Opinion
No. 87 C.D. 2012 No. 88 C.D. 2012
02-01-2013
New Coalition for Alternatives in Jewish Education, Inc. v. Sanford J. Piltch, Esquire and Bunnie R. Piltch, husband and wife, Appellants New Coalition for Alternatives in Jewish Education, Inc. v. Sanford J. Piltch, Esquire and Bunnie R. Piltch, husband and wife and Manaje, LLC formerly known as Mid-Atlantic Regional CAJE, LLC Appeal of: Manaje, LLC formerly known as Mid-Atlantic Regional CAJE, LLC
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
This appeal arises from a falling out among the directors and officers of the New Coalition for Alternatives in Jewish Education (NewCAJE). NewCAJE is a non-profit corporation formed for the purpose of bringing together Jewish educators across denominations and teaching settings to advocate for Jewish education on a national level. Sanford J. Piltch and Bunnie R. Piltch (the Piltches) were two of five initial directors who were appointed to serve until December 31, 2010. Bunnie Piltch was named vice-president and Sanford Piltch was named as treasurer of the NewCAJE. Bunnie Piltch is also the president and sole member of an unrelated limited liability corporation formerly known as Mid-Atlantic Regional CAJE, LLC, now known as Manaje, LLC.
Throughout 2010, the relationship between the Piltches and the other three directors and officers deteriorated. On September 23, 2010, Rabbi Cherie Koller-Fox, president of NewCAJE, sent two letters to the Piltches advising them that a special board meeting was to be held on October 7, 2010, for the purpose of removing the Piltches as directors and from their respective positions of secretary and treasurer. On October 7, 2010, the directors of NewCAJE held a board meeting, which the Piltches did not attend. At the meeting, the three remaining directors of NewCAJE voted and adopted resolutions to remove Sanford Piltch as treasurer and Bunnie Piltch as secretary and to remove them from the board. Resolution No. 1 demanded that Sanford Piltch turn over all material in his possession relating to NewCAJE, including financial records, and that certain monies be restored to NewCAJE's bank account by October 15, 2010. Resolution No. 2 demanded that Bunnie Piltch sign and notarize a paper giving ownership of NewCAJE's Constant Contact account to NewCAJE and also to send all information regarding mailing lists, addresses, passwords, accounts and other information regarding NewCAJE to Cherie Koller-Fox.
On October 15, 2010, NewCAJE filed a petition to approve corporate action, for accounting, turnover of assets, reimbursement and permanent injunctive relief in the Orphans' Court division of the Court of Common Pleas of Lehigh County (trial court). Additionally, NewCAJE filed a petition for emergency preliminary injunctive relief seeking to enjoin the Piltches, inter alia, from removing or diverting money from NewCAJE's bank accounts, attempting to open or close bank accounts, disbursing any of NewCAJE's funds in the Piltches' possession, retaining possession of NewCAJE's financial records, utilizing NewCAJE's Fedweb account or Constant Contact account and from holding themselves out as officers or directors of NewCAJE.
On October 21, 2010, the trial court held a hearing on the request for a preliminary injunction. At the hearing, the parties advised Senior Judge Brenner that they were willing to settle the dispute. At the office of Mark H. Scoblionko, the Piltches' attorney, the parties negotiated a settlement. The parties signed a provisional memorandum of understanding (MOU) which required the Piltches to perform various actions which included: resigning as directors, assigning the assets of the Coalition for Jewish Education (OldCAJE) to NewCAJE, providing documents necessary to release control of the Constant Contact account to NewCAJE, and changing the name of Mid-Atlantic Regional CAJE. Paragraph 15 of the MOU provided that "[u]nless and until such time as a final Release Agreement is entered into between the parties, all parties fully reserve the right to assert any and all claims against one another." Reproduced Record (R.R.) at 299a. The MOU also provided that the listed counsel for the parties are fully authorized to act for respective clients and to enter into the MOU. Following execution of the MOU, the petition for preliminary injunction was withdrawn.
Sanford Piltch negotiated the purchase of the assets of OldCAJE from the United States Bankruptcy trustee for his wife's company, Manaje. The Piltches allege that the asset purchase was accomplished using a combination of money provided by Manaje and NewCAJE. NewCAJE alleges that the money used to purchase the assets was solely NewCAJE's money.
On November 18, 2010, the Piltches filed an answer to NewCAJE's petition to approve corporate action with a new matter and counterclaim. In the new matter and counterclaim the Piltches asserted that they were entitled to costs and counsel fees pursuant to 15 Pa. C.S. § 5743. NewCAJE filed a reply to the new matter and counterclaim. On December 21, 2010, NewCAJE filed a petition to enforce the MOU and for other special relief. NewCAJE alleged that the Piltches had acted in bad faith by failing to comply with the terms of the MOU. NewCAJE requested an order directing the Piltches to comply with the terms of the MOU, to execute an assignment authorizing the United States Bankruptcy Trustee to release the assets of OldCAJE, and to execute a release agreement. NewCAJE filed its petition to enforce the MOU in response to a November 3, 2010 document titled "Inventory Listing of Documents Sent to Counsel for NewCAJE, Inc." (Inventory Letter) that Sanford Piltch sent to NewCAJE. Paragraph 4 of the Inventory Letter stated that the issue of shared and/or part ownership of OldCAJE assets was yet to be determined and that the assignment of the assets was deferred until the final settlement agreement.
On January 26, 2011, Manaje filed a petition to intervene. Manaje asserted that the "ownership of the assets and monies used to procure the assets are being asserted by both NewCAJE and Manaje making resolution of the claim by the two competing parties necessary to a final resolution of this matter." R.R. at 265a. Manaje also filed a petition for partition of assets and repayment of funds advanced to NewCAJE and for other special relief. In the petition for partition, Manaje asserted that on August 14, 2009, Manaje, with the full knowledge of Rabbi Fox, made an offer of $15,000 with a 10% down payment to the bankruptcy trustee for the assets of OldCAJE. Manaje also alleged that on December 31, 2009, it advanced $8223.62 to NewCAJE as part of its partnership contribution to the purchase of the assets of OldCAJE. Manaje alleged that on September 8, 2010, Sanford Piltch acting on its behalf offered the trustee $18,500 for the assets of OldCAJE, using $8500 of Manaje's funds and $10,000 of NewCAJE's funds. Manaje also asserted that it advanced over $2000 of its own funds to pay for various other costs incurred by NewCAJE. Manaje requested that the trial court issue a final decree granting partition of the assets of OldCAJE so that both Manaje and NewCAJE had undivided interest in the whole. Manaje also requested that the trial court require NewCAJE to repay to Manaje all funds advanced on behalf of NewCAJE beginning in July 2009.
On February 3, 2011, the trial court held argument regarding Manaje's petition to intervene. After hearing argument from both parties, the trial court decided to defer ruling upon the petition to intervene until after he conducted a hearing on the petition to enforce.
On January 10, 2011, Christopher Grey entered an appearance on behalf of Sanford and Bunnie Piltch. At the February 3 argument, Grey argued Manaje's petition to intervene. Sanford Piltch also entered an appearance on his own behalf and his wife's behalf.
The trial court held a hearing on the petition to enforce on February 8, 2011. At the hearing, the trial court heard testimony from Rabbi Fox and argument from counsel both on the record and off the record. The trial court ruled from the bench, granting the petition to enforce and ordering the parties to comply with the terms of the MOU within 10 days. February 8, 2011, Notes of Testimony (N.T.) at 67-68; R.R. at 363a-64a. Prior to ruling, the trial court stated that the grant of the petition to enforce was not the final disposition of the case and that the parties could still bring other claims. Id. at 65-66; R.R. at 363a. The Piltches performed as required by the MOU. On February 18, 2011, Bunnie Piltch, as president of Manaje, assigned the assets of OldCAJE to NewCAJE. R.R. at 336a. Bunnie Piltch also completed the change of name of the corporation from Mid-Atlantic Regional CAJE to Manaje as required by the MOU. R.R. 334a.
Thereafter, the trial court held a hearing on the petition to intervene on June 21, 2011. Prior to the hearing, NewCAJE notified Sanford Piltch that he would be called as a witness. The trial court conducted a long colloquy with Piltch regarding whether he was permitted to act as both advocate and witness in light of the notice to attend sent by NewCAJE and the withdrawal of Christopher Grey as counsel to the Piltches. The Piltches requested a short continuance to obtain new counsel, which the trial court denied. The trial court also heard argument on the merits of petition to intervene, but did not allow the parties to put on witnesses. The trial court's ruling from the bench dismissed the petition to intervene on the ground that Manaje was unable to proceed as it was unrepresented by counsel who was not to be called as a witness and because the case was settled as a result of the parties performing as required by the MOU and the court's prior order enforcing it. June 21, 2011, N.T. at 72-73; R.R. at 502a.
On July 8, 2011, Manaje filed exceptions to the trial court's denial of the petition to intervene arguing that because the Rules of Professional Conduct and Pennsylvania case law did not prohibit Piltch from acting as both advocate and witness, the trial court erred in dismissing the petition to intervene. NewCAJE filed a reply in opposition and a new matter. The trial court would later characterize this document as the filing of cross-exceptions to the June 21, 2011 order denying the petition to intervene. Manaje filed a motion to strike the new matter, which was denied by the trial court without prejudice.
On August 5, 2011, the Piltches filed a motion for leave to amend counterclaim. The Piltches sought to add claims for negligent mismanagement of NewCAJE, diversion of corporate assets and funds and a claim for indemnification. NewCAJE filed an opposition to the Piltches' motion. The trial court held a hearing on the exceptions, cross-exceptions and the motion for leave to amend counterclaim on September 22, 2011.
On December 22, 2011, the trial court denied and dismissed Manaje's exceptions to the order denying its petition to intervene. The trial court also denied and dismissed the Piltches' motion for leave to amend counterclaim. Finally, the trial court sustained in part and denied in part the cross-exceptions filed by NewCAJE. The trial court stated that it properly dismissed Manaje's petition to intervene because it failed to carry its burden by putting on a case at the June 21 hearing on account of Sanford Piltch's being called as a witness. The trial court reiterated that the petition to intervene was also denied because there was no longer any petition pending before the court as the dispute had been resolved by the MOU, the court's February 8 order enforcing the agreement and the respective parties' performance under the MOU, which resulted in ratification of its terms. Finally, the trial court determined that the denial of the petition to intervene was proper under Pa.R.C.P. No. 2329(2) and (3) as Bunnie Piltch, the sole member of Manaje, adequately represented Manaje's interests when she acted in her individual capacity under the MOU and because Manaje waited three months after the initial filing of the petition to enforce corporate action before filing its petition to intervene. The Piltches and Manaje (Appellants) appeal from the December 22, 2011, order of the trial court.
Before this Court, NewCAJE filed a motion to quash the Appellants' appeal on the ground that the appeal was untimely and that the December 22, 2011 order was a non-appealable interlocutory order. NewCAJE argued that the appeal was untimely because the exceptions were deemed denied on the 120th day after filing, November 6, the appeal period began running on the 121st day and expired thirty days later on December 5. See Pa.O.C.Rule 7.1(f). Consequently, Appellants' notice of appeal filed on January 20, 2012, was untimely. Senior Judge Oler determined that the appeal was timely because the clerk of court had failed to enter the deemed denial upon the docket as required by Pa.O.C.Rule 7.1(f). Senior Judge Oler noted that the Appellants timely filed an appeal from the December 22, 2011, order which disposed of the exceptions, cross-exceptions and the motion to amend counterclaim. Senior Judge Oler also concluded that the order was not interlocutory because the trial court stated that it considered the dispute between the parties to be resolved and settled. NewCAJE requested reargument, which was denied.
Appellants filed a motion to strike and suppress NewCAJE's brief and supplemental reproduced record. Appellants argue that it was improper for NewCAJE to renew its request to quash the appeal in its brief. Appellant also assert that NewCAJE's brief did not conform to the Pennsylvania Rules of Appellate Procedure, that NewCAJE improperly relied upon an unpublished opinion, and that NewCAJE improperly submitted a supplementary reproduced record. The motion to strike and suppress was listed with the merits of the case.
Jurisdiction
As an initial matter, the Court must determine whether it has jurisdiction to hear this appeal. In its brief, NewCAJE renews its argument that this Court should quash Appellants' appeal from the denial of exceptions as untimely. NewCAJE also asserts that this Court lacks jurisdiction over the appeal from the denial of the motion to amend counterclaim because such denial is an interlocutory order.
With regard to the appeal from the denial of exceptions, Senior Judge Oler correctly concluded that Appellants' appeal was timely. Orphans' Court Rule 7.1(f) provides:
The Orphans' Court shall decide exceptions including supplemental exceptions and cross exceptions within one hundred and twenty (120) days of filing of the initial exceptions. If the Orphans' Court fails to decide the exceptions within one hundred and twenty (120) days, the exceptions shall be deemed denied by operation of law on the one hundred and twenty first (121st) day and the clerk is directed to enter the deemed denial on the docket as of that date. The appeal period shall begin to run as of the one hundred and twenty first (121st) day.NewCAJE is correct that the trial court failed to rule upon the exceptions within the 120 day time limit. However, at no time after expiration of the time limit did the clerk of court enter the deemed denial upon the docket as required by Rule 7.1(f). Pennsylvania Rule of Civil Procedure 236, Pa.R.C.P. No. 236, provides that the prothonotary shall give notice of entry of an order to the parties and further note in the docket the giving of notice. Pennsylvania Rule of Appellate Procedure 301, Pa.R.A.P. 301, provides that no order of a court shall be appealable until it has been entered on the appropriate docket in the lower court. Appellate Rule 903(a), Pa.R.A.P. 903(a), states that a notice of appeal shall be filed within 30 days after entry of the order from which the appeal is taken. Appellate Rule 108(b) provides that the date of entry of an order shall be the day on which the clerk makes the notation in the docket that notice of entry of the order has been given as required by Pa.R.C.P. No. 236(b).
The failure of the clerk to enter the deemed denial order on the docket effectively prohibited Appellants from filing a notice of appeal and any appellate court from assuming jurisdiction. See Estate of Keefauver, 518 A.2d 1263 (Pa. Super. 1986). Hence, Appellants' appeal from the trial court's December 22 order denying the exceptions was timely filed and conferred on this court jurisdiction to hear the appeal.
Further, the Court concludes that we have jurisdiction over the appeal from the denial of the exceptions as an appealable collateral order. The Official Note to Appellate Rule 341 explains that an order denying a petitioner the right to intervene is no longer deemed a final order within the meaning of Rule 341. The Note further states that, in appropriate cases, such an order might fall under Pa.R.A.P. 312 (relating to interlocutory appeals by permission) or Pa.R.A.P. 313 (relating to collateral orders). See Fayette County Office of Planning, Zoning & Cmty. Dev. v. Fayette County Zoning Hearing Bd., 981 A.2d 336 (Pa. Cmwlth. 2009). An order is collateral if (1) it is separable and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) if the review of the claim presented is postponed until final judgment, the claim will be irreparably lost. Id. at 341; Pa.R.A.P. 313(b). All three prongs of the test must be satisfied.
In determining whether an order is separable from and collateral to the main cause of action, the court must decide whether the claimed right is also an ingredient in the main cause of action. Manaje's right to intervene is separate from and collateral to the underlying claim for approval of corporate action. Manaje's alleged property interest in OldCAJE's assets, should it be found to exist, is a right deeply rooted in public policy. Nemirovsky v. Nemirovsky, 776 A.2d 988, 991 (Pa. Super. 2001). Further, any rights to the property may be lost if review is postponed until final judgment. Therefore, the order denying intervention is appealable as a collateral order.
The Court must also determine whether we have jurisdiction over the appeal from the denial of the motion to amend counterclaim as a final order, an interlocutory appeal by permission or a collateral order. NewCAJE asserts that the order entered on December 22, 2011, was not a final order as it does not state that the court was entering final judgment in favor of NewCAJE's petition to approve corporate actions. Additionally, NewCAJE argues that Appellants did not seek permission to appeal the denial of the motion to amend counterclaim. Appellants counter that Senior Judge Oler's opinion is law of the case and that NewCAJE has improperly renewed the issue of jurisdiction.
Pursuant to Pa.R.A.P. 123(e), a single judge of this Court may grant or deny any request for relief which may properly be sought by application. The action of a single judge may be reviewed by the full court. Id. By requesting reconsideration of a single judge's decision before the full court's consideration of the merits of the appeal, a party may avoid application of the "law of the case doctrine." Larocca v. Workmen's Comp. Appeal Bd. (Pittsburgh Press), 592 A.2d 757 (Pa. Cmwlth. 1991). Law of the case doctrine "has traditionally been used where a court has ruled on a question, that same court will normally not reverse that determination upon consideration of another phase of the case." Smiths Implements, Inc. v. Workmen's Comp. Appeal Bd. (Leonard), 673 A.2d 1039, 1042 (Pa. Cmwlth. 1996) [citing Hughes v. Pa. State Police, 619 A.2d 390, 392 n.1 (Pa. Cmwlth. 1992)]. When a party does not file a petition for reconsideration from an order of a single judge, that order is binding unless palpably erroneous. Curley v. Bd. of Sch. Dirs. of the Greater Johnstown Sch. Dist., 641 A.2d 719 (Pa. Cmwlth. 1994). However, this Court will reconsider a decision of a single judge if the decision concerns subject matter jurisdiction. Hughes, 619 A.2d at 393. As this Court stated in Hughes, subject matter jurisdiction is essential to empower a court to decide a controversy and when "a court discovers that it lacks jurisdiction over the subject matter or the cause of action it is compelled to dismiss the matter under all circumstances, even where we erroneously decided the question in a prior ruling." Id. (Emphasis original). Thus, Appellants' assertion that the law of case doctrine prohibits this court from reconsidering its jurisdiction is without merit. We are not bound by Senior Judge Oler's determination as the Court may raise subject matter jurisdiction at any time.
In ruling upon NewCAJE's motion to quash, Senior Judge Oler determined that the trial court intended the December 22 order to be a final order. Senior Judge Oler reasoned that based on the trial court's determination that the order granting the petition to enforce the MOU resolved and ended the dispute which precipitated the petition to approve corporate action, there remained no further issues for the trial court to act upon in the case and the December 22 order could not be regarded as merely intermediate.
A final order is defined as any order that (1) disposes of all claims and of all parties; or (2) is expressly defined as final order by statute; or (3) is entered as final order pursuant to Rule 341(c). Pa.R.A.P. 341(b). Although the trial court concluded that enforcement of the MOU resolved and ended the dispute, the parties never executed a final release agreement and the trial court did not mark the action as "Settled, Discontinued and Ended, with prejudice," as required by paragraphs 15 and 16 of the MOU. Paragraph 15 of the MOU specifically states that "[u]nless and until such time as a final Release Agreement is entered into between the parties, all parties fully reserve the right to assert any and all claims against one another." R.R. at 299a. As long as the parties have not entered into a final release agreement, at the very least Appellants' original counterclaims, which were filed after execution of the MOU, remain outstanding and must be disposed of either through a court order or execution of a final release agreement. Thus, the trial court's denial of the motion to amend counterclaim is not a final order.
Rule 341(c) provides: "[T]he trial court or other governmental 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." The order denying Appellants' motion to amend counterclaim is neither a final order as defined by statute nor entered pursuant to Rule 341(c).
Additionally, the Court may not take jurisdiction over the appeal from the denial of the motion to amend counterclaim as a collateral order under Rule 313. The motion to amend counterclaim seeks indemnification of the Piltches as directors and officers and alleges negligent mismanagement of NewCAJE and diversion of corporate assets and funds. The denial of a motion to amend a counterclaim is neither separable nor collateral to the main cause of action. The proposed additional counterclaim is directly related to the main cause action, i.e., the propriety of the corporate actions taken by the board of directors.
Further, Appellate Rule 312 provides that "[g]enerally, orders granting or denying leave to amend pleadings are interlocutory and are not immediately appealable." Foust v. Southeastern Pa. Transp. Auth., 756 A.2d 112, 116 (Pa. Cmwlth. 2000); James A. Mann, Inc. v. Upper Darby School Dist., 513 A.2d 528, 530 (Pa. Cmwlth. 1986). Appellate Rule 1311 permits an appeal to be taken by permission under Section 702(b) of the Judicial Code, 42 Pa. C.S. § 702(b). A party seeking permission to appeal an interlocutory order must file a petition for permission with the prothonotary of this Court within 30 days of entry of the non-appealable order by a lower court. Id. In this case, Appellants did not seek permission to appeal the denial of their motion to amend pleadings. Consequently, the court does not have jurisdiction over the appeal from the denial of the motion to amend under Appellate Rule 312.
As the denial of the motion to amend counterclaim was neither a final order under Appellate Rule 341 nor a collateral order pursuant to Appellate Rule 313 and Appellants failed to seek permission to appeal an interlocutory order as required by Appellate Rule 312, this Court lacks jurisdiction over the appeal from the denial of the motion to amend counterclaim. The appeal of the denial of the motion for leave to amend counterclaim is quashed.
The trial court should rule upon the motion for leave to amend counterclaim and the original outstanding counterclaims and the petition to approve corporate action. Preferably, this litigation can be resolved completely through execution of a final release agreement as required by the MOU.
Petition to Intervene
Appellants assert that the trial court erred in denying and dismissing its petition to intervene. Appellants argue that Manaje's property rights were not adequately represented by Bunnie Piltch and that the trial court erred as a matter of law in delaying the petition on the hearing to intervene.
Appellants argue that the only way the trial court could have found that Manaje's interests were adequately represented by Bunnie Piltch was to treat Manaje as if the existence of Manaje and Bunnie Piltch were merged. Appellants note that a limited liability corporation is an independent entity even if its stock is owned by a single person and there is a strong presumption against piercing the corporate veil. This argument misses the mark. To question whether one's interests are adequately protected by another assumes the existence of two separate entities.
Rule 2327(4) identifies persons who may intervene in court actions as follows:
At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules ifPa.R.C.P. No. 2327(4) (emphasis added). Pa.R.C.P. No. 2329(2) provides that a court may deny a petition to intervene if the interest of the petitioner is adequately represented by another participant.
....
(4) the determination of such action may affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action.
Bunnie Piltch is the president and sole member of Manaje. At all times during the litigation, her husband, Sanford Piltch, acted as both counsel to the Piltches individually and to Manaje. Section 8924 of the Limited Liability Company Law of 1994 (Law), 15 Pa. C.S. § 8924, provides that the "interest of a member in a limited liability company constitutes the personal estate of the member ...." Any member of the limited liability company is authorized to bring suit on behalf of the company. 15 Pa. C.S. § 8992(1). As Mrs. Piltch is the sole member of Manaje, there is no other person or entity that has an interest in the company's assets. Further, there is no other person or entity that would be capable of bringing suit on Manaje's behalf. It is disingenuous for the Piltches to argue that Manaje's interests were unrepresented. Further, intervention would not introduce new actors or counsel to the proceedings. In fact, as demonstrated by Sanford Piltch's November 3, 2010 Inventory Letter, the interests of Manaje were clearly being represented well before the filing of the petition to intervene. Thus, we conclude that the trial court did not err in concluding that Manaje's interests were adequately represented by Bunnie Piltch.
Appellants also argue that at the February 8 hearing the trial court improperly threatened Bunnie Piltch with contempt sanctions if she failed to comply with its order. Appellants assert that such actions amount to coercion. This argument is meritless. The Piltches could have asked for a stay of the order enforcing the MOU or filed exceptions to the order, but failed to do so.
The trial court also held that that intervention was not proper pursuant to Pa.R.C.P. No. 2329(3) because Manaje had acted with undue delay in filing the petition to intervene. Rule 2329(3) provides that a court may deny intervention if the petitioner has unduly delayed in making an application for intervention.
The petition to approve corporate action was filed on October 15, 2010. Counsel for the NewCAJE and the Piltches executed the MOU on October 21, 2010 after eight hours of negotiations. Paragraph 4 of the MOU provided that Manaje would either convey the assets of OldCAJE to NewCAJE upon confirmation of the sale by the bankruptcy trustee or return $18,500 to NewCAJE if the sale was not confirmed. It is at the time of execution of the MOU that Manaje should have become aware that its interests were affected by litigation. Also, counsel for Manaje, Sanford Piltch, was clearly aware of Manaje's interest in the litigation by November 3, 2010, when he sent the Inventory Letter to NewCAJE. In the Inventory Letter, Mr. Piltch stated that the issue of shared and/or part ownership of OldCAJE's assets is yet to be determined. Mr. Piltch also stated that the change of name from Mid-Atlantic Regional CAJE was also to be addressed at a later time. The Inventory Letter demonstrates that Manaje's counsel was aware that his client's property rights were at issue in the litigation. Despite this knowledge, Manaje did not file a petition to intervene until January 26, 2011, more than three months after execution of the MOU. Therefore, we conclude that this delay was undue and the trial court properly denied intervention.
Appellants also contend that the trial court erred as a matter of law in delaying the hearing on the petition to intervene. At argument held on February 3, 2011, the trial court conducted a colloquy with counsel regarding whether it would be more appropriate to hold a hearing on the petition to intervene following the hearing on the petition to enforce the MOU, which was scheduled for February 8. Appellant has failed to identify the place in the record where an objection to the timing of the hearing on the petition to intervene is preserved, as is required in the salient procedural rules. See Pa.R.A.P. 2117(c), 2119(e). Additionally, as Appellants have raised this issue for the first time on appeal, it is waived. See Commonwealth v. TAP Pharm. Prods., 36 A.3d 1112, 1186 (Pa. Cmwlth. 2011) (noting that appellants' failure to cite to the place in the record where they objected to trial court's ruling results in waiver); see also Pa.R.A.P. 302(a). In fact, Attorney Grey ultimately agreed to the postponement of the petition to intervene hearing. Supplemental Reproduce Record (S.R.) at 33b-35b; February 3, 2011, N.T. at 24-26.
Appellants also argue that the trial court erred as a matter of law in disqualifying Sanford Piltch as counsel for Manaje at the petition to intervene hearing. We need not address this issue, as the trial court properly denied the petition to intervene on another ground which required no need for a hearing, specifically that Manaje's interests were adequately represented by the Piltches. --------
Indispensable Party
Appellants assert that both this Court and the trial court lacked jurisdiction because Manaje was not joined as an indispensable party.
Appellants raise the issue of indispensable parties for the first time in this appeal. However, failure to join an indispensable party goes to the court's jurisdiction, which cannot be waived and may be raised by the court sua sponte. Allegheny County Hous. Auth. v. Van Osdol, 40 A.3d 209, 213 (Pa. Cmwlth. 2012); Barren v. Dubas, 441 A.2d 1315, 1316 (Pa. Super. 1982). See also Pa.R.C.P. No. 1032(a) (defense of failure to join indispensable party not waived by failure to raise it by preliminary objection, answer, or reply). An indispensable party is one whose interests are so connected with the litigant's claim that no relief can be granted without infringing upon that party's rights. Ballroom, LLC v. Commonwealth, 984 A.2d 582, 588 (Pa. Cmwlth. 2009). When determining whether an entity is an indispensable party the Court may consider:
1. Whether the absent party may have a right or interest related to the claim?Union Twp. v. Ethan Michael, Inc., 979 A.2d 431, 440 (Pa. Cmwlth. 2009).
2. If so, what is the nature of that right or interest?
3. Is that right or interest essential to the merits of the issue?
4. Can justice be afforded without violating the due process rights of absent party?
Manaje has asserted property interest in the assets of OldCAJE. Determination of Manaje's alleged property interest in the assets of OldCAJE appears to be necessary for the final release under the MOU. However, as discussed above, the due process rights of Manaje are adequately represented by Bunnie Piltch. Thus, we conclude that Manaje is not an indispensable party.
Trial Court Abused Its Discretion
Appellants argue that the trial court's actions throughout the course of the litigation amounted to a cumulative abuse of discretion. Appellants assert that the trial court abused its discretion by (1) failing to strike all written pleadings filed in response to the petition to intervene; (2) misapplying the law of non-joinder and indispensable parties; (3) issuing coercive threats of contempt sanctions against Bunnie Piltch with regard to the grant of the petition to enforce the MOU; (4) misapplying the law in disqualifying Manaje's attorney; and (5) making findings that are unreasonable in the circumstance and wrong as a matter of law in its December 22, 2011 order.
This Court has defined an abuse of discretion as "a judgment that is plainly unreasonable, arbitrary or capricious, fails to apply the law, or was motivated by partiality, prejudice, bias or ill will." HHI Trucking & Supply, Inc. v. Borough Council, 990 A.2d 152, 161 (Pa. Cmwlth. 2010). Appellants are simply regurgitating earlier arguments and reiterating their disagreement with trial court's decisions. This does not amount to an abuse of discretion.
Motion to Strike
Appellants filed a motion to strike and suppress NewCAJE's responsive brief and supplemental reproduced record. First, Appellants assert that it was improper for NewCAJE to argue that the appeal should be quashed as Senior Judge Oler's opinion is law of the case. As jurisdiction may be raised at any time even by the court sua sponte, NewCAJE did not act improperly. Silver v. City of Pittsburgh, 50 A.3d 296 (Pa. Cmwlth. 2012).
Next Appellants contend that NewCAJE's brief violates Appellate Rule 2117(a)(4), which requires that a party provide a condensed chronological statement of all facts which are necessary to determine the points in controversy and references to the record. Appellants also assert that NewCAJE's brief violates Appellate Rule 2117(b), which prohibits all argument in the statement of the case. Appellants further argue that NewCAJE has also violated Appellate Rule 2119(d), which provides that when a finding of fact is challenged, the argument must contain a synopsis of all the evidence on the point, with reference to the place in record where the evidence may be found.
Much of Appellants' arguments simply address their disagreement with NewCAJE regarding who is the wronged party in their relationship. After reviewing NewCAJE's brief, we conclude that although it is not the model of conciseness, clarity and impartiality, the brief is within the bounds of the rules. See Pa.R.A.P. 105 (stating that the rules shall be construed liberally and the court may disregard the requirements of any rule in accordance with its discretion).
Appellants also assert that NewCAJE improperly appended an unpublished memorandum opinion to its brief in contravention of Appellate Rules 2111 and 2112. NewCAJE attached an unpublished opinion of the Superior Court which is binding on neither this Court nor the Superior Court. The Court is permitted to strike the references to the unpublished opinion in the NewCAJE's briefs and may decline to consider any arguments which the petitioners based solely on the unpublished opinions. Anderson v. Pa. Bd. of Prob. & Parole, 868 A.2d 649, 651-652 (Pa. Cmwlth. 2005). However, we are not required to strike NewCAJE's brief as reliance upon the unpublished opinion is not necessary to resolution of this appeal.
Finally, Appellants argue that NewCAJE violated Appellate Rule 1926 by filing a supplemental reproduced record without an order from this Court. Rule 1926 provides for the correction and modification of the record. On June 4, 2012, the trial court issued an order that the transcript of the February 3, 2011 hearing be produced. Pursuant to Rule 1926, the trial court has the power to direct that a misstatement or omission be corrected and, if necessary, that a supplemental record be certified and transmitted. Both Appellants and NewCAJE refer to the February 3, 2011 hearing several times throughout their briefs. We conclude that NewCAJE properly supplemented the reproduced record.
For all of the foregoing reasons, we affirm the trial court's dismissal of the exceptions to the denial of Appellants' petition to intervene. The appeal is quashed as to the denial of the motion for leave to amend counterclaim.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge Judge Cohn Jubelirer did not participate in the decision in this case. ORDER
AND NOW, this 1st day of February, 2013, the order of the Court of Common Pleas of Lehigh County is hereby AFFIRMED as to the dismissal of the exceptions to denial of the petition to intervene. The appeal is quashed as to the denial of the motion for leave to amend counterclaim. The record is remanded for further proceedings. Jurisdiction relinquished.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge