J-A17036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 THOMAS ALTMAN,                 :            IN THE SUPERIOR COURT OF
                                :                  PENNSYLVANIA
                Appellant       :
                                :
                                :
           v.                   :
                                :
                                :
 ROBERT RUSSO, INDIVIDUALLY AND :
 T/B/A NEW YORK JEWELRY         :
 EXCHANGE, LLC AND NICOLE       :
 RUSSO, INDIVIDUALLY AND T/B/A  :
 NEW YORK JEWELRY EXCHANGE, LLC :                No. 1878 WDA 2017

            Appeal from the Judgment entered January 17, 2018
           in the Court of Common Pleas of Westmoreland County
                    Civil Division at No(s): 3062 of 2014

BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                   FILED NOVEMBER 08, 2019

     Thomas Altman (“Altman”) appeals from the Judgment entered against

him and in favor of Robert Russo (“Russo”) and Nicole Russo (“Ms. Russo”)

(collectively, “the Russos”), in their individual capacities, but against the

Russos trading and doing business as New York Jewelry Exchange, LLC

(sometimes referred to as “the Exchange”). We affirm.

     The trial court summarized the relevant history underlying the instant

appeal as follows:

            The original Complaint [brought] suit against both “[Russo],
     individually, and t/d/b/a New York Jewelry Exchange, LLC.” The
     Amended Complaint add[ed Ms. Russo] as a Defendant, as she
     “was or is a principal or member of the entity known as “New York
     Jewelry Exchange, LLC.” The [Russos] were the sole members of
     the LLC, a separate legal business entity; the Russos were not
     simply using the fictitious name of “New York Jewelry Exchange.”
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       As members of the [limited liability company], the Russos were
       engaged in the business of buying and selling gold and silver.
       [Altman] agreed to invest in this business enterprise[,] with
       periodic infusions of financial support.

                                *      *     *

              At one point[,] the parties contemplated a more formal
       business relationship, with [Altman] intending to purchase a one-
       half interest in the Limited Liability Company. The consummation
       of this purchase never came to fruition.

            When [Altman] was repaid $20,000 on a loan, the “Receipt
       of Payment,” dated May 13, 2011, states “New York Jewelry
       Exchange[,] LLC[,] of Greensburg, Pennsylvania,” is the
       payor/debtor.

Trial Court Opinion, 11/16/17, at 1-2 (citations omitted).

       By his Complaint, Altman averred that on or about February 1, 2011,

Russo, in his individual capacity, promised Altman that, if Altman provided

Russo with funds, Altman “would insure a return on [Altman’s] money by

either obtaining gold and silver for [Altman], or, that [Altman] would receive

any funds [that Altman had] provided to [Russo] ‘back with interest.’”

Complaint, ¶ 5. According to Altman, Russo promised that if Altman provided

$9,900 to Russo, Altman “would receive a return of the sum of money.” Id.,

¶ 6.    Altman claimed that he loaned Russo $9,900, but Russo did not

reimburse or compensate Altman for the funds. Id., ¶¶ 7-8.

       Altman additionally averred that on or about June 27, 2011, Russo

asked Altman for assistance in purchasing silver coins. Id., ¶ 9. According

to Altman’s Complaint, Russo represented that he had inspected the coins,

and valued them at over $30,000. Id. Further, Altman averred that he was

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led to believe that he would receive either the coins, or a “high return” on any

payment made by Altman to Russo. Id., ¶ 10. Based upon Russo’s promises,

Altman claimed, he loaned $10,000 to Russo, in his individual capacity. Id.,

¶ 12.

        According to Altman’s Complaint, Russo again approached Altman on or

about July 21, 2011, promising Altman a partnership or equity interest in the

Exchange, in return for a cash investment.          Id.   Altman stated, in his

Complaint, that Russo had promised to keep the funds in escrow, until Russo

invested the funds into the Exchange. Id., ¶ 13. Altman averred that he

issued a check to the Exchange, in the amount of $2,500. Id., ¶ 14. Russo

has not reimbursed or compensated Altman for these funds. Id., ¶ 15.

        Altman averred that on or about July 26, 2011, Russo urged him to

purchase silver or gold at current prices. Id., ¶ 16. Altman stated that Russo

represented that any funds provided by Altman would be used by the

Exchange to purchase the gold or silver. Id. Altman issued a check to the

Exchange in the amount of $22,000, for the purchase of gold or silver. Id., ¶

18. Russo has not reimbursed or compensated Altman for these funds. Id.,

¶ 19. Finally, on September 12, 2011, Altman loaned Russo $9,000, which

Russo has not repaid. Id., ¶¶ 22-23.

        Following a non-jury trial, the trial court entered a verdict in favor of

Altman and against New York Jewelry Exchange, LLC. However, the trial court

entered a verdict against Altman, and in favor of the Russos, in their individual


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capacities.1    Altman filed Post-Trial Motions, which the trial court denied.

Thereafter, Altman filed a Notice of Appeal of the trial court’s Order denying

Post-Trial Motions. On January 17, 2018, the trial court entered Judgment on

its verdict.2

       Altman presents the following claims for our review:

       1. [Whether the trial court] erred or abused it[s] discretion by
          entering [J]udgment against the entity known as the New York
          Jewelry Exchange[,] when judgment should have been entered
          against the individually named defendants[?]

       2. [Whether the trial court’s] findings of fact and conclusions of
          law are not supported by the record[?]

Brief for Appellant at 2.

       We first observe our limited scope of review following a non-jury trial.

During a non-jury trial, the trial court acts as the finder of fact and has the



____________________________________________


1 After the entry of the verdict, but prior to Altman’s filing of the Notice of
Appeal, Russo filed a Petition for relief pursuant to Chapter 7 of the federal
Bankruptcy Code. See 11 U.S.C.A. §§ 701-784. Altman’s civil action against
Russo, individually, was stayed pending the outcome of the bankruptcy
proceeding.

2 “An appeal from an order denying post-trial motions is interlocutory. An
appeal to this Court can only lie from judgments entered subsequent to the
trial court’s disposition of post-verdict motions, not from the order denying
post-trial motions.” Fanning v. Davne, 795 A.2d 388, 391 (Pa. Super. 2002)
(citations omitted). Although Altman’s appeal of the trial court’s Order
denying his Post-Trial Motions was prematurely filed, the appeal subsequently
was perfected when the trial court entered Judgment on the verdict. See
Pa.R.A.P. 905 (stating that “[a] notice of appeal filed after the announcement
of a determination but before the entry of an appealable order shall be treated
as filed after such entry and on the day thereof.”).


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authority to make credibility determinations and resolve conflicts in evidence.

Ruthrauff, Inc. v. Ravin, Inc., 914 A.2d 880, 888 (Pa. Super. 2006). The

court may believe all, part or none of the evidence. Id.

      Issues of credibility and conflicts in evidence are for the trial court
      to resolve; this Court is not permitted to reexamine the weight
      and credibility determinations or substitute our judgment for that
      of the factfinder. Furthermore, the findings of the judge in a non-
      jury trial are given the same weight and effect as a jury verdict
      such that the court’s findings will not be disturbed on appeal
      absent an abuse of discretion, error of law, or lack of support in
      the record. We will not disturb the court’s factual findings merely
      on the basis we would have reached a different conclusion; rather,
      our task is to determine whether there is competent evidence in
      the record that a judicial mind could reasonably have determined
      to support the finding.

Id. at 887 (citations and quotations omitted).

      We will address Altman’s claims together. Altman first claims that New

York Jewelry Exchange, LLC, was not specifically named as a party to the case,

and not served with process. See Brief for Appellant at 10. Altman posits

that the case proceeded against “the individually named” Russos, “and styled

as ‘doing business as’ to reflect that sums of money given to [Russo] were

diverted for his personal use or that of his wife, [Ms. Russo].” Id. According

to Altman, any funds earmarked for New York Jewelry Exchange, LLC, “were,

in actuality, retained by the Russos.” Id. at 10-11.

      Russo contends, “the evidence at trial clearly revealed, without

contradiction, that Russo illicitly obtained [Altman’s] funds outside the

Exchange sales.” Id. at 12. According to Altman, he gave Russo funds so

that Russo could purchase items at “estate sales.” Id. Altman asserts that

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J-A17036-18


the Exchange was not involved in these events, only Russo, in his individual

capacity. Id. Thus, Altman contends, although the funds were issued to the

Exchange, the Exchange had no involvement in the transactions. Id. at 13.

Altman argues that the Exchange was merely a façade for the operations of

Russo, as its dominant shareholder.     Id.   Because the Exchange failed to

adhere to corporate formalities, “substantial intermingling of corporate and

personal affairs and use of the corporate form to perpetrate a fraud should

justify the [trial court] in ignoring [the Russos’] post hoc argument.” Id. at

14.

      In his second claim, Altman challenges the trial court’s findings and

conclusions as not supported by the record. See id. Altman argues that the

trial court failed to articulate why it had rejected Altman’s testimony, or

explain its credibility determinations. Id. at 15. Altman asserts that the trial

court further violated Pa.R.C.P. 2177 and Pa.R.C.P. 2176, precluding the entry

of judgment against an entity that is not specifically named as a party

defendant. Id.   Altman points out that the trial court’s judgment against the

Exchange is in the exact amount claimed by Altman against the Russos,

individually. Id. at 16. Thus, he argues, the trial court recognized that Altman

is entitled to receive the full sum of money that the Russos had obtained from

him. Id.

      In its Opinion, the trial court addressed Altman’s claims as follows:

            At trial, evidence and testimony established that all of the
      financial transactions in which the parties engaged concerned the

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J-A17036-18


      business of [the Exchange]. When [Altman] made investments in
      the business, invoices were issued on [the Exchange’s] letterhead
      (see Plaintiff’s Exhibit 1; and Defendants’ Exhibit C), and checks
      were made payable to [Exchange]. (See Plaintiff’s Exhibit 4,
      check dated 7/21/2011 for $2,500; and Plaintiff’s Exhibit 5, check
      dated 7/26/2011 for $22,000.)

             At one point the parties contemplated a more formal
      business relationship, with [Altman] intending to purchase a one-
      half interest in the Limited Liability Company. (See Defendants’
      Exhibit A, entitled “Agreement to Sell and Purchase a Fifty (50%)
      Percent Interest in New York Jewelry Exchange, LLC.”) The
      consummation of this purchase never came to fruition.

           When [Altman] was repaid $20,000 on a loan, the “Receipt
      of Payment,” dated May 13, 2011, states “New York Jewelry
      Exchange LLC of Greensburg, Pennsylvania,” is the payor/debtor.
      (See Defendants’ Exhibit B).

            Based upon the foregoing evidence, there is sufficient
      evidence to support a finding that a verdict must be entered
      against [Exchange] LLC[,] as the LLC is the responsible party….

Trial Court Opinion, 11/15/17, at 2.     We agree with and adopt the sound

reasoning of the trial court, as set forth above, with regard to Altman’s claims.

See id. Accordingly, Altman is not entitled to relief on his claims. See id.

      Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/8/2019


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