J. A15034/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Zagrans Law Firm LLC, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Plaintiff/Appellee, :
:
v. :
:
Lakeview 2006 LLC, Yehuda Olewski, :
:
Defendants/Appellees :
:
and :
:
O’Connor Kimball, LLP, ADAR, LLC :
d/b/a Lincoln on Locust, LP, :
:
Garnishees/Appellees :
:
Appeal of: Samuel Faibish :
: No. 3290 EDA 2014
Appeal from the Order Entered October 22, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division No(s).: 140202325
BEFORE: BOWES, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 30, 2015
Appellant, Samuel Faibish, appeals from an October 22, 2014 order
entered by the Philadelphia County Court of Common Pleas. The order
*
Former Justice specially assigned to the Superior Court.
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denied his petition to intervene in an execution against funds held in escrow
(“Funds”) by law firm O’Connor Kimball, LLP (“O’Connor”).1 We quash.
The procedural posture is relatively complex. On February 24, 2014,
Zagrans Law Firm, LLC (“Zagrans”) filed an Ohio default judgment in the
Philadelphia County Court of Common Pleas against Lakeview 2006, LLC,
and Yehuda Olewski. To enforce the judgment, the trial court issued writs of
execution against ADAR, LLC, doing business as Lincoln on Locust, L.P.
(“LOL”) and O’Connor on the Funds.
O’Connor responded to interrogatories served pursuant to the writ as
follows. The Funds contained attorneys’ fees and costs awarded to Appellant
and Olewski by a federal district court in East Mark Int’l, Ltd. v. Adar,
2014 WL 272033 (E.D. Pa. Jan. 24, 2014) (“East Mark”). See Garnishees’
Answer to Interrogs., 4/3/14, at 2. O’Connor alleged that federal court
orders compelled them to hold the Funds in escrow until a court determined
who was entitled to the Funds. Id. at 4-6.
In East Mark, the parties contested ownership interests in LOL and its
only asset, a Philadelphia building (“Building”). See Trial Ct. Op., 5/21/14.
ADAR’s sole member, Jacob Ungar, held a 51% interest in LOL; Andre Engel
held a minority interest. Id. at 2. Appellant and Olewski claimed an oral
1
The underlying order also assessed attorney’s fees of $500.00 against
Appellant pursuant to Pa. R.C.P. 3213(4).
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agreement granted them an interest in LOL and they agreed to arbitrate that
claim.2 Id.
Meanwhile, East Mark International, Ltd. (“East Mark”), obtained a
$3.6 million mortgage on the Building. Id. at 3. On March 4, 2013, East
Mark obtained a confessed judgment on the mortgage and filed a writ of
execution. Id. Appellant and Olewski successfully intervened. Id. at 3-4.
East Mark withdrew its judgment, but soon after, sold the Building to an
arms-length purchaser. See id. at 4-5. The federal court found LOL’s
participation in the sale was improper, declined to enjoin the sale, and
awarded counsel fees to Appellant and Olewski. Id. at 5-6.
In the instant action, on May 7, 2014, Cipriani & Werner, P.C.
(“Cipriani”),3 filed a petition to intervene and to stay execution on the Funds.
On June 20, 2014, Judge Padilla denied Cipriani’s motion, holding it was not
an indispensable party. Cipriani did not appeal.
On August 5, 2014, Appellant filed the instant petition to intervene and
partition the Funds.4 On October 21, 2014, Judge Dembe denied Appellant’s
petition under the coordinate jurisdiction rule. This timely appeal followed.
2
In 2011, Ungar and Engel memorialized an agreement to arbitrate LOL’s
disputes in the Bet Din, a rabbinical court. Id. at 2. In an interim decision,
the Bet Din found Appellant and Olewski had a 42.5% interest in LOL. Id. at
2-3.
3
Cipriani is counsel for Appellant and Olewski in the East Mark action.
4
Appellant’s counsel was also counsel for Cipriani in its May 2014 motion.
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The trial court did not request a Pa.R.A.P. 1925(b) statement, but filed a
Rule 1925(a) opinion.
On December 24, 2014, we issued a rule to show cause asking
Appellant to explain why we should not quash this appeal. Appellant
responded on January 7, 2015, that he “was the party responsible for
attorneys” in the East Mark action, and therefore as “an indispensable party
to the trial court matter [his] intervention should have been permitted.”
Response to Show Cause Order, 1/7/15 at 1, 3. He claimed the underlying
order “is appealable as a final order because it . . . dispos[ed] of all of
Appellant, Samuel Faibish’s, rights in the funds being held. . . .” Id. at 1.
Alternately, Appellant argued the order is a collateral order and is therefore
appealable under Pa.R.A.P. 313:
First, the trial court’s order was separable to the main
cause of action as it solely involved Appellant’s
intervention, and not the execution of funds. Secondly,
the right involved is too important to be denied
review. . . . The trial court denied [A]ppellant the right to
protect its interest in property, which violates public
policy. . . . Lastly, if review of Appellant’s claim is
postponed until final judgment, the claim will be
irreparably lost. . . .
Id. at 2. Appellant cited several Commonwealth Court decisions purportedly
holding that when “rights to property will be lost if review is postponed until
final judgment, an order denying intervention is appealable as a collateral
order.” Id. This Court discharged the rule on January 20, 2015.
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Appellant presents one issue for our review: whether the trial court
erred in denying his petition to intervene. Appellant’s Brief at 5. However,
we must determine whether this appeal is properly before this Court.
A petitioner may only appeal from a final order unless otherwise
permitted by statute or rule. McCutcheon v. Phila. Elec. Co., 788 A.2d
345, 349 (Pa. Super. 2002); see Pa.R.A.P. 341. “A final order is any order
that disposes of all claims and of all parties.” Pa.R.A.P. 341(b)(1).
However, “[a]s the official note to Pa.R.A.P. 341 explains, ‘an order denying
a party to intervene’ is no longer considered an appealable final order but, in
appropriate cases, may ‘fall under Pa.R.A.P. 312 (Interlocutory Appeals by
Permission) or Pa.R.A.P. 313 (Collateral Orders).’” Mortg. Elec.
Registration Sys., Inc. v. Malehorn, 16 A.3d 1138, 1141 (Pa. Super.
2011) (brackets omitted). Thus, we must quash an appeal from an order
denying a petition to intervene unless the appellant has permission to appeal
or the order can be defined as a collateral order. See id.
Pa.R.A.P. 313 defines a collateral order as follows:
(b) Definition. A collateral order is an order [1] separable
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). “To buttress the final order rule . . . the collateral order
doctrine is to be construed narrowly, and every one of its three prongs must
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be clearly present before collateral appellate review is allowed.” Malehorn,
16 A.3d at 1142 (alterations in original omitted).
First, the issue raised in the order must be “separable from the central
issue” of the ongoing litigation and should not affect substantive analysis of
the issue in the named action. Id. Second, to determine whether the “right
involved is too important to be denied review,” we weigh the importance of
that right against the public policy rationale for the final judgment rule.
Pa.R.A.P. 313(b). Third, we must determine whether the petitioner would
suffer “irreparable loss” of his claim from “rigorous application of a final
judgment requirement.” Id. If a petitioner may vindicate his right through
a separate action or has fully litigated his right, then his issue on appeal will
not satisfy the “irreparable loss” element of Pa.R.A.P. 313. Id. at 1143;
Richard Held Builders, Inc. v. A. G. Allebach, Inc., 403 A.2d 113, 114
(Pa. Super. 1979) (“Allebach”).5
In Malehorn, we quashed the appeal of a third party, Miller, from an
order denying her petition to intervene in the underlying foreclosure action.
Malehorn, 16 A.3d at 1139. In 2001, Miller purchased a mobile home on
the named defendant’s un-subdivided property and entered an installment
5
The Court decided Allebach prior to the rule-based codification of the
collateral order doctrine in 1992. We may, however, rely on caselaw
predating the rules as long as they do not conflict. See Pa.R.A.P. 313 note
(“Rule 313 is a codification of existing case law with respect to collateral
orders.”); cf. In re Warden, 2 A.3d 565, 573 (Pa. Super. 2010) (relying on
caselaw predating Pennsylvania’s 2006 codification of Uniform Trust Code).
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land-sale contract for the portion of land upon which the home sat. Id. at
1139.
In 2002, the defendant obtained a mortgage on the entire property,
including the land leased to Miller. Id. at 1139. Later that year, the plaintiff
commenced the underlying foreclosure action. Id. In September of 2009,
Miller petitioned to intervene in the foreclosure action to assert her alleged
property rights, which the court denied. Id. Prior to filing her petition to
intervene, however, Miller had previously initiated “other forms of litigation”
asserting her rights to the land, including the defendant’s then-pending
bankruptcy action. Id. at 1143. Miller appealed. Id. at 1139.
The Malehorn Court quashed the appeal because the third element of
Pa.R.A.P. 313(b) was not present:
[Miller] now seeks to intervene in this foreclosure action
and to relitigate an issue which has been previously
resolved by other tribunals. While we appreciate that
property rights are deeply rooted in public policy, [Miller]
has already pursued other forms of litigation in order to
protect her rights. In fact, as the trial court notes, [Miller]
was continuing to actively pursue a remedy in the
Bankruptcy Court at the time of this appeal.
Id. at 1143. “[I]f we elect to postpone our review until final judgment is
entered in this [foreclosure] case, we discern no basis upon which to
conclude that [Miller’s property] claim will be irreparably lost.” Id.
Similarly, in Allebach, we quashed an appeal from an order denying a
petition to intervene in an action to attach funds. Allebach, 403 A.2d at
114. In that case, the plaintiff served the judgment debtor’s bank with a
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writ of attachment to satisfy a judgment. Id. However, a third party had
perfected a security interest in the judgment debtor’s assets. Id. The third
party thus filed a petition to intervene and a petition to dissolve the
attachment per Pa.R.C.P. 3143. Id. at 115 The Allebach Court quashed
the appeal because the third party could obtain the relief it wanted under
Rule 3143, as well as Rules 3121(a)(2) or (d)(3), without a formal
intervention. Id.
Instantly, because the underlying order denies Appellant’s right to
intervene, it is not a final order pursuant to Pa.R.A.P. 341. See Pa.R.A.P.
341 note. We therefore focus on whether Appellant has complied with the
requirements of Rule 313(b), particularly the third prong. As with the third
party in Allebach, denying Appellant’s petition to intervene does not
foreclose an opportunity for relief. See Allebach, 403 A.2d at 115; see
also Pa.R.C.P. 3121. Thus, construing the collateral order doctrine
narrowly, the third element of Pa.R.A.P. 313(b) is not “clearly present.” See
Malehorn, 16 A.3d at 1142. Accordingly, we quash the instant appeal.
Appeal quashed.
Judge Bowes joins the memorandum.
Judge Mundy concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2015
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