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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE SUPERIOR COURT OF
PENNSYLVANIA
AMY J. SUNDAY
Appellant
v.
LIFFORD D. FORESTER; JULIA R.
FORESTER; AND FORESTER & PAUL
REAL ESTATE HOLDINGS, LLC
No. 110 MDA 2022
Appeal from the Order Entered January 4, 2022,
in the Court of Common Pleas of Cumberland County,
Civil Division at No(s): 2020-04911-CV.
EFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: MARCH 23, 2023
In this business-dissolution case, Amy J. Sunday appeals from the order
directing her to execute a settlement agreement with some – but not all – of
the defendants. Because Ms. Sunday’s cause of action for dissolution against
Forester & Paul Real Estate Holdings, LLC (“F&P” or “the LLC”) is unresolved,
we quash this appeal as premature.
On August 24, 2020, Ms. Sunday sued Clifford and Julia Forester and
F&P. In her Complaint, she raised three counts: (1) against Mr. Forester and
F&P for dissolution of the LLC, (2) against Mr. Forester for breach of contract,
and (3) the Foresters for unjust enrichment. See Complaint at 9-13.
A lawyer entered her appearance on behalf of the Foresters. However,
no attorney entered an appearance on behalf of F&P. As such, F&P never
appeared to participate in this matter before the court of common pleas or
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this Court.1 Moreover, none of the defendants filed preliminary objections or
an answer to the Complaint.
The docket sat essentially dormant for a year; Ms. Sunday and the
Foresters negotiated a possible settlement. On August 2, 2021 the Foresters
filed a Motion to Enforce Settlement Agreement against Ms. Sunday. The trial
court received Joint Stipulations of Fact. Following briefing, the court entered
an order granting the motion to enforce, and Ms. Sunday appealed.
After receiving Ms. Sunday’s notice of appeal and docketing statement,
this Court issued a show-cause order. We questioned, sua sponte, whether
the appealed-from order was final, as Ms. Sunday asserted in her docketing
statement. See Superior Court Order, 3/8/22, at 1. She filed a response to
the order. This Court discharged the show-cause order and deferred the issue
of appellate jurisdiction to this merits panel.
“The establishment of jurisdiction is of equal importance as the
establishment of a meritorious claim for relief.” Robinson v. Pennsylvania
Bd. of Probation & Parole, 582 A.2d 857, 860 (Pa. 1990). Although the
parties have not raised appealability, this Court “may always consider that
question on our own motion.” Kapcsos v. Benshoff, 194 A.3d 139, 141 (Pa.
Super. 2018) (en banc).
____________________________________________
1 “LLC entities, generally, may not proceed in Pennsylvania courts of common
pleas except through a licensed attorney.” David R. Nicholson, Builder,
LLC v. Jablonski, 163 A.3d 1048, 1054 (Pa. Super. 2017), disapproved of on
other grounds by Bisher v. Lehigh Valley Health Network, Inc., 265 A.3d
383 (Pa. 2021).
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A jurisdictional issue presents us with “a question of law; the appellate
standard of review is de novo, and the scope of review plenary.” Id.
This Court’s appellate jurisdiction only extends to “(1) a final order or
an order certified by the trial court as a final order; (2) an interlocutory order
as of right; (3) an interlocutory order by permission; (4) or a collateral order.”
Chase Manhattan Mortgage Corp. v. Hodes, 784 A.2d 144, 144 (Pa.
Super. 2001).
Ms. Sunday argues that the appealed-from order is final. However, she
omits the definition of a “final order” from her response to this Court’s show-
cause order, and she fails to analyze our jurisdiction in her brief. Instead, Ms.
Sunday claims the appealed-from order “is final because it requires [her] to
sign a settlement agreement which has the effect of terminating the litigation
. . . .” Ms. Sunday’s Response to March 8, 2022 Order at 1 (citing Kulp v.
Hrivnak, 765 A.2d 796 (Pa. Super. 2000)).
Under the Pennsylvania Rules of Appellate Procedure, “an appeal may
be taken of right from any final order of a . . . trial court.” Pa.R.A.P. 341(a).
By definition, a final order “disposes of all claims and of all parties . . . [or] is
entered as a final order pursuant to paragraph (c) of this Rule . . . .” Pa.R.A.P.
341(b). Paragraph (c) provides:
When more than one claim for relief is presented in an
action, whether as a claim, counterclaim, cross-claim, or
third-party claim, or when multiple parties are involved, the
trial court or other government unit may enter a final order
as to one or more but fewer than all of the claims and parties
only upon an express determination that an immediate
appeal would facilitate resolution of the entire case. Such
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an order becomes appealable when entered. In the
absence of such a determination and entry of a final
order, any order or other form of decision that
adjudicates fewer than all the claims and parties shall
not constitute a final order. In addition, the following
conditions shall apply:
(1) An application for a determination of finality
under paragraph (c) must be filed within 30
days of entry of the order. During the time an
application for a determination of finality is
pending, the action is stayed.
(2) Unless the trial court or other government unit
acts on the application within 30 days after it is
filed, the trial court or other government unit
shall no longer consider the application and it
shall be deemed denied.
(3) A notice of appeal may be filed within 30 days
after entry of an order as amended unless a
shorter time period is provided in Pa.R.A.P.
903(c). Any denial of such an application is
reviewable only
for
permission to appeal under Pa.R.A.P. 1311.
through a petition
Pa.R.A.P. 341(c) (emphasis added).
As mentioned, Ms. Sunday relies upon Kulp, supra, for the proposition
that the appealed-from order is, in effect, a final order. Admittedly, the Kulp
Court said, “Although the instant order does not fit any of [the final-order
definition] perfectly, we must consider whether the practical ramification of
the order will be to dispose of the case, making review appropriate.” Kulp,
765 A.2d at 798 (citing Commonwealth v. J.H.B., 760 A.2d 27, 28 (Pa.
Super. 2000)). Thus, Ms. Sunday’s reliance upon Kulp and argument that
the order “effectively puts [her] out of court” is understandable. Ms. Sunday’s
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is misplaced.
Response to March 8, 2022 Order at 2. Nevertheless, her reliance upon Kulp
Twenty years ago, this Court rejected the statement from Kulp as being
no longer good law. In Brickman Group, Ltd. v. CGU Ins. Co., 829 A.2d
1160, (Pa. Super. 2003), we explained as follows:
[Appellant] urges that, in those cases where an order “does
not fit any of these [Rule 341(b)] definitions perfectly,” this
Court should “consider whether the practical ramification of
the order will be to dispose of the case, making review
appropriate.” Kulp . . . 765 A.2d [at] 798. We first note
that the preceding language from Kulp traces its origin to
caselaw evaluating the appealability of orders prior to the
1992 amendment of Rule 341. See [id.] (citing
Commonwealth v. J.H.B., 760 A.2d [at] 28 . . . (“In
ascertaining what is a final appealable order, this Court
must look beyond the technical effect of the adjudication to
its practical
(quoting Grove North
America v. Arrow Lift & Constr. Equip. Co., . . . 617 A.2d
369, 372 (Pa. Super. 1992)).
ramifications.”)
The Court in Robert H. McKinney, Jr., Associates,
Inc. v. Albright, . . . 632 A.2d 937 (Pa. Super. 1993),
explained the significance of the 1992 amendment:
Case law which interpreted the earlier provisions of
Rule 341, considered final all orders which had a
practical consequence of putting a litigant out of court.
These included instances where a party was dismissed
from a case or, in some circumstances, where some,
but not all of the counts of a multi-count complaint
were dismissed. Thus, finality was often determined
without regard to the fact that the litigation did not
end as to all claims or all parties. However, under the
amended version of Rule 341, as quoted above, this
is no longer the case for actions commenced after July
6, 1992. Under the [current] rule, an appeal may not
be taken from an order dismissing less than all claims
or all parties from a case. An exception to this general
rule exists under subparagraph (c), whenever an
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express determination has been made by the trial
court that an immediate appeal would facilitate
resolution of the entire case.
Id. at 938–39.
[Appellant] maintains that the conditional nature of
[appellee’s] claims against the additional defendants
rendered them essentially dismissed upon the granting of
summary judgment in favor of [appellee]. Therefore,
[appellant] asserts, we should consider that the “practical
ramification” of the order is to dispose of the entire case.
Yet, it has been firmly established since the promulgation of
the 1992 amendment to Pa.R.A.P. 341 that orders can be
considered final and appealable only if they meet the
requirements set forth in the rule. Keefer v. Keefer, 741
A.2d 808 (Pa. Super. 1999) (quashing appeal where three
actions consolidated into one and order did not dismiss all
three
claims and all parties arising under
actions); Prelude, Inc. v. Jorcyk, 695 A.2d 422 (Pa.
Super. 1997) (en banc ) (quashing appeals where order did
not dismiss all defendants and finality determination under
341(c) was not pursued notwithstanding the fact that two
remaining defendants had filed for federal bankruptcy
protection) . . .
the
As stated by the majority in Prelude, 695 A.2d at
422, “Rule 341 is fundamental to the exercise of jurisdiction
by this court. It is not surprising, therefore, that the rule
has been rigorously applied.” Id. at 424 (collecting cases).
In Prelude, the case had been dismissed against all but two
defendants. The two remaining defendants both had filed
for federal bankruptcy protection. The Court held that the
order dismissing less than all of the defendants was not a
final, appealable order. The Court further noted that no
finality determination pursuant to 341(c) had been pursued.
Therefore, the Court held that it did not have jurisdiction
over the case and quashed the appeal.
The dissent argued [appellant’s] position, stating,
“Because Prelude has, in effect, been put out of court, I
believe that an immediate appeal from the trial court's order
is warranted.” Id. at 425–426. The dissent, while
conceding that the appeal did not meet the requirements of
Rule 341, nevertheless found quashal to be an “inequitable”
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result and urged a “liberal construction of Rule 341.” Id. at
425.
Brickman Group, Ltd. v. CGU Ins. Co., 829 A.2d 1160, 1163–64 (Pa. Super.
2003). We quashed the appeal.
Like the appellant in Brickman Group, Ms. Sunday argues for the same
construction of Rule 341(b) as the dissent in Prelude. Although the appealed-
from order does not perfectly meet the definition of a final order, she would
have us overlook the absence of true finality, because the appealed-from order
“effectively” puts her out of court. As this Court sitting en banc has rejected
that approach to Rule 341(b), we may not apply it in such a fashion. See
Prelude, supra. To do so would be to exercise an appellate jurisdiction that
has yet to vest under Rule 341(a).
As stated, Ms. Sunday sued F&P for dissolution. The LLC has neither
responded to her claim in an answer, nor has it filed preliminary objections.
Additionally, F&P is not a party to the settlement agreement which the trial
court ordered Ms. Sunday to execute. Thus, the appealed-from order does
not dispose of “of all claims and of all parties,” because Ms. Sunday’s claim
for dissolution against F&P remains pending before the trial court. Pa.R.A.P.
341(b)(1).
Furthermore, Ms. Sunday did not ask the trial court to certify “that an
immediate appeal [from the order in question] would facilitate resolution of
the entire case . . . within 30 days of entry of the order.” Pa.R.A.P. 341(c)(1).
“In the absence of such a determination and entry of a final order, any order
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or other form of decision that adjudicates fewer than all the claims and parties
shall not constitute a final order.” Pa.R.A.P. 341(c) (emphasis added). Nor
did Ms. Sunday petition for permission to appeal with this Court regarding the
appealed-from order. See Pa.R.A.P. 341(c)(3); Pa.R.A.P. 1311.
Therefore, the order is, by definition, not final.
Also, the appealed-from order does not meet the definition of a collateral
order. Under, Rule of Appellate Procedure 313 a collateral order is “an order
[(1)] separate from and collateral to the main cause of action, [(2)] where the
right involved is too important to be denied review and [(3)] the question
presented is such that if review is postponed until final judgment in the case,
the claim will be irreparably lost.” Pa.R.A.P. 313(b). While the enforceability
of the settlement agreement is separable from the main cause of action, and
Ms. Sunday’s rights under it are arguably too important to be denied review,
those rights will not be irreparable lost “if review is postponed until final
judgment in the case.” Id.
The Foresters may not enter a settlement agreement on behalf of the
unrepresented LLC, which took no part in settlement negotiations, the motion
to compel, or this appeal. Accordingly, the Foresters have no authority to
compel Ms. Sunday to discontinue her lawsuit against an unrepresented LLC.
Thus, once the matter between Ms. Sunday and F&P resolves itself (via
discontinuance or judgment), Ms. Sunday may appeal from the order resolving
her case against it. In a future appeal, Ms. Sunday may, if she wished, raise
issues regarding the order that directed her to execute the settlement
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agreement with the Foresters. If the trial court erroneously compelled her to
sign the settlement agreement, the remedy of reversal will cure that error. If
that occurs, Ms. Sunday and the Foresters may resume negotiations or
proceed to trial. Either way, her rights would not be irreparably lost. Thus,
the appealed-from order is not a collateral order.
Lastly, the order is not an interlocutory order appealable as of right
under Rule of Appellate Procedure 311.
The order is unappealable. See Chase Manhattan Mortgage, supra.
We lack jurisdiction to decide the merits at this time.
Oral argument scheduled for April 12, 2023, canceled.
Appeal quashed.
oseph D. Seletyn, Esq.
Prothonotary
ate: 03/23/2023
J
D
Judgment Entered.
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