McDavid, J. v. Corcoran, J.

J. A21031/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

JACK McDAVID AND : IN THE SUPERIOR COURT OF
2100 FAIRMOUNT AVENUE, LLC, : PENNSYLVANIA
:
Appellants :
:
v. : No. 46 EDA 2019
:
J. CONOR CORCORAN, ESQUIRE :

Appeal from the Order Entered November 26, 2018,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. 170303206

BEFORE: BOWES, J., OLSON, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 23, 2020

Jack McDavid (“Mr. McDavid”) and 2100 Fairmount Avenue, LLC

(“Fairmount LLC”) (collectively, “appellants”), appeal from the November 26,

2018 order entered by the Court of Common Pleas of Philadelphia County

granting J. Conor Corcoran, Esquire’s (“Mr. Corcoran”) motion for summary

judgment and dismissing appellants’ amended complaint sounding in wrongful

use of civil proceedings with prejudice. After careful review, we affirm.

The trial court set forth the following factual and procedural history:

Fairmount LLC was formed on February 21, 2008 for
the purpose of owning and operating a building at
2100 Fairmount Avenue, Philadelphia, Pennsylvania
(the “property”). At the time of formation, Fairmount
LLC was comprised of the following members:
[Mr.] McDavid, Douglas Ross, Colin Mick Houston,
Jill Fink, and Angela Vendetti. Pursuant to an
operating agreement executed shortly after
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formation, [Mr.] McDavid was tasked with the
management of Fairmount LLC. Ms. Vendetti and
Ms. Fink jointly owned Anjilla, Inc., as business
partners, through which they operated a coffee shop
in the property’s first floor as Mugshots Coffeehouse
and Juicebar (“Mugshots”).

In 2003, Mugshots opened at the property, which
Fairmount LLC purchased five years later. Pursuant
to a verbal agreement, Mugshots leased the
commercial space from Fairmount LLC for $6,200 per
month. A written lease agreement followed in 2010
between Fairmount LLC and Ms. Vendetti, Ms. Fink,
and Anjilla, Inc[.], and was signed on July 23, 2010.
Ms. Vendetti never received a fully executed copy of
the lease agreement at the time of signing. One year
later, Ms. Vendetti requested a copy from
Mr. McDavid and was provided a new lease with an
increased monthly rent of $7,500 per month,
prompting her to move Mugshots out of the property’s
commercial space.

1. The Underlying Case

In a letter sent to Mr. McDavid on August 15, 2013,
Ms. Vendetti requested information relating to the
business and financial condition of Fairmount LLC,
pursuant to Sections 39 and 40 of Fairmount LLC’s
operating agreement. The underlying case was
initiated by Mr. Corcoran on behalf of Ms. Vendetti and
against [appellants] on March 30, 2014, in part for
Mr. McDavid’s refusal to provide the requested
information. After several rounds of preliminary
objections and amended complaints, Ms. Vendetti
asserted the following counts in her fourth amended
complaint: (I) accounting, (II) breach of operating
agreement, (III) breach of fiduciary duty, and
(IV) appointment of receiver, and/or reorganization,
and/or equity. On July 9, 2015, [the trial] court
granted [appellants’] motion for summary judgment,
to which Ms. Vendetti filed a notice of appeal. In a
separate unrelated case, Ms. Vendetti also appealed a
confession of judgment action against her by

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Fairmount LLC to recover outstanding rent owed after
Mugshots left the property in April 2012.

Settlement negotiations began while the appeals for
both the confession of judgment and the underlying
case were pending. Negotiations ultimately concluded
on August 14, 2015, when the parties reached a global
settlement agreement and mutual release to resolve
all disputes between them. Pursuant [to] that
agreement, Ms. Vendetti agreed to withdraw both her
appeals and relinquish her interest in Fairmount LLC,
while Fairmount LLC agreed not to pursue
Ms. Vendetti for any outstanding rent owed under the
confessed judgment action. The settlement included
a provision which permitted both [appellants] the
limited right to bring a wrongful use of civil
proceedings claim against [Mr.] Corcoran for initiating
and pursuing the underlying case.

2. The Current Case

[On] March 29, 2017, [appellants] commenced this
action against [Mr. Corcoran]. On September 14,
2017, [Mr. Corcoran] filed preliminary objections to
[appellants’] complaint, to which [appellants] filed an
amended complaint on October 2, 2017. In the
amended complaint, [appellants’] sole count against
[Mr. Corcoran] was for wrongful civil proceedings,
alleging that [Mr. Corcoran] was grossly negligent
and/or lacked probable cause to bring the underlying
case. [Mr. Corcoran] filed a motion for summary
judgment on October 15, 2018.

Trial court opinion, 11/26/18 at 1-3 (extraneous capitalization omitted). The

trial court granted Mr. Corcoran’s motion for summary judgment and

dismissed appellants’ amended complaint with prejudice on November 26,

2018. Appellants filed a motion for reconsideration of the trial court’s

November 26, 2018 order, which the trial court denied on December 7, 2018.

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Appellants filed a timely notice of appeal. The trial court did not order

appellants to file a statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). Pursuant to Pa.R.A.P. 1925(a), the trial court filed an

opinion, in which it incorporated the opinion accompanying its November 26,

2018 order granting Mr. Corcoran’s motion for summary judgment and

dismissing appellants’ amended complaint with prejudice.

Appellants raise the following issues for our review:

[I.] Did the [t]rial [c]ourt err in concluding that
[appellants] were unable to prove that they
prevailed in the Underlying Litigation because of
the Landlord/Tenant Settlement (as hereinafter
defined), by failing to view the evidence
presented in the light most favorable to
[appellants] and failing to apply controlling law
holding that the question of whether the
Underlying Litigation was resolved by and
through the Landlord/Tenant Settlement, or,
alternatively, whether the withdrawal of the
appeal from the Dragonetti Summary Judgment
was an unbidden abandonment, are disputed
issues of material fact that should be resolved
by the jury?

[II.] Where resolution of Landlord/Tenant Judgment
(as hereinafter defined) was the crux of the
negotiations resulting in the Landlord/Tenant
Settlement, not resolution of the Underlying
Litigation, should [Mr.] Corcoran still be held
accountable for his particularly egregious abuse
and misuse of the civil litigation process in
furtherance of the Dragonetti Act’s purposes of
insuring the continuing integrity of the legal
profession and judicial system, and punishing
attorneys who abuse the system to deter future
misconduct, rather than be allowed to escape
liability because the litigants in the
Landlord/Tenant Judgment resolved their

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differences in that action with the express intent
that [appellants] be afforded the right to seek
to hold [Mr. Corcoran] accountable for his
misconduct, and where failing to hold him
accountable would simply embolden future
misconduct.

[III.] Did the [t]rial [c]ourt err in concluding that
[appellants] had failed to present evidence
establishing a disputed issue of material fact
with respect to whether [Mr.] Corcoran’s
withdrawal of an appeal in the underlying
litigation was an unbidden abandonment of a
claim brought in bad faith?

[IV]. In concluding that there were no material facts
in dispute and that [Mr.] Corcoran was entitled
to summary judgment, did the [t]rial [c]ourt fail
to view the record before it in the light most
favorable to the non-moving party, including by
setting forth factual findings in the factual
recitation portion of its Opinion that closely
modeled the factual averments of
[Mr.] Corcoran’s motion but which ignored
[appellants’] response and rebutting evidence,
and which were, in some instances, contrary to
the [t]rial [c]ourt’s own findings in granting
[appellants] summary judgment in the
Underlying Litigation (as hereinafter defined)?

[V.] Did the [t]rial [c]ourt err when, contrary to the
law of the case, it elected to grant summary
judgment in favor of [Mr.] Corcoran on the issue
of whether [appellants] prevailed in the
Underlying Litigation based upon the exact
same evidence and the exact same legal
arguments [Mr.] Corcoran had presented by
way of preliminary objections, but which the
[trial c]ourt had already rejected in overruling
same under essentially the same standard of
review?

[VI.] Because Mr. McDavid executed the
Landlord/Tenant Settlement only in his official

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capacity as managing member of
[Fairmount LLC], but not in his individual
capacity—the capacity in which he was sued by
[Mr.] Corcoran, did the [trial c]ourt err in
concluding that the Landlord/Tenant Settlement
also bars his individual claims?

Appellants’ brief at 4-6.

Preliminarily, we note that appellants failed to divide the argument

section of their brief in compliance with Pa.R.A.P. 2119(a), which requires the

argument to be divided into as many parts as there are questions to be

argued. We have the authority to dismiss appeals for failing to comply with

the Rules of Appellate Procedure, and will do so in cases where such a failure

hinders our ability to conduct meaningful appellate review. Kern v. Kern,

892 A.2d 1, 5-6 (Pa.Super. 2005) (citation omitted), appeal denied, 903

A.2d 1234 (Pa. 2006). Here, because our ability to conduct meaningful

appellate review has not been hindered, we shall reach a decision on the

merits.

Based on our reading of appellants’ brief, the following issues for

appellate review can be gleaned from the point headings:

A. [Whether] the trial court erred in concluding, as
a matter of law, that the underlying litigation
was resolved by the landlord/tenant
settlement[?]

B. [Whether] the trial court’s conclusion that
[appellants] offered “no evidence” that the
withdrawal of the Dragonetti summary
judgment was an unbidden abandonment was
in error and contrary to the record[?]

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C. [Whether] the trial court’s decision to grant
summary judgment in favor of [Mr.] Corcoran
after overruling his preliminary objections which
were based upon the exact same evidence and
the exact same legal arguments runs afoul of
the law of the case doctrine mitigating against
the present inconsistent result[?]

D. [Whether] the trial court erred in concluding
that the landlord/tenant settlement precluded a
finding that Mr. McDavid prevailed in the
underlying litigation[?]

Appellants’ brief at i-ii (extraneous capitalization omitted).1

[O]ur standard of review of an order
granting summary judgment requires us
to determine whether the trial court
abused its discretion or committed an
error of law. Our scope of review is
plenary. In reviewing a trial court’s grant
of summary judgment, we apply the same
standard as the trial court, reviewing all
the evidence of record to determine
whether there exists a genuine issue of
material fact. We view the record in the
light most favorable to the non-moving
party, and all doubts as to the existence
of a genuine issue of material fact must
be resolved against the moving party.
Only where there is no genuine issue as
to any material fact and it is clear that the
moving party is entitled to a judgment as
a matter of law will summary judgment be
entered. All doubts as to the existence of
a genuine issue of a material fact must be
resolved against the moving party.

***

1 For ease of discussion, we shall address issues A and B together.

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Upon appellate review, we are not bound
by the trial court’s conclusions of law, but
may reach our own conclusions.

Petrina v. Allied Glove Corp., 46 A.3d 795, 797-798
(Pa.Super. 2012) (internal citations omitted).

Rule of Civil Procedure 1035 governs motions for
summary judgment and provides, in relevant part, as
follows:

After the relevant pleadings are closed,
but within such time as not to
unreasonably delay trial, any party may
move for summary judgment in whole or
in part as a matter of law

(1) whenever there is no genuine
issue of any material fact as
to a necessary element of the
cause of action or defense
which could be established by
additional discovery or expert
report, or

(2) if, after the completion of
discovery relevant to the
motion, including the
production of expert reports,
an adverse party who will
bear the burden of proof at
trial has failed to produce
evidence of facts essential to
the cause of action or defense
which in a jury trial would
require the issues to be
submitted to a jury.

Pa.R.C[iv].P. 1035.2. This Court has explained the
application of this rule as follows:

Motions for summary judgment
necessarily and directly implicate the
plaintiff’s proof of the elements of a cause

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of action. Summary judgment is proper
if, after the completion of discovery
relevant to the motion, including the
production of expert reports, an adverse
party who will bear the burden of proof at
trial has failed to produce evidence of
facts essential to the cause of action or
defense which in a jury trial would require
the issues to be submitted to a jury. In
other words, whenever there is no
genuine issue of any material fact as to a
necessary element of the cause of action
or defense, which could be established by
additional discovery or expert report and
the moving party is entitled to judgment
as a matter of law, summary judgment is
appropriate. Thus, a record that supports
summary judgment either (1) shows the
material facts are undisputed or
(2) contains insufficient evidence of facts
to make out a prima facie cause of action
or defense.

Petrina, 46 A.3d at 798.

Criswell v. Atl. Richfield Co., 115 A.3d 906, 908-909 (Pa.Super. 2015).

A. & B.

In their first issue, appellants contend that,

the trial court erred when it concluded, as a matter of
law, that the underlying litigation was resolved by the
landlord/tenant settlement alone, and that
Mr. McDavid “is directly and explicitly part of, covered
by, and bound by the [landlord/tenant settlement],”
thereby precluding a finding of a favorable termination
in favor of either of the Dragonetti plaintiffs.

Appellants’ brief at 30 (extraneous capitalization omitted).

The Dragonetti Act sets forth the following cause of action:

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(a) Elements of action.--A person who takes part
in the procurement, initiation or continuation of
civil proceedings against another is subject to
liability to the other for wrongful use of civil
proceedings:

(1) he acts in a grossly negligent
manner or without probable cause
and primarily for a purpose other
than that of securing the proper
discovery, joinder of parties or
adjudication of the claim in which
the proceedings are based; and

(2) the proceedings have terminated in
favor of the person against whom
they are brought.

42 Pa.C.S.A. § 8351(a) (emphasis added).

Specifically, appellants argue that the trial court improperly relied on

this court’s decision in D’Elia v. Folino, 933 A.2d 117 (Pa.Super. 2007),

appeal denied, 948 A.2d 804 (Pa. 2008). (Appellants’ brief at 31.) In D’Elia,

this court considered whether a settlement in an underlying medical

malpractice lawsuit constituted a termination in favor of the defendant in the

underlying lawsuit. D’Elia, 933 A.2d at 120-121. The Dragonetti plaintiff in

D’Elia, Frank L. D’Elia, M.D. (“Dr. D’Elia”), despite being dismissed from the

underlying medical malpractice lawsuit via entry of summary judgment,

executed a settlement agreement with the plaintiff of the underlying lawsuit,

wherein the underlying plaintiff agreed not to appeal the entry of summary

judgment in Dr. D’Elia’s favor in exchange for Dr. D’Elia’s not bringing a

wrongful use of civil proceedings cause of action against the underlying

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plaintiff. Id. at 120, 122. Dr. D’Elia, however, reserved his right to bring a

wrongful use of civil proceedings cause of action against the underlying

plaintiff’s counsel. Id. at 120.

In response to Dr. D’Elia’s wrongful use of civil proceedings cause of

action, the underlying plaintiff’s counsel raised preliminary objections in the

nature of a demurrer, which the trial court sustained, thereby dismissing

Dr. D’Elia’s wrongful use of civil proceedings complaint. Id. On appeal, this

court held as follows:

Generally, when considering the question of
“favorable termination” in a wrongful use of civil
proceedings case, whether a withdrawal or
abandonment constitutes a favorable, final
termination of the case against who[m] the
proceedings are brought initially depends on the
circumstances under which the proceedings are
withdrawn. See Bannar v. Miller, 701 A.2d 242, 247
(Pa.Super. 1997). A withdrawal of proceedings
stemming from a compromise or agreement does not,
as a matter of law, constitute a termination favorable
to the party against whom proceedings have been
brought originally. See Rosenfield v. Pennsylvania
Auto Ins. Plan, [] 636 A.2d 1138, 1142 ([Pa.Super.]
1994). Likewise, . . . a wrongful use of civil
proceedings suit may be dismissed on the grounds of
an insufficiently “favorable termination” even if the
attorney-defendant in the wrongful use of civil
proceedings suit was not part of the settlement
between the parties or even if the language of the
settlement itself reserves a party’s right to initiate suit
based on wrongful use of civil proceedings against a
party’s attorney. Electronic Lab. Supply Co. v.
Cullen, 712 A.2d 304, 310-311 (Pa.Super. 1998).

As we held in Cullen, where the parties to the
underlying suit agree jointly to end the underlying suit
in a non-litigious nature, the liability of the underlying

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defendant, i.e., the plaintiff in the wrongful use of civil
proceedings suit, is never determined with finality.
Cullen, 712 A.2d at 311. Therefore, the underlying
suit is not a “favorable termination” within the
meaning of 42 Pa.C.S.A. § 8351.

D’Elia, 933 A.2d at 122-123.

This court further noted that,

[i]n [Bannar], this Court upheld a plaintiff’s
Dragonetti Act verdict on the basis that the plaintiff’s
voluntary dismissal constituted a final determination
in favor of the defendants. We did so because the
peculiar, troubling evolution of that case, which
suggested beyond any credible doubt that the suit in
question was brought for an improper purpose,
“tend[ed] to establish neither [the plaintiffs] nor [the]
attorneys were attempting to properly adjudicate the
claim.” This Court observed that “[a] last-second
dismissal in the face of imminent defeat is not
favorable to [Dragonetti plaintiffs. Dragonetti
plaintiffs] did not answer the bell in the fight they
started, which is a victory for the other side.”
Bannar, 701 A.2d at 248.

Majorsky v. Douglas, 58 A.3d 1250, 1269-1270 (Pa.Super. 2012), appeal

denied, 70 A.3d 811 (Pa. 2013), cert. denied, 571 U.S. 1127 (2014).

Pursuant to our holdings in Bannar and D’Elia, we must look to the

circumstances under which the underlying litigation in this case was

withdrawn. D’Elia, 933 A.2d at 122, citing Bannar, 701 A.2d at 247. Here,

as summarized by the trial court, appellants “contend the praecipe for

discontinuance of appeal in the underlying case was tantamount to an

unbidden abandonment of a claim brought in bad faith[.]” (Trial court opinion,

11/26/18 at 5.)

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Specifically, appellants set forth the following argument pertaining to

the settlement at issue:

The evidence of record before the trial court revealed
that . . . the negotiations that resulted in the
landlord/tenant settlement dealt only with resolution
of the landlord/tenant judgment. The material
consideration ultimately agreed upon and exchanged
pursuant to the landlord/tenant settlement flowed
only from Ms. Vendetti and Ms. Fink to [Fairmount
LLC] in resolution of the landlord/tenant judgment.
. . . [T]hose negotiations ensued and were able to
bear fruit only after Ms. Vendetti was forced to
concede her specious claims in the underlying
litigation based upon [] appellants successfully
moving for summary judgment in the underlying
litigation . . . . Finally, . . . Ms. Vendetti withdrew her
specious appeal of the Dragonetti summary judgment.
Moreover, and perhaps most significantly,
Ms. Vendetti did not believe her appeal was withdrawn
as a result of that settlement. Rather, . . . she had
already effectively abandoned that claim—her
testimony was that she thought the appeal had been
withdrawn before the settlement was reached. In
fact, [it is] unclear from the record if Ms. Vendetti
even authorized [Mr.] Corcoran to file the appeal.

Appellants’ brief at 35-36 (extraneous capitalization and emphasis omitted).

The record belies appellants’ argument. Indeed, Paragraph 5 of the

August 14, 2015 settlement agreement and mutual release executed by the

parties of the underlying litigation required Ms. Vendetti to file a praecipe to

withdraw her then-pending appeal with prejudice within five business days.

(Appellants’ amended complaint Exhibit 16 at 4, ¶ 5; Mr. Corcoran’s answer

to appellants’ amended complaint with new matter Exhibit D at 4, ¶ 5; R.R. at

779a.) Fairmount LLC was then required to file a praecipe to satisfy the

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judgment at issue and Fairmount LLC was precluded from taking any action

to enforce its judgment if Ms. Vendetti “filed a praecipe to discontinue [her

appeal in the underlying litigation] as required by Paragraph 5[,]” of the

settlement agreement. (Appellants’ amended complaint Exhibit 16 at 4,

¶¶ 6-7; Mr. Corcoran’s answer to appellants’ amended complaint with new

matter Exhibit D at 4, ¶¶ 6-7; R.R. at 779a.) Moreover, the plain language of

the settlement agreement reflects that Ms. Vendetti’s filing of the praecipe to

discontinue her appeal was a condition precedent to Fairmount LLC’s

obligation to file a praecipe to satisfy the judgment at issue and to take no

action to enforce the judgment. (Appellants’ amended complaint Exhibit 16

at 4, ¶¶ 6-7; Mr. Corcoran’s answer to appellants’ amended complaint with

new matter Exhibit D at 4, ¶¶ 6-7; R.R. at 779a.)

The record further reflects that on August 27, 2015, Ms. Vendetti filed

with this court a praecipe for discontinuance, thereby withdrawing and

discontinuing her appeal. (Mr. Corcoran’s preliminary objections to appellants’

complaint, Exhibit C3; Mr. Corcoran’s preliminary objections to appellants’

amended complaint, Exhibit C3; Mr. Corcoran’s answer to appellants’

amended complaint with new matter, Exhibit C3; Mr. Corcoran’s motion for

summary judgment, Exhibit W; R.R. at 168a, 1379a.) Moreover, an

August 20, 2015 e-mail between Mr. Corcoran and appellants’ counsel reflects

that the praecipe to discontinue was filed with this court “[a]s a consequence

of the settlements reached” between the parties in the underlying litigation.

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(Mr. Corcoran’s answer to appellants’ amended complaint with new matter,

Exhibit E; R.R. at 907a-908a (emphasis omitted).)

Our analysis cannot end here. Indeed, appellants aver that the trial

court erred when it concluded that appellants offered no evidence that the

withdrawal of the appeal in the underlying litigation was an unbidden

abandonment of a claim brought in bad faith. (Appellants’ brief at 39; see

trial court opinion, 11/26/18 at 5-6.) Appellants further aver that the trial

court’s conclusion was contrary to the record. (Appellants’ brief at 39.)

While the record is viewed in the light most favorable to the non-moving

party in summary judgment proceedings, the non-moving party is not without

burden in summary judgment litigation. Indeed, our supreme court has held

that,

a non-moving party must adduce sufficient evidence
on an issue essential to his case and on which he bears
the burden of proof such that a jury could return a
verdict in his favor. Failure to adduce this evidence
establishes that there is no genuine issue of material
fact and the moving party is entitled to judgment as a
matter of law.

Ertel v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa. 1996), cert. denied,

519 U.S. 1008 (1996).

Here, as discussed in detail above, appellants failed to sufficiently

adduce evidence or prove that the underlying litigation terminated in their

favor, as is required for a Dragonetti cause of action. See 42 Pa.C.S.A.

§ 8351(a)(2). In their argument, appellants direct us to the evidence

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presented in their successful opposition to Mr. Corcoran’s preliminary

objections, Ms. Vendetti’s deposition testimony, and appellants’ expert report

prepared by Steven Angstreich, Esquire (“Attorney Angstreich”). (Appellants’

brief at 39-42.)

First, appellants rely upon the evidence they presented when they

successfully opposed defendant’s preliminary objections. As will be discussed

in detail below, a trial court is not bound by its rulings from preliminary

objections when considering a motion for summary judgment in the same

case.

Next, plaintiffs cite to Ms. Vendetti’s deposition testimony. When

questioned by appellants’ counsel, Ms. Vendetti testified as follows:

Q. Do you know what happened to the appeals that
were filed on your behalf by Mr. Corcoran?

A. I don’t recall specifically. I assume they weren’t
granted.

....

Q. Do you know?

A. No, I don’t know.

Q. You have no knowledge whatsoever as to what
happened to the appeals, correct?

A. I believe that they were not successful,
whatever your terminology is, I don’t know.

Q. Do you know whether Mr. Corcoran dismissed
the appeals or whether the court ruled on the
appeals?

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A. I don’t recall.

Q. If I told you that Mr. Corcoran dismissed the
appeals, would that refresh your recollection or
not?

A. It might be helpful to see a timeline, but no.

Q. So you have no information sitting here today
as to whether the appeals were dismissed, and
if they were, the reason they were dismissed?

A. I don’t recall specifically. Like I said, if there
was a timeline or -- I mean you’re sitting in front
of a mountain of documents here and I am not
-- like I’m not familiar with all of these
documents, so . . .

Q. I’m not asking you about the documents, I’m
just asking about --

A. It’s four years ago. What do you want?

Q. It’s not four years ago. It’s less than three years
ago, is it not? The settlement agreement was
signed on August 14th of 2015, correct?

A. Correct.

Q. Okay. We’re in May of 2018, you would agree
with me that’s less than three years?

A. Like I said, having a timeline of these things
would be helpful. And I can probably piece that
together, but the original was March of 2014.

Q. The original lawsuit.

A. The original lawsuit, right.

Q. Correct. I’m just talking about the appeals. My
question is that -- and if you don’t know the
answer, that’s fine, I just want to finish the
circle. That is, that sitting here today you have

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no understanding as to why the appeals taken
by you were dismissed; is that a fair statement?

A. Okay. All right. I think this is what you’re
getting at, is that leading up to the settlement
agreement, those appeals were dropped.

Q. Is that your understanding?

A. That is my understanding, yes.

Q. Okay. And then after they were dropped, you
entered into the settlement agreement, that’s
your understanding?

A. Yes.

Appellants’ response in opposition to Mr. Corcoran’s motion for summary

judgment, Exhibit 16, notes of testimony, 5/30/18 at 75-78; R.R. at 2161a-

2162a.

As noted above, Ms. Vendetti’s understanding that the appeal in the

underlying litigation was withdrawn prior to entering into the settlement

agreement is belied by the record. Indeed, the record reflects that the

praecipe for discontinuance was filed with this court after the parties executed

the settlement agreement, pursuant to the terms of the settlement

agreement. (See Mr. Corcoran’s preliminary objections to appellants’

complaint, Exhibit C3; Mr. Corcoran’s preliminary objections to appellants’

amended complaint, Exhibit C3; Mr. Corcoran’s answer to appellants’

amended complaint with new matter, Exhibit C3; Mr. Corcoran’s motion for

summary judgment, Exhibit W; R.R. at 168a, 1379a.) Moreover, as noted

above, the August 20, 2015 e-mail between Mr. Corcoran and appellants’

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counsel reflects that the appeal was discontinued as a result of the terms of

the settlement agreement. (See Mr. Corcoran’s answer to appellants’

amended complaint with new matter, Exhibit E; R.R. at 907a-908a.)

Finally, appellants direct us to Attorney Angstreich’s expert report.

Therein, Attorney Angstreich concludes that the appeal in the underlying

litigation “lacked meritorious grounds and was solely intended to protract the

underlying litigation to leverage a settlement and was therefore brought in

bad faith. . . . [Mr. Corcoran’s] withdrawal of the appeal on August 27, 201[5],

was, therefore, ‘tantamount to [an] unbidden abandonment of a claim brought

in bad faith.’” (Appellants’ response in opposition to Mr. Corcoran’s motion

for summary judgment, Exhibit 9, 8/28/18 at 17; R.R. at 2048a (extraneous

capitalization omitted), citing Contemporary Motorcar Ltd. v. MacDonald

Illig Jones & Britton, LLP, 2013 WL 11253857 at *4 (Pa.Super. filed

September 19, 2013) (unpublished memorandum), appeal denied, 89 A.3d

1285 (Pa. 2014).) Attorney Angstreich concluded that the underlying litigation

terminated in favor of plaintiffs. (Appellants’ response in opposition to

Mr. Corcoran’s motion for summary judgment, Exhibit 9, 8/28/18 at 17-18;

R.R. at 2048a-2049a.)

Appellants’ production of an expert report with a conclusion in their favor

does not automatically ensure that they will be able to defeat a motion for

summary judgment. Indeed, as noted above, when considering a motion for

summary judgment, a court is required to view all evidence of record in the

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light most favorable to the non-moving party. Criswell, 115 A.3d at 908-909

(emphasis added). Here, when viewing all of the evidence of record in the

light most favorable to appellants as the non-moving party, the trial court

concluded that appellants failed to establish the favorable termination element

of a Dragonetti cause of action and entered summary judgment in favor of

Mr. Corcoran and against appellants because Ms. Vendetti’s praecipe to

discontinue the underlying appeal was filed pursuant to the terms of the

settlement agreement. (Trial court opinion, 11/26/18 at 6; see also

42 Pa.C.S.A. § 8351(a)(2); Ertel, 674 A.2d at 1042 (“Failure to adduce

[sufficient evidence on an issue essential to a case] establishes that there is

no genuine issue of material fact and the moving party is entitled to judgment

as a matter of law.”).) Accordingly, in light of the express terms of the

August 14, 2015 settlement agreement, viewed in the light most favorable to

appellants, we find that the trial court did not abuse its discretion when it

granted Mr. Corcoran’s motion for summary judgment.

C.

Appellants next aver that the trial court erred when it granted

Mr. Corcoran’s motion for summary judgment after previously overruling

Mr. Corcoran’s preliminary objections to appellants’ amended complaint

because doing so “runs afoul” of the law of the case doctrine. (Appellants’

brief at 44.) Specifically, appellants contend that Mr. Corcoran’s preliminary

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objections and motion for summary judgment “were based upon the exact

same evidence and the exact same legal arguments[.]” (Id.)

The law of the case doctrine provides, in relevant part, that “upon

transfer of a matter between trial judges of coordinate jurisdiction, the

transferee trial court may not alter the resolution of a legal position previously

decided by the transferor trial court.” Mariner Chestnut Partners, L.P. v.

Lenfest, 152 A.3d 265, 282 (Pa.Super. 2016) (citations omitted). The law of

the case doctrine, however, does not prohibit a trial judge from revisiting his

or her own pretrial rulings. Wright v. Misty Mountain Farm, LLC, 125 A.3d

814, 818 (Pa.Super. 2015), appeal denied, 140 A.3d 14 (Pa. 2016), citing

Morgan v. Petro. Products Equip. Co., 92 A.3d 823, 827 (Pa.Super. 2014).

This court has specifically noted that where the motions “differ in kind,” such

as preliminary objections and a motion for summary judgment, “a judge ruling

on a later motion is not precluded from granting relief although another judge

has denied an earlier motion.” Neidert v. Charlie, 143 A.3d 384, 391

(Pa.Super. 2016), appeal denied, 164 A.3d 457 (Pa. 2016), citing Parker v.

Freilich, 803 A.2d 738, 745 (Pa.Super. 2002), appeal denied, 820 A.2d 162

(Pa. 2003) (citation omitted).

Here, the trial court may reconsider its pretrial rulings without violating

the law of the case doctrine. Accordingly, we find that the trial court did not

violate the law of the case doctrine when it granted Mr. Corcoran’s motion for

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summary judgment after previously overruling Mr. Corcoran’s preliminary

objections to appellants’ amended complaint.

D.

In their final issue, appellants contend that the trial court erred when it

concluded that Mr. McDavid is personally bound to the landlord/tenant

settlement agreement. (Appellants’ brief at 50.) In their argument,

appellants rely on this court’s decisions in Georgiana v. United Mine

Workers of Am., Int’l. Union by Trumpka, 572 A.2d 232 (Pa.Super. 1990),

and Buchleitner v. Perer, 794 A.2d 366 (Pa.Super. 2002), appeal denied,

808 A.2d 568 (Pa. 2002). (Appellants’ brief at 50.) Both of these cases are

readily distinguishable from the instant case.

In Georgiana, a labor union filed a cause of action sounding in fraud

against Mark A. Georgiana and his wife, R. Diane Georgiana. Georgiana, 572

A.2d at 233. The underlying cause of action specifically accused

Mrs. Georgiana of fraud. Id. The underlying cause of action terminated when

Mrs. Georgiana and the labor union entered into a settlement agreement. Id.

As a result of the settlement agreement, the complaint against

Mr. and Mrs. Georgiana was dropped. Id. Mr. Georgiana stated that he did

not participate in the execution of the settlement agreement, specifically

averring that “no settlement was demanded from nor reached with [him.]”

Id. at 234-235 (citation omitted).

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Mr. Georgiana subsequently brought a Dragonetti cause of action

against the labor union. Id. at 233. The labor union filed preliminary

objections on the grounds that Mr. Georgiana could not recover in a Dragonetti

cause of action because the underlying litigation did not terminate in his favor,

and the trial court sustained the labor union’s preliminary objections. Id. On

appeal, this court stated that it could not, “agree that the unilateral action of

one party in negotiating a settlement necessarily binds another party who did

not participate in that settlement, simply because the parties are named

defendants in the same suit.” Id. at 235. The panel further recognized “that

a settlement with one party may be effective against another party in the

sense that a factfinder could determine that the withdrawal of the entire suit

does not represent a termination in favor of the second party.” Id. (emphasis

omitted). Accordingly, this court held that the effect of Mrs. Georgiana’s

settlement was “a question that [was] properly reserved to the factfinder, and

was not a proper ground upon which to grant the demurrer.” Id. The court

further noted that, “the question of whether one defendant’s settlement of an

action should bind another defendant must depend on the particular

circumstances surrounding that settlement, and not upon the status of the

parties.” Id.

In Buchleitner, the underlying litigation involved a federal case brought

against a high school principal and other parties. Buchleitner, 794 A.2d at

367. The federal court dismissed the principal from the underlying litigation

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by an entry of summary judgment. Id. at 368. The underlying litigation

ultimately concluded in a settlement, which included a release that was

executed as to all named defendants, including the principal, despite his

earlier dismissal from the litigation. Id. The principal raised a Dragonetti

cause of action against the underlying plaintiff’s counsel, who subsequently

filed a motion for summary judgment, averring that the appellant did not have

a “favorable outcome” in the underlying federal case, as required by

Dragonetti. Id. at 368-369. The trial court granted the motion for summary

judgment, “based solely upon the release in the federal case.” Id. at 369

(emphasis omitted).

On appeal, this court noted that the principal “had not been a party to

the settlement agreement, no settlement had been demanded or reached with

him, he had not been given the opportunity to consent to any type of

compromise, and the settlement had never been discussed with him.” Id. at

375, citing Georgiana, 572 A.2d at 235. This court ultimately held that the

principal’s case “contain[ed] a material issue of fact concerning the effect the

plaintiff’s settlement with the remaining defendants in the federal case should

have on the ‘favorable outcome’ prong of [the principal’s Dragonetti] cause of

action.” Buchleitner, 794 A.2d at 375-376 (citations omitted).

Here, Mr. McDavid alleges that he only executed the underlying

settlement agreement in his capacity as the managing member of

Fairmount LLC. (Appellants’ brief at 52.) Mr. McDavid further argues that if

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the parties to the underlying litigation “intended for Mr. McDavid to be bound

individually, Mr. McDavid would have been named as an actual party to the

landlord/tenant settlement in his individual capacity, and a signature block for

him, individually, would have been included. (Id. at 52-53 (extraneous

capitalization and emphasis omitted).) In its opinion, the trial court

determined that appellants’ argument was “unavailing.” (Trial court opinion,

11/26/18 at 6 n.9.) The trial court further concluded as follows:

Though Mr. McDavid is not named in the settlement
agreement, it is clear from the language of that
agreement that he is covered and bound by it as the
managing member of Fairmount LLC. In
Paragraphs 4(c) and 4(d), the members of Fairmount
LLC agree to release Ms. Vendetti and Ms. Fink,
respectively, with language that directly implicates
the managing member, who is Mr. McDavid. It should
be further noted that Mr. McDavid signed the
settlement agreement on behalf of Fairmount LLC.
[The trial] court [found] that Mr. McDavid is directly
and explicitly part of, covered by, and bound by the
settlement agreement.

Id.

Unlike Mr. Georgiana and the principal in Buchleitner, the record in the

instant case reflects that Mr. McDavid directly participated in the negotiation

of the settlement agreement at issue in the instant case, albeit in his capacity

as the managing member of Fairmount LLC. As noted by the trial court,

Paragraphs 4(c) and 4(d) of the settlement agreement contain the following

language directly implicating Mr. McDavid: “. . . this Release shall not release

any claims against Conor Corcoran, Esquire, by [Fairmount LLC] or

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[Mr.] McDavid.” (Appellants’ amended complaint Exhibit 16 at 3, ¶¶ 4(c),

4(d); Mr. Corcoran’s answer to appellants’ amended complaint with new

matter Exhibit D at 3, ¶¶ 4(c), 4(d); R.R. at 778a.) Moreover, Mr. McDavid’s

signature appears on the settlement agreement. (See appellants’ amended

complaint Exhibit 16 at 6; Mr. Corcoran’s answer to appellants’ amended

complaint with new matter Exhibit D at 6; R.R. at 781a.) As noted above, the

record reflects that Mr. Corcoran filed the praecipe to discontinue as a result

of the execution of the settlement agreement. (See Mr. Corcoran’s answer to

appellants’ amended complaint with new matter, Exhibit E; R.R. at 907a-

908a.) Accordingly, we find that the trial court did not abuse its discretion

when it determined that the underlying litigation was not terminated favorably

to Mr. McDavid.

Order affirmed.

Judgment Entered.

JosephD.Seletyn,Esq.
Prothonotary

Date: 6/23/2020

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