J-S56003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THMED D/B/A MEDSTAR AND MEDSTAR IN THE SUPERIOR COURT OF
LOCUM TENENS PENNSYLVANIA
v.
ADVANCED URGENT CARE OF
MONTGOMERYVILLE
APPEAL OF: MEHDI NIKPARVAR
Appellant No. 624 EDA 2017
Appeal from the Order Entered January 30, 2017
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2015-31947
BEFORE: BOWES, STABILE, AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 19, 2017
Mehdi Nikparvar filed a notice of appeal from an order denying an
objection to a sheriff’s determination that an entity called Merck Real Estate
did not have a claim to personal property subject to execution by Appellee
Thmed d/b/a Medstar and Medstar Locum Tenens (“Thmed”). We dismiss
this appeal.
Thmed instituted this action against Advanced Urgent Care of
Montgomeryville (“Advanced”) for breach of contract. Thmed is a provider
of medical staff, and entered a contract with Advanced for those services.
After Advanced failed to pay for the staff provided by Thmed, Thmed filed
* Retired Senior Judge specially assigned to the Superior Court.
J-S56003-17
this action. Advanced was served with the complaint, but never responded
to it. On February 2, 2016, Thmed entered default judgment against
Advanced in the amount of $137,507.25. Advanced never filed a petition to
open or strike the default judgment. Over five months later, on July 12,
2016, Appellee filed a writ of execution on personal property located at
Advances’ premises, and a sheriff’s sale was scheduled.
On August 18, 2016, an entity called Merck Real Estate (“Merck”) filed
a property claim to the personal property, which consisted of equipment and
computers, located at Advanced’s business premises. See Pa.R.C.P.
3202(a) (“A claim to tangible personal property levied upon pursuant to a
writ of execution shall be in writing and substantially in the form provided by
Rule 3258 and shall be filed with the sheriff prior to any execution sale of
the property claimed.”). The sheriff scheduled a hearing, where no one from
Merck appeared. On September 20, 2016, the sheriff denied the claim due
to the fact that a representative from Merck did not arrive at the hearing to
establish the merits of Merck’s claim. See Pa.R.C.P. No. 3204 (“Within ten
days after the claim is filed the sheriff shall, with or without formal hearing,
determine whether the claimant is prima facie the owner of the property in
whole or in part.”).
Merck filed an objection to the sheriff’s determination to deny its
claim. Pa.R.C.P. 3207(b) (“The claimant may, within ten days after the date
of the mailing of the copy of the determination and valuation, file with the
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prothonotary and with the sheriff an objection to the determination
substantially in the form provided by Rule 3260, with or without bond.”).
On January 4, 2017, the court of common pleas held a hearing on the
objection. Merck was not represented by an attorney, but Joanne Ramos
appeared. She stated that she filed the property claim on behalf of Merck at
Appellant’s request and that he completed the paperwork for the claim. She
acknowledged that no one from Merck came to the hearing before the
sheriff. Ms. Ramos presented a document that was a property lease. It was
executed by Mr. Nikparvar herein as a representative of Advanced, the
lessee. According to the document, the owner of the personal property
located at Advanced’s premises was Merck, which leased that property to
Advanced. The name of the individual who signed the lease on behalf of
Merck is not typed, and his or her signature is illegible. The trial court
denied Merck’s objection to the sheriff’s determination. Mr. Nikparvar, the
owner of Advanced, filed the present appeal contesting the determination
that Merck does not own the personal property.
Mr. Nikparvar raises these issues:
A. Did the lower court abused [sic] its discretion in affirming
the sheriff’s determination and denying the Appellant’s
objection?
B. Whether the lower court failed to weigh the Appellant’s
substantial evidence with respect to the lease and
entitlement of the personal property?
Appellant’s brief at 5.
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Thmed correctly observes in its brief that Mr. Nikparvar lacks standing
to litigate these issues.1 In Johnson v. Am. Standard, 8 A.3d 318 (Pa.
2010), our Supreme Court noted that standing was a threshold issue and
involved a question of law. The Johnson Court continued that, at its core,
the concept of standing is that “a person who is not adversely affected in
any way by the matter he seeks to challenge is not aggrieved thereby and
has no standing to obtain a judicial resolution of his challenge.” Id. at 326
(quoting Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 346
A.2d 269 (Pa. 1975)); accord Interest of K.C., 156 A.3d 1179, 1182
(Pa.Super. 2017) (citation omitted) (“A party is ‘aggrieved’ when the party
has been adversely affected by the decision from which the appeal is
taken.”); see also Pa.R.A.P. 501 (“Except where the right of appeal is
enlarged by statute, any party who is aggrieved by an appealable order, or a
fiduciary whose estate or trust is so aggrieved, may appeal therefrom.”).
Mr. Narparver complains that the trial court should not have denied
“Appellant’s” objection to the sheriff’s determination. Merck, not Mr.
Narparver, filed the objection to the sheriff’s determination, and Merck, not
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1
We note that, at the hearing before the trial court, it was unclear whether
Ms. Ramos was acting for Merck or Advanced. She was instructed to bring
in the lease, which indicated that Merck, rather than the judgment debtor
Advanced, owned the personal property. Thus, until Mr. Nikparvar filed this
appeal, there was no issue of standing. The trial court ruled that the
proceedings before it were a nullity since Merck was not represented by
counsel.
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Mr. Narparver, filed the property claim before the sheriff. The “Appellant’s
substantial evidence” that the trial court alleged failed to weigh was that
Merck, not Mr. Narparver, owned the personal property. Merck is the
aggrieved party in this matter. Indeed, according to the lease agreement,
Mr. Narparver signed that document on behalf of Advanced, the judgment
debtor herein, and another individual executed the lease agreement as a
representative of Merck. Even if the lease agreement is a sham, Advanced,
and not Mr. Narparver, owns the personal property in question, and it is the
entity with standing to pursue this appeal. See Hill v. Ofalt, 85 A.3d 540
(Pa.Super. 2014) (shareholder cannot sue bring suit in individual name for
injuries suffered by corporation). Since Mr. Narparver does not own the
property, he is not aggrieved by the trial court’s ruling and does not have
standing herein. Accordingly, the appeal must be dismissed. See Green by
Green v. SEPTA, 551 A.2d 578 (Pa.Super. 1988)
Appeal dismissed.
Judge Stabile joins the memorandum.
Judge Platt concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2017
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THMED LLC v. Advanced Urgent Care
Combined Opinion