J-S24010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GARTH LANSAW & DEBORAH LANSAW                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellants

                       v.

FRANK ZOKAITES D/B/A ZOKAITES
CONTRACTING, INC., D/B/A ZOKAITES
PROPERTIES, L.P., ZOKAITES
CONTRACTING, INC., D/B/A ZOKAITES
PROPERTIES, L.P.; ZOKAITES
PROPERTIES, L.P. D/B/A ZOKAITES
CONTRACTING, INC., JEFFREY HULTON,
ESQUIRE F/D/B/A BRANDT,MILNES &
REA, P.C.; AND BRANDT MILNES & REA,
P.C.

                                                       No. 708 WDA 2016


                      Appeal from the Order April 26, 2016
               In the Court of Common Pleas of Allegheny County
                      Civil Division at No(s): GD 15-018654


BEFORE: PANELLA, J., STABILE, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, J.                               FILED JUNE 06, 2017

        Appellants, Garth and Deborah Lansaw, appeal from the order entered

in the Allegheny County Court of Common Pleas, granting the preliminary

objections of Appellees, Frank Zokaites d/b/a Zokaites Contracting, Inc.,

d/b/a Zokaites Properties, L.P., Zokaites Contracting, Inc., d/b/a Zokaites

Properties, L.P.; Zokaites Properties, L.P. d/b/a Zokaites Contracting, Inc.,

____________________________________________



    Former Justice specially assigned to the Superior Court.
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Jeffrey Hulton, Esquire f/d/b/a Brandt, Milnes & Rea, P.C.; and Brandt Milnes

& Rea, P.C., and dismissing Appellants’ complaint. On appeal, Appellants

claim that the trial court erred by dismissing their complaint based upon a

lack of subject matter jurisdiction. After careful review, we affirm.

      The trial court summarized the relevant facts and procedural history as

follows.

            In 2015, [Appellants] filed a civil complaint in the instant
      case. Along with naming [] Zokaites as an individual Defendant,
      the complaint names Zokaites Contracting, Inc., and Zokaites
      Properties, L.P., apparently on the theory that [] Zokaites did or
      does business as or through those entities. [Appellants’]
      complaint also names [Attorney Hulton] as counsel or former
      counsel for the Zokaites Defendants. Additionally, [Appellants’]
      complaint lists Brandt, Milnes, & Rea, P.C. as a [d]efendant,
      seemingly because [Appellants] believe [Attorney] Hulton
      worked for or through that corporation. The complaint contends
      that all [Appellees] should be held liable for abuse of process, for
      intentional infliction of emotional distress [(“IIED”)], and for loss
      of consortium supposedly caused by [Appellees’] collective
      and/or individual behavior. The complaint allegations underlying
      these contentions can be summarized as follows.

            From roughly 1999 through 2007, as part of their daycare
      business, [Appellants] leased certain realty from [] Zokaites.
      Disputes between [Appellants] and Zokaites arose with respect
      to the rent for the realty. [Appellants] claim that, in the course
      of those disputes, Zokaites bullied, intimidated, stalked, and
      otherwise harassed [Appellants] in various ways at various
      times. Because of the ongoing disputes and Zokaites’ alleged
      conduct, [Appellants] decided to end their tenancy with him.
      Accordingly, they moved their business from his property.

             In alleged retaliation for [Appellants’] decision to end their
      tenancy, Zokaited supposedly subjected [Appellants] to bad faith
      civil litigation beginning in 2001 and continuing for years
      thereafter. During those years of litigation, Zokaites allegedly
      instituted one or more baseless suits against [Appellants] and, in
      doing so, filed a large number of frivolous docket entries – the

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     suit(s) and docket entries having been designated simply to
     harass and annoy [Appellants] while causing them undue
     expense. Furthermore, [Appellants] contend that, in addition to
     engaging in baseless litigation, Zokaites injured [Appellants’]
     business by threatening and harassing their customers and
     business associates. [Appellants] also allege that, as a result of
     Zokaites’ foregoing behavior, [Appellants] were forced to file
     bankruptcy in 2006 at No. 06-23936 in the Bankruptcy Court for
     the Western District of Pennsylvania.

          The civil complaint in the instant suit also points out that
     [Appellants] and Zokaites were involved in multiple adversary
     proceedings as part of [Appellants’] bankruptcy.1
        1
          The proceedings were numbered 06-02645-TPA, 06-
        02659-TPA, and 13-02037-TPA.

     During the adversary proceedings, [Appellants] sought financial
     and emotional damages as a consequence of Zolkaites’ alleged
     actions discussed supra (i.e., harassment, frivolous litigation,
     and interference with [Appellants’] business). [Appellants’]
     current complaint also contends that, during the adversary
     proceedings, Zolkaites continued to engage in abusive and
     wrongful conduct by filing hundreds of frivolous docket entries.

           The Bankruptcy Court resolved the last of the adversarial
     claims by January 2015, when the court issued a memorandum
     and order at No. 13-02037-TPA awarding [Appellants] an
     aggregate of $50,100.00 in damages against Zokaites.
     Thereafter, still in 2015, Zolkaites appealed to the District Court
     at No. 2:15-cv-404. The District Court affirmed the Bankruptcy
     Court’s judgment and, on April 28, 2016, entered its final order
     to that effect.

           In October 2015, while the bankruptcy case and Zolkaites’
     appeal to the District Court were pending, [Appellants] instituted
     the present suit in state court by writ. Subsequently, in
     November 2015, they filed the subject complaint. In addition to
     containing all of the allegations discussed supra, the complaint
     alleges that Zolkaites’ appeal to the District Court (i.e., the
     appeal of the award against him in the adversary proceedings)
     was frivolous. At [p]aragraph 26, the complaint acknowledges
     that the bankruptcy case/litigation was pending when the
     complaint was filed. Finally, the complaint seems to contend

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      that, by acting as Zokaites’ legal representatives, [Attorney]
      Hulton and Brandt, Milnes, & Rea, P.C., took part in Zokaites’
      overall alleged misconduct.

             By March 2016, all [Appellees] had filed preliminary
      objections to [Appellants’] complaint. In their respective
      objections, [] Zokaites and Brandt, Milnes, & Rea, P.C. argued,
      inter alia, that [Appellants’] claims were preempted by the
      Bankruptcy Code, thereby depriving this court of jurisdiction
      over the instant suit. [Attorney] Hulton, while raising arguments
      of his own, also joined in the preemption theory advanced by the
      other [Appellees]. [Appellants] filed various preliminary
      objections to all [Appellees’] objections.

            [The trial] court held a hearing on all preliminary
      objections on April 11, 2016. On April 26, 2016, [the trial] court
      overruled [Appellants’] preliminary objections, sustained the
      preliminary objections filed by each [Appellee] on the basis of a
      lack of subject matter jurisdiction, and dismissed the instant
      complaint. The Lansaws subsequently appealed to the Superior
      Court at 708 WDA 2016.

Trial Court Opinion, 8/18/16, at 2-5.

      On appeal, Appellants contend that the trial court committed an error

of law by dismissing their complaint based upon an alleged lack of subject

matter jurisdiction due to bankruptcy preemption. See Appellants’ Brief, at

9, 16-20. Furthermore, even if the trial court were correct in determining it

lacked subject matter jurisdiction, Appellants argue that the trial court erred

by dismissing their complaint with prejudice. See id, at 9, 19.

      Our scope and standard of review concerning issues of subject matter

jurisdiction is as follows.

      Jurisdiction over the subject matter is conferred solely by     the
      Constitution and the laws of the Commonwealth. The test          for
      whether a court has subject matter jurisdiction inquires into   the
      competency of the court to determine controversies of           the

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     general class to which the case presented for consideration
     belongs. Thus, as a pure question of law, the standard of review
     in determining whether a court has subject matter jurisdiction is
     de novo and the scope of review is plenary. Whether a court has
     subject matter jurisdiction over an action is a fundamental issue
     of law which may be raised at any time in the course of the
     proceedings, including by a reviewing court sua sponte.

Mazur v. Trinity Area School Dist., 961 A.2d 96, 101 (Pa. 2008) (citation

omitted).

     Additionally, appeals from orders sustaining a preliminary objection in

the nature of a demurrer are reviewed pursuant to the following standard.

            A preliminary objection in the nature of a demurrer is
     properly granted where the contested pleading is legally
     insufficient. Preliminary objections in the nature of a demurrer
     require the court resolve the issues solely on the basis of the
     pleadings; no testimony or other evidence outside of the
     complaint may be considered to dispose of the legal issues
     presented by the demurrer. All material facts set forth in the
     pleading and all inferences reasonably deducible therefrom must
     be admitted as true.

           In determining whether the trial court properly sustained
     preliminary objections, the appellate court must examine the
     averments in the complaint, together with the documents and
     exhibits attached thereto, in order to evaluate the sufficiency of
     the facts averred. The impetus of our inquiry is to determine the
     legal sufficiency of the complaint and whether the pleading
     would permit recovery if ultimately proven. This Court will
     reverse the trial court’s decision regarding preliminary objections
     only where there has been an error of law or abuse of discretion.
     When sustaining the trial court’s ruling will result in the denial of
     claim or a dismissal of suit, preliminary objections will be
     sustained only where the case is free and clear from doubt.

           Thus, the question presented by the demurrer is whether,
     on the facts averred, the law says with certainty that no
     recovery is possible. Where a doubt exists as to whether a
     demurrer should be sustained, this doubt should be resolved in
     favor of overruling it.

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J-S24010-17



Weiley v. Albert Einstein Medical Center, 51 A.3d 202, 208-209 (Pa.

Super. 2012) (internal citations and quotation marks omitted).

      Here, the trial court found that the controlling Pennsylvania case law

mandated dismissal of Appellants’ abuse of process claim due to federal

preemption. See Trial Court Opinion, 8/18/16, at 6-7 (citing Stone Crushed

P’ship v. Kassab Archbold Jackson & O’Brien, 908 A.2d 875 (Pa.

2006)). Further, although IIED and loss of consortium claims were not

directly addressed in Stone Crushed, the trial court found that the

reasoning underlying the finding of federal bankruptcy preemption for abuse

of process claims applies to Appellants’ IIED claims and loss of consortium

claims as well. See id., at 6-7. Conversely, Appellants’ contend that the

bankruptcy preemption finding has been deemed dicta by subsequent

courts, and therefore, cannot be a basis for dismissing their complaint. See

Appellant’s Brief, at 16. We agree with the solid reasoning of the trial court.

      In Pennsylvania, Stone Crushed is the touchstone case for the matter

of federal bankruptcy preemption of state law tort claims. In Stone

Crushed, our Supreme Court granted allowance of appeal to determine, as

a matter of first impression, whether the Bankruptcy Code preempts the

entire field of bankruptcy. See 908 A.2d at 879-880. At the time the Court

granted allocator, there was a split in the law between our Court’s holding in

Shiner v. Moriarity, 706 A.2d 1228 (Pa. Super.          1998), and the United

States Court of Appeals for the Third Circuit’s holding in U.S. Express

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J-S24010-17


Lines, Ltd. v. Higgins, 281 F.3d 383 (3d Cir. 2002). Specifically, the Court

in Shiner relied upon cases from other jurisdictions, which held that the

Bankruptcy    Code   preempts   state   law   entirely,   and   found   that   in

Pennsylvania, the “Bankruptcy Code demonstrates Congress’s intent to

create a whole system under federal control therefore mandating the

adjustment of rights and duties within the bankruptcy process itself is

uniquely and exclusively federal, thereby precluding state law remedies for

abuse of its proceeding.” 706 A.2d at 1238. Conversely, the Third Circuit in

the Higgins case found that the Federal Rules of Civil Procedure did not

preempt state law abuse of process claims or similar torts from actions

arising in Bankruptcy Court. See 281 F.3d at 396.

      Following an in-depth analysis of these cases, as well as relevant case

law from other jurisdictions, our Supreme Court concluded that “the

Bankruptcy Code and Federal Rules of Civil Procedure preempt [an

appellant’s] rights pursuant to state law for compensation in a wrongful use

of civil proceedings or abuse of process claim grounded in bankruptcy court

proceedings.” Stone Crushed, 908 A.2d at 887. The Court based its holding

on its findings that Congress intended to govern the entire field of

Bankruptcy, including tort state law claims, and that Fed.R.Civ.P. 11, 28

U.S.C. § 1927, and the Bankruptcy Code “potentially provide for the

equivalent protection afforded by this Commonwealth to its citizens in a

Dragonetti Act claim.” Id., at 880.


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        Based upon our independent analysis of Stone Crushed, we reject

Appellants’ contention that the Court’s statement concerning the preemption

of state law abuse of process claims by the Bankruptcy Code was mere

dicta. Our Supreme Court specifically reviewed Stone Crushed in order to

determine whether the Bankruptcy Code preempts state law, and clearly

held that state law abuse of process claims are preempted by the

Bankruptcy Code. See id., at 887. Further, to the extent that Appellants rely

on federal case law that is in conflict with Stone Crushed, see Appellants’

Brief, at 16-18, we remind them that, “absent a United States Supreme

Court    pronouncement,”   “federal   court   decisions   do   not   control   the

determinations of the Superior Court.” NASDAQ OMX PHLX, Inc. v.

PennMont Securities, 52 A.3d 296, 303 (Pa. Super. 2012) (citation

omitted).

        The assertions identified by Appellants in their complaint that they

aver underlie their claims, pertain to conduct in the bankruptcy court.

Specifically, Appellants allege that through Appellee’s filings in Bankruptcy

Court, Appellee “intended to cause [Appellants] severe emotional distress”

and that they caused Appellants “to suffer emotional pain and anguish.”

Appellants’ Complaint, 10/24/15, at ¶¶ 8-9, 12-14 Based upon these

allegations, it is clear that Appellants’ claims are “grounded in bankruptcy

court proceedings,” and therefore preempted by the Bankruptcy Code.

Stone Crushed, 908 A.2d at 887.


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      We also find that the reasoning underlying Stone Crushed supports

the trial court’s dismissal of Appellants’ IIED and loss of consortium claims.

Stone Crushed specifically focuses on the intent of Congress to preempt all

state law claims for damages arising from conduct before a federal

bankruptcy court. See 908 A.2d at 887. Here, Appellants’ IIED and loss of

consortium claims were “central to, and were either litigated as part of, or

could have been litigated as part of, the [Appellants’] bankruptcy.” Trial

Court Opinion, 8/18/16, at 6-7 (citing Stone Crushed, 908 A.2d at 887). In

fact, we note that Appellants were successful in litigating their IIED and loss

of consortium claims in federal bankruptcy court. To allow them to re-litigate

these claims in state court would be unjustifiable. Thus, because Appellants’

IIED and loss of consortium claims are also preempted by the Bankruptcy

Code, the trial court did not err by dismissing these claims based upon a lack

of subject matter jurisdiction.

      Lastly, we find no merit to Appellants’ contention that the trial court

erred by dismissing Appellants’ complaint with prejudice. “Leave to amend

lies within the sound discretion of the trial court and the right to amend

should be liberally granted at any stage of the proceedings unless there is an

error of law or resulting prejudice to an adverse party.” Blackwood, Inc. v.

Reading Blue Mountain & Northern R. Co., 147 A.3d 594, 598 (Pa.

Super. 2016) (citations omitted). “But liberality of pleading does not

encompass a duty in the courts to allow successive amendments when the


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initial pleading indicates that the claim asserted cannot be established.”

Behrend v. Yellow Cab Co., 271 A.2d 241, 243 (Pa. 1970).

     That is the case here. As discussed, federal bankruptcy law preempted

Appellants’ claims. Appellants would never have been able to establish their

right to litigate these claims in state court—regardless of the trial court

permitting them to amend their complaint. Accordingly, the trial court’s

decision to withhold the right to amend the complaint was not in error.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2017




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