J. A15037/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DONALD NEWELL, ADMINISTRATOR OF : IN THE SUPERIOR COURT OF THE ESTATE OF VICTOR NEWELL, : PENNSYLVANIA DECEASED, : Appellant : : v. : : COLORADO CAFE, MONTANA WEST, : INC., GIAMBRONE ENTERPRISES, L.P., : JOHN GIAMBRONE, COLLEEN : GIAMBRONE, JOSEPH GIAMBRONE, : ANGELA GIAMBRONE, GEORGE : KRIZENOWSKI, THE STORM, : DHL MACHINE COMPANY, DHL : MACHINE INTERNATIONAL, INC., : HALEIGH OLIEMULLER AND KIM : OLIEMULLER : : No. 2612 EDA 2014
Appeal from the Order Entered August 5, 2014 In the Court of Common Pleas of Philadelphia County Civil Division No(s).: 120400813
BEFORE: BOWES, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 05, 2015
Appellant, Donald Newell, administrator of the estate of Victor Newell,
deceased, appeals from the order entered in the Philadelphia County Court
of Common Pleas granting summary judgment in favor of Appellees,
Montana West, Inc., Giambrone Enterprises, L.P., John Giambrone, Colleen
Giambrone, Joseph Giambrone, Angela Giambrone, George Krizenowski, The
Storm, DHL Machine Co., and DHL Machine International, Inc. Because an
* Former Justice specially assigned to the Superior Court. J. A15037/15
underlying settlement agreement is contingent on how this Court rules on
this appeal, we quash this appeal as interlocutory.
The underlying facts are not pertinent to our disposition. On August 5,
2014, the court granted the aforementioned motion for summary judgment.
On August 29, 2014, the court approved the following stipulation:
AND NOW this 28th day of August, 2014, plaintiff Estate of Victor Newell and defendants Haleigh Oliemuller and Kim Oliemuller stipulate the case is settled pursuant to the following terms and conditions:
1. The settlement among the plaintiff and defendants, Haleigh Olemuller [sic] and Kim Oliemuller is contingent on the final outcome of the Court’s motion for summary judgment Order dated August 5, 2014.
2. If the Court’s August 5, 2014 Order granting summary judgment in favor of Defendants Montana West, Inc., Giambrone Enterprises, L.P., John Giambrone, Colleen Giambrone, Angela Giambrone, George Krizenowski and The Storm (the “Order”) is vacated and/or reversed by an appellate court, then the settlement among plaintiff and defendants, Haleigh Olemuller [sic] and Kim Oliemuller shall be stricken.
3. However, if the August 5, 2014 Order is deemed final and unappealable then Haleigh Olemuller [sic] shall tender her Allstate automobile policy (#908075667) limit within twenty days from the date the Order becomes final and unappealable.
Ex. A to DHL Machine and DHL Int’l’s (collectively “DHL”) Mot. to Quash
Appeal. The stipulation was signed by Appellant’s counsel and counsel for
the Oliemullers. Id. The stipulation was also approved under the trial
judge’s signature. Id. Appellant did not file a praecipe to discontinue any
outstanding claims.
-2- J. A15037/15
Appellant timely appealed on September 4, 2014. The court did not
order Appellant to comply with Pa.R.A.P. 1925(b), although it filed a Rule
1925(a) opinion. Appellant raised the following issues on appeal:
Did the trial court err in finding that as a matter of law that [Appellee] Montana West did not owe [Victor Newell] a duty of care [given the following] undisputed facts . . . .
Did the trial court err in finding that as a matter of law that [Appellee] DHL did not owe Victor Newell a duty of care when he was struck and killed on a state highway while walking to his parked car in DHL’s lot.
Appellant’s Brief at 5-7.1
As a prefatory matter, we address Appellees’ renewed motion to
quash. Pennsylvania Rule of Appellate Procedure 341 defines a final order
for purposes of appeal:
(a) General rule. Except as prescribed in subdivisions (d), and (e) of this rule, an appeal may be taken as of right from any final order of an administrative agency or lower court.
(b) Definition of final order. A final order is any order that:
(1) disposes of all claims and of all parties . . . .
* * *
(c) Determination of finality. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim or when multiple parties are involved, the trial court or other
1 Appellant’s statement of questions presented included fifteen alleged undisputed facts.
-3- J. A15037/15
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. Such an order becomes appealable when entered. In the absence of such a determination and entry of a final order, any order or other form of decision that adjudicates fewer than all the claims and parties shall not constitute a final order.
Pa.R.A.P. 341(a)-(c).
Pennsylvania law makes clear that an appeal may be taken from a final order or an order certified as a final order; an interlocutory order as of right; an interlocutory order by permission; or a collateral order. A final order is one that disposes of all the parties and all the claims in a case, is expressly defined as a final order by statute, or is entered as a final order pursuant to the trial court’s determination. [T]he appealability of an order goes directly to the jurisdiction of the Court asked to review the order.
Takosky v. Henning, 906 A.2d 1255, 1258 (Pa. Super. 2006) (footnotes,
citations, and quotation marks omitted). “Conversely phrased, ‘(a)n order is
interlocutory and not final unless it effectively puts the defendant ‘out of
court.’” Piltzer v. Independence Fed. Sav. & Loan Ass’n of Phila., 456
Pa. 402, 404, 319 A.2d 677, 678 (1974).
A federal case illustrates the lack of finality caused by a contingent
settlement agreement. In Verzilli v. Flexon, Inc., 295 F.3d 421 (3d Cir.
2002),2 the parties stipulated to the following: “The parties agree that there
2 With respect to federal decisions, we acknowledge the following:
[F]ederal court decisions do not control the determinations of the Superior Court. Our law clearly states that, absent a United States Supreme Court pronouncement, the
-4- J. A15037/15
will be no further proceedings in this case unless the [district court’s] order
of April 3, 2001 [pretrial ruling on damages] is reversed on appeal.” Id. at
422 (second alteration in original). The stipulation also provided that if the
appellate court reversed, the defendant “will be permitted to present a full
and complete defense to all issues in this case (damage and liability).” Id.
The plaintiff appealed the trial court’s pretrial ruling and the Court of Appeals
examined whether it had jurisdiction.
The Verzilli Court ascertained whether the order was “final,”
observing that a final order “ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.” Id. at 424 (quoting
Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S. Ct. 2454, 2457,
57 L. Ed. 2d 351, 357 (1978)). The Court of Appeals held that the district
court’s order was not final, as it covered “only one possible outcome of the
Free access — add to your briefcase to read the full text and ask questions with AI
J. A15037/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DONALD NEWELL, ADMINISTRATOR OF : IN THE SUPERIOR COURT OF THE ESTATE OF VICTOR NEWELL, : PENNSYLVANIA DECEASED, : Appellant : : v. : : COLORADO CAFE, MONTANA WEST, : INC., GIAMBRONE ENTERPRISES, L.P., : JOHN GIAMBRONE, COLLEEN : GIAMBRONE, JOSEPH GIAMBRONE, : ANGELA GIAMBRONE, GEORGE : KRIZENOWSKI, THE STORM, : DHL MACHINE COMPANY, DHL : MACHINE INTERNATIONAL, INC., : HALEIGH OLIEMULLER AND KIM : OLIEMULLER : : No. 2612 EDA 2014
Appeal from the Order Entered August 5, 2014 In the Court of Common Pleas of Philadelphia County Civil Division No(s).: 120400813
BEFORE: BOWES, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 05, 2015
Appellant, Donald Newell, administrator of the estate of Victor Newell,
deceased, appeals from the order entered in the Philadelphia County Court
of Common Pleas granting summary judgment in favor of Appellees,
Montana West, Inc., Giambrone Enterprises, L.P., John Giambrone, Colleen
Giambrone, Joseph Giambrone, Angela Giambrone, George Krizenowski, The
Storm, DHL Machine Co., and DHL Machine International, Inc. Because an
* Former Justice specially assigned to the Superior Court. J. A15037/15
underlying settlement agreement is contingent on how this Court rules on
this appeal, we quash this appeal as interlocutory.
The underlying facts are not pertinent to our disposition. On August 5,
2014, the court granted the aforementioned motion for summary judgment.
On August 29, 2014, the court approved the following stipulation:
AND NOW this 28th day of August, 2014, plaintiff Estate of Victor Newell and defendants Haleigh Oliemuller and Kim Oliemuller stipulate the case is settled pursuant to the following terms and conditions:
1. The settlement among the plaintiff and defendants, Haleigh Olemuller [sic] and Kim Oliemuller is contingent on the final outcome of the Court’s motion for summary judgment Order dated August 5, 2014.
2. If the Court’s August 5, 2014 Order granting summary judgment in favor of Defendants Montana West, Inc., Giambrone Enterprises, L.P., John Giambrone, Colleen Giambrone, Angela Giambrone, George Krizenowski and The Storm (the “Order”) is vacated and/or reversed by an appellate court, then the settlement among plaintiff and defendants, Haleigh Olemuller [sic] and Kim Oliemuller shall be stricken.
3. However, if the August 5, 2014 Order is deemed final and unappealable then Haleigh Olemuller [sic] shall tender her Allstate automobile policy (#908075667) limit within twenty days from the date the Order becomes final and unappealable.
Ex. A to DHL Machine and DHL Int’l’s (collectively “DHL”) Mot. to Quash
Appeal. The stipulation was signed by Appellant’s counsel and counsel for
the Oliemullers. Id. The stipulation was also approved under the trial
judge’s signature. Id. Appellant did not file a praecipe to discontinue any
outstanding claims.
-2- J. A15037/15
Appellant timely appealed on September 4, 2014. The court did not
order Appellant to comply with Pa.R.A.P. 1925(b), although it filed a Rule
1925(a) opinion. Appellant raised the following issues on appeal:
Did the trial court err in finding that as a matter of law that [Appellee] Montana West did not owe [Victor Newell] a duty of care [given the following] undisputed facts . . . .
Did the trial court err in finding that as a matter of law that [Appellee] DHL did not owe Victor Newell a duty of care when he was struck and killed on a state highway while walking to his parked car in DHL’s lot.
Appellant’s Brief at 5-7.1
As a prefatory matter, we address Appellees’ renewed motion to
quash. Pennsylvania Rule of Appellate Procedure 341 defines a final order
for purposes of appeal:
(a) General rule. Except as prescribed in subdivisions (d), and (e) of this rule, an appeal may be taken as of right from any final order of an administrative agency or lower court.
(b) Definition of final order. A final order is any order that:
(1) disposes of all claims and of all parties . . . .
* * *
(c) Determination of finality. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim or when multiple parties are involved, the trial court or other
1 Appellant’s statement of questions presented included fifteen alleged undisputed facts.
-3- J. A15037/15
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. Such an order becomes appealable when entered. In the absence of such a determination and entry of a final order, any order or other form of decision that adjudicates fewer than all the claims and parties shall not constitute a final order.
Pa.R.A.P. 341(a)-(c).
Pennsylvania law makes clear that an appeal may be taken from a final order or an order certified as a final order; an interlocutory order as of right; an interlocutory order by permission; or a collateral order. A final order is one that disposes of all the parties and all the claims in a case, is expressly defined as a final order by statute, or is entered as a final order pursuant to the trial court’s determination. [T]he appealability of an order goes directly to the jurisdiction of the Court asked to review the order.
Takosky v. Henning, 906 A.2d 1255, 1258 (Pa. Super. 2006) (footnotes,
citations, and quotation marks omitted). “Conversely phrased, ‘(a)n order is
interlocutory and not final unless it effectively puts the defendant ‘out of
court.’” Piltzer v. Independence Fed. Sav. & Loan Ass’n of Phila., 456
Pa. 402, 404, 319 A.2d 677, 678 (1974).
A federal case illustrates the lack of finality caused by a contingent
settlement agreement. In Verzilli v. Flexon, Inc., 295 F.3d 421 (3d Cir.
2002),2 the parties stipulated to the following: “The parties agree that there
2 With respect to federal decisions, we acknowledge the following:
[F]ederal court decisions do not control the determinations of the Superior Court. Our law clearly states that, absent a United States Supreme Court pronouncement, the
-4- J. A15037/15
will be no further proceedings in this case unless the [district court’s] order
of April 3, 2001 [pretrial ruling on damages] is reversed on appeal.” Id. at
422 (second alteration in original). The stipulation also provided that if the
appellate court reversed, the defendant “will be permitted to present a full
and complete defense to all issues in this case (damage and liability).” Id.
The plaintiff appealed the trial court’s pretrial ruling and the Court of Appeals
examined whether it had jurisdiction.
The Verzilli Court ascertained whether the order was “final,”
observing that a final order “ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.” Id. at 424 (quoting
Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S. Ct. 2454, 2457,
57 L. Ed. 2d 351, 357 (1978)). The Court of Appeals held that the district
court’s order was not final, as it covered “only one possible outcome of the
appeal—an affirmance by this Court.” Id. at 425. “According to the
stipulation, if this Court should decide to reverse, then the matter would
return to the District Court for a full trial. Similarly, if this Court declined to
decisions of federal courts are not binding on Pennsylvania state courts, even when a federal question is involved. . . . Whenever possible, Pennsylvania state courts follow the Third Circuit so that litigants do not improperly “walk across the street” to achieve a different result in federal court than would be obtained in state court.
NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 303 (Pa. Super. 2012) (citations omitted); accord Parr v. Ford Motor Co., 109 A.3d 682, 693 n.8 (Pa. Super. 2014) (en banc).
-5- J. A15037/15
decide the propriety of the pretrial ruling, the case would be remanded to
the District Court.” Id. The Verzilli Court thus quashed the appeal for lack
of jurisdiction. Id.
Instantly, the August 29, 2014 stipulation permits further litigation if
this Court affirms. Nothing in the stipulation requires Appellant to accept
Haleigh Oliemuller’s offer of a sum equal to the limits of her automobile
insurance policy. See Ex. A to DHL’s Mot. to Quash Appeal. There is no
language compelling Appellant to discontinue with prejudice his claims
against each Oliemuller defendant. See id. The plain language of the
stipulation permits Appellant to continue pursuing his claims against each
Oliemuller defendant even if this Court affirms the order below and Haleigh
tenders her policy limit. See id. Simply, further piecemeal litigation could
ensue thus rendering the instant appeal premature. See Pa.R.A.P. 341;
Takosky, 906 A.2d at 1258. To paraphrase the Verzilli Court, the trial
court is not limited to only executing the judgment should this Court affirm.
See Verzilli, 295 F.3d at 424. In sum, the conditional nature of the
stipulation defeats finality. See Pa.R.A.P. 341; Verzilli, 295 F.3d at 424;
see also Fed. Home Loan Mortg. Corp. v. Scottsdale Ins. Co., 316 F.3d
431, 440 (3d Cir. 2003) (“[L]itigants should not be able to avoid the final
judgment rule without fully relinquishing the ability to further litigate
unresolved claims.” (citation omitted)). Accordingly, we quash.
Appeal quashed.
-6- J. A15037/15
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/5/2015
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