Pasceri, B. v. Karp, M.

• Court: Superior Court of Pennsylvania
• Decided: February 5, 2019
• Docket: 68 EDA 2018
• Status: Unpublished

Opinion

J-A22009-18 J-A22010-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BRUNO J. PASCERI : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL A. KARP : : Appellant : No. 68 EDA 2018

Appeal from the Order Entered November 28, 2017 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): July Term, 2015 No. 798

MICHAEL A. KARP, : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRUNO J. PASCERI, : : Appellant : No. 288 EDA 2018

Appeal from the Order Entered November 28, 2017 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): July Term, 2015 No. 798

BRUNO J. PASCERI : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : MICHAEL A. KARP : No. 651 EDA 2018

Appeal from the Order Entered January 24, 2018 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): July Term, 2015, No. 0798 J-A22009-18 J-A22010-18

BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS*, P.J.E.

CONCURRING/DISSENTING STATEMENT BY NICHOLS, J.: FILED FEBRUARY

05, 2019

I respectfully concur in part and dissent in part. I concur in the result

reached by the majority for the accumulated profits of $15,370,488. As the

trial court correctly notes, Michael A. Karp owned all of the limited partnership

shares, comprising a 99% interest, in Gateway Funding Diversified Mortgage

Services, LP. The remaining 1% general partnership interest was owned by

Gateway Funding, Inc., which in turn was 100% owned by Karp. Karp

therefore had the discretion to, and did, decide that the accumulated profits

were to be retained by the partnership—presumably for use by the

partnership—instead of being distributed to himself. Whether categorized as

Karp’s investment into the partnership or as a partnership obligation to fulfill

covenant requirements, the retained earnings were unavailable for

disbursement under the employment agreement.

Although the majority correctly holds that it need not address the

remaining issues given its disposition, I note my disagreement with the trial

court’s rationale permitting Karp to deduct his personal losses on the non-

performing loans he purchased from Gateway. Simply, because Karp bought

non-performing loans from Gateway, the non-performing loans were no longer

* Former Justice specially assigned to the Superior Court.

-2- J-A22009-18 J-A22010-18

in Gateway’s “inventory” of assets. I suggest that any monetary gains or

losses attributable to and dating from Karp’s ownership of non-performing

loans belong to Karp alone. It follows that Karp cannot assign any monetary

losses (or gains) on assets he solely owns to Gateway. Although the money

used for Karp’s 2008 purchase of the non-performing loans may be construed

as an “investment” into Gateway, that does not mean Karp is entitled to assign

any post-2008 losses or gains from such loans to Gateway: any such monetary

gains or losses belong to Karp.1

I also disagree with the trial court’s rationale that the phrase “along with

interest thereon” is ambiguous. The parties agreed that Karp’s capital

contributions totaled $5,534,472, and the contract specifies that “interest

thereon” should have been awarded. Respectfully, I perceive no ambiguity in

that phrase. See generally Nicholas v. Hofmann, 158 A.3d 675, 693-94

(Pa. Super. 2017). I therefore decline to address whether it was common

business practice to award interest on capital contributions. Finally, I agree

with the trial court’s resolution of the Wage Payment and Collection Law issue.

For these reasons, I respectfully concur in part and dissent in part.

1 If an individual purchases real assets of a company, that individual usually expects to realize any such gains or losses personally and not assign them to the seller-company.

-3-