Opinion
No. 1357 C.D. 2014
07-10-2015
Rock Ferrone and Rock Airport of Pittsburgh, L.L.C., Appellants v. Dan Onorato, individually and officially; Dennis Davin, individually and officially; Maurice Strul, individually and officially; Allegheny County; Redevelopment Authority of Allegheny County; Brian D. Clark; Brian D. Clark and Associates; Michael Yablonski; Kevin McKeegan; Meyer, Unkovic and Scott, L.L.P.; Alfred A. Kuehn; Management Science Associates, Inc.; Eugene Zambrano, III; Zambrano Corporation; and Sky Bank
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Rock Ferrone (Ferrone) and Rock Airport of Pittsburgh, L.L.C. (Rock Airport) (collectively, Ferrone) appeal from the March 20, 2014 order of the Court of Common Pleas of Allegheny County (trial court) that granted the motions for summary judgment filed by the remaining defendants and dismissed Ferrone's claims against them.
In 1998, Rock Airport, which was owned and managed by Ferrone, purchased the former West Penn Airport located in West Deer Township, Allegheny County and began redeveloping the airport and its adjacent properties into a business park, known as "RockPointe Business Airpark," through its wholly owned company, K-Cor, Inc. (K-Cor). Rock Airport hired SE Technologies, Inc. (SE Technologies) to perform environmental engineering work for the redevelopment. In October 2001, SE Technologies commenced an action against Ferrone, Rock Airport and K-Cor seeking to recover the engineering costs. In February 2003, Judge W. Terrence O'Brien entered a judgment in favor of SE Technologies and against Ferrone, Rock Airport and K-Cor in the amount of $237,324.78, which was later increased to $390,479.48 to include attorney's fees and interests. Ferrone, Rock Airport and K-Cor appealed the judgment to the Superior Court.
On August 25, 2003, Rock Airport and the Redevelopment Authority of Allegheny County (Redevelopment Authority), which administers the Allegheny County Economic Development Fund (development fund), entered into a loan agreement to finance the RockPointe Business Airpark redevelopment project. The amount of the loan was $1,515,366.11, plus reasonable financing expenses. Section 1.01 of the Loan Agreement; Reproduced Record (R.R.) at 1887a. To obtain loan proceeds, Rock Airport was required to submit a requisition form, "together with (a) an itemization of the funds requisitioned against the Project Cost Schedule; and (b) supporting invoices." Section 3.03(a); R.R. at 1891a. Section 3.03(b) of the Loan Agreement further provided:
Approval Process. Within 5 Business Days after Lender's receipt of the Borrower's requisition and all related supporting materials required pursuant to Subsection 3.03(a) above, the Lender shall determine, in
its sole but reasonable discretion, whether the requisition is (i) in the form required hereby, (ii) for reimbursement of costs and expenses identified on the Project Cost Schedule, and (iii) consistent with the Lender's and the Fund's Program Guidelines. ... The Lender's review and approval of the requisitions is solely for the protection of the Lender's interests under this Agreement, and the lender shall not be deemed, by virtue of its approval of any requisition, to have made any representation to any Person with respect to the Project, [or] the validity of any Project costs ....Id. (emphasis added).
In a letter dated August 25, 2003, the Redevelopment Authority informed Rock Airport that it had received approval of a credit facility consisting of a $1,700,000 secured term loan to Rock Airport, as described in the attached "Summary of Terms and Conditions." R.R. at 1970a. The Summary of Terms and Conditions provided that "Project Costs may include the cost of an appeal bond for litigation concerning SE Technologies in connection with the Project" and that "[i]f any Loan proceeds used for an appeal bond later become unencumbered through the resolution of the SE Technologies litigation, then such Loan moneys shall be used for other eligible Project costs." R.R. at 1974a (emphasis added). Between August 28 and November 21, 2003, Rock Airport submitted four requisitions and received a certain amount of loan proceeds from the Redevelopment Authority.
Rock Airport thereafter received an offer to settle the SE Technologies litigation for $395,000. Rock Airport then submitted Requisition #5 on December 12, 2003, asking the Redevelopment Authority to disburse $437,221.04, which included a letter of credit for the settlement amount of $395,000. R.R. at 2099a-2101a. The settlement ultimately collapsed because Rock Airport did not pay SE Technologies the settlement amount.
In March 2004, Rock Airport asked the Redevelopment Authority to deposit $427,000 with the prothonotary as security for Rock Airport's appeal in the SE Technologies litigation, which would prevent a sheriff's sale of Rock Airport's properties scheduled for April 5, 2004. Rock Airport filed a motion for approval of supersedeas and to stay execution. In a letter sent to Judge O'Brien, the Redevelopment Authority's manager stated that the Redevelopment Authority was willing to transfer $427,000 to the prothonotary. SE Technologies objected to Rock Airport's motion, stating that the Redevelopment Authority's use of the development fund to post security in the action between the private entities could be improper and subject to attack.
On March 16, 2004, Judge O'Brien granted Rock Airport's motion subject to satisfaction of the following conditions:
(1) defendants and the Redevelopment Authority ... deposit the sum of $468,575.37 with the prothonotary, payable to plaintiff upon the affirmance of the judgment entered in this action, and the submission of the County Solicitor's written legal opinion that the transfer is legal and enforceable; orR.R. at 2220a (emphasis in original).
(2) the filing with the prothonotary of a bond by an approved surety that satisfies the requirements of Pa.R.A.P. 1701 et seq.
The County solicitor and the Redevelopment Authority's new executive director, Dennis Davin, reviewed the loan agreement and determined that the transfer of loan proceeds to the prothonotary would be improper and inconsistent with the loan agreement, which allowed a disbursement only for "the cost of an appeal bond," not for a direct payment of security to the prothonotary. R.R. at 1974a. Judge O'Brien denied Rock Airport's motion for reconsideration and motion to clarify or modify the March 16, 2004 supersedeas order. On March 22, 2004, Ferrone and his wife obtained a loan in the amount of $427,000 from Sky Bank, now Huntington Bank, and deposited $468,575.37 with the prothonotary. Rock Airport received the total loan amount by August 17, 2004. R.R. at 2327a.
In April 2005, Ferrone and Rock Airport commenced an action in the United States District Court for the Western District of Pennsylvania, setting forth federal and state claims against the Chief Executive of Allegheny County, Dan Onorato; the Redevelopment Authority's Executive Director, Davin; the Assistant Director of the Allegheny County Department of Economic Development, Maurice Strul; Allegheny County; Redevelopment Authority; Brian D. Clark; Brian D. Clark Associates; Michael Yablonski; Kevin McKeegan; Meyer, Unkovic and Scott, L.L.P. (Meyer law firm); Alfred A. Kuehn; Management Science Associates, Inc. (Management Science); Eugene Zambrano, III; Zambrano Corporation; and Sky Bank (collectively, defendants).
In response to the defendants' motions to dismiss, Ferrone amended the complaint. Upon the defendants' further motions to dismiss, the court allowed Ferrone to file a second amended complaint. The court subsequently dismissed the remaining federal claims in Count I (violation of civil rights under 42 U.S.C. § 1983) of the second amended complaint and declined to exercise supplemental jurisdiction over the state claims. In February 2007, Ferrone filed a praecipe to transfer the case to the trial court. The second amended complaint transferred to the trial court included five counts of state claims against the defendants: intentional interference with contractual relations (Count II), commercial disparagement (Count III), invasion of privacy (Count IV), civil conspiracy (Count V), and breach of contract (Count VI). The case was designated as complex and assigned to the Honorable R. Stanton Wettick, Jr.
To support the intentional interference with contractual relations claims, Ferrone alleged that Onorato called the Redevelopment Authority, "either its manager or special counsel, and stopped the money from being deposited in the Allegheny County Prothonotary's office to fund the appeal, either by threat or intimidation." Second Amended Complaint, ¶ 126c; R.R. at 1006a. Ferrone further alleged that Rock Airport had a potential contractual relation with Mills Corporation for a joint transportation infrastructure development and that their joint efforts never took place because of Clark's disparaging and defamatory remarks about Ferrone's testimony at the County Council meeting. Ferrone alleged that he was negotiating with iDL, Inc. to sell Rock Airport's lot in 2003 and that Onorato, Davin and Strul offered iDL, Inc. $500,000 to prevent its purchase of Rock Airport's lot. As to claims against Management Science and its CEO, Kuehn, Ferrone alleged that Rock Airport entered into a partnership agreement with Zambrano Corporation to construct buildings in the RockPointe Business Airpark and that Kuehn made disparaging and defamatory remarks to the president and CEO of Zambrano Corporation and to a newspaper regarding Rock Airport's ability to complete the RockPointe Business Airpark redevelopment project.
As to the commercial disparagement claims, Ferrone alleged that Clark stated to a County Council member:
You should not listen to what [Ferrone] says, he's crazy, you should not listen to him, he did not file his 'Keystone Opportunity Zone' paper work, instead he went to the Bahamas. He's no good, don't listen to him, he's crazy, he's a loose cannon, and he's trying to blame the Chief Executive for not giving him money for his case.Second Amended Complaint, ¶ 135a; R.R. at 1013a. Ferrone further alleged that Onorato stated at a Christmas party: "Rock's [Ferrone's] no good, he complains to me that his family is starving." Id. at ¶ 135b; R.R. at 1014a.
To support the invasion of privacy and civil conspiracy claims, Ferrone alleged that in 2001, 2003 and 2004, the Meyer law firm's partners, Yablonski and McKeegan, contacted Sky Bank's senior vice president, Tom Ziacik, and sought Ferrone's financial information, stating that they were taking over the Rock Airport's project. Ferrone further alleged that Ziacik froze his personal checking and savings accounts in October 2001 in response to McKeegan's call. Ferrone claimed a breach of contract against the Redevelopment Authority for failing to disburse the loan proceeds requested in Requisition #5.
The defendants filed preliminary objections to the second amended complaint. After Zambrano Corporation filed a suggestion of bankruptcy with the trial court, the claims against Eugene Zambrano III and Zambrano Corporation were discontinued. Ferrone thereafter filed a notice of assignment of Rock Airport's claims to him. In an order dated June 1, 2010, the trial court denied Ferrone's motion for leave to amend the complaint and allowed him to amend the complaint only to plead the assignment of claims. R.R. 361a. In an order dated October 18, 2011 and filed on October 21, 2011, the trial court struck Ferrone's third amended complaint, except the allegations of assignment of the claims. The court also sustained the preliminary objections and dismissed Ferrone's claims, except (1) the intentional interference with contractual relations claims against Management Science, Kuehn and Onorato, (2) the invasion of privacy and conspiracy claims against the Meyer law firm defendants and Sky Bank, (3) the breach of contract claims against the Redevelopment Authority, and (4) the civil conspiracy claims against Onorato and the Management Science defendants.
After the close of discovery, the remaining defendants filed motions for summary judgment. In an order dated March 20, 2014, the court granted the motions and dismissed Ferrone's claims against the remaining defendants. The court concluded that Ferrone failed to present any evidence that Zambrano Corporation decided not to build office buildings on Rock Airport's property because of Kuehn's disparaging remarks. The court noted Zambrano's testimony that Management Science and Kuehn did not play any role in his decision not to construct the company's headquarters on the Rock Airport's property. The court stated: "I recognize that under the Nanty-Glo Rule, I cannot make a finding that Mr. Zambrano's testimony was credible. However, plaintiffs, as the moving parties, must describe evidence that would support a finding that it is more likely than not that MSA/Kuehn influenced Mr. Zambrano's decision not to proceed." Trial Court's March 20, 2014 Opinion at 9.
Nanty-Glo Borough v. Am. Sur. Co., 163 A. 523 (Pa. 1932).
The court further concluded that Ferrone's invasion of privacy claims were time-barred by the one-year statute of limitations for such claims in Section 5523(1) of the Judicial Code, as amended, 42 Pa. C.S. § 5523(1), that a mere request for someone's confidential information did not constitute an invasion of privacy, and that Ferrone failed to present evidence that Sky Bank disclosed his financial information. The court concluded that there was insufficient evidence supporting a finding that Onorato influenced the Redevelopment Authority's decision to withhold the disbursement of $427,000. The court noted that Ferrone did not identify any individual who would testify that Onorato took action to stop the transfer of the money. The court dismissed the breach of contract claim against the Redevelopment Authority, noting that Judge O'Brien required the submission of the County solicitor's written opinion on the legality of the Redevelopment Authority's payment of the loan proceeds to the prothonotary. The court also noted that the Redevelopment Authority had the sole and reasonable discretion to determine whether the disbursement was consistent with the loan agreement.
Ferrone appealed the trial court's March 20, 2014 order to the Superior Court, which transferred the appeal to this Court. Ferrone argues that the trial court erred in sustaining the preliminary objections of the Redevelopment Authority's executive director, Davin, and dismissing the claims against him in the October 18, 2011 order, and that the trial court's grant of summary judgment was improper because there were material issues of fact to be decided by a jury. Ferrone further argues that the trial court erred in concluding that the County Solicitor's legal opinion was required before the Redevelopment Authority's disbursement of the loan proceeds to the prothonotary, and in concluding that evidence did not support the Management Science defendants' tortious interference with the partnership of Ferrone and Zambrano.
Ferrone also filed separate appeals from the trial court's October 18, 2011 order sustaining the preliminary objections in part (1370 C.D. 2014) and from the June 1, 2010 order allowing Ferrone to amend the complaint only to allege the assignment of Rock Airport's claims to him (1371 C.D. 2014). By order dated August 18, 2014, this Court quashed those appeals without prejudice to Ferrone to raise on appeal the propriety of the court's orders. The Court concluded that the trial court's March 20, 2014 order granting the motions for summary judgment rendered the previous interlocutory orders final. See Betz v. Pneumo Abex LLC, 44 A.3d 27, 54 (Pa. 2012) (holding that "an appeal of a final order subsumes challenges to previous interlocutory decisions"); Note to Pa. R.A.P. 341 (stating that "[a] party needs to file only a single notice of appeal to secure review of prior non-final orders that are made final by the entry of a final order"). In the subsequently filed brief, Ferrone raised the propriety of the October 18, 2011 order but did not challenge the June 1, 2010 order.
This Court's review of the trial court's order granting a motion for summary judgment is limited to determining whether the court committed an error of law or abused its discretion. Hill v. Kilgallen, 108 A.3d 934, 940 (Pa. Cmwlth. 2015).
We will first consider the defendants' argument that Ferrone waived the issues that were not included in his statement filed pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1925(b). Rule 1925(b) provides in relevant part:
(b) Direction to file statement of errors complained of on appeal; instructions to the appellant and the trial court.-If the judge entering the order giving rise to the notice of appeal ("judge") desires clarification of the errors complained of on appeal, the judge may enter an order directing the appellant to file of record in the trial court and serve on the judge a concise statement of the errors complained of on appeal ("Statement").
....
(3) Contents of order.- The judge's order directing the filing and service of a Statement shall specify:
....
(iv) that any issue not properly included in the Statement timely filed and served pursuant to subdivision (b) shall be deemed waived.
(4) Requirements; waiver.
....
(vii) Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.
Rule 1925(b) is intended to aid the trial judge in writing an opinion by identifying and focusing only on those issues that the appellant plans to raise on appeal and to enable appellate courts to engage in meaningful appellate review. Warminster Fiberglass Co. v. Upper Southampton Twp., 939 A.2d 441, 443 (Pa. Cmwlth. 2007). It is "the trial court's order that triggers an appellant's obligation under [Rule 1925(b)]." Berg v. Nationwide Mut. Ins. Co., 6 A.3d 1002, 1008 (Pa. 2010). In order to preserve claims, appellants "must comply whenever the trial court orders them to file a [Rule 1925] Statement." Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). The Lord Court adopted "a bright-line rule for waiver," eliminating any aspect of the court's discretion in determining whether the appellant has waived issues due to failure to comply with Rule 1925(b). Commonwealth v. Butler, 812 A.2d 631, 633 (Pa. 2002). A waiver under Rule 1925(b), therefore, is "automatic;" courts may not "selectively enforce the Rule based upon the arguments of parties, which would subvert the purpose and effectiveness of Rule 1925." Id. at 634. Our Supreme Court has reaffirmed the Lord/Butler bright-line rule for waiver and disapproved ad hoc exceptions to the rule created by the intermediate appellate courts. See Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011); Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005).
After Ferrone appealed the March 20, 2014 order, Judge Wettick ordered Ferrone to file of record and serve upon him within 21 days a concise statement of matters complained of on appeal pursuant to Rule 1925(b). Ferrone was warned that any issue not properly included in a Rule 1925(b) statement would be deemed waived. Ferrone raised three issues in his Rule 1925(b) statement:
1. The trial court erred when it ruled as a matter of law that [Rock Airport] was required to obtain a legal opinion from the Allegheny County Solicitor before the Redevelopment Authority ... was required to provide credit under the loan agreement.R.R. at 5405a-406a.
2. The trial court erred when it ruled as a matter of law that [Rock Airport] could not have obtained an appellate performance bond from the funds [the Redevelopment Authority] was required to provide under the loan agreement.
3. The trial court erred when it refused to allow a jury to assess the credibility of the witnesses in the case, as required by the Nanty-Glo doctrine.
The first two issues listed in the Rule 1925(b) statement concern the Redevelopment Authority's alleged obligation to disburse the loan proceeds to provide security for Ferrone's appeal in the SE Technologies litigation or to allow Ferrone to obtain an appeal bond. In the third issue, Ferrone challenges the trial court's grant of the motions for summary judgment, relying on the Nanty-Glo rule. Ferrone preserved these three issues included in the Rule 1925(b) statement for our review. Under the bright-line rule for waiver, he waived all other issues raised in the brief, except his challenge to the trial court's October 18, 2011 interlocutory order, filed on October 21, 2011, sustaining Davin's preliminary objections, pursuant to this Court's August 18, 2014 order.
Ferrone acknowledged that he did not attempt to obtain an appeal bond. He testified that he "made a financial decision that it didn't make sense to attempt to get a bond." Ferrone's February 22, 2013 Deposition at 45; R.R. at 2569a.
It is well established that oral testimony alone, through testimonial affidavits or deposition testimony, is insufficient to establish the absence of a genuine issue of material fact because the credibility of the testimony is a matter for the fact-finder. Penn Ctr. House, Inc. v. Hoffman, 553 A.2d 900, 903 (Pa. 1989); Nanty-Glo, 163 A. at 524; Dep't of Transp. v. UTP Corp., 847 A.2d 801, 806 (Pa. Cmwlth. 2004); Note to Pa. R.C.P. No. 1035.2. --------
In his well-written opinion, Judge Wettick ably and thoroughly disposed of the issues properly preserved and raised by Ferrone for our review. Accordingly, we affirm the trial court's order based on Judge Wettick's opinions in Ferrone v. Onorato (C.P. Allegheny Cnty., Civ. Div. No. GD07-003328, filed October 21, 2011 and March 20, 2014).
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge Judge McCullough did not participate in the decision in this case. ORDER
AND NOW, this 10th day of July, 2015, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is AFFIRMED based on the opinions of the Honorable R. Stanton Wettick, Jr. in Ferrone v. Onorato (C.P. Allegheny Cnty., Civ. Div. No. GD07-003328, filed October 21, 2011 and March 20, 2014).
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge
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