J-A10035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAVID MILLER                                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

ANTHONY PUCCIO AND JOSEPHINE
PUCCIO, HIS WIFE, ANGELINE J.
PUCCIO, NRT PITTSBURGH, LLC D/B/A
COLDWELL BANKER REAL ESTATE
SERVICES, AND SUZANNE LORENZI
SALA

                        Appellees                  No. 897 WDA 2015


                Appeal from the Order Entered June 1, 2015
            In the Court of Common Pleas of Allegheny County
                   Civil Division at No(s): AR 13-004384


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J.

MEMORANDUM BY GANTMAN, P.J.:                    FILED OCTOBER 25, 2016

     Appellant, David Miller, appeals from the order entered in the

Allegheny County Court of Common Pleas, which granted the “motion to

strike cross claim” filed on behalf of Appellees NRT Pittsburgh, LLC d/b/a

Coldwell Banker Real Estate Services (“Coldwell Banker”) and Suzanne

Lorenzi Sala. We affirm.

     The relevant facts and procedural history of this case are as follows.

In early 2013, Anthony Puccio and Josephine Puccio (“the Puccios”)

contracted with Coldwell Banker and Ms. Sala (“Coldwell Appellees”) to

provide professional real estate services in connection with the sale of the
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Puccios’ home (“the property”). Ms. Sala was a licensed real estate agent

for Coldwell Banker.      In April 2013, Appellant entered into a written

agreement of sale with the Puccios to purchase the property. The Puccios’

daughter, Angeline Puccio, signed and initialed the agreement on behalf of

the Puccios. Closing was scheduled for May 31, 2013. The Puccios sought a

one-week extension of the closing date to secure financing for their new

home.        Ms. Sala communicated the proposal to Appellant’s realtor.

Allegedly, Appellant agreed to the extension; but Ms. Sala informed the

Puccios that Appellant had rejected it.   On May 30, 2013, Ms. Sala sent

Appellant’s realtor a “notice of termination of agreement of sale” signed by

the Puccios. The sale of the property was not consummated. The notice of

termination indicated that the Puccios returned Appellant’s $1,000.00

deposit.

      On October 1, 2013, Appellant filed a complaint against the Puccios,

Angeline Puccio, and Coldwell Appellees, which included four counts: fraud,

negligent misrepresentation, intentional misrepresentation, and unfair trade

practices.    Appellant sought damages reflecting the alleged difference in

closing costs, taxes, and other expenses associated with Appellant’s

purchase of a different home.     Appellant filed an amended complaint on

November 6, 2013, which added a breach of contract count against the

Puccios. The Puccios and Coldwell Appellees subsequently filed preliminary

objections. On December 10, 2013, the trial court sustained the preliminary


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objections as to counts one through four of Appellant’s amended complaint.

Those counts were dismissed with respect to all Appellees. Appellant filed a

motion for reconsideration on December 11, 2013, which the court denied

on December 16, 2013. The only remaining count was Appellant’s breach of

contract claim against the Puccios, who filed an answer and new matter on

January 6, 2014.         Appellant and the Puccios proceeded to compulsory

arbitration.    The board of arbitrators entered an award in favor of the

Puccios on February 18, 2014. During the arbitration proceeding, Appellant

and the Puccios stipulated that Angeline Puccio, Coldwell Banker, and Ms.

Sala had been dismissed as party defendants.        Appellant appealed the

arbitration award and demanded a jury trial.      Appellant and the Puccios

subsequently reached a pretrial settlement, as reflected in the trial court’s

settlement order of September 2, 2014. On September 11, 2014, the court

entered a consent order modifying the original settlement order.         The

consent order stated the following:

          AND NOW, this 11th day of September, 2014, upon consent
          of the parties, the Order of Court dated September 2, 2014
          is hereby amended as follows:

          1. This case has been amicably settled between
          [Appellant] and Defendants Anthony Puccio, Josephine
          Puccio and Angeline J. Puccio only.[1]

____________________________________________


1
  The consent order indicates Angeline Puccio was a party to the settlement
negotiations. All claims against Angeline Puccio, however, were previously
dismissed by the court’s December 10, 2013 order.



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        2. Defendants Anthony Puccio, Josephine Puccio and
        Angeline J. Puccio retain the right to bring a cross-claim,
        either on their own or through an assignment of rights to
        [Appellant], against [Coldwell Banker] and Suzanne
        Lorenzi Sala.

        3. This case is removed from the current trial list and any
        remaining party shall have the right to request a new trial
        date by filing a Praecipe to Place Case at Issue.

(Consent Order, filed 9/11/14; R.R. at 27b).    Coldwell Appellees were not

parties to the settlement negotiations or the consent order.     No further

action was taken in this case for the next seven months. On April 6, 2015,

Appellant filed a purported “cross-claim” against Coldwell Appellees, in the

same case and at the same docket number, pursuant to a purported

assignment of rights from the Puccios. Coldwell Appellees filed a motion to

strike the “cross-claim” on April 27, 2015.    On June 1, 2015, the special

motions court granted the motion to strike and directed the prothonotary to

close the docket. Appellant filed a timely notice of appeal on June 9, 2015.

The court ordered Appellant to file a concise statement of errors complained

of on appeal, pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied.

     Appellant raises the following issue for our review:

        WHETHER THE SPECIAL MOTIONS [COURT] COMMITTED
        AN ERROR OF LAW OR AN ABUSE OF DISCRETION WHEN
        [IT] RULED THAT [THE PUCCIOS] WERE BARRED FROM
        PURSUING    A  CROSS-CLAIM   AGAINST  [COLDWELL
        APPELLEES] WHEN THE MOTIONS [COURT] HAD
        PREVIOUSLY DISMISSED ONLY [APPELLANT’S] CLAIMS
        AGAINST [COLDWELL APPELLEES] VIA A PRELIMINARY
        OBJECTION AND WHERE THE REMAINING PARTIES
        ENTERED INTO [A] SETTLEMENT AGREEMENT, VIA A
        CONSENT ORDER OF THE TRIAL COURT, WHICH

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         EXPRESSLY MAINTAINED [THE PUCCIOS’] RIGHT TO FILE
         A CROSS-CLAIM AGAINST [COLDWELL APPELLEES] AND
         ASSIGNED SUCH RIGHT TO [APPELLANT].

(Appellant’s Brief at 4).

      Appellant argues the special motions court engaged in “procedural

formalism” when it struck Appellant’s “cross-claim” based on how it was

captioned. Appellant contends the court could have construed the filing as a

third-party complaint or late joinder filed with the consent of Appellant and

the Puccios. Appellant asserts Coldwell Appellees were not prejudiced by the

timing of the filing, whereas the court’s refusal to rule on its merits caused

Appellant “manifest and palpable injury.” Appellant submits he was denied a

just and speedy resolution of all claims against all responsible parties in a

single action. Appellant further claims the motions court violated the “law of

the case” doctrine when it failed to give legal effect to the trial court’s

consent order, which stayed the proceedings and granted the Puccios

permission to file a cross-claim against Coldwell Appellees.        Appellant

alternatively argues the consent order created a presumption of “just cause”

for filing a late joinder, and the motions court could not disregard the

consent order’s legal effect on the ground of procedural noncompliance.

Appellant avers Coldwell Appellees were served with the consent order and

were still parties to the case vis-à-vis the Puccios (and Appellant through an

assignment of rights from the Puccios).      Appellant maintains the order

sustaining Coldwell Appellees’ preliminary objections dismissed Appellant’s


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claims in his individual capacity only, not any claims the Puccios had against

Coldwell Appellees.    Appellant concludes this Court should reverse the

motions court’s order and allow Appellant to proceed with the Puccios’

assigned claims against Coldwell Appellees.     In the alternative, Appellant

concludes this Court should vacate the consent order and settlement

agreement if this Court determines the terms of the consent order cannot be

effectuated. We disagree.

      The grant of a motion to strike a pleading is reviewed for an abuse of

discretion. Francisco v. Ford Motor Co., 580 A.2d 374 (Pa.Super. 1990),

appeal denied, 527 Pa. 633, 592 A.2d 1301 (1991). “When a party moves

to strike a pleading, the party who files the untimely pleading must

demonstrate just cause for the delay. It is only after a showing of just cause

has been made that the moving party needs to demonstrate that it has been

prejudiced by the late pleading.” Peters Creek Sanitary Auth. v. Welch,

545 Pa. 309, 314–15, 681 A.2d 167, 170 (1996).

      The Rules of Civil Procedure govern cross-claims as follows:

         Rule 1031.1. Cross-Claim

         Any party may set forth in the answer or reply under the
         heading “Cross-claim” a cause of action against any other
         party to the action that the other party may be

         (1) solely liable on the underlying cause of action or

            Note: The term “underlying cause of action” refers
            to the cause of action set forth in the plaintiff’s
            complaint or the defendant’s counterclaim.


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           (2) liable to or with the cross-claimant on any cause of
           action arising out of the transaction or occurrence or series
           of transactions or occurrences upon which the underlying
           cause of action is based.

              Note: Subparagraph (2) permits a cross-claimant to
              raise a claim that another party is liable over to the
              cross-claimant or jointly and severally liable with the
              cross-claimant.

                                   *    *    *

Pa.R.C.P. 1031.1.

           Under new Rule 1031.1, the assertion of a claim by one
           party against another party is a matter of pleading rather
           than joinder of parties. The claim is to be pleaded as a
           cross-claim under the new rule. The claims which may be
           asserted in a cross-claim are identical to those which serve
           as bases for joining an additional defendant[.]

Id. Comment. “[E]very pleading subsequent to the complaint shall be filed

within twenty days after service of the preceding pleading[.]”          Pa.R.C.P.

1026(a).     “After this time period expires, if a party wishes to amend its

answers in order to assert a crossclaim it must either obtain the consent of

the adverse party or obtain leave of court.” Edmonds v. MBB, Inc., 559

A.2d 590, 592 (Pa.Super. 1989), appeal denied, 525 Pa. 618, 577 A.2d 890

(1990).

     Rule of Civil Procedure 2252 states in relevant part:

           Rule 2252. Right to Join Additional Defendants

           (a) Except as provided by Rule 1706.1, any party may
           join as an additional defendant any person not a party to
           the action who may be

           (1) solely liable on the underlying cause of action against

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        the joining party, or

                                  *    *    *

        (4) liable to or with the joining party on any cause of
        action arising out of the transaction or occurrence or series
        of transactions or occurrences upon which the underlying
        cause of action against the joining party is based.

           Note: Paragraph (4) permits a joining party to join
           an additional defendant who may be liable over on
           the underlying cause of action against the joining
           party or jointly and severally liable with the joining
           party.

                                  *    *    *

        (b) The joining party may file as of course a praecipe for a
        writ or a complaint.

        (1) If the joinder is by writ, the joining party shall file a
        complaint within twenty days from the filing of the
        praecipe for the writ. If the joining party fails to file the
        complaint within the required time, any other party may
        seek a rule to file the complaint and an eventual judgment
        of non pros in the manner provided by Rule 1037(a) for
        failure to file a complaint.

        (2) The complaint, in the manner and form required of the
        initial pleading of the plaintiff in the action, shall set forth
        the facts relied upon to establish the liability of the joined
        party and the relief demanded.

                                  *    *    *

Pa.R.C.P. 2252. Rule 2253 sets forth time restrictions on joinder as follows:

        Rule 2253. Time for Filing Praecipe or Complaint

        (a) Except as provided by Rule 1041.1(e), neither a
        praecipe for a writ to join an additional defendant nor a
        complaint if the joinder is commenced by complaint, shall
        be filed later than


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        (1) sixty days after the service upon the original
        defendant of the initial pleading of the plaintiff or any
        amendment thereof, or

        (2) the time for filing the joining party’s answer as
        established by Rule 1026, Rule 1028 or order of court,

        whichever is later, unless such filing is allowed by order of
        the court or by the written consent of all parties approved
        by and filed with the court. The praecipe for a writ to join
        an additional defendant or the complaint joining the
        additional defendant shall be filed within twenty days after
        notice of the court order or the court approval of the
        written consent or within such other time as the court shall
        fix.

                                 *    *    *

Pa.R.C.P. 2253.

        Ordinarily, when an additional defendant is joined in civil
        litigation, the party seeking joinder must comply with
        Rules of Civil Procedure 2251-2255, which require the
        filing of a praecipe for a writ or a complaint, see Pa.R.C.P.
        2252(b), and specify that “[t]he procedure, including
        pleadings, between the party joining an additional
        defendant and the additional defendant shall be the same
        as though the party joining the additional defendant were
        a plaintiff and the additional defendant were a defendant.”
        Pa.R.C.P. 2255(a); see also Pa.R.C.P. 2231(d) (providing
        that “the joinder of parties in any action shall not affect
        the procedural rights which each party would have if suing
        or sued separately”). Thus, a party cannot be made an
        additional defendant in a case unless the appropriate form
        of original process is served upon such party. See
        generally Pa.R.C.P. 1007 (requiring the filing of a
        complaint or a praecipe for a writ of summons in order to
        commence an action); Pa.R.C.P. 2252(b) (mandating the
        filing of a complaint or a praecipe for a writ in order to join
        a non-party as an additional defendant). This gives the
        party sought to be joined notice of, inter alia, the fact of
        court proceedings potentially affecting his or her rights,
        the factual averments that underlie the claims for relief,
        the amount in controversy, and the relief requested.

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Mayer v. Garman, 590 Pa. 268, 273–74, 912 A.2d 762, 765 (2006).

Further,

           When requesting the belated joinder of an additional
           defendant, a party must show (1) that joinder is based on
           proper grounds, (2) that some reasonable excuse exists
           for the delay in commencing joinder proceedings, and (3)
           that the original plaintiff will not be prejudiced by the late
           joinder. This Court has also considered the potential for
           prejudice to the proposed additional defendant. However,
           limitations on joinder are primarily intended to protect a
           plaintiff from being unduly delayed in prosecuting his
           action.

Lawrence v. Meeker, 717 A.2d 1046, 1048 (Pa.Super. 1998) (internal

citations omitted).     A petition for leave to join an additional defendant

beyond the sixty-day period must allege some “reasonable justification” for

the delay.     Commercial Banking Corp. v. Culp, 443 A.2d 1154, 1156

(Pa.Super. 1982).      “[T]he burden is upon the defendants to justify their

delay in joining the proposed additional defendant.” Kovalesky v. Esther

Williams Swimming Pools, 497 A.2d 661 (Pa.Super. 1985) (emphasis in

original) (affirming order denying defendants’ motions to join third-party

defendant, where defendants filed motions several months after they were

served with complaint; defendants failed to show good cause for their failure

to join third party within required sixty-day period).

      Instantly, the special motions court reasoned as follows:

           [Coldwell Appellees] were not parties to [Appellant and the
           Puccios’] Consent Order. In fact, [Coldwell Appellees] had
           no involvement in the case following [the] court order
           dated December 10, 2013 dismissing [Appellant’s] claims

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          against [Coldwell Appellees].

          On April 6, 2015, [Appellant/Puccios] filed what they refer
          to as a “cross claim” seeking relief as to [Coldwell
          Appellees].[2]

          On June 1, 2015, [this court] entered [an] order striking
          the cross claim that is the subject of this appeal.

          [This court] struck what [Appellant/Puccios] describe as a
          cross claim for several reasons:

                                               I.

          [The] court order sustaining the preliminary objections of
          [Coldwell Appellees] and dismissing each count of the
          Amended Complaint as to [Coldwell Appellees] became a
          final judgment once [the consent] order was entered
          dismissing [Appellant’s] remaining claims.

                                               II.

          Under the Rules of Civil Procedure, cross claims are raised
          in an answer or reply.        See Pa.R.C.P. 1031.1 and
          [Comment]. A party who has filed an answer (the Puccios
          had filed an answer on January 6, 2014) may not later add
          a cross claim without obtaining court permission to file an
          amended answer and new matter pursuant to Pa.R.C.P.
          1033. [Appellant/Puccios] never sought permission.1
              1
                 [This court is] using the Rules of Civil Procedure
              governing cross claims because [Appellant/Puccios]
              filed what they described as a cross claim. However,
              since [Coldwell Appellees] were not parties to this
              lawsuit on April 6, 2015, any joinder should be under
              Pa.R.C.P. [] 2251 et seq. which also require[s] a
              court order.

____________________________________________


2
  The court repeatedly refers to the Puccios as the party who filed the
“cross-claim.”  Technically, Appellant submitted the filing through a
purported assignment of rights from the Puccios.



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                                      III.

         At the time the “cross claim” was filed, [Coldwell
         Appellees] were [no longer] parties to this action.
         Consequently, they needed to be served. It appears that
         [Appellant/Puccios] made no effort to do so.

(Special Motions Court Opinion, filed September 22, 2015, at 2-3).        The

record supports the court’s analysis. The court’s December 10, 2013 order

sustaining Coldwell Appellees’ preliminary objections, and subsequent denial

of Appellant’s motion for reconsideration, resulted in dismissal of all of the

claims against Coldwell Appellees.     Coldwell Appellees were no longer a

party to the action. Thus, the Puccios (and by extension, Appellant) could

not file a cross-claim against Coldwell Appellees.        Further, Appellant’s

purported “cross-claim” failed to comply with various applicable rules of

procedure.   The “cross-claim” was not set forth in the Puccios’ answer as

required by Rule 1031.1, and neither Appellant nor the Puccios sought to

amend the Puccios’ answer to assert a cross-claim at any stage of the

proceedings. See Pa.R.C.P. 1031.1; Edmonds, supra. “Cross-claim” was

an improper designation for Appellant’s April 6, 2015 filing.

      Further, when Appellant filed the “cross-claim,” the settlement

between Appellant and the Puccios had already resolved all remaining claims

against all parties in the case, effectively ending the litigation by consent

order on September 11, 2014. Therefore, to the extent Appellant argues the

“cross-claim” was is essence a joinder, joinder would have been an improper

means for Appellant to pursue any claims the Puccios might have had

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against Coldwell Appellees.   By that time, Appellant could have sought to

enforce any rights the Puccios had against Coldwell Appellees only through a

new, separate action. Moreover, any complaint or praecipe for a writ to join

Coldwell Appellees as additional defendants would have had to comply with

the procedures applicable to commencement of an action against an original

defendant, including formal service of process. See Mayer, supra; Cintas

Corp. v. Lee's Cleaning Servs., Inc., 549 Pa. 84, 91, 700 A.2d 915, 917-

18 (1997) (stating: “Service of process is a mechanism by which a court

obtains jurisdiction of a defendant, and therefore, the rules concerning

service of process must be strictly followed”; “[I]mproper service is not

merely a procedural defect that can be ignored when a defendant

subsequently learns of the action against him…”). Appellant concedes he did

not adhere to the rules governing service of process when he filed the

“cross-claim.”   Additionally, when construed as a joinder, Appellant’s filing

was submitted several months beyond the deadline for timely joinder; and

Appellant failed to show some “reasonable excuse” for the delay.          See

Pa.R.C.P. 2253(a); Lawrence, supra.

      Appellant misconstrues the significance of the consent order.       The

consent order did not constitute a legal determination by the trial court that

Appellant or the Puccios could still bring a cross-claim against Coldwell

Appellees.   The consent order merely reflected the terms of a settlement

agreement reached between Appellant and the Puccios. See Senyshyn v.


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Karlak, 450 Pa. 535, 541, 299 A.2d 294, 297 (1973) (stating consent

decree does not represent legal determination by court of matters in

controversy but merely binding agreement between parties). Therefore, the

motions court’s grant of Coldwell Appellees’ motion to strike the “cross-

claim” did not implicate the “law of the case” doctrine because it did not

overrule any prior legal determination of the trial court. The consent order

indicated Appellant and the Puccios had amicably settled their dispute, which

concluded the litigation in its entirety.          Appellant and the Puccios had no

power to invoke continuing jurisdiction over the matter so they could file a

“cross-claim” against Coldwell Appellees at some indefinite point in the

future. Thus, Appellant’s “cross-claim” was a nullity, regardless of whether

Appellant agreed to settle the matter partly due to an incorrect belief that he

“retained” the right to file a cross-claim on behalf of the Puccios.3 Based on

the foregoing, the court properly granted the motion to strike Appellant’s

“cross-claim.” Accordingly, we affirm.

       Order affirmed.


____________________________________________


3
  Appellant’s alternative request for relief, which asks this Court to vacate
the consent order in its entirety, is inapt. The consent order is not the order
under review. Moreover, Appellant asserts no grounds for invalidating the
consent order other than a violation of his “settled expectations.” Absent
more, Appellant’s personal expectations do not warrant revocation of the
consent order and settlement agreement. See Step Plan Servs., Inc. v.
Koresko, 12 A.3d 401, 409 (Pa.Super. 2010) (stating settlement will be set
aside only upon clear showing of fraud, duress, or mutual mistake).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2016




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