J-A09045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GENESIS ELDERCARE REHABILITATION                        IN THE SUPERIOR COURT OF
SERVICES, INC., D/B/A GENESIS                                 PENNSYLVANIA
REHABILITATION SERVICES,



                       v.

RELIANT OSPREY HOLDINGS, LLC.;
DONNA SALKO; CAPOZZI ADLER, P.C.
AND JOHN DOES 1-25

APPEAL OF: CAPOZZI ADLER, P.C.

                                                               No. 1779 MDA 2015


               Appeal from the Order Entered September 21, 2015
              in the Court of Common Pleas of Lackawanna County
                         Civil Division at No.: 14 CV 6156


BEFORE: FORD ELLIOTT, P.J.E., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                        FILED JUNE 15, 2016

        Appellant, Capozzi Adler, P.C., appeals from the order overruling its

preliminary objections to the amended complaint of Appellee, Genesis

Eldercare    Rehabilitation     Services,      Inc.,   d/b/a    Genesis   Rehabilitation

Services. Because Appellant has failed to establish the three prongs of the

collateral order doctrine, we quash.

        We take the following facts from our independent review of the

certified record. Donna Salko (Salko) owned certain real estate, as well as

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A09045-16



Osprey Ridge Healthcare (Osprey Ridge), which operated a rehabilitation

facility. Appellee provided services to Osprey Ridge.

      On September 19, 2011, Appellee filed suit against Osprey Ridge for

unpaid services.    Osprey Ridge admitted it owed the principal amount of

$114,397.84 that Appellee was seeking.

      Thereafter, on October 17, 2012, Osprey Ridge reached an Operations

Transfer Agreement (OTA) with Reliant Osprey Holdings (Reliant) and

transferred its net working capital, liability, and other assets. Although the

parties were aware that Appellee was a creditor, Reliant did not receive

Appellee’s liability. Concurrent with negotiations for the OTA, Salko entered

into negotiations to sell the real estate. She put the value of Osprey Ridge’s

operations into the real estate’s sale price.    Appellant was Salko’s legal

counsel in all of the transactions.

      On May 8, 2013, the court entered summary judgment in favor of

Appellee on its action against Osprey Ridge, entering judgment in the

amount of $156,249.74, plus per diem interest of $17.05 per day from May

15, 2013 until the judgment was paid in full.

      On November 3, 2014, Appellee commenced this action against

Reliant, Salko, and Appellant, alleging that Reliant and Salko fraudulently

received funds and assets that were the property of Appellee’s judgment

debtor, Osprey Ridge. Appellee alleged that Salko, as president of Osprey

Ridge, also breached her fiduciary duty to Appellee, a creditor of Osprey

Ridge, by putting consideration received for Osprey Ridge’s operation into

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the real estate sale.        Appellee further alleged that Appellant, acting as

counsel for Salko, aided and abetted her breach of fiduciary duty.

       Appellee filed an amended complaint on January 21, 2015.             On

February 5, 2015, Appellant filed preliminary objections in which it

maintained that, pursuant to 1 Pa.C.S.A. § 1504,1 the common law cause of

action for aiding and abetting was precluded by the Pennsylvania Uniform

Transfer Act (PUFTA), 12 Pa.C.S.A. §§ 5101-5110. On September 21, 2015,

after briefing and oral argument, the court overruled Appellant’s preliminary

objections. Appellant timely appealed.2

       Appellant raises five issues for this Court’s review:

       1. Whether this appeal meets the qualifications for an appeal as
       of right pursuant to Pa.R.A.P. 313 (Collateral Orders) such that
       the Superior Court has jurisdiction?

       2. Whether this appeal is frivolous?

       3. Whether the statutory remedy under PUFTA being pursued by
       [Appellee] in its amended complaint precludes and preempts its
       common law counts in the amended complaint against Salko and
       [Appellant]?
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1
  “In all cases where a remedy is provided or a duty is enjoined or anything
is directed to be done by any statute, the directions of the statute shall be
strictly pursued, and no penalty shall be inflicted, or anything done
agreeably to the common law, in such cases, further than shall be necessary
for carrying such statute into effect.” 1 Pa.C.S.A. § 1504.
2
  On October 29, 2015, Appellee filed a motion to dismiss/quash this appeal
on the basis that the September 21, 2014 order was neither final nor
appealable as of right. On December 11, 2015, this Court issued a per
curiam order denying the motion to dismiss, but allowing Appellee the right
to raise the issue to the merits panel.



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      4. Whether the statutory remedy available under PUFTA
      precludes and preempts Reliant’s common law cross claim for
      indemnification against [Appellant] pursuant to 1 Pa.C.S.[A.] §
      1504?

      5. Whether the order in question erred as a matter of law and
      must be reversed with directions to dismiss the common law
      causes of action?

(Appellant’s Brief, at 10) (unnecessary capitalization omitted).

      In his first issue, Appellant argues that the trial court’s order is

immediately appealable because it is a collateral order pursuant to Pa.R.A.P.

313. (See id. at 23-31). For the reasons that follow, we disagree.

             The appealability of an order directly implicates the
      jurisdiction of the [C]ourt asked to review the order. . . .
      Pennsylvania law makes clear:

                [A]n appeal may be taken from: (1) a final order or
         an order certified as a final order (Pa.R.A.P. 341); (2) an
         interlocutory order as of right (Pa.R.A.P. 311); (3) an
         interlocutory order by permission (Pa.R.A.P. 312, 1311,
         42 Pa.C.S.A. § 702(b)); or (4) a collateral order
         (Pa.R.A.P. 313).

Bailey v. RAS Auto Body, Inc., 85 A.3d 1064, 1067-68 (Pa. Super. 2014)

(case citations omitted).     Generally, “an order overruling preliminary

objections and directing the filing of an answer is interlocutory and

unappealable.    To hold otherwise would permit the kind of piecemeal

litigation that the Supreme Court specifically tried to eliminate when it

enacted Rule 341.” Chase Manhattan Mortg. Corp. v. Hodes, 784 A.2d

144, 145 (Pa. Super. 2001) (citations omitted).

            Whether an order is appealable as a collateral order is a
      question of law; as such, our standard of review is de novo and


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      our scope of review is plenary. Moreover, where the issue
      presented is a question of law as opposed to a question of fact,
      an appellant is entitled to review under the collateral order
      doctrine; however, if a question of fact is presented, appellate
      jurisdiction does not exist.

Yorty v. PJM Interconnection, L.L.C., 79 A.3d 655, 660 (Pa. Super.

2013) (citations omitted).

      Pursuant to Pennsylvania Rule of Appellate Procedure 313:

             (a) General Rule. An appeal may be taken as of right
      from a collateral order of an administrative agency or lower
      court.

            (b) Definition. A collateral order is an order separable
      from and collateral to the main cause of action where the right
      involved is too important to be denied review and the question
      presented is such that if review is postponed until final judgment
      in the case, the claim will be irreparably lost.

Pa.R.A.P. 313.    Therefore, “to qualify as a collateral order, the order in

question must meet three requirements: 1) separability from the main cause

of action; 2) importance of the right to be reviewed; and 3) whether the

claim will be irreparably lost if review is denied.”     Yorty, supra at 660

(citation omitted).

      In construing Rule 313, this Court has observed:

      Our case law has made it clear that all three prongs of the rule
      must be satisfied in order to qualify as a collateral order for our
      review. The collateral order doctrine is a specialized, practical
      application of the general rule that only final orders are
      appealable as of right. As such, this Court must stringently
      apply the requirements of the collateral order doctrine. Absent
      the satisfaction of all three prongs of the collateral order test,
      this Court has no jurisdiction to consider an appeal of an
      otherwise non-final order.



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Spanier v. Freeh, 95 A.3d 342, 345 (Pa. Super. 2014) (citations and

quotation marks omitted); see also Branham v. Rohm and Haas Co., 19

A.3d 1094, 1101 (Pa. Super. 2011), appeal denied, 42 A.3d 289 (Pa. 2012).

      Here, Appellant first argues that the court’s order overruling its

preliminary objections is separable from the main cause of action because it

involved a “separate question of statutory preclusion.” (Appellant’s Brief, at

25) (emphasis and unnecessary capitalization omitted). We agree.

      As to the separability prong, this Court has stated that

            a claim is sufficiently separate from the underlying issues
      for purposes of collateral order review if it is conceptually distinct
      from the merits of the plaintiff[’]s claim, that is, where even if
      practically intertwined with the merits, it nonetheless raises a
      question that is significantly different from the questions
      underlying plaintiff’s claim on the merits.

Spanier, supra at 345 (citation omitted).

      In this case, Appellant’s preliminary objections argued that, because

the   amended    complaint    contained   causes    of   action   for    fraudulent

conveyance under PUFTA, Appellee “[was] required to exhaust its statutory

remedy under [PUFTA] to the exclusion of [the] alternative common law

remed[y]” of aiding and abetting breach of fiduciary duty.              (Appellant’s

Preliminary Objections, 2/15/15, at 9 ¶8; see id. at 9 ¶ 10) (citations

omitted). This required the court to consider whether Appellant’s actions,

as pleaded by Appellee, were of the type PUFTA seeks to address.                We

conclude that this objection “[was] conceptually distinct from the merits of




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[Appellee’s] claim[s].” Id. (citation omitted). Therefore, the first prong of

the collateral order doctrine is met.

      Next, Appellant maintains that “the interests protected [by section

1504] are too important to be denied review.”      (Appellant’s Brief, at 28)

(emphasis and unnecessary capitalization omitted); see id. at 30 (“The

application of § 1504’s preclusive power is too important to be delayed in

this matter.”). Under the facts of this case, we disagree

      In analyzing the importance prong, we weigh the interests
      implicated in the case against the costs of piecemeal litigation.

            For purposes of defining an order as a collateral order
         under Rule 313, it is not sufficient that the issue be
         important to the particular parties. Rather it must involve
         rights deeply rooted in public policy going beyond the
         particular litigation at hand.

          The overarching principle governing ‘importance’ is that . . .
      an issue is important if the interests that would potentially go
      unprotected without immediate appellate review of that issue are
      significant relative to the efficiency interests sought to be
      advanced by adherence to the final judgment rule.

Ben v. Schwartz, 729 A.2d 547, 552 (Pa. 1999) (citations and some

punctuation omitted).

      Section 1504 codifies the legal principle that, “where there is a clear

and adequate statutory remedy, that remedy is exclusive.”        Harcourt v.

General Acc. Ins. Co., 615 A.2d 71, 75 (Pa. Super. 1992), appeal denied,

627 A.2d 179 (Pa. 1993) (citation omitted); see also 1 Pa.C.S.A. § 1504;

White v. Conestoga Title Ins. Co., 53 A.3d 720, 731 (Pa. 2012) (noting

that language of Section 1504 “require[s] a party to strictly follow a

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statutory remedy, when one is provided, to the exclusion of a common

law claim.”) (emphasis added; citation omitted).3

       In the case sub judice, the court’s decision overruling Appellant’s

preliminary objections required a determination that, under the facts and

claims alleged in the amended complaint, PUFTA did not create a statutory

remedy for aiding and abetting an individual’s alleged breach of fiduciary

duty that precluded the common law cause of action. See White, supra at

731.    This does not “involve rights deeply rooted in public policy going

beyond the particular litigation at hand,” even if it is “important to the

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3
  Appellant relies on White in support of its argument that its issue involves
rights too important to be denied review. (See Appellant’s Brief, at 29-30).
However, Appellant’s reliance is not legally persuasive. In White, the
Pennsylvania Supreme Court concluded that, because an exclusive statutory
remedy existed under the Title Insurance Act, 40 P.S. §§ 910-1 through
910-55, for persons aggrieved by the application of a title insurer’s rating
system, an insured was precluded from pursuing common law claims arising
from a title insurer allegedly charging higher rates than allowed under the
rates it filed with the Insurance Commissioner. See White, supra at 733-
35; see also 40 P.S. § 910-44.

      Here, “the purpose of [PUFTA] is primarily to protect unsecured
creditors against transfers and obligations injurious to their rights,” not to
protect defendants from claims that they aided and abetted a debtor’s
breach of fiduciary duty to a creditor. 12 Pa.C.S.A. § 5101, Comment (3).
Moreover, “[PUFTA] is not an exclusive law on the subject of voidable
transfers and obligations. In particular, and without limitation, this chapter
does not preclude application of other law, which may include a common law
of fraudulent transfer[.]” Id. at Comment (2) (citation omitted). Therefore,
the holding of White is not controlling here where PUFTA does not provide
“an exclusive statutory remedy” for claims of aiding and abetting a debtor in
breaching her fiduciary duty to a creditor. White, supra at 724.




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particular parties.”      Ben, supra at 552 (citation omitted).       Therefore,

Appellant has failed to establish that this right is important enough to justify

collateral review.

       Finally, we turn to the third prong, whether Appellant’s issue is such

that, if collateral review is denied, its right will be irreparably lost.   See

Yorty, supra at 660.          Appellant argues that the “loss of § 1504 rights

constitutes irreparable harm.”           (Appellant’s Brief, at 30) (unnecessary

capitalization and emphasis omitted). We disagree.

       The “irreparably lost” prong is met if “[t]here is no effective means of

reviewing[,] after a final judgment[, the] order at issue.”      Ben, supra at

485 (citation omitted).

       Here, Appellant’s right to challenge the trial court’s ruling is not

irreparably lost where he can raise this issue on appeal after a final order

has been issued. See id. Therefore, Appellant has failed to meet the third

prong of the collateral order doctrine.4


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4
  In support of his argument on this prong, Appellant relies on Osborne v.
Lewis, 59 A.3d 1109 (Pa. 2012). (See Appellant’s Brief, at 30). However,
this case is inapposite. In Osborne, a panel of this Court found that a trial
court’s order denying a motion for summary judgment brought on the basis
that the statute of repose in the MCARE Act created immunity from suit was
a collateral order. See Osborne, supra at 1111, 1111 n.3. In concluding
that the order met the third prong of the collateral order doctrine, we stated
that “a statute of repose is intended to impose immunity from suit, not
just immunity from liability; therefore, the substantial cost that
[a]ppellants would incur in defending this complex malpractice case at a trial
(Footnote Continued Next Page)


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      For all of the above reasons, we conclude that Appellant has failed to

satisfy all three prongs of the collateral order doctrine and we quash this

appeal for lack of jurisdiction. See Spanier, supra at 345.

      Appeal quashed.

      President Judge Emeritus Ford Elliott joins the Memorandum.

      Judge Jenkins concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/2016




                       _______________________
(Footnote Continued)

on the merits would be irreparably lost if review were postponed until final
judgment.” Id. at 1111 n.3 (citation omitted).

       Here, Appellant is not arguing it is completely immune from suit, only
that if it is liable, it is pursuant to statutory, not common, law. Moreover,
this case is not a “complex medical malpractice case.” Id. Therefore,
Appellant’s reliance on Osborne is not legally persuasive.



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