J-A14035-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
SCOTT F. LINDE, INDIVIDUALLY AND : IN THE SUPERIOR COURT OF AS TRUSTEE OF THE SCOTT F. LINDE : PENNSYLVANIA FAMILY S CORPORATION TRUST : : Appellants : : : v. : : No. 2212 EDA 2022 : LINDE ENTERPRISES, INC., A : PENNSYLVANIA CORPORATION, AND : ERIC LINDE :
Appeal from the Judgment Entered October 5, 2022 In the Court of Common Pleas of Wayne County Civil Division at No(s): 348 - Civil - 2019
BEFORE: PANELLA, P.J., DUBOW, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED NOVEMBER 09, 2023
Scott F. Linde (“Scott”), individually and as trustee of the Scott F. Linde
Family S Corporation Trust (“the Scott Trust”) appeals from the judgment
entered in favor of Linde Enterprises Inc. (“LEI”) and Eric Linde (“Eric”)
following the entry of nonsuit. We affirm in part, vacate the judgment, vacate
the order denying post-trial relief, and remand for further proceedings.
Scott and Eric are brothers. At issue in this litigation is LEI, a
construction company started by their father. Initially, Scott and Eric each
owned 300 shares of stock in LEI. Their sister Barbara, who is not involved in
this lawsuit, owned approximately 100 shares. Scott placed his shares into
the Scott Trust, and for reasons not apparent in the record, the Scott Trust J-A14035-23
had one share of LEI stock at the inception of this litigation.1 Barbara placed
her shares into her own trust. Scott was a director for LEI, but was removed
from that position due to alleged wrongdoings. Eric, as the majority
shareholder, controlled the board of directors, and eventually served as
president of LEI from 2012 to 2020.
Since 1999, the siblings have been involved in multiple lawsuits against
each other, including a 1999 shareholder derivative action filed by Eric against
Scott and Barbara for allegedly starting their own company and funneling
assets of LEI into their company. A trial in that action was scheduled to
commence in 2014; however, on the eve of trial, Eric and Scott reached a
settlement agreement (“Agreement”). The Agreement provided, in part, that,
in exchange for Eric’s 300 shares of stock in LEI and Eric’s stock in another
corporation, Scott would pay Eric $2,000,000,2 and would transfer his
interests in certain other entities and land to Eric. Essentially, the Agreement
would divest Eric of his interest in and control of LEI, and transfer control of
LEI to Scott upon his payment of $2,000,000 and transfer of specified interests
to Eric. Pursuant to the LEI Shareholders Agreement, Eric provided notice to
LEI of his intent to sell his LEI stock. After LEI declined to purchase any of
Eric’s shares, Eric provided notice to the remaining shareholders (i.e., Scott
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1 Scott is the settlor, sole trustee, and sole beneficiary of the Scott Trust.
2 The Agreement provided that Scott would make an initial payment of $1,000,000, and five installment payments of $200,000.
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and Barbara) of his intent to sell his shares. Barbara declined to purchase any
of Eric’s shares. Based on his rights as a minority shareholder, Scott
attempted to purchase 212 of Eric’s shares of LEI stock through the terms of
the Stock Purchase Agreement, which would have permitted Scott to acquire
a majority of Eric’s shares for an amount considerably less than the amount
specified in the Agreement. However, when Scott notified LEI of his intent to
purchase some of Eric’s stock pursuant to the Stock Purchase Agreement, Eric
advised Scott that he was legally obligated to purchase all of Eric’s shares
pursuant to the terms of the Agreement, and that his initial payment of
$1,000,000 was due. Scott did not make any settlement payments to Eric or
transfer his interests per the terms of the Agreement. Instead, Scott initiated
a lawsuit against Eric seeking to compel him to deliver 212 shares of his stock
pursuant to the Stock Purchase Agreement.
In 2016, Eric commenced a lawsuit against Scott asserting a claim for
breach of contract and seeking specific performance of the Agreement (“the
enforcement action”). Scott counterclaimed that Eric breached the Agreement
by not complying with the notice requirements of the Stock Purchase
Agreement. The enforcement action proceeded to a non-jury trial at the
conclusion of which the court determined, inter alia, that: Scott breached the
Agreement in October 2014; Scott never intended to purchase Eric’s stock in
LEI as per the terms of the Agreement; Scott’s deceptive conduct was a
pretext to avoid Eric’s 1999 derivative action; and Eric did not breach the
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Agreement. The trial court additionally found that Scott was delinquent in
making payments due under the Agreement and ordered Scott to immediately
pay $1,400,000 before a final settlement could take place per the terms of
the Agreement. The court thereafter entered judgment in Eric’s favor, and
Scott appealed. This Court affirmed the judgment and our Supreme Court
denied allowance of appeal. See Linde v. Linde, 210 A.3d 1083 (Pa. Super.
2019); appeal denied, 224 A.3d 1091 (Pa. 2020).
In 2019, Scott filed the present action asserting a claim for unjust
enrichment against Eric and LEI, and claims for breach of fiduciary duty, fraud,
and conversion solely against Eric. Although Scott did not assert a claim for
breach of contract, he repeatedly averred in the complaint that Eric breached
the terms of the Agreement.3 Scott claimed that Eric violated the business
standstill clause in the Agreement, which purportedly would have required the
shareholders and directors of LEI (including Eric) to refrain from taking any
action relating to the company until the settlement was completed and Eric’s
shares of LEI stock had been transferred to Scott. Scott asserted that Eric
further breached the Agreement by devaluing LEI by more than $1,000,000
through misappropriating LEI funds and assets, paying legal fees for which
3 The omission of any breach of contract claim against Eric in this matter may
be due to the judicial determination in the enforcement action that Eric did not breach the Agreement, and the additional judicial determination that Scott breached the Agreement in October 2014, which breach would have presumably relieved Eric of his further obligations under the Agreement. See Linde, 210 A.3d at 1088.
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LEI was not responsible, illegally transferring LEI properties for nominal
consideration, and improperly invoicing LEI for unnecessary expenses.
The matter proceeded to a bifurcated non-jury trial which took place
over three days in August 2021, April 2022, and June 2022. On the third day
of trial, Scott moved to amend the complaint to conform the pleading to the
evidence presented at trial. Eric and LEI consented to the amendment. After
Scott rested his case, Eric moved for compulsory nonsuit on the basis that,
inter alia, Scott was an improper party to the action since his claims were
derivative in nature and he was not asserting the claims as a shareholder on
behalf of LEI but was merely asserting the claims in his individual/trustee
capacity.4 The trial court took the matter under advisement and permitted
the parties to file briefs on the motion to amend and the motion for compulsory
nonsuit. Ultimately, the court granted Scott’s motion to amend the complaint,
but nevertheless granted Eric’s motion for compulsory nonsuit on the basis
that Scott, in his individual/trustee capacity, was not a proper party to file the
action. Scott then filed a post-trial motion to remove the entry of nonsuit,
4 Eric additionally moved for nonsuit on the basis of res judicata, collateral estoppel, statute of limitations, and the insufficiency of evidence to support the claims.
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which the trial court denied. Scott filed a timely notice of appeal.5 Both Scott
and the trial court complied with Pa.R.A.P. 1925.
Scott raises the following issues for our review:
1. Did the lower court make a determination that was not supported by the evidence and the applicable law, commit an abuse of discretion, and/or commit an error of law by entering a nonsuit in favor of [Eric and LEI] and against Scott and in refusing to remove the nonsuit because Scott provided sufficient evidence establishing a direct claim, as opposed to a derivative claim, to recover against Eric and LEI and because Scott is a proper party to assert such direct claims?
2. Did the lower court make a determination that was not supported by the evidence and the applicable law, commit an abuse of discretion, and/or commit an error of law by entering a nonsuit in favor of LEI and Eric and against Scott and in refusing to remove the nonsuit without conducting a hearing or oral argument on Scott’s post-trial motion?
5 Scott purported to appeal from the trial court’s order denying his motion to
remove the nonsuit. However, in a case where nonsuit is entered, the appeal properly lies from the judgment entered after denial of a motion to remove nonsuit because orders denying post-trial motions are interlocutory and non- appealable until the entry of a final judgment. See Prime Medica Assocs. v. Valley Forge Ins. Co., 970 A.2d 1149, 1154 n.6 (Pa. Super. 2009) (explaining that an order denying post-trial motions is interlocutory and not appealable until entry of final judgment). Accordingly, this Court directed Scott to praecipe the trial court to enter judgment upon the nonsuit. Scott complied with that directive, and judgment was entered on October 5, 2022, thereby perfecting our appellate jurisdiction. See Pa.R.A.P. 905(a)(5) (providing that “[a] notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof”); see also Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d 511, 513 (Pa. Super. 1995) (en banc) (holding that this Court’s appellate jurisdiction is perfected where appellant prematurely appealed from an order denying post-trial relief and judgment was later entered).
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3. Did the lower court make a determination that was not supported by the evidence and the applicable law, commit an abuse of discretion, and/or commit an error of law by entering a nonsuit in favor of LEI and Eric and against Scott and in refusing to remove the nonsuit without providing Scott the opportunity to amend the pleadings to assert shareholder derivative claims consistent with the holding in Hill v. Ofalt, 85 A.3d 540 (Pa. Super. 2014)?
Scott’s Brief at 5-6 (unnecessary capitalization omitted, issues reordered for
ease of disposition).
In his first issue, Scott challenges the entry of nonsuit. Pennsylvania
Rule of Civil Procedure 230.1 permits a trial court to enter a compulsory
nonsuit on any and all causes of action if, at the close of the plaintiff’s case
against all defendants on liability, the court finds that the plaintiff has failed
to establish a right to relief. See Pa.R.Civ.P. 230.1(c); see also Scampone
v. Highland Park Care Ctr., LLC, 57 A.3d 582, 595 (Pa. 2012).
Our standard of review of an order granting nonsuit is as follows:
In reviewing the entry of a nonsuit, our standard of review is well-established: we reverse only if, after giving appellant the benefit of all reasonable inferences of fact, we find that the factfinder could not reasonably conclude that the essential elements of the cause of action were established. Indeed, when a nonsuit is entered, the lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable disagreement. The fact-finder, however, cannot be permitted to reach a decision on the basis of speculation or conjecture.
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On appeal, entry of a compulsory nonsuit is affirmed only if no liability exists based on the relevant facts and circumstances, with appellant receiving the benefit of every reasonable inference and resolving all evidentiary conflicts in [appellant’s] favor. The compulsory nonsuit is otherwise properly removed and the matter
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remanded for a new trial. . . . The appellate court must review the evidence to determine whether the trial court abused its discretion or made an error of law.
Munoz v. Children’s Hosp. of Philadelphia, 265 A.3d 801, 805-06 (Pa.
Super. 2021)
Under established Pennsylvania law, a shareholder does not have
standing to institute a direct suit for a harm that is peculiar to the corporation
and that is only indirectly injurious to the shareholder. See Hill, 85 A.3d at
548. Rather, such a claim belongs to, and is regarded as an asset of, the
corporation. Id. Whether a cause of action is individual or derivative must
be determined from the nature of the wrong alleged and the relief, if any, that
could result if the plaintiff were to prevail. Id. at 549. In determining the
nature of the wrong alleged, the court must look to the body of the complaint,
not to the plaintiff’s designation or stated intention. Id. The action is
derivative if the gravamen of the complaint is injury to the corporation, or to
the whole body of its stock or property without any severance or distribution
among individual holders, or if it seeks to recover assets for the corporation
or to prevent dissipation of its assets. Id. If damages to a shareholder result
indirectly, as the result of an injury to the corporation, and not directly, the
shareholder cannot sue as an individual. Id. In such cases, “only the
corporation and a shareholder . . . by an action in the right of the corporation
may bring a lawsuit and claim that a director breached the standard of care
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owed to the corporation.” Id. at 548 (citation and internal quotations
omitted).
Scott challenges the entry of nonsuit on the basis that he provided
sufficient evidence at trial establishing a direct right to recover against LEI
and Eric. Scott argues that, pursuant to the standstill clause in the
Agreement, LEI’s overall financial condition should have been maintained and
preserved until he formally assumed control of the corporation. Scott’s Brief
at 43-44. Scott insists that the gravamen of his action is Eric’s breach of the
Agreement by depleting LEI’s corporate funds and assets, and effectively
bankrupting LEI prior to the transfer of Eric’s stock in LEI to Scott. Id. at 42.
Specifically, Scott contends that Eric misappropriated LEI funds and assets,
paid legal fees for which LEI was not responsible, illegally transferred LEI
properties for nominal consideration, and improperly invoiced LEI for
unnecessary expenses. Id. at 43-46. Scott contends that the Agreement
created a special relationship that would allow him to recover on the claims
asserted in the complaint notwithstanding the derivative nature of those
claims. Id. at 41. Scott points out that LEI was not a party to the Agreement,
which explicitly grants him, and not LEI, the right to seek damages against
Eric. Id. Scott asserts that the present matter involves claims for losses that
he personally sustained because of Eric’s breaches of the Agreement. Id.
Scott contends that, because he provided sufficient evidence to the trial court
to establish a prima facie case for unjust enrichment against LEI and Eric, as
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well as breach of fiduciary duty, fraud, and conversion against Eric, the entry
of nonsuit was inappropriate.
The trial court considered Scott’s first issue and determined that it
lacked merit. The court reasoned:
Here, [Scott] failed to set forth any evidence of a direct injury to [himself]. [Only count one, unjust enrichment, is directed at . . . LEI. While count one is labeled as an unjust enrichment claim against Eric and LEI, Scott failed to set forth any evidence of LEI being unjustly enriched, and in fact, Scott alleged that LEI has been diminished by the actions of Eric.] The alleged conduct of . . . Eric . . . is as follows: he unjustly deprived [Scott] of the profit from “[his] interest in LEI;” sold property of LEI and failed to distribute the pro rata proceeds; sold property of LEI to himself or entities he controlled below value; used LEI funds to make payments for non-LEI expenses; diminished the net worth, or book value, of LEI through misapplication, wasting, pilfering and diversion of LEI’s assets; and, breached his fiduciary duties to [Scott] as minority shareholder[]. The complained[-]of actions do not constitute a cognizable, individual claim for unjust enrichment, breach of fiduciary duty, fraud, or conversion.
Further, [Scott’s] legal argument that the injur[ies] to [him] are distinct from any harm to LEI belies the evidence presented. The testimony of . . . Scott . . . established that [his] chief complaint is the failure to receive the benefit of the bargain in the . . . Agreement . . .; accordingly, [Scott’s] injury is not a direct injury. (See N.T.[,] 8/30/[]21, [at] 80-81). [Scott] testified “I filed the complaint to be able to receive the [sic], what was contracted for and also to protect the asset that I agreed to purchase which was the stock of [LEI].” Id. at 6. [Scott’s] allegations are clearly regarding the alleged devaluation of the worth of LEI; this is a claim that would, if proven, establish an injury to all shareholders of LEI, not only [Scott].
The evidence is clear that [Scott] complain[s] of harm to . . . LEI; thus, [he is] the improper party to file this action and the court must grant a compulsory non[]suit.
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Trial Court Opinion, 7/19/22, at unnumbered 2-3 (footnote and unnecessary
capitalization omitted, content of omitted footnote incorporated in brackets);
see also Trial Court Opinion, 10/18/22, at 2 (concluding that “Scott[,] . . .in
his capacity as minority shareholder of LEI[,] would have been the proper
party to bring the suit”).
We discern no abuse of discretion or error of law by the trial court in
entering nonsuit in favor of Eric and LEI. The gravamen of Scott’s claims, as
set forth in the complaint and adduced at trial, was that Eric, in his capacity
as majority shareholder and president of LEI, devalued LEI in anticipation of
his transfer of LEI stock to Scott pursuant to the terms of the Agreement.
Stated differently, Scott alleged that Eric, while acting as president of LEI,
caused harm to LEI by devaluing LEI and enriching himself in the process. As
such, Scott asserted direct harm to LEI, and only indirect harm to himself by
virtue of the Agreement. Because the right to assert a cause of action for the
injury to LEI is considered an asset of LEI, this right could only be asserted in
an action commenced directly by LEI, or by a shareholder of LEI in a
shareholder derivative action commenced on behalf of LEI. See Hill, 85 A.3d
at 548.
In the instant matter, Scott did not assert any claim in his capacity as a
shareholder of LEI, nor did he assert a shareholder derivative claim on behalf
of LEI. Thus, after giving Scott the benefit of all reasonable inferences of fact,
we conclude that the trial court did not err or abuse its discretion in entering
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compulsory nonsuit because Scott, as an individual and as trustee of the Scott
Trust, could not assert a claim on behalf of LEI. See Munoz, 265 A.3d at
805-06. Accordingly, Scott’s first issue merits no relief.
In his second issue, Scott claims the trial court abused its discretion by
denying his post-trial motion to remove the nonsuit without conducting a
hearing. Pennsylvania Rule of Civil Procedure 227.1 specifies the types of
post-trial relief that a trial court may award upon written motion, and the
procedures related thereto. See Pa.R.Civ.P. 227.1. Notably, Rule 227.1 does
not require that a trial court presented with a post-trial motion conduct a
hearing. See id.
Scott asserts that, due to the absence of a hearing to further develop
the record on the issues raised within the post-trial motion, he was denied a
complete opportunity to be heard. Scott acknowledges that the opportunity
to be heard does not always require a hearing but nevertheless argues that
he was denied an opportunity to be heard.
The trial court considered Scott’s second issue and determined that it
lacked merit. The court reasoned that it was not required to hold a hearing
prior to ruling on the post-trial motion. See Trial Court Opinion, 10/18/22, at
4.
We discern no abuse of discretion by the trial court in declining to hold
a hearing on the post-trial motion. Scott concedes that he was not entitled to
a hearing. Scott’s Brief at 58. Instead, he simply argues that, given the
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nature of the proceedings, he should have had the opportunity for oral
argument. However, as explained above, the trial court was not required to
grant Scott’s request. Therefore, no relief is due.
In his final issue, Scott contends that, assuming his claims are derivative
in nature, the trial court erred in refusing to remove the nonsuit to permit him
the opportunity to amend the amended complaint to assert a shareholder
derivative claim. Pursuant to Pa.R.Civ.P. 1033(a), a party, either by filed
consent of the adverse party or by leave of court, may at any time change the
form of action, add a person as a party, correct the name of a party, or
otherwise amend the pleading. See Pa.R.Civ.P. 1033(a). Leave to amend
pleadings has traditionally been liberally granted in this Commonwealth. See
Biglan v. Biglan, 479 A.2d 1021, 1025 (Pa. Super. 1984). Rule 1033
imposes no limit on the time when an amendment may be made. Thus,
pleadings may be amended at the discretion of the trial court after pleadings
are closed, while a motion for judgment on the pleadings is pending, at trial,
after judgment, or after an award has been made and an appeal taken
therefrom. See id. at 1025-26. Indeed, the denial of a petition to amend,
based on nothing more than unreasonable delay, is an abuse of discretion.
See Capobianchi v. BIC Corp., 666 A.2d 344, 347 (Pa. Super. 1995)
(citation omitted). However, timeliness is a factor to be considered “insofar
as it presents a question of prejudice to the opposing party.” Id.
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The right to amend lies within the discretion of the trial court and should
be granted liberally unless there is an error of law or prejudice to the adverse
party. See Hill. 85 A.3d at 557. To permit a plaintiff to change its claim at
the very end of the case may be unjust. See West Penn Power Co. v.
Bethlehem Steel Corp., 348 A.2d 144, 156 (Pa. Super. 1975) (declining to
permit amendment after entry of compulsory nonsuit, noting that a motion to
amend is properly denied when the moving party would gain an inequitable
advantage). Further, amendments may not be made if they introduce a new
cause of action after the statute of limitations has run. See John Goffredo
& Sons, Inc. v. S. M. G. Corp., 446 A.2d 255, 256 (Pa. Super. 1982). Finally,
where allowance of an amendment would be a futile exercise, the amendment
should not be allowed. See Carlino v. Whitpain Inv’rs, 453 A.2d 1385,
1388 (Pa. 1982).6
Scott concedes that, when he filed his motion to amend the complaint
before the entry of nonsuit, he did not seek to add a new party (i.e., Scott in
his capacity as minority shareholder) or state a derivative shareholder claim
6 Eric contends that the requested amendment would be futile, as Scott has
since caused LEI to file a lawsuit against Eric in Wayne County “asserting essentially the same claims on the same factual basis . . ..” Eric’s Brief at 25 n.6; see also id. at Appendix 1 (consisting of a copy of the complaint purportedly filed by LEI against Eric asserting, inter alia, claims for breach of fiduciary duty, unjust enrichment, and conversion, and alleging, inter alia, that Eric purposefully misrepresented and depleted LEI’s assets from 2014 to 2020, by misappropriating funds and assets to pay his personal expenses and to transfer LEI’s assets and real estate to Eric’s business-related entities).
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on behalf of LEI. However, he maintains that he requested an opportunity to
amend the amended complaint in his post-trial motion seeking removal of the
nonsuit. Scott argues that the trial court should have removed the nonsuit
and provided him with an opportunity to amend the amended complaint so
that he could assert a shareholder derivative claim on behalf of LEI. Scott
contends that the trial court was bound to liberally permit a second
amendment. Scott claims that amending the amended complaint would not
add a new party because he would stand in the shoes of a shareholder subject
to the same claims. Furthermore, Scott asserts that no surprise or prejudice
to Eric or LEI would result from a second amendment.
The trial court considered Scott’s third issue and reasoned:
Here, [Scott] filed a motion to amend [the] complaint on June 13, 2022 during the pendency of trial and at the close of [his] case. In that motion, [Scott] sought only to clarify material facts regarding [his] claims of evidence and did not seek to add or remove parties or to assert any new causes of action. The amended complaint neither added Scott Linde, minority shareholder of LEI, as a plaintiff nor did it assert shareholder derivative claims. [Eric and LEI] consented to [Scott’s] motion to amend. This court acknowledged [Scott’s] amended complaint in its July 19, 2022 opinion and order. [Scott] did not file any subsequent motions to amend.
Trial Court Opinion, 10/18/22, at 3 (unnecessary capitalization omitted,
emphasis added).
Our review of the record discloses that Scott filed a post-trial motion
styled as a “Post-Trial Motion to Remove Compulsory Nonsuit and to Order
that Trial is to Proceed on all Issues.” See Post-Trial Motion, 7/28/22, at 1.
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Patently, the title of the motion gave no indication to the trial court that, within
the body of the motion, Scott included a request to amend the amended
complaint to assert a claim in his capacity as a minority shareholder of LEI
and to add a shareholder derivative claim on behalf of LEI. Nevertheless, such
a request was included in the motion. See id. at ¶¶ 27-41.
As it appears that the trial court did not apprehend that Scott included
a request to amend the amended complaint in his post-trial motion, we vacate
the judgment and order denying post-trial relief and remand for the trial court
to address the request to amend the amended complaint and determine
whether such request should be granted or denied, bearing in mind the well-
established considerations bearing upon that determination as explained
above.
Affirmed in part, judgment vacated, order denying post-trial relief
vacated, case remanded for further proceedings consistent with this
memorandum. Jurisdiction relinquished.
Date: 11/9/2023
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