Opinion
J-A02043-17 No. 25 EDA 2016
06-21-2017
YAMPOLSKY, MANDELOFF, SILVER, RYAN & CO. v. PETER ECONOMOU AND 249-251 2ND STREET ASSOCIATES, LLC: BELMONT PROPERTIES, INC. CHE SAN PROPERTIES, LLC: E.M.M DEVELOPERS, LLC: FSD 1515 LLC: FSD URBAN DEVELOPERS, LLC: LANSDALE HOLDING GROUP, LLC: LANSDALE HOLDING GROUP ASSOCIATES, LP: LIBERTIES LOFTS TENANT, LP: LIBERTIES LOFTS, LLC: MARATHON DESIGN & CONSTRUCTION, LLC: PHOENIX, LLC APPEAL OF: LIBERTIES LOFTS, LLC
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order December 10, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): July Term, 2011, No. 01809 BEFORE: OTT, RANSOM, and FITZGERALD, JJ. DISSENTING STATEMENT BY OTT, J.:
Former Justice specially assigned to the Superior Court.
Because I conclude that the judgment from which this appeal is taken constitutes a final order, I respectfully dissent.
In Bloome v. Alan , 154 A.3d 1271 (Pa. Super. 2017), cited by the Majority in support of its conclusion that there is no final order in this case, the trial court granted, in part, the preliminary objections filed by certain defendants and dismissed the complaint. On appeal, this Court determined the order was not a final order as defined in Pa.R.A.P. 341 because there was no indication in the record that the appellant/plaintiff had served two other named defendants, and those defendants had not filed preliminary objections, been dismissed from the matter, nor had appellant/plaintiff dismissed the case against them. Id. at 1274.
This case stands in a different procedural posture. Here, there was a non-jury trial, and the trial court found against appellant/defendant Liberties Lofts, LLC, in the amount of $15,074.00, plus interest in the amount of $6,888.18, found against defendant Liberties Lofts Tenant, LP, in the amount of $7,292.00, plus interest in the amount of $3,331.14, and found in favor of the remaining defendants. Liberties Lofts, LLC, filed for post-trial relief, which was denied, and this appeal by Liberties Lofts, LLC, followed.
While, in Bloome , the appellant/plaintiff's claims against all of the named defendants were not resolved by the trial court's ruling on the preliminary objections of certain defendants, the trial court's verdict in this case resolved all outstanding claims. In my view, even if there could be a question in this case regarding service of the complaint upon a certain named defendant against whom judgment was entered (namely, Liberties Lofts Tenant, LP), the judgment is a final order under Rule 341 and, therefore, is appealable by Liberties Loft, LLC. Furthermore, I would affirm based upon the well-reasoned opinion of the Honorable Idee Fox.
I note that at the conclusion of the trial, plaintiff's attorney represented to the court: "The only defendants that were served with the complaint and remained viable entities at the time this action was commenced [are] Liberties Lofts, Tenant, LP and Liberties Lofts, LLC, and those are the only two defendants we seek recovery." N.T., 8/10/2015, at 164. --------
Therefore, I dissent.