J-A24009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PLUM PROPERTY ASSOCIATES INC.                      IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA


                     v.

MINERAL TRADING COMPANY, LLC, A
CORPORATION, AND JAMES
R. CLARKE, JONATHAN LASKO AND
MELISSA HENNIS, INDIVIDUALS

                     v.


S&K ENERGY, INC.
                     APPELLANT

                                                      No. 944 WDA 2016


                  Appeal from the Order February 3, 2016
            In the Court of Common Pleas of Washington County
                     Civil Division at No(s): 2011-5687


BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                       FILED DECEMBER 27, 2017

      S&K Energy, Inc. (“S&K”) appeals from the February 3, 2016 order

entered in the Washington County Court of Common Pleas denying its

objection to the sheriff’s determination of its goods claim. We affirm.

      We previously summarized a portion of the relevant history of this

matter as follows:

           Mineral Trading Company, LLC (“Mineral Trading”), is an
         Ohio corporation engaged in strip-mining and limestone
         operations in Hubbard, Ohio.1 Mulligan Mining, Inc. and/or
         Mulligan Mining Holdings, Inc. (“Mulligan Mining”), is a strip-
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       mining company in Burgettstown, Pennsylvania. Mineral
       Trading and Mulligan Mining share investors. In addition,
       Jo[nathan] Lasko (“Lasko”) is the president of Mulligan
       Mining and the managing member of Mineral Trading. As
       the president and managing member, Lasko had the
       authority to act on behalf of Mulligan Mining and Mineral
       Trading at all relevant times.
              1 Bythe date of the hearing, Mineral Trading was
              no longer in business. N.T., 3/15/13, at 17.

          On July 27, 2011, Plum Property [Associates, Inc. (“Plum
       Property”)] obtained a judgment in its favor in the Allegheny
       County Court of Common Pleas, Docket Number GD-10-
       001816, against Mineral Trading in the amount of
       $85,513.17.2 Plum Property filed a praecipe for writ of
       execution in the Court of Common Pleas of Washington
       County and levied on five pieces of equipment that Plum
       Property asserted belonged to Mineral Trading.
              2 In its brief, Plum Property states that it filed
              an action against Mineral Trading to collect
              payment for coal sales. Plum Property asserts
              that “[t]he judgment resulted from the grant of
              Plum Property’s Motion for Summary Judgment,
              the basis of which was the admission by an
              officer of Mineral Trading in a deposition that
              Mineral Trading owed Plum Property $75,342
              [plus prejudgment interest of $10,171.17, plus
              continuing interest and costs].”

          On June 28, 2012, Mulligan Mining filed a goods claim,
       asserting ownership of the five pieces of equipment upon
       which Plum Property levied.       On July 9, 2012, the
       [Washington County] Sheriff [(“Sheriff”)] determined that
       Mulligan Mining owned the equipment. Plum Property
       appealed the Sheriff’s determination to the Court of
       Common Pleas of Washington County.

          The trial court held an evidentiary hearing on March 15,
       2013. At the hearing, the parties stipulated that Mulligan
       Mining owned four of the five pieces of equipment. Plum
       Property’s only remaining issue was the ownership of a CAT
       Bulldozer, serial number 9XR170 (the “Dozer”).



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            The evidence presented at the hearing showed that
         Mineral Trading purchased the Dozer for $425,000 in 2009.
         Mineral Trading experienced financial difficulties in 2010 and
         2011. In order to keep the business afloat, Mulligan Mining
         transferred substantial funds to Mineral Trading. At the
         hearing, Lasko referred to these transfers as loans. Mineral
         Trading made payments to Mulligan Mining during this time,
         but the payments occurred without a set schedule or
         established interest rate.

             Lasko testified at the hearing that Mulligan Mining
         executed an equipment purchase agreement and bill of sale
         with Mineral Trading to acquire the Dozer because Mineral
         Trading owed money to Mulligan Mining for outstanding
         loans.     The bill of sale indicated that Mulligan Mining
         purchased the Dozer from Mineral Trading for $397,443.44,
         which Mineral Trading received as a credit against the
         balance of the outstanding loans owed to Mulligan Mining.
         Lasko further testified that since Mulligan Mining and Mineral
         Trading executed the equipment purchase agreement and
         bill of sale, the Dozer has been located at Mulligan Mining’s
         site, used by Mulligan Mining in its operations, and is listed
         as Mulligan Mining’s corporate asset.

            On May 14, 2013, the trial court denied Plum Property’s
         Objection to Sheriff’s Determination of Ownership of
         Property, affirming the Sheriff’s determination that Mulligan
         Mining owned the Dozer.

Plum Prop. Assocs., Inc. v. Mineral Trading Co., LLC, No. 970 WDA 2013,

unpublished mem. at 1-4 (Pa.Super. filed July 29, 2014) (internal citations

omitted; some alterations in original).

      Plum Property appealed to this Court, and on July 29, 2014, we reversed

the trial court’s May 14, 2013 order; we concluded that the purported transfer

of the Dozer from Mineral Trading to Mulligan Mining was without

consideration and, thus, Mineral Trading owned the Dozer. On November 12,




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2014, Plum Property filed a motion to compel the Sheriff to hold a sheriff’s

sale.

        On November 21, 2014, as Plum Property proceeded on its execution

with the Sheriff’s Office, S&K filed a goods claim with the Sheriff, asserting

that it owned the Dozer because of its purchase of loans and collateral security

interests from Angus Coal SPE No. 1, LLC (“Angus Coal”). S&K claimed that

it had purchased the loans on March 5, 2013, while Plum Property’s appeal

from the Sheriff’s initial determination was pending in Washington County

Court of Common Pleas. According to this goods claim, the debtors under the

loan were Mulligan Mining (including both Mulligan Mining Holdings, Inc. and

Mulligan Mining, Inc.), Mineral Trading, and New Coal Holdings, LLC.       S&K

claimed that the Dozer was collateral security for the loans. S&K also averred

that the debtors had defaulted on the loans, and that it had seized and

foreclosed on the secured collateral, including the Dozer.

        The Sheriff denied S&K’s goods claim on November 24, 2014.           On

December 23, 2014, the trial court entered an order directing the Sheriff to

hold a sale of the Dozer. On January 13, 2015, S&K filed with the trial court

a motion for reconsideration of the December 23, 2014 order, a petition for

leave to file its objection to the Sheriff’s goods claim determination nunc pro

tunc, and the objection itself. S&K claimed that it had not received timely

notice of the Sheriff’s denial of its goods claim. That same day, the court




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granted S&K’s petition for leave to file an objection to the Sheriff’s goods

claim.

      On March 5, 2015 and April 9, 2015, the trial court held hearings on

S&K’s objection to the Sheriff’s determination. On February 3, 2016, the trial

court denied S&K’s goods claim and found that Mineral Trading owned the

Dozer pursuant to this Court’s July 29, 2014 determination. S&K then filed a

motion for post-trial relief on February 16, 2016, and a motion for

reconsideration on March 3, 2016. On June 16, 2016, after argument on April

6, 2016, the trial court denied S&K’s motions. On June 28, 2016, S&K filed a

timely notice of appeal.

      S&K raises the following issues on appeal:

         1. Whether the lower court committed an error of law and
         abuse of discretion in determining that the Superior Court’s
         ruling that Mineral Trading Company, LLC, was the owner of
         the D11 R Dozer was dispositive of the case and that the
         S&K Energy, Inc., was estopped from asserting its goods
         claim.

         2. Whether the lower court committed an error of law and
         an abuse of discretion when it found that S&K Energy, Inc.,
         failed to meet its burden of proof to demonstrate its
         ownership of the D11 R Dozer by clear and convincing
         evidence.

         3. Whether the lower court committed an error of law and
         an abuse of discretion when it failed to find that S&K Energy,
         Inc., had a perfected security interest that was superior to
         any rights of subsequent creditors and that entitled it to
         immediate possession of the D11 R Dozer upon default by
         debtors Mulligan Mining, Inc., and Mineral Trading
         Company, LLC.

         4. Whether the lower court committed an abuse of discretion
         or an error of law in awarding reasonable counsel fees to

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         Plum Property Associates, LLC, pursuant to Pa[.]R.C.P.
         3213.

S&K’s Br. at 3 (trial court answers omitted).

      We must first determine whether this Court’s previous disposition of the

ownership of the Dozer pursuant to Plum Property’s goods claim precludes

S&K from later asserting an inconsistent goods claim.           The trial court

concluded that S&K was estopped from making its claim. See Trial Ct. Mem.

Order, 2/3/16, at 3 (unpaginated). We agree and conclude that S&K is barred

from making its goods claim under the equitable doctrine of laches.

      This Court has described the doctrine of laches as follows:

             The doctrine of laches is an equitable bar to the
         prosecution of stale claims and is “the practical application
         of the maxim that ‘those who sleep on their rights must
         awaken to the consequence that they have disappeared.’”
         The question of whether laches applies is a question of law;
         thus, we are not bound by the trial court’s decision on the
         issue. The question of laches itself, however, is factual, and
         is determined by examining the circumstances of each case.

            We have outlined the parameters of the doctrine of
         laches as follows:

               Laches bars relief when the complaining party is
               guilty of want of due diligence in failing to
               promptly institute the action to the prejudice of
               another.    Thus, in order to prevail on an
               assertion of laches, respondents must establish:
               a) a delay arising from petitioner’s failure to
               exercise due diligence; and, b) prejudice to the
               respondents     resulting   from    the   delay.
               Moreover, the question of laches is factual and
               is determined by examining the circumstances
               of each case.




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Fulton v. Fulton, 106 A.3d 127, 131 (Pa.Super. 2014) (internal citations

omitted).

      Accordingly, we must determine whether the record supports the trial

court’s finding that S&K knew of the 2012 goods claim and failed to exercise

due diligence by not promptly intervening or instituting an action of its own.

      Mulligan Mining filed its goods claim on June 28, 2012, after Plum

Property had obtained a judgment against Mineral Trading and attempted to

levy on the Dozer. At the March 5, 2015 hearing on S&K’s goods claim, Sean

Taylor, S&K’s owner, claimed that he had been unaware of Mulligan Mining’s

previous goods claim. N.T., 3/5/15, at 48. The trial court found this testimony

not credible. See 1925(a) Op. at 6-7 (“The Court did not accept the testimony

that S&K Energy, namely Sean Taylor, did not find out about the goods’ claim

proceeding until after the Superior Court decision.    The Dozer was clearly

tagged by the Sheriff.   Sean Taylor owned Mulligan which filed the goods

claim.”). The trial court made this determination in light of a complex factual

background involving interrelated individuals and entities, with which it was

intimately familiar, and which we summarize below.

      At the March 15, 2013 evidentiary hearing held in connection with the

first goods claim, Lasko testified that he had purchased Mulligan Mining, Inc.

from Sean Taylor, although he named the purchasing company as Mulligan

Mining Holdings, Inc. N.T., 3/15/13, at 7. Lasko testified that while Mulligan

Mining and Mineral Trading share investors, id. at 8, neither Mulligan Mining


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nor Mineral Trading ever had an ownership or controlling interest in each

other, id. at 7-8. Lasko also testified that he was the managing member of

Mineral Trading, the president of Mulligan Mining, Inc., and the principal of

Mulligan Mining Holdings, Inc., owning more stock in Mulligan Mining Holdings,

Inc. than any other person. Id. at 39, 41-42. In addition, Lasko testified that

New Coal Holdings, LLC, of which he was the managing member, owned all of

Mineral Trading’s stock. Id. at 39-40.

       At the March 5, 2015 hearing on the second goods claim, Taylor testified

on behalf of S&K.1       He stated that he “created and founded and operated

Mulligan Mining[, Inc.] up until the point [he] sold it in July of 2010” to

Mulligan Mining Holdings, Inc. N.T., 3/5/15, at 6-7. Taylor formed S&K in

2010, and “had a five year non-compete” with Mulligan Mining Holdings, Inc.

Id. at 6.

       The funding for the purchase of Mulligan Mining, Inc. by Mulligan Mining

Holdings, Inc. came from a reinsurance company headquartered in Bermuda

called RenaissanceRe. Id. at 9. The funds flowed from RenaissanceRe to

Angus Coal, then to Taylor’s lawyer’s account, and then to Taylor’s account at

PNC Bank. Id. at 9-10.

       Taylor testified that after selling the company, he had no equity interest



____________________________________________


       1We note, as did the trial court, that the attorney representing S&K in
its 2014 goods claim had represented Mulligan Mining in its 2012 goods claim
with respect to the same piece of equipment.

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in Mulligan Mining, Inc., Mulligan Mining Holdings, Inc., Mineral Trading, or

New Coal Holdings. Id. at 10. He also stated that Angus Coal had no equity

interest in the companies. Id. Taylor testified that after the sale closed, he

continued to do “day-to-day type consulting” for Mulligan Mining, Inc. and was

still primarily responsible for selling coal for the mine for a set commission.

Id. Taylor stated that he had daily contact with supervisors at Mulligan Mining

and weekly contact with Lasko. Id. at 11. Taylor also did some consulting

work for Lasko at Mineral Trading. Id.

      Taylor further testified that in early 2011 he began to be aware of

serious financial problems with Mulligan Mining and Mineral Trading. Id. at

12. Taylor discussed the financial problems with Lasko, who told Taylor that

he was working on a restructuring deal with Angus Coal. Id. at 12.          The

restructuring deal, which consolidated earlier loans, id. at 14-15, was

completed in 2012. Id. at 13. Taylor testified that Lasko continued to have

financial problems after the restructuring. Id. at 13. Taylor said that Lasko

“basically, . . . threw up his hands and said, I can’t go anymore.” Id. After

Lasko told Taylor that he was “done,” Taylor went to Angus Coal to gauge

whether it had an interest in selling its assets to Taylor. Id. at 13-14. Taylor

and Angus Coal decided that the best plan was for Taylor to purchase Angus

Coal’s secured loan and the accompanying collateral and security, and then to

foreclose. Id. at 14.




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       Against this background, the trial court concluded that S&K was aware

of Plum Property’s 2012 goods claim against the Dozer, but nonetheless failed

to act until November 21, 2014, after Plum Property had filed a motion to

compel the Sheriff to put the Dozer up for sale. As we have said many times,

”this Court will not revisit the trial court’s determinations . . . regarding the

credibility of the parties.”       Woods v. Cicierski, 937 A.2d 1103, 1105

(Pa.Super. 2007). Therefore, we conclude that the record supports the trial

court’s finding that S&K knew of the claim.

       Further, it is undisputed that S&K failed either to intervene in the 2012

goods claim or to file its own goods claim in 2012. Rather, it waited until

November 2014, more than two years after Mulligan Mining had filed its goods

claim, to file its own claim. We agree with the trial court that S&K failed to

exercise due diligence and further conclude that this failure caused a

substantial delay.2

____________________________________________


       2 S&K argues that as a secured creditor, it did not have to intervene in
a proceeding between unsecured creditors. S&K’s Reply Br. at 2-4. S&K
further claims that Plum Property’s assertion that S&K’s goods claim was
untimely fails because Angus Coal, as predecessor to S&K, would have had no
reason to file a goods claim, since the debtors had not defaulted at the time
the sheriff originally levied on the equipment. Id. at 3. S&K claims that at
some point between the filing of Mulligan Mining’s original goods claim and
the trial court’s denial of Plum Property’s objection to the goods claim, Mineral
Trading and Mulligan Mining defaulted on the loans they had received from
Angus Coal. Id. at 9. Accordingly, S&K asserts that it took possession of the
Dozer after purchasing the Angus Coal loan on March 5, 2013. Id. at 20.
Notwithstanding this complex factual history, aside from asserting that it was
not aware of the previous goods claim, an assertion the trial court discredited,



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       We next address whether Plum Property has been prejudiced by the

delay. We conclude that it has. Plum Property litigated this case from 2011

through our July 29, 2014 decision.            Despite our decision that effectively

authorized Plum Property to execute against the Dozer to satisfy its judgment

against Mineral Trading, S&K now claims that it is entitled to the Dozer.

Therefore, more than six years after obtaining judgment against Mineral

Trading, Plum Property continues to have to litigate its rights to the Dozer.

We will neither reward nor incentivize a party that lays in wait, allows an

adverse party to litigate its claim to completion, and then later claims that

those proceedings do not matter.

       Accordingly, we agree with the trial court that S&K is estopped from

making its goods claim. In light of our disposition, we need not address S&K’s

remaining issues on appeal.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/27/2017


____________________________________________


S&K fails to explain why it did not file its own goods claim sooner, especially
in light of the ongoing dispute between Plum Property, Mineral Trading, and
Mulligan Mining regarding the Dozer.


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