Tolulope, G. v. Rainforest Property

• Court: Superior Court of Pennsylvania
• Decided: March 15, 2024
• Docket: 266 EDA 2023
• Status: Unpublished

Opinion

J-A26025-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

GLORIA TOLULOPE : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : RAINFOREST PROPERTY III LLC AND : No. 266 EDA 2023 LIU YONG JIN :

Appeal from the Order Entered January 12, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 221101284

BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 15, 2024

Gloria Tolulope appeals pro se from court’s order sustaining the

preliminary objection of Rainforest Property III LLC and Liu Yong Jin

(“Rainforest Property”) and dismissing her complaint with prejudice on res

judicata grounds. We affirm.

In March 2022, Rainforest Property, as landlord, entered into an “as-is”

five-year commercial lease agreement with Solomon Ogunsola, as tenant.

Ogunsola intended to use the property to open a restaurant. Subsequently,

Rainforest Property filed a landlord/tenant action in Municipal Court against

Ogunsola for nonpayment of rent. Ogunsola filed a counterclaim alleging, in

full, the following:

[Ogunsola] entered into a 5[-]year lease agreement with [Rainforest Property] on April 2nd, 2022 for the property at 6142 Lansdowne Ave[. ,] Philadelphia, Pa[,] 19151. [Ogunsola] is suing for all repairs to the property because [Ogunsola] claims J-A26025-23

[Rainforest Property] is in violation of a series of maintenance codes in Philadelphia. [Ogunsola] also believes that the original complaint says that the landlord claimed to have rented h[im] an Airbnb. [Ogunsola] will then continue the case to [t]he Court of Common Pleas to sue for the additional work that is needed for the property since it is claimed to be unhabitual [sic]. [Ogunsola] has attempted to settle this matter to no avail. [Ogunsola] is now seeking a judgment in the amount of $12,000.00 plus court costs.

Rainforest Property III LLC’s Motion to Strike the Appeal from Municipal Court,

filed Dec. 15, 2022, at Exh. A, Counterclaim. In September 2022, Ogunsola’s

wife, Tolulope, was granted permission to intervene in the matter and was

added as a defendant.

Following a trial in Municipal Court on October 12, 2022, the court found

in favor of Ogunsola and Tolulope on Rainforest Property’s claim for unpaid

rent, but in favor of Rainforest Property on the counterclaim. Neither party

filed an appeal from the Municipal Court.

In November 2022, Tolulope filed a new action against Rainforest

Property in the Court of Common Pleas.1 Tolulope alleged that Rainforest

Property breached the lease of the property because “all cooking fixtures . . .

listed on the lease were defective and PGW refused to turn the gas on.” See

Complaint, filed 11/14/22, at 2 (unpaginated). Tolulope further alleged that

Rainforest Property “removed the Chinese oven and fryer and never replaced

them” and failed to fix 20 open Licenses and Inspections violations. Id.

Tolulope maintained that Rainforest Property fraudulently misled her to

believe that the equipment at the property was functional and “tricked us to

____________________________________________

1 Tolulope’s complaint did not include Ogunsola as a plaintiff.

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sign the lease agreement to our disadvantage.” Id. The complaint sought

“monetary compensation for the intended five-year projected income[,]”

including lost profits in the amount of $417,625.22. Id. at 4 (unpaginated).

Rainforest Property filed a motion to dismiss the complaint alleging the

action was barred by res judicata. The court treated the motion as a

preliminary objection. See Trial Court Rule 1925(a) Opinion, filed 4/24/23, at

3 (unpaginated). By order dated January 12, 2023, the trial court sustained

Rainforest Property’s preliminary objection and dismissed the complaint with

prejudice. The court found “the issues raised by [Tolulope] in this lawsuit could

have been raised by a counterclaim in the Municipal Court action but were

not[.]” Order, dated 1/12/23. Tolulope filed a timely notice of appeal. The

court ordered her to file a Rule 1925(b) statement. Tolulope complied and

raised the following issues in her Rule 1925(b) statement:

1. With respect to the [c]ourt’s [o]rder dated January 12, 2023, the counter[claim] on August 15, 2022, was for cost of repairs and maintenance, attached hereto as Exhibit “A”.

2. The Post-Trial events, additional repair costs, rent expense, subsequent illegal evictions, court summons by Rainforest Property III LLC and open violations that make[] the building unsafe, were unforeseeable at the trial of LT-22-07-08-3415; to have sought restitution, as attached hereto as Exhibit “B”.

3. The [c]ourt erred as matter of law when it found that the issues raised by [Tolulope] could have been raised by a counterclaim in the Municipal Court action because such items were not known at the time and also exceeded the jurisdictional limits of Municipal Court.

Tolulope’s Pa.R.A.P. 1925(b) Statement, filed 2/3/23, at 1-2.

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Tolulope argues that res judicata should not apply. She contends that

this case is separate and distinct from the prior case in Municipal Court

because the current case involves the fraud perpetrated by Rainforest

Property and seeks lost profits from the restaurant that she was unable to run

due to the property’s inhabitable conditions and broken equipment. Tolulope’s

Br. at 10-11. Tolulope argues that “[b]ased upon [Rainforest Property’s]

fraudulent representations, [Tolulope] entered into a [l]ease for the

[p]roperty, spent considerable time and money to update the [p]roperty, and

was never able to open [her] restaurant.” Id. Tolulope maintains that the prior

case in Municipal Court was only about rent and repair costs, while the current

case seeks lost profits due to Rainforest Property’s fraudulent

misrepresentations about the conditions of the property. Id. at 11. Tolulope

argues that although the instant case “involve[s] the same parties and the

same [p]roperty, [Tolulope] sued for a different set of damages and under a

different cause of action.” Id. at 13. Tolulope concludes that “this case for lost

profits is separate and distinct from the prior case involving unpaid rent and

repairs” and Rainforest Property should be liable for the amount of damages

it caused to Tolulope. Id. at 14-15.

We initially observe that Tolulope’s brief does not contain a statement

of the questions involved, in violation of Pa.R.A.P. 2116(a). However, Tolulope

preserved the issue of whether the court erred when it dismissed her

complaint on res judicata grounds in her Rule 1925(b) statement, the trial

court addressed the issue in its Rule 1925(a) Opinion, and Tolulope provided

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argument on the issue in her brief. Accordingly, because our appellate review

is not impeded, we decline to find waiver. See Savoy v. Savoy, 641 A.2d

596, 598 (Pa.Super. 1994).2

In reviewing an order sustaining preliminary objections, we must

determine whether the trial court committed an error of law. Feingold v.

Hendrzak, 15 A.3d 937, 941 (Pa.Super. 2011). “Preliminary objections in the

nature of a demurrer test the legal sufficiency of the complaint.” Id. (citation

omitted). When ruling on preliminary objections, “all material facts set forth

in the challenged pleadings are admitted as true, as well as all inferences

reasonably deducible therefrom.” Estate of Denmark ex rel. Hurst v.

Williams, 117 A.3d 300, 305 (Pa.Super. 2015) (citation omitted). Preliminary

objections should be sustained “only in cases in which it is clear and free from

doubt that the pleader will be unable to prove facts legally sufficient to

establish the right to relief.” Feingold, 15 A.3d at 941 (citation omitted).

Here, the trial court found that the issues raised in Tolulope’s current

complaint were the same as those she asserted in her Municipal Court

counterclaim, in that “[t]he cause of action is identical, the factual bases for

the claim are identical, the parties are identical, and the capacity of the parties

2 However, we find waiver on Tolulope’s final claim in her Rule 1925(b) statement that she was prevented from raising her full claim for damages in Municipal Court because the amount exceeded the jurisdictional limits. Tolulope failed to provide any argument on this issue in her appellate brief. This abandoned claim is therefore waived. See Pa.R.A.P. 2119(a); Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002) (stating “undeveloped claims are waived and unreviewable on appeal”).

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to sue is identical.” Rule 1925(a) Op. at 4 (unpaginated). The court

determined that the face of Tolulope’s Municipal Court counterclaim showed

that Tolulope was aware of her damages at the time of the counterclaim. Id.

at 5 (unpaginated). The court concluded that res judicata barred Tolulope from

bringing a new claim for the same damages. Id.

Res judicata “prohibits parties involved in prior, concluded litigation

from subsequently asserting claims in a later action that were raised, or could

have been raised, in the previous adjudication.” Wilkes v. Phoenix Home

Life Mut. Ins. Co., 902 A.2d 366, 376 (Pa. 2006). “For res judicata to apply,

there must be a concurrence of four identities: (1) identity of issues; (2)

identity of the cause of action; (3) identity of persons and parties to the action;

and (4) identity of the quality or capacity of the parties suing or sued.” Khalil

v. Travelers Indemnity Company of America, 273 A.3d 1211, 1223

(Pa.Super. 2022). “In determining whether res judicata should apply, a court

may consider whether the factual allegations of both actions are the same,

whether the same evidence is necessary to prove each action and whether

both actions seek compensation for the same damages.” Hopewell Estates,

Inc. v. Kent, 646 A.2d 1192, 1194–95 (Pa.Super. 1994). Further, “[a] party

must raise all matters related to an issue at first opportunity or be forever

barred from raising them again.” Winpenny v. Winpenny, 643 A.2d 677,

679 (Pa.Super. 1994). “It makes no difference if that party was pro se.”

Khalil, 273 A.3d at 1224 (citing Winpenny, 643 A.2d at 679).

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The court did not err in dismissing the complaint. In both actions, the

parties and factual allegations are the same. Further, Tolulope’s claim that

Rainforest Property is liable for her restaurant’s lost profits due to alleged

fraudulent misrepresentations made by Rainforest Property could have been

raised in the prior Municipal Court action. Indeed, this information was known

at the time of the Municipal Court action and stems from the same events.

Since Tolulope could have raised a claim for fraud and sought damages for

lost profits in the Municipal Court action, the court did not err in finding res

judicia applied.

Order affirmed.

Date: 3/15/2024

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