J-S11012-20
2020 PA Super 250
PADMASHRI SAMPATHKUMAR, : IN THE SUPERIOR COURT OF
SRIKANTH RAGHUNATHAN, AND : PENNSYLVANIA
NGX, INC. :
:
Appellants :
:
:
v. :
: No. 544 WDA 2019
:
CHASE HOME FINANCE, LLC; :
PHELAN, HALLINAN & SCHMIEG; :
SAFEGUARD PROPERTIES, INC. :
A.K.A. SAFEGUARD PROPERTIES, :
LLC; AND MORTGAGE ELECTRONIC :
REGISTRATION SYSTEM, INC. :
Appeal from the Judgment Entered April 9, 2019
In the Court of Common Pleas of Westmoreland County Civil Division at
No(s): No. 5978-2012
BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
OPINION BY NICHOLS, J.: FILED OCTOBER 19, 2020
Appellants Padmashri Sampathkumar, Srikanth Raghunathan, and
NGX, Inc., appeal from the judgment in favor of Appellees Chase Home
Finance, LLC (Chase), Phelan, Hallinan & Schmieg (PHS), Safeguard
Properties, Inc., also known as Safeguard Properties, LLC (Safeguard), and
Mortgage Electronic Registration System, Inc. (MERS), following a bifurcated
jury and bench trial resolving multiple claims.1 On appeal, Appellants
____________________________________________
1 As needed, we may reference the individual parties by their names. We
may also cite to the extensive reproduced record for the parties’
convenience.
J-S11012-20
challenge the trial court’s pretrial rulings and grant of partial summary
judgment. We grant in part and deny in part the motions to quash filed by
Chase and Safeguard, quash Appellants’ appeals in part as set forth below,
and affirm.
This civil case has a complex, lengthy factual background, which
resulted in multiple lawsuits. We state the facts as presented by the trial
court:
BACKGROUND
This case concerns foreclosure proceedings involving a property
located at 406 Lorenzo Lane, Irwin, PA 15642 (the “Residence”).
On or around March 27, 2002, Sampathkumar purchased the
residence, utilizing a mortgage obtained through Flagstar Bank,
FSB. The property was refinanced through Flagstar Bank, FSB
on March 5, 2003, and the loan was then purchased by Federal
National Mortgage Association (“Fannie Mae”). The instant
mortgage (the “Mortgage”) was executed by Sampathkumar and
her husband, Srikanth Raghunathan as “Borrowers;” the loan
was evidenced by a promissory note (the “Note”) which was
executed by Sampathkumar only. Chase began servicing the
Mortgage on behalf of Fannie Mae in September 2003.
The text of the Mortgage provides in Paragraph 9:
Protection of Lender’s Interest in the Property and
Rights Under this Security Instrument. If (a) Borrower
fails to perform the covenants and agreements contained
in this Security Instrument, (b) there is a legal proceeding
that might significantly affect Lender’s interest in the
Property and/or rights under this Security
Instrument…then Lender may do and pay for whatever is
reasonable or appropriate to protect Lender’s interest in
the Property and rights under this Security Instrument,
including protecting and/or assessing the value of the
Property, and securing and/or repairing the Property...
Securing the Property includes but is not limited to,
entering the Property to make repairs, change locks,
-2-
J-S11012-20
replace or board up doors and windows, drain water from
pipes, eliminate building or other code violations or
dangerous conditions, and have utilities turned on or off...
The Mortgage additionally provides in Paragraph 15 that “[t]he
notice address shall be the Property Address unless Borrower
has designated a substitute notice address by notice to
Lender.... Any notice to Lender shall be given by delivering it or
by mailing it by first class mail to Lender’s address stated herein
unless Lender has designated another address by notice to
Borrower.” All payments were made timely by Sampathkumar
between September 2003 and July 2007.
In September 2006, Sampathkumar pleaded guilty to a felony
count of making false statements in connection with a loan
application to a federally insured financial institution in a criminal
action unrelated to the mortgage on the Residence. Her
husband Raghunathan pleaded guilty to making a fraudulent
representation in connection with a loan application to a
federally insured financial institution. A judgment in restitution
totaling approximately $10.7 million dollars was entered against
Sampathkumar and Raghunathan. Around May 4, 2007,
Sampathkumar and Raghunathan were sentenced to prison and
taken into federal custody. In August 2007, a lien was placed
against the Residence for over ten million dollars, based on the
previously ordered restitution.
Upon Sampathkumar and Raghunathan’s incarceration, keys to
the Residence were given to Sampathkumar’s sister, Lakshmi
Karan. According to Sampathkumar at time of trial,
arrangements were made for Sampathkumar’s cousin’s husband,
Kris Alladi, to reside in the home and pay the mortgage and all
utilities until Sampathkumar was released from prison. In his
testimony, Alladi denied this, and stated that he agreed to pay
the mortgage and utilities only if he was able to raise funding for
a nanotechnology company that was seeking to purchase
patents and applications from Sampathkumar and
Raghunathan’s nanotechnology company and plaintiff to this
action, NGX, Inc. Alladi failed to obtain this funding and did not
make any payments. In approximately August of 2007[,] Alladi
left the Residence and it became unoccupied. No mortgage
payments were made after Sampathkumar’s last payment dated
for July 2007. Alladi and Sampathkumar stopped
communicating in September 2007. While residing in the
-3-
J-S11012-20
Residence, Midi did not open or read any mail addressed to
Sampathkumar and Raghunathan, and he testified that he was
not asked to do so.
As noted above, the Mortgage required that Sampathkumar
notify the lender in the event that notice should be provided to
an address other than the residence, and it required that she
“promptly” provide the lender with a “substitute notice address.”
Sampathkumar did not do so at any time between her May 2007
incarceration and early 2008. In approximately February or
March 2008 Sampathkumar changed her mailing address with
the USPS when her sister Karan filed a notice with the USPS
directing that all mail should be forwarded from the Residence to
Karan’s home in California. Sampathkumar still failed to provide
Fannie Mae and/or Chase with a substitute notice address at this
time.
THE FORECLOSURE PROCEEDING
Chase began the foreclosure process after the Mortgage had
been delinquent for sixty days. Chase sent an Act 91 Notice,
dated October 2, 2007, to Sampathkumar at the Residence. The
notice was returned as undeliverable and marked “Moved, left no
forwarding address.” A second notice, dated November 21,
2007, was sent to the Residence and similarly returned as
undeliverable and marked “Moved, left no forwarding address.”
On December 11, 2007, a Complaint in Mortgage Foreclosure
was filed against Sampathkumar and the United States of
America in the Westmoreland County Court of Common Pleas at
Civil Case Number 10708 of 2007. Chase utilized the services of
the law firm of Phelan, Hallinan and Schmieg (“PHS”) in pursuing
the foreclosure action. The Sheriff’s Office of Westmoreland
County made three unsuccessful attempts to serve the complaint
on Sampathkumar at the Residence.
PHS filed a Motion for Service Pursuant to Special Order on
February 18, 2008, and on March 4, 2008 the Honorable Daniel
J. Ackerman granted the motion. The Motion outlined the efforts
put forth to locate Sampathkumar and included an “Affidavit of
Good Faith Investigation.” The Order allowed for service on
Sampathkumar by first class mail and certified mail sent to the
Residence. On March 7, 2008, PHS sent the complaint by
regular and certified mail to Sampathkumar at the Residence.
Chase’s internal records showed service “completed” on March 7,
-4-
J-S11012-20
2008; Chase was not aware at this time that Sampathkumar was
residing in federal prison.
As Sampathkumar’s mail began being forwarded to Karan in
California in March 2008, the Complaint was delivered to and
signed for at Karan’s residence. Karan testified that she chose
not to read Sampathkumar’s legal mailings; instead she sent
“what [she] thought were important legal documents” to Alladi,
who was then residing at his home in Phoenixville, Pennsylvania.
Alladi testified that he collected this mail without opening or
reading it. Although Karan maintained twice monthly phone
contact with both Sampathkumar and Raghunathan, she testified
that neither mentioned that Alladi was no longer communicating
with them.
Twenty one (21) days after the mailing of the Complaint, PHS
sent a notice of default addressed to Sampathkumar at the
Residence, providing for ten days in which to respond to the
Complaint. Sampathkumar did not file a response to the
Complaint, and on April 15, 2008, PHS entered a default
judgment with the Westmoreland County Prothonotary, eighteen
days after the notice of default was sent. PHS filed a writ of
execution, and a Sheriff’s Sale was scheduled for September of
2008. Sampathkumar was later successful in getting the Sale
continued to November 2008.
After the entry of the default judgment in June 2008, Chase
utilized a contractor, Mortgage Contracting Services (“MCS”), to
determine that the Residence was vacant. On June 10, 2008,
Chase issued a work order to MCS to change one lock on the
Residence for the purpose of allowing Chase to maintain the
property, pursuant to Paragraph 9 of the Mortgage. On June 16,
2008, the rear door lock on the Residence was changed; the
main entrance door lock as well as the garage door opener
remained unchanged. On June 16, 2008, MCS photographed the
interior of the Residence and its contents. Neither MCS nor
Chase ever removed any items from the property.
No evidence was presented to suggest that Chase told
Sampathkumar, Raghunathan or any of their family and/or
friends that they were not allowed full access to the residence
for the removal of personal property. Alladi testified that he
retained the garage door opener for the Residence as well as a
key to the front door. Karan also retained a key to the front
-5-
J-S11012-20
door since May of 2007. The changing of the rear lock did not
affect Sampathkumar’s family and friends from being able to
access and enter the residence at any point from the time of
Sampathkumar’s incarceration up to the Sheriff’s sale, which
occurred in November 2008. No testimony was presented by
any witness that they were denied access to the residence.
REMOVAL OF ITEMS FROM THE RESIDENCE
Throughout their incarceration, Sampathkumar and
Raghunathan regularly communicated via phone and mail
correspondence with family and friends including Karan, Alladi
and their friend and attorney, John Bumbaugh. Sampathkumar
was additionally allowed email access at some point in 2008.
Sampathkumar testified that she became aware of the default
judgment and Sheriff’s Sale scheduled for September 2008 in
approximately July of 2008 from both Karan and Raghunathan.
Despite learning of the default, Sampathkumar did not make any
attempt to bring the mortgage current or arrange for a payment
plan with Chase, and she made no attempts to arrange for a sale
of the property.
Bumbaugh testified that he regularly communicated with
Raghunathan, and that he warned Sampathkumar and
Raghunathan that they could lose their personal property located
in the Residence after the Sheriff’s Sale. Sampathkumar
testified that at this point she intended to remove “everything”
from the residence. Sampathkumar and Raghunathan enlisted
the help of their friends and family, including Alladi, Karan,
Bumbaugh and others to remove their personal property.
Sampathkumar testified that she instructed Karan to “go to the
house, see what was going on. Basically just pack everything
and move everything into storage until we figured out what was
going on.” This did not happen, however. At trial,
Sampathkumar admitted that had her friends and family
followed this directive, that this litigation would not have
occurred.
Regarding friends and family’s actual efforts to remov[e]
Sampathkumar and Raghunathan’s personalty, Raghunathan
initially asked Bumbaugh and Karan to remove the property and
store it. Raghunathan also enlisted the help of friends Michael
Banda and Tim Penatzer. One of these individuals contacted
Chase to access the Residence, and on August 12, 2008, Chase
-6-
J-S11012-20
“placed a meet and greet work order” to allow the individuals to
remove the personal property. Bumbaugh, Alladi, Pentazer,
Banda and Karan entered the residence on August 16, 2008 to
remove items. In addition to the front door key held by Karan,
Bumbaugh obtained a rear door key from MCS, which he
retained for “a couple weeks” before returning. Items were
removed through the front and garage doors over a period of
hours. Karan and Bumbaugh both testified that they were free
to enter and remove items without any interference from Chase.
During the removal, Sampathkumar spoke to Karan on the
phone to provide her with additional instructions.
Karan testified that she removed some of Sampathkumar’s
jewelry, including her wedding jewelry, which Sampathkumar
denied. Banda testified that he and Pentazer packed and
removed enough boxes that they entirely filled up Banda’s dump
truck. No individual prepared an inventory of what was removed
and what was left at the residence, and Sampathkumar testified
that she never requested the same. Banda and Karan both
testified that they were willing to return at any time to remove
more items, but that they were not asked to do so. The boxes
and items removed that day were taken and stored at
Bumbaugh’s law office, and Sampathkumar was made aware of
the same in Fall 2008 prior to the Sheriffs Sale.
At trial, Karan testified that she intended to stay in Pennsylvania
to remove and store the entire contents of the residence,
however she stayed for only one day, based upon Bumbaugh’s
representation to her that he would move all the items into
storage. She did not follow up on this assurance. Karan
testified that after returning home to California, she informed
Sampathkumar that she did not remove everything, and that
Bumbaugh would finish moving everything to storage.
Sampathkumar did not confirm this with Bumbaugh. Bumbaugh
denied making any such representation to Karan.
Subsequent to the August 16, 2008 removal, Bumbaugh held an
estate sale at the residence over two weekends, wherein
members of the public were able to enter the Residence and
purchase any remaining property from Bumbaugh. He also sold
more of Sampathkumar and Raghunathan’s property on other
occasions. He created a partial inventory of the items sold.
Bumbaugh testified that he told Raghunathan “and/or” Karan
that he intended to sell the property. Sampathkumar testified
-7-
J-S11012-20
that she did not authorize him to sell any of the property,
however she found out from Raghunathan prior to the Sheriffs
Sale in November 2008 that he had done so, and that some
property remained in the residence. Despite this knowledge,
neither she nor Raghunathan asked any of the above individuals
to return to the Residence and remove the remainder of their
property. No person requested access to the property from
Chase between the August 16th removal and the November
2008 Sheriff’s Sale.
COURT FILINGS AND CORRESPONDENCE
In August 2008, Raghunathan requested that Bumbaugh prepare
in forma pauperis motions for Raghunathan and Sampathkumar
in the foreclosure action, and expressed his desire to “tie these
people up in Court.” Raghunathan sent a letter dated August 18,
2008 to Chase’s foreclosure counsel requesting a postponement
of September 2008 Sheriff’s Sale and requesting information
about the Mortgage. He also falsely stated in the letter that
Bumbaugh was Sampathkumar’s counsel in the matter. On
August 21, 2008, Fannie Mae did postpone the Sheriff’s sale until
November of 2008. PHS via Attorney Judith Romano sent a letter
to Raghunathan dated August 28, 2008 (copied to Bumbaugh as
counsel for Sampathkumar) notifying him of the postponement
of the Sheriffs sale and including details about the Mortgage and
foreclosure action, which included the current amount owing.
Raghunathan provided these documents to Sampathkumar.
Bumbaugh and Raghunathan continued to correspond regarding
the situation, and Raghunathan expressed his desire to “gain
something from this unfortunate situation” through litigation,
although he declined to express his strategy “in writing on the
‘open’ channels.”
On September 8, 2008, Raghunathan again wrote to PHS
(copying Bumbaugh as Sampathkumar’s counsel) requesting
copies of court filings and the Mortgage Note. On September 18,
2008, Romano responded, stating that she could not send any
“future communications” to Raghunathan or Sampathkumar, as
she believed that Sampathkumar had counsel. Romano
continued sending correspondence to Bumbaugh. Bumbaugh
never entered his appearance in the Foreclosure Action, despite
the fact that he was held out by Raghunathan to be
Sampathkumar’s attorney in that matter. Sampathkumar
testified to having a “dialogue” with Romano based on the
-8-
J-S11012-20
August 18, 2008 and September 8, 2008 letters addressed to
Raghunathan and copied to Bumbaugh.
Sampathkumar stated that Chase through their counsel were
“ignoring [her] letters” despite the clear statement in the
September 8, 2008 letter that PHS and Chase would only
communicate with Bumbaugh, based on Raghunathan’s repeated
assertion that he was Sampathkumar’s counsel. Sampathkumar
additionally testified that at no point did she herself attempt to
reach out to Chase via phone or mail, despite the fact that she
was unrepresented, and that she did not, in fact, write any
letters. Raghunathan continued to attempt to communicate with
PHS on Sampathkumar’s behalf, including in his correspondence
a power of attorney that was not properly notified [sic]. At no
time did Sampathkumar personally authorize Raghunathan to
speak to Chase on her behalf, per Chase’s normal procedure.
Sampathkumar testified that she wished to request a six-month
stay on the Sheriff’s Sale, in order to “bring the mortgage
current.” She did not explain how she intended to do so. This
assertion is cast into further doubt based on the in forma
pauperis motions filed by Sampathkumar and Raghunathan
asserting a combined income of sixty five dollars per month; the
motions failed to disclose any valuable assets held by the couple,
including the approximately $600,000.00 of personal property
which forms the basis of Sampathkumar’s claim here, and which
would have been present either in the Residence or the custody
of friends and family at that time.
SHERIFF’S SALE
The Residence was sold at Sheriff’s Sale on November 10, 2008,
with the successful bid being made by Chase on behalf of Fannie
Mae. After the Sheriff’s sale, Chase ceased servicing the loan
and all decisions regarding the property were subsequently made
by Fannie Mae. In December 2008, Fannie Mae contracted with
Safeguard to secure the Residence and remove remaining
property inside the residence. On December 18, 2008,
Safeguard’s contractor, Grynkewicz Contracting, Inc. performed
a cleanout of the property. All locks to the residence were
changed. None of this subsequent work was done by Chase or
on Chase’s behalf.
On November 12, 2008, Sampathkumar and Raghunathan filed a
motion to open the default judgment and set aside the Sheriff’s
-9-
J-S11012-20
Sale. The motion to set aside the Sheriff’s Sale was deemed
moot by the Court, and the motion to open judgment was stayed
as the motion was filed by a person who was not a barred
attorney (Raghunathan) on behalf of Sampathkumar.
Sampathkumar mistakenly believed that this stay provided her
with additional time to investigate and attempt to remedy the
situation, however this belief was not formed in any way by any
representation or action by Chase.
On October 2, 2012, this action was filed by Sampathkumar,
Raghunathan and NGX against Chase and others. The present
complaint initially sought over thirty million dollars in damages,
of which only approximately $600,000 in personalty is presently
in dispute, based on the claim at bar. Up to this point, Chase
had no knowledge that personal property remained in the
Residence after Sampathkumar’s friends and family had
accessed the Residence numerous times in order to remove
and/or set the property. In order to investigate the claims in the
present complaint, Chase voluntarily vacated the default
judgment without prejudice and set aside the Sheriff’s Sale on
November 12, 2012. Subsequently, Fannie Mae transferred the
Mortgage back to Chase for servicing and property preservation.
Chase did not enter the residence at any point between October
2008 when MCS winterized the residence and November 30,
2012, when Fannie Mae transferred back the Mortgage.
After vacating the judgment, Chase attempted to tender the
residence back to Sampathkumar, sending a letter dated January
23, 2014 to her then-attorney Herbert Terrell upon a demand for
possession. Sampathkumar failed to respond to this tender. A
second attempt was made by letter dated April 7, 2014, along
with a request by Chase for Sampathkumar to make current the
mortgage payments. Sampathkumar also failed to respond to
this letter. In July 2015, Sampathkumar through Terrell again
requested the keys to the residence, to which Chase responded
that it would “engage in further discussions about the transfer” if
Sampathkumar was “interested in reinstating the loan” and
bringing it current. Sampathkumar testified at trial that this was
an “unreasonable” demand.
CLAIMED DAMAGES and LOSSES
Sampathkumar was released from prison in or around August of
2010. She moved into the Phoenixville, Pennsylvania home of
- 10 -
J-S11012-20
her cousin and her cousin’s husband, Alladi. Sampathkumar and
Alladi visited Bumbaugh’s office in Fall 2010, however
Sampathkumar did not inspect the contents of the boxes. She
testified that there were “probably twenty” medium boxes stored
in the office. Raghunathan, however, testified at trial that the
boxes were much more numerous, and they stacked from floor
to ceiling in the office. Sampathkumar stated that she finally
removed the boxes and inspected their contents in February
2011. She never created an inventory of the same, but testified
that nothing on her list of lost personal property was contained
therein.
In the present litigation, Sampathkumar claims that
$96,070.87.00 in jewelry was lost, including wedding jewelry
and heirloom[s], despite Karan testifying that she removed at
least some of this wedding jewelry. Bumbaugh testified to
seeing empty jewelry boxes, and he stated that he believed that
Karan had removed all of Sampathkumar’s jewelry.
Sampathkumar claims an additional $494,895.00 in
miscellaneous personal property. Sampathkumar also claims
$312,500.00 in lost rent, $2,030.88 in late charges, $19,160.00
in rent paid during the pendency of litigation, $2,000.00 in
property storage fees, $2,500.00 as cost to retain counsel in the
foreclosure matter, and an unknown amount of damages due to
alleged property damage at the Residence. She additionally
requests treble damages pursuant to the UTPCPL. At trial,
evidence was presented consisting of photographs taken by MCS
prior to the August 2008 property removal, photographs taken
by Watson realty after the Sheriffs sale, and photographs taken
by Fannie Mae’s contractors during the cleanout of the
Residence. These photographs support Chase’s assertion that all
valuable property was removed by Sampathkumar’s friends and
family. Throughout all of her testimony, Sampathkumar was
unable to identify which items were taken, when they were
taken, by whom they were taken, and what remained in the
residence versus what was contained in the boxes retained by
Bumbaugh and what was retained by Karan.
Sampathkumar admitted at trial that she did not know what
remained in the home at the time of the November 2008 Sheriffs
sale. She claims [that] she based her inventory and valuation in
the present action based on her memory as of October 2012.
She conceded that her valuation “obviously can’t be accurate.”
as her receipts remained in the Residence. She did not adjust
- 11 -
J-S11012-20
for depreciation, and did not have any appraisals or other
professional valuations for any of the allegedly lost items. The
[c]ourt finds that Sampathkumar failed to sufficiently testify to
the fair market value of the allegedly lost items. Sampathkumar
additionally claimed losses in the form of damage to the
residence, however she has not presently incurred any costs to
repair the same, and did not offer any estimates of the work
required to do so.
Trial Ct. Op., 12/20/18, at 1-14 (formatting altered).
As noted above, on October 2, 2012, Appellants filed suit, and on
January 23, 2013, they filed their second amended complaint. Specifically,
Appellants raised the following claims: (1) trespass, conversion, replevin,
conspiracy, and unfair and deceptive trade practices (UTPCPL) against all
Appellees; and (2) breach of a fiduciary duty and wrongful use of civil
proceedings against Chase, MERS, and PHS only. R.R. at 205a.
In 2014 and 2015, Appellants hired and fired several counsel.
Appellants’ replacement counsel filed at least two motions to extend the
discovery deadlines, which the trial court denied. Subsequently, Appellees
filed motions for summary judgment, which the trial court granted in part
and denied in part. Briefly, the trial court granted summary judgment in
favor of some or all of the Appellees on all claims except conversion and
UTPCPL.
- 12 -
J-S11012-20
Prior to trial, the parties filed several motions, which the trial court
denied on August 9, 10, and 16, 2018.2 The parties proceeded to a jury trial
for Appellants’ conversion claims against Safeguard and Chase, and a bench
trial for Appellants’ UTPCPL claim against Chase. Appellants timely moved
for a directed verdict before the trial court charged the jury. Id. at 514b.
On September 20, 2018, the jury found in favor of Chase and Safeguard on
the conversion claim. Id. at 2125a. Appellants did not immediately file a
post-trial motion from the jury verdict. The trial court then received
testimony regarding the UTPCPL claim against Chase.
On October 30, 2018, Safeguard praeciped for entry of judgment.
Appellants filed a motion to strike judgment, which the trial court granted on
December 7, 2018, because “a final decision has [not] been entered in the
remaining non-jury portion of this matter.” Order, 12/7/18. On December
19, 2018, the trial court issued a decision in favor of Chase on the UTPCPL
claim. R.R. at 2133a.
Raghunathan and NGX did not file a post-trial motion from the trial
court’s decision. On December 31, 2019, Sampathkumar filed a post-trial
motion, which challenged the trial court’s decision regarding the UTPCPL
____________________________________________
2We discuss these August 2018 orders in further detail below in resolving
Safeguard’s and Chase’s applications to quash.
- 13 -
J-S11012-20
claim. Id. at 2169a. On March 12, 2019, the trial court denied
Sampathkumar’s post-trial motion. Id. at 2186a.
On March 19, 2019, Chase praeciped for entry of judgment, and on
April 9, 2019, Appellants also praeciped for entry of judgment. Appellants
filed a notice of appeal on April 10, 2019.3 The trial court did not order
Appellants to comply with Pa.R.A.P. 1925(b), but nevertheless filed a Rule
1925(a) opinion and supplemental opinion. Subsequently, Safeguard and
Chase each filed in this Court a motion to quash Appellants’ appeal, which
we discuss below.4
Safeguard’s and Chase’s Applications to Quash
On June 21, 2019, Safeguard filed an application to quash Appellants’
appeal in this Court. Safeguard noted that the jury returned a verdict in
favor of Safeguard and Chase on Appellants’ conversion claim. Safeguard’s
Appl. to Quash, 6/21/19, at 1 (unpaginated). Safeguard argues that
because Appellants failed to file a post-trial motion following the jury trial on
the conversion claim, “they have failed to preserve any issues related to the
____________________________________________
3Chase filed a cross-appeal on April 24, 2019, and Safeguard filed a cross-
appeal on April 25, 2019, but they subsequently discontinued their cross-
appeals.
4As noted above, only Sampathkumar filed a post-trial motion after the trial
court ruled on Appellants’ UTPCPL claim after a bench trial.
- 14 -
J-S11012-20
verdict.” Id. at 2 (unpaginated).5 Relatedly, Safeguard contends that
Appellants failed to preserve their challenge to the trial court’s August 2018
orders. Id. at 3 (unpaginated). On July 2, 2019, Chase filed a motion to
join Safeguard’s application to quash in addition to its separate application to
quash Appellant’s appeal. Chase’s Joinder to Appl. to Quash & Separate
Appl. to Quash, 7/2/19.
Appellants filed separate oppositions to each motion to quash raising
similar arguments. Appellants contend that the trial was not complete until
December 19, 2018, when the trial court issued its decision on their UTPCPL
claim. See, e.g., Appellants’ Reply to Safeguard’s Mot. to Quash, 7/8/19, at
3 (unpaginated). With respect to the trial court’s August 2018 orders,
Appellants argue they were not required to raise their objections to those
pretrial orders in a post-trial motion. Id. at 4.
Pennsylvania Rule of Appellate Procedure 341 states as follows:
(a) General Rule.— . . . an appeal may be taken as of right
from any final order of a . . . trial court.
(b) Definition of Final Order.—A final order is any order that:
(1) disposes of all claims and of all parties; or . . .
____________________________________________
5 Safeguard acknowledges that Sampathkumar filed a post-trial motion
following the subsequent bench trial on the UTPCPL claim. Safeguard’s
Appl. to Quash at 1-2 (unpaginated). We add that Safeguard mistakenly
asserted that all Appellants, including Sampathkumar, filed a post-trial
motion. See id.
- 15 -
J-S11012-20
(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. . . .
Pa.R.A.P. 341.
With respect to when a post-trial motion must be filed, we discuss
Stevenson v. Gen. Motors Corp., 521 A.2d 413 (Pa. 1987), in which the
trial court bifurcated the trial “into liability and damage portions.”
Stevenson, 521 A.2d at 414. One jury held the defendants liable and a
different jury awarded damages. Id. The defendants filed post-trial
motions at the conclusion of the liability and the damages portions. Id. at
414-15. The trial court granted the defendants’ post-trial motion and
awarded a new trial on both liability and damages. Id. at 415. This Court
affirmed, and our Supreme Court granted allowance of appeal, framing the
issue as whether “the trial court may upset a finding of liability in a
bifurcated trial based upon evidence adduced at the damage phase of the
case.” Id.
In resolving the issue, the Stevenson Court first addressed “whether
the jury’s finding of liability assumes the characteristics of a verdict on which
- 16 -
J-S11012-20
judgment can be finally entered, subject to post-trial motions and appeal.”
Id. (emphasis added). Our Supreme Court ultimately concluded that a
“jury’s finding of liability in a bifurcated trial is not a finding on which a final
judgment can be entered.” Id. at 416. “Allowing the litigants to file post-
trial motions and require their final resolution at the end of the first phase of
a bifurcated trial would foster needless piecemeal determinations.” Id.
Relatedly, with respect to issue preservation in a timely-filed post-trial
motion, Pennsylvania Rule of Civil Procedure 227.1 provides as follows:
(b) Except as otherwise provided by Pa.R.E. 103(a), post-trial
relief may not be granted unless the grounds therefor,
(1) if then available, were raised in pre-trial proceedings or by
motion, objection, point for charge, request for findings of fact or
conclusions of law, offer of proof or other appropriate method at
trial; and
Note: If no objection is made, error which could have been
corrected in pre-trial proceedings or during trial by timely
objection may not constitute a ground for post-trial relief. . . .
(2) are specified in the motion. The motion shall state how the
grounds were asserted in pre-trial proceedings or at trial.
Grounds not specified are deemed waived unless leave is
granted upon cause shown to specify additional grounds.
Pa.R.C.P. 227.1(b)(1)-(2).
Therefore, “in order to preserve pretrial rulings on appeal from a final
determination, the rulings must be raised in post-trial motions.” Dauphin
Deposit Bank & Trust Co. v. Pifer, 556 A.2d 904, 907 (Pa. Super. 1989)
(citing Pa.R.C.P. 227.1(b)); see also Hinkson v. Com., Dep’t of Transp.,
871 A.2d 301, 303 (Pa. Cmwlth. 2005) (stating, “[t]he requirement that
- 17 -
J-S11012-20
the motion state how the grounds were raised at trial indicates
compliance with the requirements of Dilliplaine v. Lehigh Valley Trust
Co., 457 Pa. 255, 322 A.2d 114 (1974), and subdivision (b)(1) that there be
a timely objection in pre-trial proceedings or at trial. Thus, the failure to
specify in a post-trial motion how the grounds for relief were asserted at
trial, or in pre-trial proceedings, will result in a waiver of those grounds.”
(emphasis in original) (citation and alterations omitted)). However, “it is
unnecessary to include a prior order granting summary judgment in post-
trial motions for purposes of issue preservation.” B.K. ex rel. S.K. v.
Chambersburg Hosp., 834 A.2d 1178, 1181 (Pa. Super. 2003) (citation
omitted).
Here, we acknowledge that the instant trial was not bifurcated into
liability and damages phases. The trial below, however, was divided into
jury and non-jury phases. Applying the reasoning of our Supreme Court, we
agree that obligating Appellants to file a post-trial motion at the end of the
jury trial before commencing a non-jury trial would “foster needless
piecemeal determinations.” Cf. Stevenson, 521 A.2d at 414. Moreover, as
noted above, the trial court granted Appellants’ motion to strike the
judgment because a final decision had not yet been entered. Order,
12/7/18. Appellants did not have to file a post-trial motion following the
jury trial but did have to file a post-trial motion following the subsequent
bench trial. Cf. Stevenson, 521 A.2d at 416.
- 18 -
J-S11012-20
Raghunathan and NGX, however, did not file a post-trial motion
following the bench trial, and therefore did not preserve their challenges to
the trial court’s August 2018 orders. See Pifer, 556 A.2d at 907. Although
Sampathkumar filed a post-trial motion following the bench trial, the motion
challenged only the UTPCPL verdict and not the trial court’s August 2018
orders. Therefore, we grant in part the motions to quash.
Specifically, we quash Raghunathan and NGX’s appeal to the extent
they attempted to challenge the trial court’s August 2018 orders. We deny
in part the motions to quash to the extent Chase and Safeguard requested
we quash Sampathkumar’s appeal on the basis that Sampathkumar should
have filed a post-trial motion following the earlier jury trial. However,
although Sampathkumar filed a post-trial motion following the bench trial,
she waived any challenge to the trial court’s August 2018 orders because
she did not properly preserve them in her post-trial motion. See id.; see
also Pa.R.C.P. 227.1(b)(1)-(2). Therefore, we also quash in part
Sampathkumar’s appeal to the extent she also attempted to challenge the
trial court’s August 2018 orders. Regardless, even if Appellants had properly
preserved their claims regarding the August 2018 orders, they lack merit for
the reasons we state below.6
____________________________________________
6 In their appellate briefs, Appellants challenge only the trial court’s August
9, 2018 order, which denied their second motion for reconsideration of the
order granting Appellees’ pretrial motion to strike Appellants’ expert reports.
(Footnote Continued Next Page)
- 19 -
J-S11012-20
Appellants’ Issues
Appellants raise the following issues:
1. Did the trial court commit an abuse of discretion when it
denied [Appellants’] several motions to modify the October 9,
2014 Case Management Order when the underlying proceedings
involved the analysis of five prior years of foreclosure
proceedings, when [Appellees’] actions substantially contributed
to the case’s lack of progress, when [Appellants] and their
attorneys severed ties as deadlines were drawing near, and
when [Appellees] would have suffered no prejudice?
2. Was it an abuse of discretion for the court to strike
[Appellants’] proffered experts when the case had not yet been
scheduled for trial, and when any alleged prejudice would have
been cured by an extension of time for [Appellees] to obtain
rebuttal testimony.
3. Was it error for the court to dismiss [Appellants’] Trespass
and Breach of Fiduciary Duty claims at summary judgment
based upon the Statute of Limitations when the asserted acts of
trespass and fiduciary duty breach continued well into the two-
year time period leading up the filing of the Complaint on
October 2, 2012?
4. Was it error for the court to dismiss [Appellants’] Civil
Conspiracy claim at summary judgment when conversion served
as at least one illegal act and when the jury could have
reasonably inferred malice from Chase, PHS and Safeguard’s
deliberate and knowingly improper notice procedures?
Appellants’ Brief at 5-6.
(Footnote Continued) _______________________
See Appellant’s Brief at 41; R.R. at 2517a. Therefore, although several
August 2018 trial court orders were at issue for the motions to quash,
Appellants elected to limit their arguments to only the trial court’s August 9,
2018 order.
- 20 -
J-S11012-20
Pretrial Issues
Before summarizing Appellants’ arguments in support of their first two
issues, we state the following as background. As noted above, Appellants
filed their amended complaint in January 2013, and the parties agreed that
the pleadings were closed in July 2013. Appellants began discovery in
October 2013.
One year later, on October 10, 2014, the trial court issued a case
management order. R.R. at 273a-74a. In relevant part, the order stated
that discovery must be completed by March 16, 2015, Appellants’ expert
reports must be filed by April 16, 2015, and Appellees’ expert reports must
be filed by May 18, 2015. Order, 10/10/14, R.R. at 273a-74a.
On January 16, 2015, the trial court docketed Appellants’ emergency
motion seeking to stay or modify the trial court’s October 10, 2014 case
management order. R.R. at 286a.7 In relevant part, the motion stated that
Appellants’ counsel was moving to withdraw and that Appellants needed
time to retain new counsel, who in turn, required additional time to review
the case. Id. at 288a. That same day, Charles Fedel, Esq., entered his
appearance as counsel for Sampathkumar and NGX. The trial court denied
____________________________________________
7 Motions practice in Westmoreland County requires a party to serve the
motion in advance on the opposing party and then present the motion to the
trial court. See generally Westmoreland Cty. Civ. R. W208.3(a).
Therefore, the docketing dates do not necessarily reflect the service dates of
motions.
- 21 -
J-S11012-20
the motion on January 16, 2015. Id. at 291a. Appellants did not identify
any experts by the March 16, 2015 discovery deadline.
Appellants subsequently filed several motions to compel and for a
protective order. Attorney Fedel argued at the hearing on Appellants’
motions that because Appellees’ counsel was “papering [him] to death,” and
he was a solo practitioner, he needed additional time. R.R. at 371a. The
trial court countered that Attorney Fedel elected to represent Sampathkumar
and NGX and did not have to accept the case, particularly just three months
before the discovery deadline. Id. at 372a. The trial court ultimately denied
the motions on April 22, 2015. On June 19, 2015, the trial court granted
Attorney Fedel permission to withdraw.
Meanwhile, on May 18, 2015, Dennis Kusturiss, Esq., and Erica Wilson,
Esq., entered their appearance for all Appellants, including Raghunathan,
who was formerly pro se. On June 23, 2015, Appellants presented a second
motion for a new case management order. Id. at 322a. Appellants
contended that this was a complex case and that Appellees could not
“articulate any substantive reasons why they would be prejudiced” by a
discovery extension. Id. at 332a. Appellants asserted they actively pursued
discovery and that Appellees obstructed and delayed discovery. Id. at
333a-34a. The trial court denied Appellants’ motion on June 23, 2015. Id.
at 8.19a.
- 22 -
J-S11012-20
The case was certified ready for trial on March 27, 2017, and the trial
court ordered pre-trial memorandum by May 1, 2017. Appellants, after
requesting extensions of time, filed their pre-trial statement, which identified
five experts and included their reports. Id. at 2199a. Appellees moved to
strike the expert reports, which the trial court granted on October 5, 2017.
Id. at 2123a-24a.
In granting Appellees’ motion to strike, the trial court reasoned as
follows:
Despite more than two years passing from the April 2015
deadline, and the repeated denials of requests to extend same,
[Appellants] decided for the first time to submit . . . expert
witnesses in their pre-trial statement . . . and attached expert
reports for each witness. . . .
[I]t is hard to look at the history of this case and not find
prejudice to [Appellees]. This case has been pending for a
period of five years. Prior to the [case management order
(CMO)] in October 2014, no expert reports were provided. The
CMO was necessary to provide structure to the discovery
process. For a period of more than two years, [Appellees] relied
on the CMO and the denials of [Appellants’] motions for
extensions. Furthermore, [Appellees] relied on [Appellants’]
failure to comply with the deadline in preparing their defense
strategy. Although trial is not set in this matter, . . . a certificate
of readiness [was filed] indicating that discovery was complete
and a pre-trial conference was scheduled in the matter.
[Appellees] would have relied on that representation, along with
the history of this case, to reach the logical conclusion that no
expert testimony would be presented by [Appellants]. As a
result, [Appellees] had no way of anticipating that [Appellants]
would submit expert reports at this late stage of the trial
process.
Id. at 3-4 (formatting altered). Subsequently, Appellants filed a motion for
reconsideration, which the trial court denied in an August 9, 2018 order. We
- 23 -
J-S11012-20
note that the trial court incorrectly stated that Appellants filed a certificate of
readiness that discovery was complete. Id. at 4. The record establishes
that Chase filed a certificate of readiness for trial, and Appellants did not
object.
Refusal to Extend Discovery Deadline
Turning to Appellants’ issues on appeal, in support of their first issue,
Appellants recap the procedural history and blame Appellees and the trial
court for delaying the completion of discovery. Appellants’ Brief at 47-48.
Appellants argue that in December 2014, “there still existed a number of
unresolved discovery disputes.” Id. at 49. According to Appellants, prior
counsel Attorney Terrell moved to withdraw and to stay or modify the trial
court’s case management order. Id. In Appellant’s view, “there were less
than three months left to complete discovery, Chase had still not yet
provided substantive answers to discovery on the grounds that their
‘investigation was still ongoing,’ and there were still outstanding discovery
disputes that had been pending for months.” Id. at 49-50. Appellants
conclude the trial court abused its discretion by denying the motion to stay
or modify because Appellees “substantially contributed to or otherwise
caused” the delays. Id. at 50. Appellants argue that the departure of
Attorney Terrell “exacerbated the procedural delays” and Appellees “should
not be permitted to benefit from the procedural morass that they themselves
played the primary role in creating.” Id. at 50-51.
- 24 -
J-S11012-20
Chase counters that the trial court “appropriately exercised its broad
discretion to deny Appellants’ requests for relief from discovery deadlines.”
Chase’s Brief at 26. Chase, in turn, blames Appellants for failing to
“diligently pursue discovery,” and points out, among other things, that
Sampathkumar and NGX elected to change their counsel midway through
the case. Id. at 27-28. Chase points out that Appellants failed to take any
depositions for twenty months. Id. at 27. Safeguard similarly argues that
the trial court acted within its discretion. Safeguard’s Brief at 18. The trial
court reasoned that Appellants had several opportunities to, but failed to,
establish the good cause necessary to modify the discovery deadlines. Trial
Ct. Op., 10/5/17, at 4.
We review a trial court’s order regarding discovery deadlines for an
abuse of discretion. See Anthony Biddle Contractors, Inc. v. Preet
Allied Am. St., LP, 28 A.3d 916, 922 (Pa. Super. 2011) (Biddle). A finding
of an abuse of discretion requires “a showing of manifest unreasonableness,
partiality, prejudice, bias, ill-will, or such lack of support in the law or record
for the award to be clearly erroneous.” Samuel-Bassett v. Kia Motors
Am., Inc., 34 A.3d 1, 51 (Pa. 2011) (citation omitted). To the extent such
discovery issues exist, it “is self-evident that such issues, which arise while
the parties are independently conducting discovery, require the filing of a
motion in order to obtain the court’s attention.” Kurian v. Anisman, 851
A.2d 152, 160 (Pa. Super. 2004) (citation omitted).
- 25 -
J-S11012-20
In Biddle, the trial court entered a CMO in June 2009, which set a
discovery deadline in April 2010. Biddle, 28 A.3d at 920. The plaintiff
joined two additional defendants in November 2009. Id. The additional
defendants filed preliminary objections, which the trial court overruled in
February 2010, and the additional defendants filed their answer and new
matter in March 2010. Id. Shortly thereafter, the plaintiff served discovery
and filed a motion to extend the discovery deadlines. Id. The trial court
denied the plaintiff’s motion, and the Biddle Court reversed, reasoning that
the plaintiff had substantially complied with the June 2009 CMO. Id. at 924.
The Biddle Court observed that “multiple [discovery] delays would disrupt
the efficient and just administration of justice and would send a blatant
message that case management deadlines are meaningless. When case
management deadlines are violated with impunity the abusing party must be
prepared to pay the consequences.” Id. at 923 (citations and alterations
omitted).
In Hill v. Kilgallen, 108 A.3d 934 (Pa. Cmwlth. 2015),8 the plaintiff
argued that the trial court abused its discretion by denying, among other
items, her motion to extend the discovery deadline. Hill, 108 A.3d at 940.
____________________________________________
8 “This Court is not bound by decisions of the Commonwealth Court.
However, such decisions provide persuasive authority, and we may turn to
our colleagues on the Commonwealth Court for guidance when appropriate.”
Petow v. Warehime, 996 A.2d 1083, 1089 n.1 (Pa. Super. 2010) (citation
omitted).
- 26 -
J-S11012-20
In Hill, the plaintiff filed a complaint in August 2007, a first amended
complaint in June 2009, and a second amended complaint in January 2010.
Id. at 936-37. On July 16, 2012, the defendants moved for judgment of
non pros or sanctions, claiming that the plaintiff waited almost sixteen
months “to move the litigation forward.” Id. at 938. On October 17, 2012,
the plaintiff filed a motion to compel. Id. In January 2013, the trial court
denied the defendants’ motion and granted the plaintiff’s motion to compel,
ordering the defendants to respond to discovery within thirty days and that
all parties complete depositions within ninety days. Id. In April 2013, the
plaintiff filed a motion for sanctions, strike the defendants’ objections to her
discovery requests, and to extend the discovery deadlines, which the trial
court denied. Id. at 938, 940.
The Hill trial court reasoned that the plaintiff was “at fault for many of
the delays in discovery. [She] had initiated the underlying case six (6) years
ago. During that time, [she] failed to get the necessary factual allegations
to support her claim and failed to comply with the discovery rules . . . .” Id.
at 941 (citation omitted). The Hill Court agreed that the trial court’s
reasoning was not an abuse of its discretion. Id.
Instantly, similar to Hill and unlike Biddle, Appellants did not timely
initiate and pursue discovery. Cf. Hill, 108 A.3d at 941. Appellants, similar
to the plaintiff in Hill, waited three months before initiating discovery and
had almost two years to complete discovery and obtain the necessary factual
- 27 -
J-S11012-20
allegations to support their claims, including bringing any disputes to the
trial court’s attention. Cf. id. To the extent Appellants blame the trial court
for delays, they did not file appropriate motions to move the matter forward.
Cf. Kurian, 851 A.2d at 160. We note that although Appellants complained
about having less than three months within which to complete discovery, the
Hill Court affirmed the trial court’s refusal to extend the discovery deadlines
after ordering the parties to complete discovery within thirty days and
complete depositions within three months. See Hill, 108 A.3d at 938.
Additionally, this case is distinguishable from the facts in Biddle,
because Appellants did not add additional defendants and have the pleadings
closed shortly before the discovery deadline. Cf. Biddle, 28 A.3d at 920.
Unlike the plaintiff in Biddle, who complied with the CMO, Appellants had a
year within which to pursue discovery even before the trial court issued its
CMO. Cf. id. Moreover, Appellants, unlike the litigants in Biddle and Hill,
chose to dismiss and retain new counsel several times. Under the
circumstances, we cannot say that Appellants established the trial court
acted with manifest unreasonableness, partiality, prejudice, bias, or ill-will.
See Samuel-Bassett, 34 A.3d at 51. Therefore, even assuming Appellants
had properly preserved their claim in a post-trial motion, it fails.
Striking Appellants’ Untimely Expert Reports
In support of their second issue, Appellants argue that because the
case had not yet been scheduled for trial, the trial court erred by striking
- 28 -
J-S11012-20
their experts’ reports. Appellants’ Brief at 56. Appellants summarize several
cases, which in their view, establish that Appellants did not act in bad faith.
Id. at 65. They argue that the delay in producing the reports was “not to
the product of artifice or design,” but was the result of “extenuating
circumstances.” Id. at 66. Specifically, Appellants claim that “the departure
of two separate attorneys, the time necessary for newly engaged attorneys
to consume the boxes of material developed in both the foreclosure and the
underlying proceedings, the difficulty obtaining requested discovery from”
Appellees. Id. Appellants maintain that they did not act “in a callous and
indifferent manner towards the court-imposed deadlines” in the trial court’s
October 9, 2014 case management order. Id. Appellants argue that
Appellees “would have suffered no prejudice whatsoever” if the trial court
permitted their expert reports. Id. at 67.
We review an evidentiary ruling resolving the admissibility of expert
testimony/reports for an abuse of discretion. First Lehigh Bank v.
Haviland Grille, Inc., 704 A.2d 135, 139 (Pa. Super. 1997) (stating,
“[d]iscovery sanctions are appropriate where a party fails to make discovery
or to obey an order of court respecting discovery.” (citation omitted and
formatting altered)).
One of the primary purposes of discovery is to prevent the
surprise and unfairness of a trial by ambush, in favor of a trial on
the merits. Parties may discover the evidence that will be
offered at trial, and assess the credibility of witnesses.
Consequently, discovery is calculated to facilitate early
settlement or narrow issues for trial.
- 29 -
J-S11012-20
Gregury v. Greguras, 196 A.3d 619, 628 (Pa. Super. 2018) (en banc).
Pennsylvania Rule of Civil Procedure 4003.5 addresses discovery of
expert testimony:
(a) Discovery of facts known and opinions held by an expert,
otherwise discoverable under the provisions of Rule 4003.1 and
acquired or developed in anticipation of litigation or for trial, may
be obtained as follows:
(1) A party may through interrogatories require
(A) any other party to identify each person whom the
other party expects to call as an expert witness at trial and
to state the subject matter on which the expert is expected
to testify and
(B) subject to the provisions of subdivision (a)(4), the
other party to have each expert so identified state the
substance of the facts and opinions to which the expert is
expected to testify and a summary of the grounds for each
opinion. The party answering the interrogatories may file
as his or her answer a report of the expert or have the
interrogatories answered by the expert. . . .
* * *
(b) An expert witness whose identity is not disclosed in
compliance with subdivision (a)(1) of this rule shall not be
permitted to testify on behalf of the defaulting party at the trial
of the action. However, if the failure to disclose the identity of
the witness is the result of extenuating circumstances beyond
the control of the defaulting party, the court may grant a
continuance or other appropriate relief.
Pa.R.C.P. 4003.5(a)(1), (b).
“The purpose of the discovery rules is to prevent surprise and
unfairness and to allow a trial on the merits.” Kaminski v. Employers
- 30 -
J-S11012-20
Mut. Cas. Co., 487 A.2d 1340, 1344 (Pa. Super. 1985) (citation omitted).
The Kaminski Court explained:
When expert testimony is involved, it is even more crucial that
surprise be prevented, since the attorneys will not have the
requisite knowledge of the subject on which to effectively rebut
unexpected testimony. By allowing for early identity of expert
witnesses and their conclusions, the opposing side can prepare
to respond appropriately instead of trying to match years of
expertise on the spot. Thus, the rule serves as more than a
procedural technicality; it provides a shield to prevent the unfair
advantage of having a surprise witness testify.
Kaminski, 487 A.2d at 1344-45.
In Curran v. Stradley, Ronon, Stevens & Young, 521 A.2d 451
(Pa. Super 1987), the Court summarized the trial court’s framework for
evaluating a Rule 4003.5 violation:
Specifically, the Court stated that where an expert witness has
not been identified pursuant to a local or state discovery rule,
the presiding court must balance the facts and circumstances of
each case to determine the prejudice to each party[:]
Bad faith on the part of the party seeking to call witnesses not
listed in his pretrial memorandum; ability of the party to have
discovered the witnesses earlier; validity of the excuse offered
by the party; willfulness of the party's failure to comply with the
court’s order; the [party’s] intent to mislead or confuse his
adversary; and finally, the importance of the excluded
testimony. Underlying the cases to which we have adverted are
these basic considerations: (1) the prejudice or surprise in fact
of the party against whom the excluded witnesses would have
testified, (2) the ability of that party to cure the prejudice, (3)
the extent to which waiver of the rule against calling unlisted
witnesses would disrupt the orderly and efficient trial of the case
or of other cases in the court, and (4) bad faith [or] willfulness in
failing to comply with the court’s order.
- 31 -
J-S11012-20
Curran, 521 A.2d at 457 (emphasis added, citations omitted, and
formatting altered).
Here, the instant trial court reasoned as follows:
[I]t is hard to look at the history of this case and not find
prejudice to [Appellees]. This case has been pending for a
period of five years. Prior to the CMO in October 2014, no
expert reports were provided. The CMO was necessary to
provide structure to the discovery process. For a period of more
than two years, [Appellees] relied on the CMO and the denials of
[Appellants’] motions for extensions. Furthermore, [Appellees]
relied on [Appellants’] failure to comply with the deadline in
preparing their defense strategy. . . . As a result, [Appellees]
had no way of anticipating that [Appellants] would submit expert
reports at this late stage of the trial process. . . . As a result,
this Court finds that [Appellees] are prejudiced by [Appellants’]
excessively late disclosure of expert reports and testimony.
Trial Ct. Op., 10/5/17, at 4-5 (footnote omitted).
Instantly, we perceive no abuse of discretion in the trial court’s
reasoning. See First Lehigh Bank, 704 A.2d at 139. The trial court’s CMO
required Appellants to identify their experts by April 16, 2015, and
Appellants failed to comply. Appellants’ present counsel, who entered their
appearance in May 2015, were well aware that no experts were identified by
the deadline, but nonetheless chose to proceed with representing Appellants.
Appellants ultimately filed their pretrial memorandum attaching five new
expert reports on August 4, 2017. Trial by ambush or surprise, however, is
not favored in this Commonwealth. See Gregury, 196 A.3d at 628. While
we acknowledge that the trial court had not yet scheduled trial, Appellants’
springing of new expert reports on Appellees is disfavored. See Curran,
- 32 -
J-S11012-20
521 A.2d at 457. Therefore, even if Appellants had raised this claim in a
post-trial motion, they failed to establish an abuse of discretion. See First
Lehigh Bank, 704 A.2d at 139.
Motion for Summary Judgment Issues
Before summarizing the arguments for Appellants’ last two claims, we
state the following as background. Appellants raised a claim for trespass, as
follows:
55. Even though . . . Sampathkumar and Raghunathan were
absent from the property for an extended period of time,
[Appellees], jointly and severally, knew or should have known,
that [Appellants] did not abandon their residence. At no time
did [Appellants], either jointly or severally, provide or give
[Appellees], the reasonable right to enter the residence and
change the locks. [Appellants] did not consent to any named
[Appellee] entering the residence. No [Appellee] provided any
named [Appellant] here with notice of their intention to enter
upon or seize [Appellants’] real or personal property.
56. [Appellees’] unlawful entry, jointly and severally, without
any legal or factual authority, upon [Appellants’] residence; and
[Appellees’], joint and several, willful and intentional failure and
refusal to relinquish control of [Appellants’] residence has
continued wrongfully and illegally August 2008—to date.
57. [Appellees’] retention and control of [Appellants’] residence
is continuing in nature and contrary to [Appellants’] titled
ownership and/or equitable rights.
R.R. at 220a-21a.
Appellants’ claim for conspiracy follows:
79. The agreement between [Appellees] to forcibly enter
[Appellants’] residence, without legal right, or other lawful
authority, or consent, was illegal and in violation of [Appellants’]
right to peacefully and quietly enjoy [their] home. [Appellees’]
agreement constitutes a joint venture and a civil conspiracy.
- 33 -
J-S11012-20
Id. at 226a.
Safeguard filed a motion for summary judgment, which the trial court
granted in part on March 1, 2016, as to all claims except Appellants’
conversion claim. R.R. at 2116a. Chase and MERS also filed a motion for
summary judgment for all claims. In relevant part, Appellees argued that
the statute of limitations barred Appellants’ trespass claim. See, e.g., R.R.
at 527a-28a.
Appellants filed their opposition, arguing that the discovery rule should
toll the statute of limitations because they were incarcerated. Id. at 1741a-
42a. Sampathkumar stated she did not return to Pittsburgh until October
2010. Id. at 1742a. Raghunathan and NGX claimed they did not discover
that Appellees removed property from the residence until February of 2011.
Id. They argued that Appellees were liable for the trespass, “which is a
continuing trespass because of the refusal to return possession of the
Residence to” Appellants. Id. at 1745a (citing Allegheny v. Merrit Const.
Co., 454 A.2d 1051 (Pa. Super. 1982)). Appellants also did not argue that
because they were denied an extension of time for discovery, they could not
identify controverting evidence. Id.; see generally Pa.R.C.P. 1035.3. The
trial court granted in part and denied in part summary judgment.
- 34 -
J-S11012-20
Specifically, the trial court granted summary judgment for all claims except
for Appellants’ conversion and UTPCPL claims.9 Id. at 1745a.
Summary Judgment on Appellants’ Trespass Claim
On appeal, in support of their third claim, Appellants argue that the
trial court erred in granting summary judgment adverse to them for their
claims of trespass against both Chase and Safeguard and breach of fiduciary
duty against Chase. Appellants’ Brief at 70. With respect to trespass,
Appellants acknowledge there is a two-year statute of limitations but that
the discovery rule tolled it. Id. at 74. Appellants note that a trespass is
“continuing when it is impossible to know exactly how many incidents of
trespass will occur in the future, or the severity of the damage that may be
caused, such that the full amount of damages cannot be calculated in a
single action.” Id. at 73. Appellants, however, state that Chase possessed
the Residence in “June of 2008 to at least mid-2016.” Id. at 8, 26.
In Appellants’ view, although they were aware of the mortgage default
and foreclosure proceedings in August of 2008, they assert they were
unaware of the “damages, injuries or loss associated with that trespass until
February of 2011 . . . .” Id. at 73. Specifically, that month, “Raghunathan
____________________________________________
9 PHS also moved for summary judgment on the remaining claims against it,
which the trial court granted for all claims except for the breach of fiduciary
duty claim. Id. MERS and PHS filed motions for reconsideration, which the
trial court granted on August 8, 2016, and dismissed all claims against MERS
and PHS. Id. at 2187a-88a.
- 35 -
J-S11012-20
entered the premises (after serving his sentence) and found a number of
items of damage, including certain household items and furnishings that
were missing and unaccounted for, the missing NGX intellectual property,
and physical damage and disrepair to the residential property itself.” Id. at
73-74 (footnote omitted).10 Therefore, Appellants assert, since the
discovery rule tolls the statute of limitations, they timely filed their complaint
in October 2012. Id. at 74. Appellants additionally claim that “the court
erred by not tolling the statute of limitations due to the concealment of
information regarding Safeguard's identity and involvement by Chase, MERS,
and PHS.” Id. at 76.
The trial court held as follows in granting summary judgment adverse
to Appellants:
When the foreclosure action was initiated by Chase against
[Sampathkumar and Raghunathan, they] were incarcerated and
arranged for a family member to make payments on the
mortgage. [Sampathkumar] was incarcerated until her release
on August 20, 2010. [Raghunathan] was incarcerated until his
release, which he alleges occurred on February 20, 2011.
Pursuant to 42 Pa.C.S.[] § 5533(a), incarceration does not
extend the statute of limitations on a cause of action. Despite
their incarceration, [Appellants] admit in their amended
complaint that they first became aware of the foreclosure action
filed by Chase on August 18, 2008. They further acknowledge
that they knew the locks were changed on their residence as of
August 9, 2009. Throughout the process, [Appellants] sent
letters to all [Appellees] requesting information and also
participated in the foreclosure proceeding by attempting to set
____________________________________________
10 We discuss the absence of record support for this assertion below.
- 36 -
J-S11012-20
aside the default judgment and delay the sheriff’s sale that was
initially scheduled in 2008. Based on these facts, it is clear that
[Appellants] were aware, or should have been aware, of the
injury against them in the form of trespass and breach of a
fiduciary duty when the foreclosure action came to their
attention in August 2008, when the residence was scheduled for
sheriff’s sale in 2008, and when they knew the locks on their
residence were changed in August 2009. Reasonable minds
could not differ as to whether [Appellants] were aware of the
injury against them in relation to trespass and breach of a
fiduciary duty. Since [Appellants] did not file their initial
complaint alleging said claims until October 2, 2012, they were
well outside the two year statute of limitations and they should
be barred from proceeding on said claims as a result.
Trial Ct. Op. at 4-5.
Our standard of review for summary judgment is well-settled:
In reviewing an order granting summary judgment, our scope of
review is plenary, and our standard of review is the same as that
applied by the trial court. . . .
An appellate court may reverse the entry of a summary
judgment only where it finds that the lower court erred in
concluding that the matter presented no genuine issue as to any
material fact and that it is clear that the moving party was
entitled to a judgment as a matter of law. In making this
assessment, 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. As our inquiry involves solely questions of law,
our review is de novo.
Thus, our responsibility as an appellate court is to determine
whether the record either establishes that the material facts are
undisputed or contains insufficient evidence of facts to make out
a prima facie cause of action, such that there is no issue to be
decided by the fact-finder. If there is evidence that would allow
a fact-finder to render a verdict in favor of the non-moving
party, then summary judgment should be denied.
- 37 -
J-S11012-20
Jones v. Levin, 940 A.2d 451, 453-54 (Pa. Super. 2007) (citations omitted
and formatting altered).
Upon raising a claim “sounding in trespass, whether continuing or
permanent,” the statute of limitations is two years. See Kowalski v. TOA
PA V, L.P., 206 A.3d 1148, 1160 n.6 (Pa. Super. 2019) (citing 42 Pa.C.S. §
5524(4)). The “discovery rule,” however, establishes an exception to when
the statute of limitations typically begins to run:
The discovery rule is a judicially created device which tolls the
running of the applicable statute of limitations until that point
when the plaintiff knows or reasonably should know: (1) that
[the plaintiff] has been injured, and (2) that [the] injury has
been caused by another party’s conduct. The limitations period
begins to run when the injured party possesses sufficient critical
facts to put him on notice that a wrong has been committed
and that he need investigate to determine whether he is entitled
to redress.
Melley v. Pioneer Bank, N.A., 834 A.2d 1191, 1201 (Pa. Super. 2003)
(emphasis added and citation omitted).11 “Absent issues pertaining to the
discovery rule, whether the statute of limitations has run on a claim is
generally a question of law for the trial court judge.” Wilson v. Transport
Ins. Co., 889 A.2d 563, 570 (Pa. Super. 2005) (citation omitted and
____________________________________________
11 “In short, the discovery rule is a judicial creation, fashioned to solve a
specific problem, namely, whether the law should preclude recovery for an
injury that not even a diligent party may reasonably be expected to
discover.” Anthony v. Koppers Co., 425 A.2d 428, 432 (Pa. Super. 1980)
(discussing origin and history of discovery rule), rev’ d, 436 A.2d 181 (Pa.
1981).
- 38 -
J-S11012-20
formatting altered). While the application of the discovery rule is ordinarily
a question of fact, where reasonable minds would not differ as to its
application, the lower court may make the determination as a matter of law.
O’Kelly v. Dawson, 62 A.3d 414, 419 (Pa. Super. 2013).
“The party seeking to invoke the discovery rule bears the burden of
establishing the inability to know of the injury despite the exercise of
reasonable diligence.” Dalrymple v. Brown, 701 A.2d 164, 167 (Pa.
1997). The reasonable diligence standard “is not a standard of reasonable
diligence unique to a particular plaintiff, but instead a standard of reasonable
diligence as applied to a ‘reasonable person.’” Id. “[T]he point at which the
complaining party should reasonably be aware that he has suffered an injury
is generally an issue of fact to be determined by the jury; only where the
facts are so clear that reasonable minds cannot differ may the
commencement of the limitations period be determined as a matter of law.”
E.J.M. v. Archdiocese of Phila., 622 A.2d 1388, 1391 (Pa. Super. 1993)
(citation omitted); accord O’Kelly, 62 A.3d at 420. In the context of
summary judgment, the trial court inquires “whether there are genuine
issues of material fact as to whether [the plaintiff] knew or was unable to
know, despite the exercise of reasonable diligence, that she was injured and
by what cause at the time the injury was inflicted.” Fine v. Checcio, 870
A.2d 850, 863 (Pa. 2005).
- 39 -
J-S11012-20
As set forth above, Appellants contend that Appellees engaged in a
continuing trespass, which they were unaware of until February 2011. We
begin by defining a continuing trespass:
The Restatement (Second) of Torts defines a continuing trespass
as follows:
The actor’s failure to remove from land in the possession
of another a structure, chattel, or other thing which he has
tortiously erected or placed on the land constitutes a
continuing trespass for the entire time during which the
thing is wrongfully on the land and . . . confers on the
possessor of the land an option to maintain a succession
of actions based on the theory of continuing trespass or to
treat the continuance of the thing on the land as an
aggravation of the original trespass.
Kowalski, 206 A.3d at 1161 n.7 (emphasis added, citations omitted, and
formatting altered); accord Merrit, 454 A.2d at 1052.
Specifically:
A continuing trespass must be distinguished from a trespass that
effects a permanent change in the condition of the land. The
latter, while resulting in a continuing harm, does not subject the
trespasser to liability for a continuing trespass. If a nuisance at
the time of creation is a permanent one, the consequences of
which in the normal course of things will continue indefinitely,
there can be but a single action therefore to recover past and
future damages and the statute of limitations runs against such
cause of action from the time it first occurred, or at least from
the date it should reasonably have been discovered.
Merrit, 454 A.2d at 1053 (citation omitted and formatting altered); accord
Kowalski, 206 A.3d at 1160-61, 1168 (stating, “in the context of a
continuing trespass, a right of action exists only for the damages suffered
within the statutory period immediately preceding suit.”).
- 40 -
J-S11012-20
In determining whether a trespass is permanent or continuing:
a court must consider a variety of factors, including: (1) the
character of the structure or thing which produces the injury; (2)
whether the consequences of the trespass will continue
indefinitely; and (3) whether the past and future damages may
be predictably ascertained.
For a trespass that effects a permanent change in the condition
of the land, the statute of limitations begins to run at the time of
the original trespass, or at least from the date it should
reasonably have been discovered. The possessor of the land
may then institute a single action to recover past and future
damages for a permanent trespass. Since a permanent trespass
once and for all produces a permanent injury to the land, only
the possessor of the land at the time of the trespass has a cause
of action for the trespass.
Conversely, where it is impossible to know exactly how many
incidents of trespass will occur in the future, or the severity of
the damage that may be caused, such that the full amount of
damages cannot be calculated in a single action, the trespass is
continuing. The possessor may maintain a succession of actions
based on the continuing trespass or treat the continuance of the
thing on the land as an aggravation of the original trespass.
Kowalski, 206 A.3d at 1160-61 (citations omitted).
In Graham Oil Co. v. BP Oil Co., 885 F. Supp. 716 (W.D. Pa. 1994),
the federal district court summarized the Pennsylvania law on a continuing
trespass in resolving whether to dismiss the plaintiff’s trespass claim.
Graham Oil, 885 F. Supp. at 718.12 Specifically, the plaintiff leased
property to the defendant, who used it as a gas and service station and
____________________________________________
12 Although federal court decisions do not typically bind this Court, we may
rely on them to the extent we find their reasoning persuasive. NASDAQ
OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 303 (Pa. Super. 2012).
- 41 -
J-S11012-20
installed underground storage tanks. Id. In January 1992, the defendant
removed the storage tanks and later notified the plaintiff that it would allow
its lease to expire in November 1992. Id. In April 1994, the plaintiff filed
an amended complaint against the defendant for, among other claims, a
continuing trespass. Id.
The defendant filed a motion to dismiss the continuing trespass claim
on several grounds,13 including that its alleged contamination was a
permanent trespass and not a continuing trespass. Id. at 725. The
Graham Oil court summarized the Pennsylvania law on the distinctions
between a continuing and a permanent trespass, as well as the similar case
of Tri-County Bus. Campus Joint Venture v. Clow Corp., 792 F. Supp.
984 (E.D. 1992). Id. at 725-26 (stating that in Clow, the district court held
that “the defendant’s depositing of drums and associated waste on the
property did not constitute a continuing trespass because the depositing of
waste was a completed act at the time that the property was conveyed.”
(citation omitted)).
In granting the defendant’s motion to dismiss, the Graham Oil court
reasoned, among other things, that in “order to maintain a claim for
continuing trespass, a plaintiff must plead that the defendant committed and
____________________________________________
13 We note that one ground was that the defendant “was a tenant-in-
possession of the premises at the time of the alleged contamination and its
presence was, therefore, authorized.” Graham Oil, 885 F. Supp. at 725.
- 42 -
J-S11012-20
continues to commit harm-causing actions, not merely that the harm
continues to result from actions which have ceased.” Id. at 726 (citations
omitted). The district court reasoned that because the “contamination was a
completed act at the time the underground storage tanks were removed and
that the contamination is, therefore, a permanent injury rather than a
continuing trespass.” Id. at 727.
Initially, we address Appellants’ contention that they did not discover
their injuries until February 2011, when Raghunathan entered the Residence
after completing his sentence. See Appellant’s Brief at 73-74. Appellants
cited nothing of record to support their contention that Raghunathan entered
the Residence in February 2011. The trial transcript revealed that
Raghunathan testified he discovered his property was missing when he “tried
to move stuff from Bumbaugh’s office” to another location. R.R. at 67b.
Sampathkumar testified that Raghunathan had “gone by the” Residence in
February 2011, but she did not testify that Raghunathan entered the
Residence. Id. at 378b, 423b. In any event, imprisonment does not toll the
statute of limitations. 42 Pa.C.S. § 5533(a).
Further, Appellants did not identify material issues of fact regarding
Appellees’ “failure to remove from land in the possession of another a
structure, chattel, or other thing” that Appellees “tortuously erected or
placed on the” Residence. See Kowalski, 206 A.3d at 1161 n.7 (citation
omitted). Appellants conceded they did not possess the Residence between
- 43 -
J-S11012-20
October 2, 2010, and October 2, 2012, the date they filed suit.14 See
Appellants’ Brief at 8, 26 (stating Chase possessed the Residence between
June 2008 to mid-2016); cf. Graham Oil, 885 F. Supp. at 725 (noting the
alleged tort occurred while the defendant was in possession of the property).
To the extent Appellants rely on Appellees’ alleged unlawful entry as
the basis for their continuing trespass claim, that unlawful entry was
completed in June 2008. See Trial Ct. Op. at 5-6. Considering that unlawful
entry is the legal equivalent to a tortious placement of a structure, chattel,
or other thing, similar to the contamination in Graham Oil, Appellees’
unlawful entry was completed in June 2008.15 Cf. Graham Oil, 885 F.
Supp. at 725-26. Therefore, the statute of limitations ran in June 2010.
See 42 Pa.C.S. § 5524(4).
Regardless, Appellants also failed to identify, let alone state any
material issues of fact regarding, any “structure, chattel, or other thing” that
Appellees “tortuously erected or placed on the” Residence such that
Appellees committed a continuing trespass. See Kowalski, 206 A.3d at
1160-61 & 1161 n.7; see also Merrit, 454 A.2d at 1053. Appellants did not
____________________________________________
14 As discussed above, the Residence was sold at a sheriff’s sale on
November 10, 2010. On November 12, 2012, Chase “voluntarily vacated
the default judgment” and set aside the Sheriff’s Sale. Trial Ct. Op. at 11.
15 We acknowledge the trial court’s and Appellees’ reasoning that their
presence in the Residence was lawful under the mortgage instrument. See,
e.g., Trial Ct. Op. at 1.
- 44 -
J-S11012-20
cite any authority for the proposition that Appellees’ “refusal to relinquish
control” of the Residence is equivalent to the failure to remove a tortious
erection or placement of a structure, chattel, or other thing. See Kowalski,
206 A.3d at 1161 n.7.
Even if we accepted Appellants’ contention that Appellees’ “refusal to
relinquish control” is a valid “continuing trespass,” we agree with the trial
court’s reasoning regarding the discovery rule. See Trial Ct. Op. at 4-5.
First, Appellants’ incarceration did not toll the statute of limitations. See 42
Pa.C.S. § 5533(a). Second, Appellants simply failed to identify any material
issues of fact that they could not have discovered their injury earlier.
Appellants acknowledge they learned of Appellees’ possession of the
Residence in June 2008, testified they learned of the sheriff’s sale in July of
2008, and successfully sought to delay the sale in August 2008. Indeed,
Appellants’ family and friends entered the Residence in August 2008 to
retrieve Appellants’ personal belongings and photographs were taken of the
Residence. See Trial Ct. Op. at 7. Appellants, however, filed suit over four
years later, on October 2, 2012. Appellants do not explain why they could
not have discovered the basis of the trespass claim—Appellees’ alleged
refusal to return the Residence—until on or after October 2010. Finally, with
respect to Appellants’ claim of damages, they were aware that their
personalty was retrieved in August 2008. Appellants do not explain how,
despite the August 2008 retrieval, they remained unaware of the “damages,
- 45 -
J-S11012-20
injuries or loss associated with that trespass until February of 2011 . . . .”
See Appellant’s Brief at 73. Therefore, after carefully construing the record
in their favor, we agree with the trial court that Appellants failed to identify
any genuine issues of material fact regarding the disposition of their
continuing trespass claim. See Jones, 940 A.2d at 453-54.
Summary Judgment on Appellants’ Conspiracy Claim
Lastly, Appellants challenge the trial court’s conclusion that there was
a “lack of factual evidence supporting malicious intent” by Appellees.
Appellant’s Brief at 83. In Appellants’ view, no caselaw holds for the
proposition that they must prove that Appellees’ “actions were motivated
solely for the purpose of” injuring Appellants. Id. at 84 (emphasis in
original). Citing to federal district court cases, Appellants argue that they
“need only show sufficient factual evidence to support an inference that”
Appellees were motivated, at least in part, to injure Appellants. Id.
Appellants then list numerous actions by Appellees, which Appellants claim
establish that one of Appellees’ motives was “to play ‘fast-and-loose’ with
[Appellants’] due process rights for the illegitimate purpose of keeping
them in the dark as to what they were planning in connection with the”
Residence. Id. at 86 (emphasis in original).
Chase counters that Appellants failed to identify facts establishing
Appellees’ conspiracy, the “cause of action for which a conspiracy occurred,”
and malice. Chase’s Brief at 56. In Chase’s view, even after viewing the
- 46 -
J-S11012-20
record in Appellants’ favor, “Appellants failed to present evidence that
Appellees’ ‘sole purpose in bringing the foreclosure action was to injure’”
Appellants. Id. at 57. Chase also takes issue with Appellants’ reliance on
federal caselaw permitting evidence of a mixed motive, as opposed to the
Pennsylvania Supreme Court’s sole-purpose motive. Id. Chase notes that
even if Appellants met their evidentiary burden, their claim was barred by
the two-year statute of limitations. Id. at 59-60. Safeguard similarly
counters that Appellants failed to identify any material issues of fact that
they conspired with Chase or any other Appellees. Safeguard’s Brief at 50-
51.
By way of background:
In order to state a cause of action for civil conspiracy, a plaintiff
must show that two or more persons combined or agreed with
intent to do an unlawful act or to do an otherwise lawful act by
unlawful means. Proof of malice, i.e., an intent to injure, is
essential in proof of a conspiracy. Thus, in order to withstand
summary judgment on this claim, [the plaintiffs] must have
produced evidence which would establish that [the defendants]
acted in concert to commit an unlawful act or do a lawful act by
unlawful means, and that they acted with malice.
Commerce Bank/Pa. v. First Union Nat’l Bank, 911 A.2d 133, 143 (Pa.
Super. 2006) (citations omitted and formatting altered); accord Williams
v. Lead Indus. Ass’n, Inc., 690 A.2d 169, 174 (Pa. 1997). A plaintiff must
establish a valid underlying civil claim before it can prevail on a civil
conspiracy claim. See Rock v. Rangos, 61 A.3d 239, 249 (Pa. Super.
2013). The Rock Court affirmed the dismissal of the plaintiff’s civil
- 47 -
J-S11012-20
conspiracy claim because there was no valid underlying civil claim. Rock,
61 A.3d at 249 (noting “conspiracy claim will not lie without a valid
underlying civil claim” (citations omitted)).
As set forth above, because Appellants failed to establish the trial
court erred in granting summary judgment regarding their underlying
trespass claim, they cannot prevail on appeal regarding their conspiracy
claim. See id. We add that the jury did not find there was any conversion
and Appellants have not challenged the jury’s verdict as to conversion.
Therefore, Appellants have no basis to argue that the trial court erred in
granting summary judgment on their claim of civil conspiracy as to
conversion, because without any predicate cause of action, their civil
conspiracy claim must fail as a matter of law. See Phillips v. Selig, 959
A.2d 420, 437 (Pa. Super. 2008); see also Lackner v. Glosser, 892 A.2d
21, 35 (Pa. Super. 2006) (noting “a conspiracy is not actionable until some
overt act is done in pursuance of the common purpose or design and actual
legal damage results.” (citation omitted and formatting altered)). For these
reasons, we affirm the trial court’s judgment.
Judgment affirmed. Safeguard’s and Chase’s motions to quash
granted in part and denied in part. Appellants’ appeals quashed in part.
- 48 -
J-S11012-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2020
- 49 -