J-A23039-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
ANDREAS M. SCHILIT, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
EQT CORPORATION A/K/A EQUITABLE :
RESOURCES INC A/K/A EQUITABLE :
GAS COMPANY, EQUITABLE GAS CO. :
LLC A/K/A PEOPLE NATURAL GAS :
COMPANY LLC, DUQUESNE LIGHT CO., :
JRD DEVELOPMENT COMPANY LLC, :
JEFF RECK, SUE YENCIK, ARBORS :
MANAGEMENT, BERNSTEIN LAW FIRM :
PC A/K/A BERNSTEIN-BURKLEY, PC, :
JAMES WALLACE, AND JOHN R. :
DEKLEWA, :
:
Appellees : No. 45 WDA 2016
Appeal from the Order December 9, 2015,
in the Court of Common Pleas of Allegheny County,
Civil Division, at No(s): GD 14-008994
BEFORE: LAZARUS, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 20, 2016
Andreas Schilit (Appellant) appeals from the order entered December
19, 2015, wherein the trial court sustained the preliminary objections filed
by EQT Corporation a/k/a Equitable Resources, Inc. a/k/a Equitable Gas
Company a/k/a Peoples Natural Gas Company (Equitable Defendants),
Bernstein Law Firm, P.C. a/k/a Bernstein-Burkley, P.C. (Bernstein
Defendants), John R. Deklewa, JRD Development Company, LLC, Jeff Reck,
Susan Yencik, and Arbors Management. Upon review, we quash this appeal.
*Retired Senior Judge assigned to the Superior Court.
J-A23039-16
The relevant history of this long and tortuous case can be summarized
as follows. On August 27, 2014, Appellant filed a second amended
complaint in this matter. The defendants named in that complaint were the
Equitable Defendants, the Bernstein Defendants, JRD Development
Company, Arbors Management, Deklewa, Reck, Yencik, and James Wallace.
J. Michael McCague, Esquire, entered his appearance on behalf of Wallace.
A third amended complaint was filed on October 20, 2014. All defendants
except for Wallace filed preliminary objections to the third amended
complaint, and on March 16, 2015, Appellant filed a fourth amended
complaint. Once again, all defendants except for Wallace filed preliminary
objections to the fourth amended complaint.
On April 29, 2015, Appellant filed a fifth amended complaint. All
defendants except for Wallace filed a petition to strike the fifth amended
complaint because the preliminary objections to the fourth amended
complaint had not yet been ruled upon. In an order filed on December 9,
2015, the trial court stated the following:
1. Upon consideration of the “Motion to Strike Fifth Amended
Complaint,” which motion had been filed on behalf of Duquesne
Light Company and has since been joined in by [the Equitable
Defendants,] Arbors Management, and [the Bernstein
Defendants], the motion is granted. [Appellant’s] fifth amended
complaint is stricken. The motion to strike accurately observes
that the fifth amended complaint does nothing material to
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address the issues raised by defendants in prior preliminary
objections.[1]
2. Upon consideration of “Preliminary Objections to Plaintiff[’s]
Fourth Amended Complaint” separately filed on behalf of each
defendant: [the Bernstein Defendants]; [Deklewa], Duquesne
Light Company[; the Equitable Defendants;] Jeff Reck, JRD
Development Company, LLC[;] … and Sue Yencik jointly with
Arbors Management, the same are sustained. Plaintiff’s fourth
amended complaint fails to conform to Pa.R.C.P. 1019, which
requires that the material facts on which a cause of action is
based shall be stated in concise and summary form.
3. The fourth[]amended complaint further violates the pleading
requirements by attempting to set forth allegations in the form
of an affidavit attached to the complaint, contrary to Pa.R.C.P.
1020(a) and 1022. The affidavit is a reiteration of certain
allegations contained in the complaint.
Order, 12/9/2015, at 2-3 (unnecessary capitalization omitted).
On January 6, 2016, Appellant filed a notice of appeal from this order.
The trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925, and Appellant filed his
statement in a timely manner.
Before we reach the merits of this appeal, we consider the
appealability of the December 9, 2015 order. See In re Miscin, 885 A.2d
558, 561 (Pa. Super. 2005) (holding that even where no party has raised
the issue of appealability, “[w]e may examine the issue of appealability sua
1
Our review of the docket reveals that all defendants except Wallace joined
in this motion to strike.
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sponte because it affects the Court’s jurisdiction over the case. An appeal
must be taken from a final order.”) (citations omitted).2
This Court has jurisdiction over final orders. The definition of a final
order is provided in Rule 341 of the Pennsylvania Rules of Appellate
Procedure. “Rule 341 is fundamental to the exercise of jurisdiction by this
court.” Prelude, Inc. v. Jorcyk, 695 A.2d 422, 424 (Pa. Super. 1997) (en
banc). Rule 341 provides in relevant part as follows:
(b) Definition of final order.--A final order is any order that:
(1) disposes of all claims and of all parties; or
(2) RESCINDED
(3) is entered as a final order pursuant to paragraph (c)
of this rule.
(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 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 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.
2
Moreover, Arbors Management and Yencik filed a motion to quash this
appeal on this basis, which was denied without prejudice to their right to
raise this issue before this panel. No party on appeal set forth this argument
in its appellate brief.
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Pa.R.A.P. 341. See also 42 Pa.C.S. § 742 (“The Superior Court shall have
exclusive appellate jurisdiction of all appeals from final orders of the courts
of common pleas….”).
Instantly, the trial court did not add the language required to satisfy
paragraph (c); so this order is only appealable if it disposes of all claims and
all parties. Wallace did not file preliminary objections to Appellant’s fourth
amended complaint. Accordingly, the trial court’s order sustaining
preliminary objections of those parties that filed preliminary objections did
not dispose of all parties. Thus, Wallace remains a defendant in this case,
the December 9, 2015 is not a final order, and we lack jurisdiction over this
appeal. See, e.g., Robert H. McKinney, Jr., Associates, Inc. v. Albright,
632 A.2d 937 (Pa. Super. 1993) (holding that an order sustaining
preliminary objections and dismissing case as to one of two defendants was
not a final, appealable order).
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2016
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