Devine, J. v. Kumas, F.

J-A13010-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JUANITA DEVINE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
FRANK KUMAS, CLIFFORD LASKY, : No. 1491 EDA 2020
AND JONATHAN TAYLOR, ESQUIRE :
Appeal from the Order Entered June 9, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 190607175
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 16, 2021
Appellant, Juanita DeVine, appeals from the trial court’s June 9, 2020
orders sustaining the preliminary objections of Appellees, Frank Kumas,
Clifford Lasky, and Jonathan Taylor, Esquire, and dismissing Ms. DeVine’s
fourth amended complaint with prejudice.1 We affirm.
The trial court summarized the background of this case as follows:
The facts underlying this matter stem almost exclusively from a
contractual dispute between the parties involving a real estate
contract. This court notes that many of the underlying facts and
issues were previously litigated at length in a separate action
before Judge [M. Teresa] Sarmina of the Philadelphia [Court of]
Common Pleas[,] in which Judge Sarmina directly addressed the
validity of the land-sale contract that now forms the basis of the
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* Former Justice specially assigned to the Superior Court.
1 We address the propriety of Ms. DeVine’s filing only one notice of appeal
from two orders infra.
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appeal sub judice. In that action[,] Judge Sarmina made the
following factual findings:
On April 28, 2016, [Easy Properties, LLC,2] and [Strategy
Restaurant and Catering Services, Inc.,3] entered into two
separate Agreements of Sale (“the contracts”) with respect
to the properties at 3026 Titan Street, Philadelphia,
Pennsylvania, and 3028 Titan Street, Philadelphia,
Pennsylvania[] (“the properties”)[,] whereby [Easy
Properties, LLC,] agreed to purchase said properties from
[Strategy Restaurant and Catering Services, Inc.] The
contracts provided that written acceptance by both parties
was to occur on or before April 30, 2016. The contracts
were prepared by agents of [Easy Properties, LLC,] and both
contracts erroneously provided the name of the buyer as
“Easy Properties LLC[,]” rather than [Easy Properties, LLC’s]
registered name of “Easy Property Holdings, LLC.” Likewise,
the contracts also erroneously provided [Strategy
Restaurant and Catering Services, Inc.’s] name as “Strategy
Restaurant and C[,]” rather than “Strategy Restaurant and
Catering Services, Inc.” The contracts provided accurate
names and contact information for the parties’ real estate
brokers. The contracts provided clear terms concerning the
title with which [Strategy Restaurant and Catering Services,
Inc.,] was required to convey[.]
That action was later appealed to the Superior Court of
Pennsylvania. [See Easy Properties, LLC v. Strategy
Restaurant and Catering Services, Inc., 2019 WL 990770 (Pa.
Super. Feb. 28, 2019)].[4] On appeal[,] the Superior Court
affirmed Judge Sarmina[’s] finding a valid enforceable contract for
the sale of real estate between the parties, and awarded [Easy
Properties, LLC,] … the remedy of specific performance. In doing
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2 Mr. Kumas and Mr. Lasky own Easy Properties, LLC. See Fourth Amended
Complaint, 2/4/20, at 1.
3 Ms. DeVine is the owner of Strategy Restaurant and Catering Services, Inc.
See Fourth Amended Complaint, 2/4/20, at 1.
4 Attorney Taylor represented Easy Properties, LLC, in this underlying
litigation. See Fourth Amended Complaint, 2/4/20, at 1.
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so[,] the court[] addressed an alleged discrepancy as to the
proper identity of the contracting parties and indicated that:
For the purposes of these proceedings, “Easy Properties
LLC” lacks any meaningful distinction from “Easy Property
Holdings, LLC”: They refer to the same entity, with the same
assets and principals, for which Mr. Kumas signed the
contracts indicating the intention of [Easy Properties, LLC,]
to be bound as the purchaser of the properties under the
contracts.[5] For reasons which will be discussed further…,
the record does not support that [Strategy Restaurant and
Catering Services, Inc.,] was in any way confused or
deceived as to [Easy Properties, LLC’s] true identity for the
purposes of the contracts or for the purposes of this lawsuit.
Further, the record is devoid of any evidence to suggest that
any party other than [Easy Properties, LLC,] was the
intended purchaser contemplated by these contracts, nor is
there evidence to indicate that a reasonable person could
confuse “Easy Properties LLC” with some other entity
besides “Easy Property Holdings, LLC” under these
circumstances. No prejudice or surprise to [Strategy
Restaurant and Catering Services, Inc.,] resulted from the
change of the caption. Finally, the evidence and unrebutted
testimony of Mr. Kumas and Mr. Lasky established that
“Easy Properties LLC” was simply an error on the contracts,
and nothing more. Therefore, this Court declined to adopt
[Strategy Restaurant and Catering Services, Inc.’s] theory
that “Easy Properties LLC” was distinguishable or separate
from “Easy Property Holdings[,] LLC,” or to find that it
described some phantom party rather than the one with
which [Strategy Restaurant and Catering Services, Inc.,]
has dealt [with] since the formation of the contracts in
2016.[]
In response to the findings and rulings by the courts, [Ms.] …
De[V]ine … initiated this action on August 26, 2019[,] by the filing
of a complaint against [Mr.] Kumas, [Mr.] Lasky, and [Attorney]
Taylor…[,] alleging abuse of process, fraud, civil conspiracy, and
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5 This Court noted in its memorandum that the original caption in the case
listed the plaintiff/appellee’s name as “Easy Properties, LLC,” instead of its
proper name of “Easy Property Holdings, LLC.” See Easy Properties, LLC,
2019 WL 990770, at *1 n.1. Nevertheless, despite the erroneous naming, we
left the caption unchanged for the sake of consistency. Id.-3-
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tortious interference with contractual relations. Following a series
of preliminary objections and revisions of the complaint, [Ms.
DeVine] filed a fourth amended complaint against Appellees on
February 4, 2020. Appellees filed preliminary objections on
February 24, 2020, and March 5, 2020.[6] [Ms. DeVine] filed no
response to these preliminary objections. On June 3, 2020, this
court issued an order sustaining the preliminary objections of
[Attorney] Taylor … and dismissing [Ms. DeVine’s] fourth
amended complaint[, which was entered on the docket on June 9,
2020]. Also on June 3, 2020, this court issued another order
sustaining the preliminary objections of [Mr.] Kumas and [Mr.]
Lasky, and dismissing [Ms. DeVine’s] fourth amended complaint[,
which was likewise entered on the docket on June 9, 2020]. On
July 6, 2020[,] [Ms. DeVine] filed a motion for reconsideration of
this court’s June [9], 2020[ o]rder dismissing [Ms. DeVine’s]
fourth amended complaint.
That same day[, Ms. DeVine] also filed a notice of appeal to the
Superior Court of Pennsylvania [regarding] this court’s June [9],
2020[] order. On July 8, 2020, this [c]ourt denied [Ms. DeVine’s]
motion for reconsideration. On July 9, 2020, this court ordered
[Ms. DeVine] to file a concise statement of matters complained of
on appeal pursuant to Pa.R.A.P. 1925(b). [Ms. DeVine] filed a
timely [Rule] 1925(b) statement on July 30, 2020.
Trial Court Opinion (TCO), 12/11/20, at 1-3 (some brackets in original;
footnote, unnecessary capitalization, and internal citations omitted).
Presently, Ms. DeVine raises one question for our review:
Did the trial [court] err[] as a matter of law by failing to adhere
to the legal principles set forth in Ham v. Sulek, 620 A.2d 5 (Pa.
Super. 1993), Mellon Bank, N.A. v. Fabinyi, 650 A.2d 895 (Pa.
Super. 1994)[,] and Mistick, Inc. v. Northwestern National
Casualty Company, 806 A.2d 39 (Pa. Super. 2002), in sustaining
the preliminary objections of [Appellees] in the nature of a
demurrer and in dismissing [Ms. DeVine’s] fourth amended
complaint with prejudice[?]
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6 Mr. Kumas and Mr. Lasky were represented by different counsel than
Attorney Taylor. Mr. Kumas and Mr. Lasky filed their own preliminary
objections, and Attorney Taylor filed his own preliminary objections.
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Ms. DeVine’s Brief at 3.
Before delving into Ms. DeVine’s issue, we must first consider the
propriety of her filing one notice of appeal from two final orders. As mentioned
in the summary of the case provided by the trial court supra, the trial court
filed two separate orders on June 9, 2020. In the first order, the trial court
sustained Attorney Taylor’s preliminary objections and dismissed Ms. DeVine’s
fourth amended complaint with prejudice. In the second order, the trial court
sustained Mr. Kumas’s and Mr. Lasky’s preliminary objections and dismissed
Ms. DeVine’s fourth amended complaint with prejudice. On July 6, 2020, Ms.
DeVine filed a single notice of appeal, purporting to appeal from both orders.
Though we discourage the practice of filing one notice of appeal from two final
orders, we decline to quash Ms. DeVine’s appeal on this basis. See Interest
of S.U., 204 A.3d 949, 952 n.2 (Pa. Super. 2019) (en banc) (citing Gen. Elec.
Credit Corp. v. Aetna Cas. & Sur. Co., 263 A.2d 448, 452-53 (Pa. 1970)
(holding “that a single appeal is incapable of bringing on for review more than
one final order, judgment or decree” except when circumstances permit
appropriate appellate review); Dong Yuan Chen v. Saidi, 100 A.3d 587, 589
n.1 (Pa. Super. 2014)). As in Gen. Elec. Credit Corp., (1) the issues raised
as to both final orders are the same; (2) none of the Appellees objected to
Ms. DeVine’s bringing but one appeal; and (3) if Ms. DeVine’s appeal were
quashed, the period allowed for appeal will have already expired, precluding
the institution of proper appeals. See Gen. Elec. Credit Corp., 263 A.2d at
453. We also note that the trial court addressed the issues relating to each
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order. See Dong Yuan Chen, 100 A.3d at 589 n.1. Accordingly, we will
review Ms. DeVine’s appeal.
As we address Ms. DeVine’s issue, we remain mindful of our standard of
review:
A preliminary objection in the nature of a demurrer is properly
[sustained] 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.
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 [preliminary objections] will result in the denial of
claim or a dismissal of suit, [the preliminary objections may be
sustained] only where the case [is] free and clear of doubt.
Hill v. Ofalt, 85 A.3d 540, 547-48 (Pa. Super. 2014) (citation omitted;
brackets in original).
Ms. DeVine argues that the trial court “erred as a matter of law in
sustaining the preliminary objections of [Appellees] in the nature of a
demurrer and in dismissing [her] fourth amended complaint with prejudice.”
Ms. DeVine’s Brief at 10 (unnecessary capitalization omitted). Her entire
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argument on this issue consists of the following, which we produce verbatim,
aside from changing the parties’ names at times:
The trial judge erred by concluding, despite the well-founded,
unchallenged factual allegations comprising the Fourth Amended
Complaint – including the admission by Lasky and Kumas that
Easy Property Holdings was not the intended purchaser of the
subject properties on the day of the settlement – that the Fourth
Amended Complaint did not set forth any legally cognizable causes
of action, including claims of fraud, abuse of process, tortious
interference with contractual relations and civil conspiracy.
[Appellees], none of whom were parties to the underlying lawsuit,
acting individually and collectively, deliberately, intentionally and
fraudulently withheld critical information from the Court in the
underlying lawsuit and from DeVine; knowingly made false
statements under oath to the court in the underlying lawsuit;
knowingly provided false information to DeVine and to the Court
in the underlying lawsuit; and intentionally misled the court into
concluding that Easy Property Holdings, LLC had been
identified as the purchaser of the subject properties (two vacant
building lots) and had been prepared to complete the purchase of
the subject properties on the day of the scheduled settlement.
These fraudulent misrepresentations and deliberate non-
disclosures of the true facts continued throughout the Easy
Properties, LLC v. Strategy Restaurant and Catering Services, Inc.
litigation, at the trial level and the appellate levels. [Appellees],
jointly, severally and collectively, conspired to defraud [Ms.
DeVine] and dupe the trial Court into ruling that the subject
properties owned by DeVine through Strategy Restaurant
(her wholly owned legal entity) were to be transferred into the
name of an entity controlled by Kumas and Lasky which had no
connection to any agreement to purchase the subject
properties. The factual allegations supporting the tortious
conduct of the individual [Appellees] were amply fleshed out in
the Fourth Amended Complaint and never refuted by the
individual [Appellees]. [Appellees] abused the civil process by
fraudulently asserting, in the underlying lawsuit, that Easy
Property Holdings was the intended purchaser of the subject
properties – an out-and-out lie, discredited by Lasky and Kumas
in the case sub judice and totally unsupported or corroborated by
any evidence, aside from their false sworn testimony in the
underlying case. See, Shiner v. Moriarty, 706 A.2d 1228-7-
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(Pa.Super. 1998), appeal denied, 729 A.2d 1130 (Pa. 1998). The
individual [Appellees] misused the civil process to perpetrate a
fraud against DeVine.
[Appellees] also intentional interfered with contractual relations
by providing patently false sworn testimony and by making
patently false representations to the trial judge and to DeVine in
the underlying case for the purpose of attempting, through
fraudulent means, to acquire the subject properties in the name
of an entity having absolutely no contractual relationship with the
real or beneficial owner of the subject properties. Pelagatti v.
Cohen, 370 Pa.Super. 422, 536 A.2d 1337, 1343 (Pa. Super.
1987).
The material allegations in the Fourth Amended Complaint is
replete with well-founded assertions of civil conspiracy, (see, e.g.
Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466 (Pa. 1972))
and with well-founded assertions, with particularity, of fraud,
intentional misrepresentation and intentional non-disclosure of
material facts. Bata v. Central-Penn Nat’l Bank of Philadelphia,
224 A.2d 174 (Pa. 1966).
Ms. DeVine’s Brief at 10-12 (emphasis in original).
As Ms. DeVine’s argument contains numerous deficiencies, we deem her
issue waived. This Court has previously explained that:
The Rules of Appellate Procedure state unequivocally that each
question an appellant raises is to be supported by discussion and
analysis of pertinent authority. Appellate arguments which fail to
adhere to these rules may be considered waived, and arguments
which are not appropriately developed are waived. Arguments not
appropriately developed include those where the party has failed
to cite any authority in support of a contention. This Court will
not act as counsel and will not develop arguments on behalf of an
appellant. Moreover, we observe that the Commonwealth Court,
our sister appellate court, has aptly noted that mere issue spotting
without analysis or legal citation to support an assertion precludes
our appellate review of a matter.
Coulter v. Ramsden, 94 A.3d 1080, 1088-89 (Pa. Super. 2014) (cleaned
up).
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Here, Ms. DeVine’s argument lacks meaningful analysis. While she
provides a few case citations, she fails to explain how those cases support her
argument. She also does not examine any authority explicitly pertaining to
fraud, abuse of process, tortious interference with contractual relations, and
civil conspiracy, nor does she discuss the elements comprising those claims.
In addition, Ms. DeVine does not specifically set forth how the averments in
her complaint purportedly establish each of her causes of action against the
respective Appellees, and she provides no citations to her complaint in her
argument section. Instead, she makes assertions that are vague and
conclusory. As Ms. DeVine’s undeveloped argument precludes our appellate
review, we deem her issue waived.
Nevertheless, even if not waived, we would see no reason to depart from
the cogent rationale provided by the Honorable Paula A. Patrick of the Court
of Common Pleas of Philadelphia County for sustaining Appellees’ preliminary
objections and dismissing Ms. DeVine’s fourth amended complaint with
prejudice. See TCO at 4-14. Accordingly, based on the foregoing, we affirm
the trial court’s orders.7
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7 We point out to Appellees that our Rules of Appellate Procedure permit
parties to file an application with this Court for reasonable counsel fees in
cases of frivolous appeals and obdurate, vexatious conduct. See Pa.R.A.P.
2744; Pa.R.A.P. 2751; Pa.R.A.P. 2572; see also Commonwealth v.
Wardlaw, 249 A.3d 937, 947 (Pa. 2021) (“For example, an appellate court
‘may award as further costs damages as may be just,’ Pa.R.A.P. 2744,
provided that, inter alia, the party receiving such damages makes ‘[a]n
application for further costs and damages.’ Id. 2751.”).
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Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2021
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