J-A32024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KEVIN K. ROBINSON,                                IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellant

                    v.

LLEM CORPORATION AND PINNACLE
CAPITAL FUNDING,

                         Appellees                      No. 422 EDA 2014


              Appeal from the Order Dated December 11, 2013
            In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): May Term, 2007 No: 1790


BEFORE: PANELLA, OLSON AND FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                              FILED MARCH 12, 2015

      Appellant, Kevin K. Robinson, appeals from the order dated December

11, 2013 in this action to quiet title. We affirm.

      The trial court set forth the facts of this case as follows:

        [Appellant] borrowed money on properties he owned at
        1500 and 1615 West Tioga Street, Philadelphia 19140 from
        [LLEM Corporation (“LLEM”)]. [Appellant] signed deeds in
        lieu of foreclosure that he agreed would be filed in the case
        of default. In these transactions, Patrick Maruggi acted as
        an intermediary between [Appellant] and LLEM, securing
        the mortgages and deeds in lieu of foreclosure and sending
        copies to LLEM. [Appellant] failed to pay as required.
        Maruggi filed the deeds in lieu of foreclosure, transferring
        ownership of the properties from [Appellant] to [] LLEM.

Trial Court Opinion, 1/29/2014, at 1-2 (footnotes omitted).

      Thereafter, the following conveyances of the properties resulted:

        On April 29, 2005, 1500 West Tioga Street was deeded from
        [Appellant] to [LLEM], recorded May 7, 2005.           On

*Retired Justice specially assigned to the Superior Court.
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         September 13, 2006, this property was deeded to CK
         Investments, LLC (“CKI”), recorded March 16, 2007.
         Finally, CKI deeded this property to MDS Management
         Services, LLC (“MDS”), on November 24, 2008, recorded
         January 5, 2009.

         On August 8, 2005, 1615 West Tioga Street was deeded
         from [Appellant] to Pinnacle Capital Funding, LLC
         (“Pinnacle”), recorded May 3, 2006. On September 13,
         2006, Pinnacle deeded this property to CKI, recorded March
         16, 2007. Finally, CKI deeded this property to MDS on
         November 24, 2008, recorded January 5, 2009.

MDS Management v. Robinson, 47 A.3d 1237 (Pa. Super. 2012)

(unpublished memorandum) at 2-3.

       Procedurally, the case advanced as follows:

         [Appellant] filed [a] quiet title action on May 18, 2007. The
         action was consolidated with two associated cases[,
         ejectment actions filed by CKI and MDS,] on July 3, 2010.
         [Following an appeal, this Court] directed that the [] quiet
         title action be tried before the associated consolidated
         cases. Accordingly, the matter proceeded to a nonjury trial
         on June 12 and 13, 2013. [The trial court] found for []
         LLEM and against [Appellant], and restored the consolidated
         cases to the non-jury pool for trial pending appeal of the
         [trial court’s] finding. [Appellant] filed a motion for post-
         trial relief on July 3, 2013. [Appellant] timely appeals the
         [trial court’s] decision.

Trial Court Opinion, 1/29/2014, at 1 (unnecessary capitalization and

footnote omitted).

       On appeal, Appellant presents the following issues for our review:1


____________________________________________


1
    MDS, as the subsequent purchaser for value of the subject properties
following the various conveyances as outlined above, has filed a brief in
opposition to Appellant’s appeal.



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       A. Whether the trial court committed [an] error of law and
          [an] abuse of discretion by denying [Appellant’s] quiet
          title claim where [a] licensed attorney stole title and then
          conveyed it multiple times and another licensed attorney
          simultaneously represented both the initial conveyee and
          a subsequent conveyee and, while having knowledge of
          and making judicial admissions of the fraudulence and
          impropriety of the previous conveyances, obstructed
          their reversal, solely in the interest of the subsequent
          conveyee.

       B. Whether the trial court abused its discretion and
          committed an error of law by finding Maruggi’s initial
          conveyance of title to be valid while disregarding
          [Appellant’s] presentation of clear and convincing
          evidence of fraudulence by Maruggi in performing [the]
          initial conveyance, including [the] initial purported
          conveyor and conveyee both giving unrefuted testimony
          that the conveyance was fraudulent, particularly where
          [the] trial court was aware of previous court rulings
          regarding the fraudulence of the Maruggi conveyances by
          the Philadelphia Court of Common Pleas, the Supreme
          Court of New York, and United States District Court for
          the Southern District of New York.

       C. Whether the trial court abused its discretion and
          committed errors of law by denying [] LLEM’s motion for
          leave of court to amend [its] answer, by which LLEM
          sought to replace the duplicitous answer to [Appellant’s]
          quiet title complaint prepared and filed by [LLEM’s]
          former      attorney,   Brian    Wind,     Esquire,      who
          simultaneously represented [the] subsequent recipient of
          the stolen title, MDS [Management Services, LLC], which,
          to this day, continues to obstruct the return of title to the
          theft victims.

       D. Whether the trial court abused its discretion and
          committed [an] error of law by its order denying
          [Appellant’s] and LLEM’s joint motion in limine to
          preclude the re-argument of matters already decided by
          [this Court], to limit the trial to resolving the validity of
          the first Maruggi conveyance, and to preclude the
          continued interference and obstruction by the third
          conveyee, MDS.

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J-A32024-14



Appellant’s    Brief   at   1   (unnecessary     capitalization   and   parentheticals

omitted).2

       First, we examine Appellant’s issues pertaining to evidentiary matters,

before reviewing the other substantive issues presented.            In his last issue

presented, Appellant claims the trial court abused its discretion or committed

an error of law by denying his motion in limine to preclude a handwriting

expert from testifying at trial.         Id. at 33.     More specifically, Appellant

contends that the trial court impermissibly allowed “third conveyee MDS” to

present the testimony of a handwriting expert “two months after the close of

discovery” to show that Appellant signed the deeds in lieu of foreclosure at

issue herein.    Id. at 33-34.      Citing Pa.R.C.P. 4003.5 and related caselaw,

Appellant contends that MDS violated the rules pertaining to the discovery of

expert witnesses. Id. at 31-33. He claims “[i]t was clearly legal error for

the trial court to accept evidence submitted by third conveyee MDS’s hand-

writing expert consisting of unlawfully notarized signatures[].” Id. at 34.

       Our standard of review is as follows:

         Generally, a trial court's decision to grant or deny a motion
         in limine is subject to an evidentiary abuse of discretion
         standard of review. The term discretion imports the exercise
         of judgment, wisdom and skill so as to reach a
         dispassionate conclusion, within the framework of the law,
         and is not exercised for the purpose of giving effect to the
         will of the judge. Discretion must be exercised on the
____________________________________________


2
    We note that Appellant’s arguments in his appellate brief do not
correspond with the order in which the issues are presented.



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        foundation of reason, as opposed to prejudice, personal
        motivations, caprice or arbitrary actions. Discretion is
        abused when the course pursued represents not merely an
        error of judgment, but where the judgment is manifestly
        unreasonable or where the law is not applied or where the
        record shows that the action is a result of partiality,
        prejudice, bias or ill will.

Catlin v. Hamburg, 56 A.3d 914, 922 (Pa. Super. 2012) (citation omitted).

     We have previously determined:

        [Pennsylvania] Rule [of Civil Procedure] 4003.5 governs the
        disclosure of an expert's facts and opinions otherwise
        discoverable under the provisions of Rule 4003.1 and
        acquired or developed in anticipation of litigation or for trial.
        The Rule requires a party to disclose his expert's opinion
        prior to trial via answers to interrogatories or by providing a
        report. The answers or report must be signed by the expert.
        Pa.R.Civ.P. 4003.5(a)(1)(b). Furthermore, if the identity of
        an expert witness is not disclosed, Rule 4003.5 authorizes
        sanctions, such as preclusion of the proposed expert's
        testimony. Pa.R.Civ.P. 4003.5(b). The sanction authorized
        by Rule 4003.5 is not mandatory. Toogood v. Rogal, 764
        A.2d 552, 557 (Pa. Super. 2000). Rather, when a discovery
        violation occurs as a result of a failure to identify an expert
        witness, “the presiding court must balance the facts and
        circumstances of each case to determine the prejudice to
        each party.” Id. The court considers the following factors:

           (1) the prejudice or surprise in fact of the party
           against whom the excluded witnesses would have
           testified, (2) the ability of that party to cure the
           prejudice, (3) the extent to which waiver of the rule
           against calling unlisted witnesses would disrupt the
           orderly and efficient trial of the case or of other
           cases in the court, and (4) bad faith or willfulness in
           failing to comply with the court's order.

      Wolloch v. Aiken, 756 A.2d 5, 13 (Pa. Super. 2000).

Corrado v. Thomas Jefferson Univ. Hosp., 790 A.2d 1022, 1032 (Pa.

Super. 2001) (parentheticals omitted).


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J-A32024-14



      “While the late disclosure of the identity or qualifications of an expert

is to be condemned, the mere occurrence of such a circumstance does not

per se create grounds for a new trial.”       Kemp v. Qualls, 473 A.2d 1369,

1374 (Pa. Super. 1984). The preclusion of expert testimony based upon the

late disclosure of information is “a drastic sanction” and is within the trial

court’s discretion. Id. (citation omitted).

      We turn now to the facts of this case. Upon remand from this Court,

on September 21, 2012, the trial court issued a case management order and

set the close of discovery for February 4, 2013. Upon review of the certified

record, Appellant did not request expert discovery. On February 4, 2013, in

its identification of trial witnesses and exhibits, MDS listed “William J. Ries to

offer testimony related to the authenticity of signatures on relevant

documents.” MDS Identification of Witnesses and Exhibits, 2/4/2013, at 2, ¶

1E. William J. Reis prepared a report dated March 3, 2013, which then was

sent to Appellant on April 17, 2013.       Appellant does not dispute that he

received the report prior to trial. On May 16, 2013, Appellant filed a motion

in limine “object[ing] to the purported handwriting expert report” and

requested the trial court “preclude the report from being considered as

evidence.” Appellant’s Motion in Limine, 5/16/2013, ¶ 14. Based upon these

facts and the relevant law, we conclude that MDS identified its expert during

discovery and sent Appellant a copy of the relevant expert report prior to

trial. Thus, we discern no abuse of discretion in denying Appellant relief.




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J-A32024-14



      Moreover, we note that at all times, Appellant has challenged the

authenticity of the deeds in lieu of foreclosure. In his amended complaint to

quiet title, filed on March 8, 2009, Appellant maintained that the subject

properties were fraudulently conveyed using “forged documents, purportedly

executed by [Appellant], which were not in fact executed by [Appellant].”

Amended Complaint, 3/8/2009, at ¶ 6.         Appellant attached copies of the

deeds at issue. Thus, Appellant’s quiet title action put the authenticity of the

documents squarely at issue. Certainly, Appellant cannot claim surprise that

MDS produced an expert to defend against Appellant’s assertion that he did

not sign the deeds and loan documents in question. There was no reason

why Appellant could not cure any purported prejudice by retaining his own

expert to support his claim that he did not execute the deeds in lieu of

foreclosure.   Before the close of discovery, William J. Ries was specifically

listed as a trial witness. There is no evidence that any party acted in bad

faith in failing to comply with the trial court’s discovery order. Accordingly,

Appellant has not demonstrated prejudice.      Hence, Appellant’s claim lacks

merit.

      In his third issue presented, Appellant claims the trial court erred by

denying LLEM’s motion for leave to amend its answer following this Court’s

remand. Appellant’s Brief at 6. More specifically, Appellant maintains that

prior counsel for LLEM, Attorney Brian Wind, “disregarded [LLEM’s] interests

and direct instructions” because of his “simultaneous representation of

competing parties with conflicting interests[]” when he filed the original

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J-A32024-14



answer.    Id. at 7.   Appellant asserts that following this Court’s remand,

“Attorney Joseph DiTomo[] officially entered his appearance for LLEM and

moved for leave of court to amend the [a]nswer [Attorney Wind] had filed to

[the quiet title] complaint.” Id. at 6. Appellant contends that the trial court

erred by denying LLEM’s request to amend.

      Pennsylvania Rule of Civil Procedure 1033 provides in pertinent part

that “[a] party ... by leave of court, may at any time ... amend his pleading.

The amended pleading may aver transactions or occurrences which have

happened before or after the filing of the original pleading, even though they

give rise to a new ... defense.” Pa.R.Civ.P. 1033.    Regarding amendment,

this Court has previously determined:

          Pleadings may be amended at the discretion of the trial
          court after pleadings are closed, while a motion for
          judgment on the pleadings is pending, at trial, after
          judgment, or after an award has been made and an appeal
          taken therefrom. Our courts have established as parameter
          a policy that amendments to pleadings will be liberally
          allowed to secure a determination of cases on their merits.
          A trial court enjoys broad discretion in evaluating
          amendment petitions.

          Despite this liberal amendment policy, Pennsylvania
          appellate courts have repeatedly ruled that an amendment
          will not be permitted where it is against a positive rule of
          law, or where the amendment will surprise or prejudice the
          opposing party. The prejudice, however, must be more
          than a mere detriment to the other party because any
          amendment requested certainly will be designed to
          strengthen the legal position of the amending party and
          correspondingly weaken the position of the adverse party.
          The mere fact that the adverse party has expended time
          and effort in preparing to try a case against the amending
          party is not such prejudice as to justify denying the

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J-A32024-14


        amending party leave to amend by asserting an affirmative
        defense which has a substantial likelihood of success.

            All amendments have this in common: they are
            offered later in time than the pleading which they
            seek to amend. If the amendment contains
            allegations which would have been allowed inclusion
            in the original pleading (the usual case), then the
            question of prejudice is presented by the time at
            which it is offered rather than by the substance of
            what is offered. The possible prejudice, in other
            words, must stem from the fact that the new
            allegations are offered late rather than in the original
            pleading, and not from the fact that the opponent
            may lose his case on the merits if the pleading is
            allowed.

        Denial of a petition to amend, based on nothing more than
        unreasonable delay, is an abuse of discretion.        The
        timeliness of the request to amend is a factor to be
        considered, but it is to be considered only insofar as it
        presents a question of prejudice to the opposing party, as
        by loss of witnesses or eleventh hour surprise.

Capobianchi v. BIC Corp., 666 A.2d 344, 346-347 (Pa. Super. 1995)

(internal citations, quotations and brackets omitted) (emphasis in original).

      Upon review of the record, we recognize the following facts in deciding

Appellant’s amendment issue. Appellant commenced the quiet title action in

May 2007.     With leave of court, Appellant filed an amended complaint on

March 8, 2009. LLEM filed its original answer in March 2009. In November

2010, Attorney DiTomo, LLEM’s newly retained counsel, entered his

appearance, informed the trial court that Attorney Wind had been formally

discharged by LLEM, and asserted, for the first time, that the subject

properties had been conveyed fraudulently.        In March 2012, this Court

remanded the consolidated matters to the trial court for resolution of the

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J-A32024-14



quiet title action.   In November 2012, LLEM filed a motion to amend its

answer and, in its accompanying memorandum of law, averred the

following:

        The attorney who filed the answer to [Appellant’s] quiet title
        complaint on behalf of defendant LLEM [], a certain Brandon
        Wind, Esquire, also simultaneously represented the plaintiff
        MDS in [MDS’ ejectment action], in a clear conflict of
        interest.

        Despite having been instructed by his former client LLEM
        that the quiet title complaint [] was correct, and that LLEM’s
        answers to that complaint should have been admissions,
        Attorney Wind instead filed answers denying the averments
        of [Appellant’s] quiet title complaint.

        Unbeknownst to LLEM at that time, Attorney Wind’s answers
        to [Appellant’s] quiet title complaint were not designed to
        protect any interest of his then-client [], LLEM, but instead
        were designed to promote the interests of Wind’s then-
        client in [the MDS ejectment action].

        In further pursuit of the interests [] MDS, while still counsel
        of record representing [] LLEM [in the quiet title action],
        Attorney Wind caused a writ of execution to be issued
        against [Appellant], despite knowing, as his client LLEM told
        him, that title was never validly conveyed to LLEM from
        [Appellant].

        During the course of the pre-appeal trial court litigation,
        both conflicting parties, [the ejectment action plaintiff],
        MDS, and [the quiet title action defendant], LLEM, replaced
        Attorney Wind with current counsel. Subsequently, Mr.
        Ralph Emproto, the President and sole shareholder of LLEM,
        reported Attorney Wind’s conduct in this matter to the
        Disciplinary Board of the Supreme Court of Pennsylvania.

        Now that the matter has been through three appeals to the
        Superior Court, and remanded to the trial court, after more
        than five years of legal morass, resolution of the matter can
        be expedited by allowing current undersigned counsel of

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J-A32024-14


          LLEM to amend the discredited and tainted answer
          submitted by LLEM’s former counsel, Brandon Wind.

Memorandum of Law on Support of LLEM’s Motion for Leave of Court to

Amend Answer, 11/19/2012, at *3 (unpaginated).

        Applying the applicable law to the facts of this case, we conclude that

the trial court did not abuse its discretion in denying LLEM’s motion to

amend its answer. Appellant filed the quiet title complaint in 2007 and an

amended complaint in 2009.        In its original answer, filed in 2009, LLEM

denied the substantive allegations in Appellant’s quiet title action. Changing

tact in 2012, LLEM sought to amend its answer to admit those same

allegations it had previously denied.      However, as previously discussed,

LLEM retained new counsel in 2010 and discharged Attorney Wind. At that

time, LLEM alleged that the properties had been fraudulently conveyed. But,

it was not until November 2012, two full years later, that LLEM sought to

amend its answer to the quiet title action. The bench trial proceeded in June

2013.    Based on all of the foregoing, we conclude that LLEM’s request to

amend was untimely and caused prejudice to the opposing party due to

eleventh hour surprise.      LLEM did not offer justification as to delay in

seeking amendment despite the passage of at least two full years from the

time it first knew that it was changing its position. Attorney Wind was fired

in 2010. LLEM later claimed that it was because he filed the original answer

without authorization.    However, LLEM never explained why it waited two

years to file a motion for leave to amend. A complete turnabout in position

six months prior to trial amounted to prejudice to MDS, an opposing party.

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J-A32024-14



Accordingly, the trial court did not abuse its discretion in denying LLEM’s

motion for leave to amend its answer.        Hence, Appellant’s third issue as

presented lacks merit.

      Finally, in his first two issues as presented, Appellant argues that the

subsequent conveyances of the property were fraudulent. Pointing to other

unrelated civil cases, Appellant claims that Patrick Maruggi, the intermediary

between Appellant and LLEM, has been found guilty of committing fraud in

other instances.   Appellant’s Brief at 17, 29-30.   Thus, he claims the trial

court herein was required to apply the doctrine of collateral estoppel. Id. at

21. Appellant also points out that, in 2011, the Supreme Court of New York

suspended Maruggi’s license to practice law in that state. Id. at 17. These

claims, however, are wholly extraneous to an action to quiet title.

      On these issues, the trial court determined:

        Mortgages are contracts, and pursuant to the terms of the
        contract a mortgagee may foreclose on the mortgagor’s
        property upon default.      A deed in lieu of foreclosure
        obviates the need for a foreclosure sale. Here, [Appellant’s]
        property was taken as payment for money borrowed when
        the deed in lieu of foreclosure was filed. Thus, the [trial
        court] denied [Appellant’s] claim to quiet title.

        [Appellant’s] post-trial motions argued that the [trial court]
        either misconstrued or refused to admit evidence of Patrick
        Maruggi’s behavior. Whether or not Maruggi had authority
        to file the deed in lieu of foreclosure is legally irrelevant to
        the question presented in this quiet title action. Whether or
        not Maruggi had authority to file the deed in lieu of
        foreclosure may be relevant to the [consolidated] actions [].
        But it has no bearing on whether [Appellant] owns the
        property.


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Trial Court Opinion, 1/28/2014, at 2-3 (footnote citations omitted).

      As the trial court noted, this cause of action boils down to the

mortgage agreement.        Upon review, Appellant accepted loans on the

properties and agreed to make payments on them. The agreement states

that failure to repay the loans constitutes immediate default, thereby

allowing Appellant’s lenders to file the deeds in lieu of foreclosure. Appellant

testified that he did not sign the deeds in lieu of foreclosure.       See N.T.,

6/12/2013, at 294.        As previously discussed, however, the trial court

properly permitted William Ries to testify as a handwriting expert at trial and

he opined that the deeds in lieu of foreclosure bore Appellant’s original

signatures.    See N.T., 6/13/2013, at 64-69.     Appellant admitted that he

received money on the loans and then defaulted. See N.T., 6/12/2013, at

281-285.      Therefore, the subsequently filed deeds were proper.      As such,

Appellant’s remaining appellate contentions regarding the subsequent

conveyances are meritless.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/12/2015




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