J-A06006-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    PATRICIA SUKONIK                                IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    HOLLY WALLACK

                             Appellant                 No. 1532 EDA 2O19


                   Appeal from the Order Entered May 8, 2019
              In the Court of Common Pleas of Montgomery County
                        Civil Division at No: 2016-05205

BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                               FILED JUNE 08, 2020

        Appellant, Patricia Sukonik, appeals from an order granting judgment

on the pleadings to her sister, Appellee Holly Wallack. We affirm. A Florida

court previously dismissed a similar action by Appellant against Appellee, and

the Florida order is entitled to full faith and credit in Pennsylvania.

        Appellant resides in Pennsylvania, while Appellee has resided in Florida

since 1983.      Appellant and Appellee are the daughters of Fay Sukonik

(“Mother”), who died testate in 2007 with a will appointing Appellee as her

personal representative.       Mother was a Florida resident at the time of her

death, and all of her real and personal property was located in Florida.

        In 2009, years before the present action, Appellant and Appellee filed

competing petitions for administration of Mother’s estate in Florida probate

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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court.     In 2010, following a hearing, the Florida probate court appointed

Appellee as personal representative of the estate.

         In 2012, Appellant filed a “Petition to Determine Assets of Estate,” the

probate equivalent of a civil complaint, in Florida. Appellant alleged that (1)

in 2004, Appellee forged a power of attorney in Florida in order to take control

of Mother’s assets; (2) Appellee kept Mother isolated from 2000 to 2007 in

Florida in order to exercise undue influence over Mother and abuse Mother for

her own financial gain; and (3) Appellee stole Mother’s real estate and, on

multiple occasions, stole Mother’s personal assets.

         On August 8, 2014, after two years of litigation, Appellee filed an

emergency motion to dismiss or strike Appellant’s pleadings in the Florida

action. Appellee asserted that Appellant had repeatedly failed to participate

in discovery, failed to comply with multiple court-ordered pre-trial exchange

requirements, failed to appear at a court-ordered deposition, failed to appear

at a court-ordered mediation, and failed to comply with a court order limiting

her time to retain counsel following the withdrawal of her counsel and her

request for a continuance to retain new counsel. On August 25, 2014, the

Florida probate court issued an order dismissing Appellant’s petition due to

Appellant’s noncompliance with multiple court orders.

         The Florida order specified that Appellant violated Florida Rule of Civil

Procedure 1.420. Rule 1.420(b) provides, “Any party may move for dismissal

of an action or of any claim against that party for failure of an adverse party

to comply with these rules or any order of court.” The same rule provides,

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“Unless the court in its order for dismissal otherwise specifies, a dismissal

under this subdivision and any dismissal not provided for in this rule, other

than a dismissal for lack of jurisdiction or for improper venue or for lack of an

indispensable party, operates as an adjudication on the merits.” Id.

      Appellant appealed to the District Court of Appeal of Florida, Third

District, which affirmed the order of dismissal.     Sukonic v. Wallack, 178

So.3d 455, 457 (Fl. 3d Dist. App. 2015) (Appellant’s non-compliance with

court’s orders was “willful and contumacious disregard of [court’s] authority”).

      On March 28, 2016, Appellant commenced the present action via writ of

summons against Appellee in the Court of Common Pleas of Montgomery

County.    On January 24, 2017, Appellant filed a complaint alleging the

following intentional torts similar in nature to her assertions in the Florida

case. Specifically, Appellant claimed: (1) in 2004, Appellee forged a power of

attorney in Florida in order to take control of Mother’s assets; (2) Appellee

kept Mother isolated from 2000 to 2007 in Florida in order to exercise undue

influence over Mother and abuse Mother for her own financial gain; (3) before

and during the Florida litigation, Appellee tortiously interfered with Appellant’s

right to inherit assets from her mother’s estate; and (4) Appellant is entitled

to an accounting of all assets that Appellee misappropriated and payment of

all monies to which Appellant would have received from Mother’s estate but

for Appellee’s fraud and illegal conduct, plus punitive damages.

      Appellee filed preliminary objections seeking dismissal of the complaint

for lack of personal jurisdiction. On August 10, 2017, the Honorable Emanuel

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Bertin overruled Appellee’s preliminary objections without prejudice.        On

August 24, 2017, Appellee filed a motion for reconsideration, which the court

denied. On October 5, 2017, Appellee filed a petition in this Court seeking

review of the order denying Appellee’s motion for reconsideration.           On

December 15, 2017, this Court denied Appellee’s petition for review at 115

EDM 2017.

      Appellee filed an answer to the complaint with new matter. On January

9, 2018, Appellee filed a motion seeking judgment on the pleadings based on

lack of personal jurisdiction, incorporating by reference her preliminary

objections to jurisdiction and motion for reconsideration.          Motion For

Judgment On The Pleadings, 1/9/18, at ¶¶ 89-90. Appellee also requested

judgment based on full faith and credit principles, res judicata and the statute

of limitations.

      On May 9, 2019, the Honorable Steven Tolliver, the second judge in this

case, granted Appellee judgment on the pleadings based on lack of personal

jurisdiction.     Judge Tolliver determined that there were “no facts which

suggest that [Appellee] has done anything to expressly aim [her] tortious

conduct at the forum state such that the forum can be said to be the focal

point of the tortious activity.”     Trial Ct. Memorandum, 5/8/19, at 7-8

(quotation marks and citations omitted). Appellant timely appealed to this

Court, and both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant raises the following issues in this appeal:



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     1. Did the trial court err as a matter of law and commit an abuse
     of discretion in granting judgment on the pleadings to Appellee
     and violate the Coordinate Jurisdiction Rule when it ruled not to
     be bound by prior Orders and thus:

           a. Alter and change two separate orders which held that the
           exercise of personal jurisdiction is properly established
           when the orders were previously entered in the Montgomery
           County Court of Common Pleas, each by a judge of
           coordinate jurisdiction sitting in the same case over the
           same issue; and

           b. Ignore the direct effect of the order from the Superior
           Court of Pennsylvania which denied Appellee’s Petition for
           Review of the Montgomery County Court of Common Pleas
           order which requested the Court amend its order denying
           Appellee’s Preliminary Objections and dismiss Appellant’s
           Complaint or in the alternative amend the order, to state
           that a substantial issue of jurisdiction exists?

     2. Did the trial court err as a matter of law and commit an abuse
     of discretion in granting judgment on the pleadings and not
     applying the fundamental established rule that judgment on the
     pleadings can never be entered when there are unknown or
     disputed issues of fact, and as such Appellant’s averments must
     be deemed truthful and Appellee’s allegations be denied when the
     evidence (presented in pleadings and exhibits to pleadings in the
     record) establish:

           a. Appellant’s facts are true and correct including when
           Appellee denies what [Appellant] has averred; and

           b. The trial court failed to first require the exercise of
           discovery by the parties in order that the factual disputes
           can be resolved?

     3. Did the trial court err as a matter of law and commit an abuse
     of discretion in granting judgment on the pleadings to Appellee
     based on the conclusion that the court did not exercise personal
     jurisdiction over Appellee due to lack of personal contacts, where
     evidence (presented in pleadings and exhibits to pleadings in the
     record) establish:




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           a. Appellant’s pleadings present a plethora of established
           personal contacts, between Appellee and Appellant and the
           Commonwealth of Pennsylvania;

           b. The standards set forth in established case law, support
           a holding that the Court of Common Pleas of Montgomery
           County Pennsylvania has proper exercise of personal
           jurisdiction over the person of Appellee;

           c. Application of the tests, in the case at bar, as set forth by
           the United States Supreme Court for establishing viable
           personal contacts hold that exercise of personal jurisdiction
           over the person of Appellee is proper; and

           d. Minimum contacts as evidenced (presented in pleadings
           and exhibits to pleadings in the record) satisfy the
           requirement of due process of law in accordance with the
           Fourteenth (14th) Amendment of the United States
           Constitution for establishing personal jurisdiction over the
           person of Appellee?

     4. Did the trial court err as a matter of law and abuse its discretion
     in granting judgment on the pleadings in: violating application of
     the Long Arm Statute of Pennsylvania (42 Pa.C.S.A. § 5322) and
     the protection it grants its citizens who are harmed by the conduct
     and behavior of a tortfeasor from a foreign state when evidence
     establishes:

           a. Appellee[,] a resident of Florida while in Florida, had
           contacts with Appellant a resident of Pennsylvania in
           Pennsylvania and with the Commonwealth of Pennsylvania,
           sufficient to establish that the contacts were systematic and
           continuous; and

           b. Appellee, the tortfeasor, in Florida caused harm or
           tortious injury to Appellant[,] a citizen of Pennsylvania in
           Pennsylvania and the Commonwealth of Pennsylvania[,] by
           intentional acts or act omissions outside the Commonwealth
           of Pennsylvania; and

           c. Jurisdiction over the person of Appellee does not offend
           “traditional notions of fair play and substantial justice”
           under the due process clause of the Fourteenth Amendment
           of the United States Constitution; and

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            d. Even a single act may be enough to satisfy the law that
            personal jurisdiction exists?

      5. Did the trial court err as a matter of law and abuse its discretion
      in granting judgment on the pleadings when it disregarded
      evidence (presented in pleadings and exhibits to pleadings in the
      record) of personal contacts wherein Appellee’s behavior violated
      law, abused fiduciary responsibility, and demonstrated
      reprehensible ethics, when evidence (presented in pleadings and
      exhibits to pleadings in the record) establishes she: committed
      forgery; falsified the creation of a power of attorney; violated the
      terms of an irrevocable trust; engaged in elder abuse; violated
      her oath of office as personal representative of [Mother’s] estate;
      and stole 100% of Mother’s assets and took 100% of Mother’s
      estate, including Appellant’s devised share, although she was duly
      named by [Mother’s] Will as only a fifty (50%) percent
      beneficiary?

      6. Did the trial court err and commit an abuse of discretion in
      granting judgment on the pleadings when considering Appellee’s
      assertions that the Appellant’s claims are barred by the Full Faith
      and Credit Clause of the United States Constitution from
      challenging the results of the Florida probate actions in the courts
      of Pennsylvania asserting that all claims are barred by the doctrine
      of res judicata; and further considering Appellee’s assertions that
      Appellant’s claims are time-barred and lack subject matter
      jurisdiction?

Appellant’s Brief at 3-7.

      In essence, Appellant contends in her appellate brief that (1) Judge

Tolliver erred by granting judgment on the pleadings due to lack of personal

jurisdiction because Judge Bertin previously overruled Appellee’s preliminary

objections to jurisdiction, and (2) Appellee’s contacts with Pennsylvania are

strong enough for Pennsylvania courts to exercise specific jurisdiction over

Appellee.   Appellee responds that although Judge Bertin overruled her

preliminary objections, Judge Tolliver had the authority to grant judgment on

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the pleadings based on the principle that the judge in a later stage of a case

may depart from a ruling made on the same issue in an earlier stage of the

case.    Appellee further argues that Pennsylvania courts have no basis for

exercising personal jurisdiction over her. Lastly, Appellee raises full faith and

credit, res judicata and the statute of limitations as alternative grounds for

affirming Judge Tolliver’s order.

        Having carefully reviewed the record, we find the Full Faith and Credit

Clause provides a sufficient ground for affirming Judge Tolliver’s order and

therefore, we need not address the personal jurisdiction issue. We agree with

Appellee’s argument, which she raised in the trial court and again in this Court,

that the Florida court’s order of dismissal precludes Appellant’s Pennsylvania

action under full faith and credit principles. We have the authority to affirm

on this ground under the precept that an appellate court may affirm a

dispositive order for any other reason supported by the record, the so-called

“right for any reason” doctrine. In Re A.J.R.-H., 188 A.3d 1157, 1175-76

(Pa. 2018).

        Article IV, Section 1 of the Constitution states: “Full Faith and Credit

shall be given in each State to the public Acts, Records, and judicial

Proceedings of every other State.” “Regarding judgments . . . the full faith

and credit obligation is exacting.” Baker by Thomas v. General Motors

Corp., 522 U.S. 222, 233 (1998). “A final judgment in one State, if rendered

by a court with adjudicatory authority over the subject matter and persons


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governed by the judgment, qualifies for recognition throughout the land.” Id.

“For claim and issue preclusion (res judicata) purposes, in other words, the

judgment of the rendering State gains nationwide force.” Id. Similarly, the

Pennsylvania Supreme Court has recognized:

      The Full Faith and Credit Clause thus precludes a party from
      attacking collaterally a judgment of one state by attempting to
      relitigate the underlying dispute resolved by that judgment in
      another state. Thus, full faith and credit typically requires that a
      state give a judgment the same res judicata effect the judgment
      would have been afforded in the state in which it was rendered.

Wilkes ex rel. Mason v. Phoenix Home Life Mut. Ins. Co., 902 A.2d 366,

376 (Pa. 2006).

      Appellant’s action in Florida was dismissed under Florida Rule of Civil

Procedure 1.420(b), which provides that unless the basis for dismissal is lack

of jurisdiction, improper venue, or lack of an indispensable party, dismissal

operates as an adjudication “on the merits.” Id. The order of dismissal in the

Florida case stated that the reason for dismissal was Appellant’s failure to

comply with multiple court orders.      The order did not state that lack of

jurisdiction, improper venue or lack of an indispensable party was the basis

for dismissal.   Thus, under Florida law, the dismissal of Appellant’s Florida

action operates as an adjudication on the merits.

      Dismissal “on the merits” under Rule 1.420(b) effectively constitutes

“dismiss[al] with prejudice.” Schindler v. Bank of New York Mellon Trust

Co., 190 So.3d 102, 104 (Fla. 4th DCA 2015) (citing Smith v. St. Vil, 714

So.2d 603, 604 (Fla. 4th DCA 1998)).       Thus, Florida courts conclude, res

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judicata bars the losing party from filing another action based on the same

conduct alleged in the first action. Id. at 105 (citing Singleton v. Greymar

Assocs., 840 So.2d 356, 356 (Fla. 4th DCA 2003), aff'd, 882 So.2d 1004 (Fla.

2004)).   Appellant’s claims in her Pennsylvania action rest upon the same

allegations that she made in her Florida action. Florida courts would treat the

dismissal of Appellant’s Florida action as barring Appellant’s present action

under res judicata principles. Id. Under full faith and credit principles, we

must give the same res judicata effect to the Florida order in Pennsylvania

that Florida courts would have given it. Wilkes, 902 A.2d at 376.

      For this reason, we affirm the order granting judgment on the pleadings

to Appellee in Appellant’s Pennsylvania action.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/20




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