Marinari. In a separate lawsuit, Bruce Goodman obtained a
$95,350.91 judgment against Marinari (the Goodman Action).
Marinari subsequently filed a legal malpractice action against the Legal
Defendants, who had represented her in the Murphy Action and Goodman
Action.1 The Legal Defendants settled the Marinari Action by private
agreement.
The trial court explained that subsequently,
on October 15, 2013, Appellant filed his initial Complaint ….
alleg[ing] that all [Defendants] engaged in unlawful,
conspiratorial conduct with intent to hinder, delay or defraud
Appellant from collecting and satisfying his judgment against
[Marinari], constituting breach of contract, fraud, conspiracy,
constructive fraud[,] and violation of [] 12 [Pa.C.S.A.] § 5101. On
November 26, 2013, Appellant filed an Amended Complaint in this
matter. … Appellant had difficulty effectuating service on
[Marinari]. [On] April 25, 2[0]14, Appellant filed his first Petition
for Alternative Service[;] this Petition was denied on June 3, 2014.
Thereafter, Appellant filed a second Petition for Alternate Service
on July 28, 2014, which was granted on August 28, 2014. In
granting that Petition, the [c]ourt [o]rdered as follows:
[Appellant] shall serve [Appellant’s] reinstated
original and amended complaint on defendant, [Marinari]
… , via publication in a local newspaper and mail a copy
of the reinstated original and amended complaint
addressed to … [Marinari] at her last known address at 19
____________________________________________
1 Westport insured the Legal Defendants.
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Homestead Lane, Royersford, PA 19468 via certified mail
and further mail a copy of [Appellant’s] original and
reinstated complaint to [the Morris firm] at their office
address 527 Plymouth Road, Suite 416, Plymouth Meeting,
PA 19462[,] to be provided to their client, [Marinari].
Service shall also be made by posting by the sheriff at 19
Homestead Lane, Royersford, PA 19468.
On November 12, 2014[,] Appellant was granted a Default
Judgment against [Marinari]. On January 16, 2015[,] Appellant
filed a Petition to Stay litigation as there was an outstanding
Bankruptcy Petition filed, and on January 29, 2015 the Petition to
Stay was granted. Thereafter, on October 24, 2019[,] Appellant
filed a Petition to Reopen the litigation.[2]
Trial Court Opinion, 11/2/22, at 2-3 (footnote and emphasis added).
Marinari filed a motion to strike the default judgment against her on
February 7, 2022, based in part on lack of proof of publication and for failure
to require publication in both a legal journal and a newspaper of general
circulation. The trial court granted Marinari’s motion to strike based on the
lack of proof of publication. Trial Court Order, 3/30/22. The trial court
explained:
On April 5, 2022, … [the trial c]ourt issued an order that [Marinari]
shall file a “responsive pleading” within 20 days of the date of the
order.FN Thereafter, on April 25, 2022, [Marinari] filed Preliminary
Objections to Appellant’s Amended Complaint. On April 27, 2022,
Appellant filed his own Preliminary Objections to the Preliminary
Objections to the Amended Complaint.
____________________________________________
2 In October 2021, Williams’s counsel filed a suggestion of death confirming
Williams’s death. On April 7, 2022, Appellant sought to compel the
substitution of William R. Hagner (Hagner), Executor of Williams’s Estate. The
trial court denied Appellant’s request as moot because Hagner had authorized
the OHW firm’s counsel to stipulate to the substitution. Trial Court Order,
6/8/22, ¶ 2.
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FN [The trial c]ourt notes that there have been a significant number
of filings in this case by all the parties. Based upon the then
numerous outstanding Motions, [the c]ourt held a hearing on
March 23, 2022 and thereafter required the parties to submit [a]
proposed order within five (5) days. All parties provided the
[c]ourt with proposed orders, well outside the five (5) day
deadline. [The court] notes that the Preliminary Objections
were filed by [Marinari] on April 25, 2022, while [the court]
was awaiting all the proposed orders[,] and they were
Answered by Appellant on April 27, 2022. Unbeknownst to
the [c]ourt, these Preliminary Objections were outstanding at the
time the [c]ourt filed the May 5, 2022 Order “(1) Granting the
Petition to Strike the Default Judgment and (2) requiring
Defendants to file an Answer upon the docket.” [The c]ourt notes
that second paragraph was not necessary as [Defendants] had
already, unbeknownst to the [c]ourt, filed a responsive pleading
to the Amended Complaint by filing the Preliminary Objections
which again … were already answered by [Appellant] (in the form
of filing Preliminary Objections to the Preliminary Objection) by
the time the [c]ourt issued the May 5, 2002 Order.
Following a Hearing and [the trial court’s] review of the
filings and the case law, [the c]ourt issued an Order on July 6,
2022[,] sustaining [Marinari’s] Preliminary Objections and
Dismissing [Appellant’s] Amended Complaint with Prejudice.
Trial Court Opinion, 11/2/22, at 1-2 (emphasis added, footnote in original).
Appellant timely filed a notice of appeal. Appellant and the trial court have
complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Where it is indisputable [Appellant], in fact, served [Marinari]
with [Appellant’s] reinstated original and amended complaints
in accordance with the court’s order for substitute alternative
service of process[,] did [the] court clearly err and/or abuse its
discretion in striking [the] default judgment entered by [the]
prothonotary against [Marinari] pursuant to [Appellant’s]
praecipe to enter default judgment pursuant to [Marinari’s]
untimely and waived objections to [the] alleged return of
service defects involving alternative service of process[?]
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2. Where [A]ppellant’s amended complaint and reasonable
inferences in its entirety allege[s] facts that [Defendants]
unlawfully and fraudulently incurred obligations or transfers
involving [Marinari’s] settlements and payments involving
[Marinari’s] malpractice action involving [Defendants,]
contrary to the Uniform Fraudulent Transfer Act Section 5101
et [s]eq.[,] did [the] court clearly err and/or abuse its
discretion [by] overruling [Appellant’s] preliminary objections
to [Marinari’s] preliminary objections, sustaining [Marinari’s]
preliminary objections to [A]ppellant’s amended complaint and
dismissing [A]ppellant’s amended complaint with prejudice
without leave to amend where remaining defendants Frank
Williams, deceased, [the] OHW [firm], Westport …, Robert
Morris and Morris & Clemm, P.C.[,] did not file any proceedings
to dismiss [Appellant’s] amended complaint including
preliminary objections[,] and [t]he executor of Frank Williams,
deceased, has not been substituted while [A]ppellant’s claims
against all remaining defendants remain pending[?]
Appellant’s Brief at 11.
We first consider whether the trial court’s order is final and appealable.
“[T]he appealability of an order directly implicates the jurisdiction of the court
asked to review the order.” Knopick v. Boyle, 189 A.3d 432, 436 (Pa. Super.
2018) (internal citation omitted). Appellate courts generally have jurisdiction
only over appeals taken from a final order. In re Bridgeport Fire Litigation,
51 A.3d 224, 229 (Pa. Super. 2012). A final order is one that disposes of all
the parties and all the claims or is entered as a final order pursuant to the trial
court’s determination under Pa.R.C.P. 341(c).
Here, the trial court’s order included the following language:
20. In this case, [Appellant] in his Amended Complaint repeats
allegations that [Defendants] were “insiders” who had “secret oral
and written settlements, transfers, obligations, releases and
agreements” for “undisclosed” amounts. [Appellant] references
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“bank accounts including escrow bank accounts” but provides no
further information about said accounts. There is no specificity
[w]ith regard to any of the alleged conduct and [Defendants]
would have no way to respond to the allegations.
21. There are no essential facts or particularity in [Appellant’s]
Complaint.
22. A preliminary objection may be sustained to dismiss a
complaint with prejudice “if there does not appear to be any
reasonable possibility that amendment of it would be successful”.
DeBlasio v. Pignoli, 918 A.2d 822, 822 (Pa. Commw. Ct. 2007).
23. Given that this case was initiated in 2013, [Marinari’s]
Preliminary Objections relate to an Amended Complaint, and there
is no specificity whatsoever about [Appellant’s] allegations, this
[c]ourt does not find it appropriate to belabor this case. This
[c]ourt does not believe that there is a reasonable
possibility that further amendment of this Complaint would
be successful in curing the defects.
24. Based on the foregoing Findings of Fact and Conclusions of
Law this Court finds as follows:
a. [Marinari’s] Preliminary Objections are SUSTAINED.
b. [Appellant’s] Complaint is DISMISSED WITH
PREJUDICE.
Trial Court Order, 7/6/22, at ¶¶ 20-24 (emphasis added).
By deeming the complaint legally insufficient and dismissing Appellant’s
complaint “with prejudice” and without qualification, the trial court ended the
case as to all parties and all issues. See Nationwide Mut. Ins. Co. v.
Wickett, 763 A.2d 813, 818 (Pa. 2000) (deeming an order final where the
order resulted in plaintiffs having no viable theory of recovery against
defendants). Consequently, Appellant could assert no viable claim for relief
against the remaining defendants. See id. For this reason, we conclude the
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trial court’s July 6, 2022, order is a final, appealable order. We therefore
address Appellant’s issues.
In his first issue, Appellant disputes the trial court’s conclusion that he
had failed to serve his complaint and amended complaint on Marinari.
Appellant’s Brief at 26. Appellant argues the “fact of service” controls
jurisdiction. Id. Appellant directs our attention to caselaw upholding service
where the fact of service is established. Id. at 26-28.
Appellant claims the record shows that Marinari resided at 19
Homestead Lane, P.O. Box 234, Royersford, PA, 19047. Id. at 28. Appellant
points to the sheriff’s returns of service, and denies the
unsupported allegation that [Marinari] was not served by
publication which involves a matter outside the record which
cannot be relied upon by the court to strike [the] prothonotary’s
default judgment against [Marinari] entered 11/12/2014[,]
contrary to the foregoing cases requiring [the] court to review the
record indisputably confirming [Marinari] was admittedly served
with alternative service of process including repeated posting by
the sheriff filed and docketed in the record ….
Id. at 30. Appellant claims Marinari admitted, in her federal bankruptcy
petition, “that she was a party within one year prior to the filing her
bankruptcy petition[,] confirming the fact [Marinari] had been served via [the]
foregoing alternative service of process in the captioned matter.” Id.
Appellant also asserts Marinari failed to promptly petition to open or
strike the default judgment. Id. at 31. According to Appellant, Marinari failed
to attach a pleading, “including a verified copy of an answer to [Appellant’s]
amended complaint[.]” Id. Appellant posits Marinari “consented and waived
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any objections to foregoing alternative service of process upon which the
default judgment was entered for approximately 7 years in order to seek
bankruptcy relief….” Id. Appellant claims the trial court “clearly erred” in
striking the default judgment against Marinari and ordering her to file an
answer to the amended complaint. Id. at 32.
This Court has explained:
A petition to strike a judgment is a common law proceeding which
operates as a demurrer to the record. A petition to strike a
judgment may be granted only for a fatal defect or irregularity
appearing on the face of the record. [A] petition to strike is not a
chance to review the merits of the allegations of a
complaint. Rather, a petition to strike is aimed at defects that
affect the validity of the judgment and that entitle the petitioner,
as a matter of law, to relief. A fatal defect on the face of the
record denies the prothonotary the authority to enter
judgment. When a prothonotary enters judgment without
authority, that judgment is void ab initio….
Green Acres Rehab. & Nursing Ctr. v. Sullivan, 113 A.3d 1261, 1267-68
(Pa. Super. 2015) (quotation marks and citations omitted).
Our review is guided by the following:
A petition to strike a default judgment ... does not involve the
discretion of the court. Instead, it operates as a demurrer to the
record. A demurrer admits all well-pleaded facts for the purpose
of testing conclusions of law drawn from those facts. Because a
petition to strike operates as a demurrer, a court may only look
at the facts of record at the time the judgment was entered
to decide if the record supports the judgment. A petition to strike
can only be granted if a fatal defect appears on the face of the
record.
Cintas Corp. v. Lee’s Cleaning Servs., Inc., 700 A.2d 915, 918-19 (Pa.
1997) (citations omitted, emphasis added).
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Lack of jurisdiction is a proper basis for striking a judgment when the
jurisdictional defect is evident on the face of the record. DeCoatsworth v.
Jones, 639 A.2d 792, 796 (Pa. 2004).
A judgment is void on its face if one or more of three jurisdictional
elements is found absent: jurisdiction of the parties; subject
matter jurisdiction; or the power or authority to render the
particular judgment. The term “jurisdiction” relates to the
competency of the individual court, administrative body, or other
tribunal to determine controversies of the general class to which
a particular case belongs. Moreover, it is never too late to attack
a judgment or decree for want of jurisdiction, as any such
judgment or decree rendered by a court which lacks jurisdiction
of the subject matter or the person is null and void, and can be
attacked by the parties at any time. A petition to strike a
judgment founded on a jurisdictional deficiency is therefore not
subject to the same “timeliness” considerations as a petition to
open the judgment.
Id. at 1268 (quoting Flynn v. Casa Di Bertacchi Corp., 674 A.2d 1099,
1105 (Pa. Super. 1996)).
Here, the trial court struck the default judgment against Marinari based
on Appellant’s failure to effectuate alternative service by publication. “The
rules relating to service of process must be strictly followed,” because
“jurisdiction of the court over the person of the defendant is dependent upon
proper service having been made.” N. Forests II, Inc. v. Keta Realty Co.,
130 A.3d 19, 30 (Pa. Super. 2015).
Our review discloses that the trial court granted Appellant permission
for alternative service of Marinari by publication. Trial Court Order, 8/28/14.
Pa.R.C.P. 430 provides in relevant part:
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If service of process by publication has been authorized by … order
of court, the publication shall be by advertising a notice of the
action once in the legal publication, if any, designated by the court
for the publication of legal notices and in one newspaper of general
circulation within the county. The publication shall contain the
caption of the action and the names of the parties, state the
nature of the action, and conclude with a notice ….
Pa.R.C.P. 430(b)(1).
Although Appellant claims he served Marinari, the trial court granted
Marinari’s petition to strike the default judgment, stating:
3. [Appellant] having failed to complete service by publication is
apparent on the record as [Appellant] has filed no proof of service
for the publication.
4. As [Appellant] has failed to complete service as ordered, there
is a fatal defect on the face of the record.
Order, 3/30/22, ¶¶ 3-4. Our review confirms the trial court’s finding of a “fatal
defect.” Id. There was no proof of service by publication in the record when
the trial court entered the default judgment. The record shows Appellant
failed to comply with the trial court’s alternative service order. As such,
Appellant’s claim that the trial court improperly struck the default judgment
is not supported in the record. Appellant’s first issue does not merit relief.
In his second issue, Appellant argues the trial court erred by (a)
overruling his preliminary objections to Marinari’s preliminary objections, (b)
sustaining Marinari’s preliminary objections, and (c) dismissing his amended
complaint with prejudice. Appellant’s Brief at 33. Appellant claims he
asserted a valid claim under Pennsylvania’s Uniform Fraudulent Transfer Act,
12 Pa.C.S.A. §§ 5101-5114 (UFTA), based the fraudulent transfer of the
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settlement proceeds in the malpractice action. See id. at 33-34. According
to Appellant, “the [UFTA] provides that a judgment under the [UTFA] may be
entered against all the defendant transferees of the asset or the person for
whose benefit the transfer was made.” Id. at 35 (emphasis omitted).
Appellant asserts the “reasonable inferences” of the amended complaint
establish that the OHW firm and the Morris firm are “insiders” and “should
have known [Marinari] is an insolvent judgment debtor using her alias … to
avoid payment and execution over approximately 7 years including involving
[Appellant] and Goodman’s foregoing judgments[.]” Id. at 40-41. Appellant
claims the Legal Defendants “continually assisted and were fully aware” that
Marinari was engaging in fraudulent transfers and incurred fraudulent
obligations, with the intent to defraud her judgment creditors, including
Appellant. Id. at 41.
The Legal Defendants counter that Appellant articulated no “facts that,
if proven at trial, would show that [the Defendants] engaged in a transfer or
transaction that is subject to the provisions of the UFTA.” Legal Defendants’
Brief at 28. The Legal Defendants argue:
At most, the Amended Complaint merely parrots the language of
the UFTA statute by alleging that “[Marinari] unlawfully and
fraudulently incurred obligations and made transfers involving her
property and assets subject to execution, payment and
satisfaction of [Appellant’s] judgment….” See, e.g. … Amended
Complaint, … at ¶ 16.
The Amended Complaint is so vague and bereft of facts that
it is difficult to ascertain which transactions [Appellant] [] alleges
to have constituted a fraudulent transfer. Reading [Appellant’s]
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allegations generously, it appears that, for purposes of his claim
against the [Williams firm and the OHW firm], the “transfer” at
issue is the transfer of settlement proceeds funded by [] Westport
to [Marinari], in exchange for a release of her claims against the
[Legal Defendants] and discontinuance of the legal malpractice
action with prejudice. As to the Morris [firm], the “transfer” at
issue appears to be the transfer of settlement proceeds from [its]
IOLTA accounts to [Marinari’s] bank account. None of these
allegations satisfy any of the requisite prongs under Section 5104
of the UFTA, as a matter of law.
Legal Defendants’ Brief at 30-31.
Legal Defendants further argue that Appellant failed to plead fraud with
any specificity. Id. at 31. Appellant refers to Legal Defendants as “insiders”
and claims the Legal Defendants acted in concert. Id. at 32. Legal
Defendants assert that an attorney-client relationship does not establish an
insider relationship. Id. According to the Legal Defendants, Appellant alleged
no facts establishing consideration for Westport’s agreement to notify
Appellant of a malpractice settlement. Id. at 36. Legal Defendants argue
that Appellant failed to allege facts establishing an unlawful act or purpose.
Id. at 36-37. Finally, Legal Defendants argue Appellant alleged no “overt act”
necessary to establish a conspiracy. Id. at 37.
Our scope and standard of review is as follows:
A preliminary objection in the nature of a demurrer is properly
granted where the contested pleading is legally insufficient.
Preliminary objections in the nature of a demurrer require the
court to resolve the issues solely on the basis of the pleadings; no
testimony or other evidence outside of the complaint may be
considered to dispose of the legal issues presented by the
demurrer. All material facts set forth in the pleading and all
inferences reasonably deducible therefrom must be admitted as
true.
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In determining whether the trial court properly sustained
preliminary objections, the appellate court must examine the
averments in the complaint, together with the documents and
exhibits attached thereto, in order to evaluate the sufficiency of
the facts averred. The impetus of our inquiry is to determine the
legal sufficiency of the complaint and whether the pleading would
permit recovery if ultimately proven. This Court will reverse the
trial court’s decision regarding preliminary objections only where
there has been an error of law or abuse of discretion. When
sustaining the trial court’s ruling will result in the denial of claim
or a dismissal of suit, preliminary objections will be sustained only
where the case [is] free and clear of doubt.
Thus, the question presented by the demurrer is whether, on the
facts averred, the law says with certainty that no recovery is
possible. Where a doubt exists as to whether a demurrer should
be sustained, this doubt should be resolved in favor of overruling
it.
N. Forests II, Inc. v. Keta Realty Co., 130 A.3d 19, 35 (Pa. Super. 2015)
(citation omitted).
In addressing Appellant’s issue, we recognize that Pennsylvania’s UFTA
provides, in part:
(a) General rule.— A transfer made or obligation incurred by a
debtor is voidable as to a creditor whose claim arose before the
transfer was made or the obligation was incurred if the debtor
made the transfer or incurred the obligation without receiving a
reasonably equivalent value in exchange for the transfer or
obligation and the debtor was insolvent at that time or the debtor
became insolvent as a result of the transfer or obligation.
(b) Burden of proof.— … [A] creditor making a claim for relief
under subsection (a) has the burden of proving the elements of
the claim for relief by a preponderance of the evidence.
12 Pa.C.S.A. § 5105.
A party violates UFTA when “the creditor’s … claim arose before
the transfer, the debtor … made the transfer without receiving a
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reasonably equivalent value in exchange for the transfer, and the
debtor became insolvent as a result of the transfer.”
Cunningham v. Cunningham, 182 A.3d 464, 472 n.3 (Pa.
Super. 2018).
Mortimer v. McCool, 255 A.3d 261, 267 n.7 (Pa. 2021). To establish fraud,
the following elements must be shown:
(1) a representation; (2) which is material to the transaction at
hand; (3) made falsely, with knowledge of its falsity or
recklessness as to whether it is true or false; (4) with the intent
of misleading another into relying on it; (5) justifiable reliance on
the misrepresentation; and (6) the resulting injury was
proximately caused by the reliance.
Milliken v. Jacono, 60 A.3d 133, 140 (Pa. Super. 2012) (en banc) (citation
omitted), aff’d 103 A.3d 806 (Pa. 2014).
Instantly, Appellant averred in his amended complaint that Appellant
had a judgment against Marinari for $35,000; Marinari is insolvent; and Legal
Defendants should have known of Marinari’s alias, “which she has continually
utilized to hide her identity, assets and property subject to execution to satisfy
the foregoing judgment ….” Amended Complaint, 11/26/13, ¶¶ 10, 13, 15.
Appellant claimed Defendants made fraudulent transfers to settle Marinari’s
malpractice action. Amended Complaint ¶ 51(a)-(g). Appellant stated that
Defendants acted “in concert,” “unlawfully and fraudulently.” Id. ¶ 16.
Appellant asserted that Defendants entered into secret settlements to
avoid Appellant’s judgment against Marinari. Id. Appellant baldly claimed
Marinari incurred obligations and made transfers to insiders to hinder the
execution of his judgment. Id. ¶ 40. Appellant described Defendants as
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“insiders,” who acted in concert to hinder or defraud Marinari’s creditors. Id.
¶ 41. Appellant asserted that Marinari “unlawfully and fraudulently incurred
obligations and made transfers” without receiving reasonably equivalent value
in exchange. Id. ¶ 44.
The averments in Appellant’s amended complaint fail to establish a
violation of the UTFA. Appellant failed to allege a transfer made by
Defendants, without receiving “reasonably equivalent” value in exchange.
See McCool, 255 A.3d at 267 n.7. Appellant also failed to allege facts
demonstrating Legal Defendants had an obligation to protect or satisfy his
judgment against Marinari. Appellant failed to allege facts demonstrating
Marinari transferred funds subject to execution, garnishment, or otherwise
attached by Appellant’s judgment. As such, the averments were legally
insufficient to establish a UTFA violation.
Regarding a civil conspiracy, Appellant’s brief generally asserts:
Defendants acting in concert, combination and conspiracy as
insiders secretly incurred unlawful and fraudulent obligations and
transfers without knowledge, information or notice to [Appellant]
when [Marinari] was insolent on or after January 1, 2013 involving
property, settlements, deposits, releases, payments, bank
accounts, settlement proceeds and distributions including deposit
of settlement proceeds from [Marinari’s] malpractice actions …
into bank accounts in her name ….
Appellant’s Brief at 42.
The elements of civil conspiracy are: (1) a combination of two or more
persons acting with a common purpose to do an unlawful act or to do a lawful
act by unlawful means or for an unlawful purpose; (2) an overt act done in
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pursuance of the common purpose; and (3) actual legal damage. Goldstein
v. Phillip Morris, Inc., 854 A.2d 585, 590 (Pa. Super. 2004). “[A]bsent a
civil cause of action for a particular act, there can be no cause of action for
civil conspiracy to commit that act.” McKeeman v. Corestates Bank, N.A.,
751 A.2d 655, 660 (Pa. Super. 2000). “The mere fact that two or more
persons, each with the right to do a thing, happen to do that thing at the same
time is not by itself an actionable conspiracy.” Phillips v. Selig, 959 A.2d
420, 437 (Pa. Super. 2008) (citation omitted).
Appellant’s amended complaint identified the elements of conspiracy but
failed to support his claim with facts establishing each element. Importantly,
Appellant fails to allege facts demonstrating an overt act in furtherance of the
alleged conspiracy by Defendants. See Goldstein, 854 A.2d at 590.
Consequently, Appellant’s conspiracy claim is legally insufficient. See id.Under these circumstances, we discern no error by the trial court in sustaining
the preliminary objections to Appellant’s amended complaint.
Appellant also argues the trial court erred by not allowing him to file an
amended pleading. Appellant’s Brief at 48. The trial court rejected this claim:
[A] trial court has the discretion to determine the legal
sufficiency of a complaint and determine if recovery is possible if
the facts alleged in the complaint were ultimately proven. See
Warner v. B. Pietrini & Sons, 175 A.3d 409 (Pa. Super. Ct.
2017) [(unpublished memorandum) (citing Clemleddy Constr.,
Inc. v. Yorston, 810 A.2d 693, 696 (Pa. Super. 2002).]
Furthermore, Preliminary Objections, in the nature of a demurrer,
must be resolved by the trial court solely on the basis of the
pleadings; no additional testimony or outside evidence may be
considered and with all material facts, as set forth in the
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pleadings, being admitted as true. Hill v. Ofalt, 2014 PA super
17, 85 A.3d 540, 547.
In determining whether a complaint is legally insufficient,
courts have considered whether the claim was so vague as to not
permit a defendant to respond to the allegations….
In this case, Appellant in his Amended Complaint repeats
allegations that [Defendants] were “insiders” who had “secret oral
and written settlements, transfers, obligations, releases and
agreements” for “undisclosed” amounts. [Appellant] references
“bank accounts including escrow bank accounts” but provides no
further information about said accounts. There is no specificity
with regard to any of the alleged conduct and [Marinari] would
have no way to respond to the allegations. There are no essential
facts or particularity in Appellant’s Complaint.
This Court notes that the ability to provide leave to amend lies
within the sound discretion of the trial court, this [c]ourt notes
that Appellant only sought that the [trial c]ourt dismiss the
Preliminary Objections and did not plead in the alternative that
the Complaint could be amended in any way. Our Supreme Court
has held that a court is not required to “sua sponte order or
require a party to amend his pleading” and “is not required to
allow amendment of a pleading if a party will be unable to state a
claim on which relief could be granted.” See Werner v.
Zazyczny, 681 A.2d 1331, 1338 (Pa. 1996). Therefore, [the trial
c]ourt properly determined that since Appellant did not formally
request the right to file a second amended complaint, [] providing
Appellant with additional time to file a second amended complaint
would not have cured the defect in their complaint.
….
Given that this case was initiated in 2013, [Marinari’s]
Preliminary Objections relate to an Amended Complaint, and there
is no specificity whatsoever among Appellant’s allegations, [the
c]ourt does not find it appropriate to belabor this case. [The
c]ourt does not believe that there is a reasonable possibility that
further amendment of this Complaint would be successful in curing
the defects that exist.
Appellant argues that [Defendants] did not comply with [the
c]ourt’s May 5, 2022 Order, when in fact they could not as it would
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have contrasted with their already pending pleadings, the
Preliminary Objections.
Th[e c]ourt corrected the oversight of the May 5, 2022 Order
when it issued the June 29, 2022 Order. The June 29, 2022 Order
determined that the requiring of a responsive pleading was in
error and a judicial oversight and permitted the filing of
Preliminary Objections in keeping with this [c]ourt’s intention
when it requested a “responsive pleading.”
Trial Court Opinion, 11/2/22, at 8-10. Upon review, we adopt the trial court’s
reasoning and conclusion. See id. Appellant’s second issue merits no relief.
See id.Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2023
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