J-S09040-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARY TOULOUMES, EXECUTRIX OF : IN THE SUPERIOR COURT OF
THE ESTATE OF HARRY TOULOUMES : PENNSYLVANIA
:
Appellant :
:
v. :
:
WOODS & WILDLIFE FORESTRY :
CONSULTANT, LLC :
:
Appellee : No. 271 MDA 2017
Appeal from the Order Entered January 13, 2017
In the Court of Common Pleas of Cumberland County
Civil Division at No(s): 2012-05709
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 28, 2018
Appellant, Mary Touloumes, executrix of the estate of Harry
Touloumes (“Decedent”), appeals from the order entered in the Cumberland
County Court of Common Pleas, which denied her motion to amend the
complaint. We quash the appeal.
The relevant facts and procedural history of this case are as follows.
Appellant initiated this action against Appellee, Woods & Wildlife Forestry
Consultant, LLC, by writ of summons on September 14, 2012.1 The parties
engaged in pre-complaint discovery, and on August 3, 2015, Appellant filed
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1 Appellant also sued Peachey’s Wood Products, LLC (“Peachey’s”).
Peachey’s settled with Appellant and is not a party to this appeal.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S09040-18
a complaint. In her complaint, Appellant alleged, inter alia, Appellee’s
owner, Jeffrey Eason, contacted Decedent in 2007 to secure a contract to
timber on Decedent’s farms. On April 17, 2007, Mr. Eason presented
Decedent with a Consulting Agreement.2 Under the Consulting Agreement,
Decedent and “Woods & Wildlife Forestry” agreed Mr. Eason would solicit
bids to companies interested in timbering on Decedent’s farms. Mr. Eason
would execute the process of bidding by providing stumpage information and
tours of the sale area to prospective buyers, and oversee and control the
selected harvesting company according to a separate Timber Sales
Agreement. Decedent would pay a fifteen percent (15%) fee for the
consulting service.
Following Mr. Eason’s consulting efforts, Peachey’s won the bid to
timber on one of Decedent’s farms. On September 28, 2008, Mr. Eason
presented Decedent with a Timber Sales Agreement for Decedent and
Peachey’s to execute.3 Under the Timber Sales Agreement, Peachey’s would
pay $43,885.00 for the timber, with all checks made payable to “Woods &
Wildlife Forestry.” According to Appellant’s complaint, Peachey’s paid only a
total of $25,971.25 to Woods & Wildlife Forestry; and Woods & Wildlife
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2 The letterhead to the Consulting Agreement is titled: “WOODS &
WILDLIFE.”
3The letterhead to the Timber Sales Agreement is titled: “Woods & Wildlife
Forestry.”
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Forestry paid Decedent only $10,000.00. Appellant sought judgment
against Appellee for money owed under the contract.
Appellee filed an answer and new matter on September 1, 2015.
Appellee claimed it was not a party to the relevant contracts because the
company named in the complaint did not come into existence until January
1, 2012. Appellee maintained Appellant had sued the wrong party and the
statute of limitations had expired to add another defendant. Appellee filed a
motion for judgment on the pleadings on November 4, 2015, based on the
same claim. The court did not rule on Appellee’s motion for judgment on the
pleadings.
On December 9, 2016, Appellant filed a motion to amend the
complaint to substitute Jeffrey Eason t/d/b/a Woods & Wildlife Forestry
Consultant as the proper defendant in this case instead of Appellee.
Appellant claimed Mr. Eason was personally involved in the relevant
transactions in this matter and admitted liability during depositions.
Appellee responded to Appellant’s motion on January 5, 2017, insisting that
at the time of the relevant contracts, Mr. Eason was operating as a sole
proprietorship. Appellee claimed Appellant should have known the LLC was
not in existence at the time of the contracts because the relevant documents
did not contain the “LLC” designation.
On January 13, 2017, the court denied Appellant’s motion to amend
the complaint. Appellant filed a motion for reconsideration on January 30,
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2017, and a notice of appeal on February 7, 2017. On February 9, 2017, the
court denied Appellant’s motion for reconsideration. The court did not order
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and Appellant filed none.
On February 28, 2017, this Court issued a rule to show cause why the
appeal should not be quashed as interlocutory. Appellant responded on
March 10, 2017, claiming the appeal was proper under Pa.R.A.P. 313
(governing collateral orders) because: (1) the order on appeal involves the
denial of a motion to amend the designation of Appellee’s name from a
company to an individual, whereas the underlying claim involves breach of
contract claims; (2) if the appeal does not proceed, Appellant will be forced
to prepare for a trial and litigate a claim she will ultimately lose due to the
inaccurate designation of the defendant in this matter; additionally, any
damages due to Appellant would be delayed by the time and expense of trial
and the appeal process; and (3) the consequence of the court’s order
effectively puts Appellant “out of court”; Appellant admits she can continue
the litigation but insists she will unquestionably lose because Appellee was
not in existence as a company at the time of execution of the contracts. On
March 17, 2017, this Court discharged the rule to show cause and deferred
the issue to the merits panel.
Appellant raises the following issue for our review:
DID THE TRIAL COURT COMMIT AN ERROR OF LAW OR
ABUSE ITS DISCRETION BY DENYING [APPELLANT’S]
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MOTION TO AMEND COMPLAINT FOR DESIGNATION OF
DEFENDANT’S NAME PURSUANT TO PA.R.C.P. § 1033?
(Appellant’s Brief at 4).
As a preliminary matter, “the appealability of an order directly
implicates the jurisdiction of the court asked to review the order.” Estate of
Considine v. Wachovia Bank, 966 A.2d 1148, 1151 (Pa.Super. 2009).
Pennsylvania law makes clear:
[A]n appeal may be taken from: (1) a final order or an
order certified as a final order (Pa.R.A.P. 341); (2) an
interlocutory order as of right (Pa.R.A.P. 311); (3) an
interlocutory order by permission (Pa.R.A.P. 312, 1311, 42
Pa.C.S.A. § 702(b)); or (4) a collateral order (Pa.R.A.P.
313).
Stahl v. Redcay, 897 A.2d 478, 485 (Pa.Super. 2006), appeal denied, 591
Pa. 704, 918 A.2d 747 (2007). A final order is one that disposes of all the
parties and all the claims; or is entered as a final order pursuant to the trial
court’s determination under Rule 341(c). See Pa.R.A.P. 341(b)(1), (3).
Generally, an order denying or granting a party’s request to amend the
pleadings is interlocutory and not immediately appealable. Ferraro v.
McCarthy-Pascuzzo, 777 A.2d 1128, 1131 n.2 (Pa.Super. 2001)
(explaining appellants could not immediately appeal denial of motion to
amend complaint to substitute different party as defendant because order
denying motion to amend complaint was interlocutory; appellants properly
challenged order denying motion to amend complaint in appeal from final
order granting summary judgment in favor of appellee).
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A collateral order is defined in Rule 313 as follows:
Rule 313. Collateral Orders
* * *
(b) Definition. A collateral order is an order
separable from and collateral to the main cause of action
where the right involved is too important to be denied
review and 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). Our Supreme Court has explained:
[T]he collateral order doctrine is a specialized practical
application of the general rule that only final orders are
appealable as of right. Thus, Rule 313 must be interpreted
narrowly, and the requirements for an appealable collateral
order remain stringent in order to prevent undue corrosion
of the final order rule.
Melvin v. Doe, 575 Pa. 264, 272, 836 A.2d 42, 46-47 (2003). “To that
end, each prong of the collateral order doctrine must be clearly present
before an order may be considered collateral.” Id. at 272, 836 A.2d at 47.
“With regard to the first prong of the collateral order doctrine, an order
is separable from the main cause of action if it is entirely distinct from the
underlying issue in the case and if it can be resolved without an analysis of
the merits of the underlying dispute.” K.C. v. L.A., 633 Pa. 722, 729, 128
A.3d 774, 778 (2015) (internal citation and quotation marks omitted). “The
first part of the collateral order test is not satisfied when the trial court
denies a [motion] to amend a complaint, as the complaint is the precise
vehicle to state a cause of action and related theories of recovery.” Pace v.
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Thomas Jefferson University Hosp., 717 A.2d 539, 541 (Pa.Super. 1998)
(holding order denying leave to amend complaint did not qualify as collateral
order under Rule 313; rather, Rule 312, governing interlocutory appeals by
permission, provides only means by which order denying leave to amend
complaint may be appealed prior to entry of final order).
Instantly, the order denying Appellant’s motion to amend the
complaint is not a “final” order under Rule 341 because it does not dispose
of the underlying breach of contract claims. See Pa.R.A.P. 341(b)(1);
Ferraro, supra. The court has yet to rule on Appellee’s outstanding motion
for judgment on the pleadings. If the court grants Appellee’s motion, that
order will be a final order and Appellant can timely appeal to challenge the
court’s denial of her motion to amend the complaint. See id. Further, the
order denying Appellant’s motion to amend the complaint is not entirely
distinct from the main cause of action because the complaint is the vehicle in
which Appellant asserts her cause of action against the defendant. See
Pace, supra. Additionally, Appellant will not necessarily have to proceed
through a trial before having an opportunity to appeal. Thus, the order on
appeal fails the collateral order doctrine.4 See Pa.R.A.P. 313(b); K.C.,
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4 Appellant makes no argument that the order appealed from was expressly
entered as final by the trial court. See Pa.R.A.P. 341(b)(3), (c). Likewise,
Appellant does not qualify the order on appeal as interlocutory as of right
(see Pa.R.A.P. 311) and did not seek to appeal by permission (see Pa.R.A.P.
312, 1311, 42 Pa.C.S.A. § 702(b)).
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supra; Pace, supra. Accordingly, we decline to address Appellant’s claim
on the merits at this time and quash the appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/28/2018
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