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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ERIC R. LINDE, DERIVATIVELY ON : IN THE SUPERIOR COURT OF
BEHALF OF LINDE ENTERPRISES, INC. : PENNSYLVANIA
:
v. :
:
SCOTT F. LINDE, BARBARA B. LINDE, :
LACKAWANNA LAND & ENERGY, INC., :
TOTAL LANDSCAPING, INC., LINDE :
INTERNATIONAL, INC., :
CONSOLIDATED POCONO UTILITIES, :
INC., FOREST CITY PARTNERSHIP, :
ALLEN SORCHEK, JOHN PIEPOLI, JOHN :
BOLD AND LINDE ENTERPRISES, INC. :
:
APPEAL OF: BARBARA LINDE :
: No. 2204 EDA 2014
Appeal from the Order Entered June 9, 2014
In the Court of Common Pleas of Wayne County
Civil Division No(s).: 27-1999-Equity
BEFORE: ALLEN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 21, 2015
Appellant, Barbara B. Linde (“Barbara”), appeals from the order
entered in the Wayne County Court of Common Pleas granting the joint
praecipe for discontinuance with prejudice filed by Appellees, Eric R. Linde
(“Eric”), derivatively on behalf of Linde Enterprises, Inc., Scott F. Linde
(“Scott”), Lackawanna Land & Energy, Inc., Linde International, Inc.,
*
Former Justice specially assigned to the Superior Court.
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Consolidated Pocono Utilities, Inc., and Forest City Partnership. 1 For the
following reasons, we quash as at least one outstanding counterclaim
remains.
The facts underlying this derivative shareholder lawsuit are not
pertinent to our disposition.2 On July 29, 1999, Eric filed a complaint in
equity raising two claims. The first claim was for a derivative claim for
breach of fiduciary duty against Scott and Barbara. Compl., 7/29/99, at 12.
The second claim was against all of the above-captioned defendants, which
include Total Landscaping, Allen Sorchek (“Sorcheck”), John Piepoli
(“Piepoli”), John Bold (“Bold”), and Linde Enterprises, for unjust enrichment.
Id. at 16. On December 13, 1999, Scott, Barbara, and Linde Enterprises
filed a counterclaim3 against Eric.
On November 3, 2011, Eric filed an amended complaint against only
the following defendants: Scott, Linde Enterprises, Barbara, Lackawanna
Land & Energy, Linde International, Consolidated Pocono Utilities, and Forest
City Partnership. Amended Compl., 11/3/11. The amended complaint
1
We discuss the remaining parties below.
2
This case is over fifteen years old. Presumably because of the age of the
case, many of the older pleadings in the certified record consist of only the
first page, each of which was stamped “scanned” or “microfilmed.”
3
The counterclaim did not specifically delineate its claims but appears to
raise intentional interference with existing and prospective contractual
relationships, breach of fiduciary duty, and unjust enrichment. Answer, New
Matter, and Countercl., 12/13/99, at 13-14.
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raised claims identical to the claims in the original complaint, except the
second claim in the amended complaint did not identify Total Landscaping,
Sorchek, Piepoli, and Bold as defendants. Thus, Linde Enterprises is one of
the named defendants on Eric’s second claim for unjust enrichment. On
September 12, 2012, Scott, Linde Enterprises, and Barbara filed a
counterclaim that essentially reiterated their earlier December 13, 1999
counterclaim. Answer, New Matter, and Countercl., 9/12/12, at 34-38.
On January 17, 2013, John F. McGovern, Jr., Esq., entered his
appearance for Linde Enterprises. A dispute arose regarding whether
Attorney McGovern actually represented Linde Enterprises. Eventually,
Linde Enterprises’ prior counsel withdrew his appearance. The matter was
scheduled for trial, and Linde Enterprises filed its pretrial statement on
January 16, 2014. The court, however, continued the trial to a future date.
On May 16, 2014, the court ordered counsel to file updated pretrial
statements but did not serve the order on Attorney McGovern. On May 22,
2014, the court scheduled trial for June 9, 2014.
On June 9, 2014, Eric’s counsel filed a praecipe to discontinue the
action and counterclaim with prejudice. Praecipe for Discontinuance With
Prejudice, 6/9/14. Counsel for Eric, Scott, Consolidated Pocono Utilities,
Lackawanna Land & Energy, Linde International, and Forest City Partnership
signed the praecipe. Attorney McGovern, representing Linde Enterprises, did
not sign the praecipe.
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Also on June 9, 2014, the court entered the following order:
AND NOW, this 9th day of June 2014, it is the order of this
court that Eric Linde’s motion to discontinue the matter
with prejudice as to all defendants is granted.
Scott Linde’s motion to discontinue with prejudice the
counterclaim against Eric Linde is granted.
Further, upon motion of Charles Shaffer, Esquire,
compulsory non-suit is granted as to Barbara Linde’s
counterclaim against Eric Linde.
Order, 6/12/14.4 Attorney McGovern was not on the service list of this
order, which did not discontinue the outstanding counterclaim of Linde
Enterprises. See Answer, New Matter, and Countercl., 9/12/12, at 34-38.
On July 8, 2014, Barbara timely appealed and timely filed a court-
ordered Pa.R.A.P. 1925(b) statement. Barbara raises the following issue:
Did the trial court commit an error of law or abuse its
discretion by failing to hold a hearing to determine
whether the settlement was fair, adequate and reasonable,
before granting Appellee Eric Linde’s motion to discontinue
the derivative action?
Barbara’s Brief at 2.
As a prefatory matter, we ascertain whether we have jurisdiction to
entertain this appeal because of Linde Enterprises’ outstanding counterclaim.
Pennsylvania Rule of Appellate Procedure 341 defines a final order for
purposes of appeal:
4
The order, although dated June 9, 2014, was docketed on June 12, 2014.
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(a) General rule. Except as prescribed in subdivisions
(d), and (e) of this rule, an appeal may be taken as of
right from any final order of an administrative agency or
lower court.
(b) Definition of final order. A final order is any
order that:
(1) disposes of all claims and of all parties . . . .
* * *
(c) Determination of finality. 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
governmental 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.
Pa.R.A.P. 341(a)-(c). “The key inquiry in any determination of finality is
whether there is an outstanding claim.” Levitt v. Patrick, 976 A.2d 581,
588 (Pa. Super. 2009) (citing Pa.R.A.P. 341).
In this case, Linde Enterprises has an outstanding counterclaim against
Eric. Attorney McGovern, as counsel for Linde Enterprises, did not sign the
praecipe to discontinue. Because of this outstanding counterclaim, the June
12, 2014 order discontinuing Eric’s claim and the counterclaims of Scott and
Barbara is not a final order for purposes of appeal. See Pa.R.A.P. 341(b)-
(c). The trial court did not indicate “that an immediate appeal would
facilitate resolution of the entire case.” See Pa.R.A.P. 341(c). Accordingly,
we quash because the appeal is interlocutory. Cf. Druot v. Coulter, 946
A.2d 708, 710 (Pa. Super. 2008) (per curiam) (quashing appeal from order
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granting summary judgment adverse to all claims raised by plaintiffs but
leaving unresolved defendants’ counterclaims).
Appellant’s Application for Post-Submission Communication granted.
Appeal quashed.
Judge Allen joins the memorandum.
Judge Mundy concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2015
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