J-A19033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    THOMAS ROBINSON, JR. AND INGE              :   IN THE SUPERIOR COURT OF
    G. THULIN                                  :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JAMES A. GORDON AND JAG                    :
    ASSOCIATES, LLC                            :   No. 1953 EDA 2018
                                               :
                       Appellant               :

                  Appeal from the Order Entered June 7, 2018
      In the Court of Common Pleas of Philadelphia County Civil Division at
                       No(s): June Term, 2017 No. 02735


BEFORE:      PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                        FILED OCTOBER 21, 2019

        James A. Gordon and JAG Associates, LLC (“hereinafter Gordon”)1 files

this pro se appeal from the order entered on June 7, 2018, dismissing

Gordon’s Third Amended Counterclaims and Cross-Claims against Appellees

Thomas Robinson, Jr. and Inge G. Thulin with prejudice.            As the order

appealed from is interlocutory, we must quash the appeal.

        In 2012, Robinson entered into an oral agreement with Gordon, wherein

Robinson agreed to pay Gordon to act as an administrative assistant and

paralegal to Robinson’s real estate business, Goldmine Properties, on an as-

needed basis. In 2016, the relationship between the parties became strained

when Gordon allegedly mishandled a zoning matter, resulting in Robinson

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1   Gordon is the sole proprietor and operator of JAG Associates, LLC.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A19033-19



losing his zoning appeal for a particular property.      Thereafter, Robinson

terminated his oral agreement with Gordon on October 1, 2016.

       On or about December 1, 2016, Gordon submitted an invoice to

Robinson for administrative services performed between October 1, 2016 and

December 1, 2016. Robinson responded in writing that he had terminated the

parties’ oral agreement on October 1, 2016 and asserted that Gordon had not

provided any services to himself or Goldmine Properties after that date.

       On or about December 30, 2016, Gordon sent a demand letter with ten

invoices to Robinson for work performed after October 1, 2016. Gordon also

sent the letter and invoices to Thulin, the CEO of Robinson’s employer, 3M.

Robinson reiterated that Gordon was not entitled to any further payment and

claimed that his employer has no involvement with his real estate business.

       On June 24, 2017, Robinson filed an action in the Philadelphia Court of

Common Pleas against Gordon, raising claims of breach of contract, breach of

the duty of good faith and fair dealing, unjust enrichment, defamation,

slander, fraud, fraudulent misrepresentation, invasion of privacy, and tortious

interference with contractual/business relations.2 On July 19, 2017, Gordon

filed an Answer with New Matter along with a Counterclaim to Robinson’s

Complaint and Cross-Claim against Thulin, which included, inter alia, a claim

under the Unfair Trade Practices and Consumer Protection Law (UTPCPL).
____________________________________________


2Gordon filed a pro se complaint in the municipal court, alleging that Robinson
and Thulin were responsible for paying him for services rendered. The
municipal court judge granted Robinson’s request that it relinquish jurisdiction
so that both matters could be consolidated in the court of common pleas.

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J-A19033-19



       Robinson and Thulin filed preliminary objections to Gordon’s New

Matter, Counterclaims, and Cross-Claims. On October 23, 2017, the trial court

sustained Robinson’s preliminary objections, struck Gordon’s UTPCPL claim

with prejudice, and indicated that Gordon could file amended counterclaims.3

       On November 7, 2017, Gordon filed his first amended counterclaims that

were similar to his original counterclaims. Robinson again filed preliminary

objections, which the trial court sustained on January 22, 2018. The trial court

again struck the UTPCPL counterclaim with prejudice.

       On February 6, 2018, Gordon filed a second amended new matter and

counterclaims     that    were    similar      to   the   original   and   first   amended

counterclaims.     Robinson again filed preliminary objections, which the trial

court sustained on April 5, 2018. The trial court again struck the UTPCPL

counterclaim with prejudice.           The trial court granted Gordon a third

opportunity to amend the counterclaims but included the following directions:

       [Gordon shall attach] any written contracts upon which he relies
       that are actually between the parties, that specifically states which
       agreements are oral and which are written, that does not include
       a claim for violation of the unfair trade practices and consumer
       protection law, and that also corrects the other deficiencies raised
       by [Robinson] that have been sustained by this court. Failure to
       amend to address the preliminary objections will result in
       dismissal of complaint with prejudice.

Order, 4/5/18, at 1.


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3 On October 17, 2017, the trial court sustained the preliminary objections of
Thulin. Gordon appealed this order. On September 26, 2018, this Court filed
a per curiam order quashing that appeal, as it was not taken from a final order.

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J-A19033-19



      On April 16, 2018, Gordon filed his third amended counterclaims, which

were again similar to his previous counterclaims. On June 7, 2018, the trial

court sustained Robinson’s preliminary objections and dismissed Gordon’s

third amended counterclaims with prejudice. This appeal followed.

      Before reaching the merits of the appeal, we must first determine

whether the order appealed from is appealable. “[S]ince we lack jurisdiction

over an unappealable order, it is incumbent on us to determine, sua sponte

when necessary, whether the appeal is taken from an appealable order.” Kulp

v. Hrivnak, 765 A.2d 796, 798 (Pa.Super. 2000) (citation omitted).

      It is well-established that an appeal may properly lie from “(1) a
      final order or an order certified as a final order (Pa.R.A.P. 341);
      (2) an interlocutory order as of right (Pa.R.A.P. 311); (3) an
      interlocutory order by permission (Pa.R.A.P. 312, 42 Pa.C.S. §
      702(b)); or (4) a collateral order (Pa.R.A.P. 313).”

In re Estate of McAleer, 194 A.3d 587, 592 (Pa.Super. 2018).

      In this case, the trial court filed an opinion requesting that this appeal

be quashed as Gordon failed to appeal from a final order. We recognize that:

      [g]enerally, this Court's jurisdiction “extends only to review of
      final orders.” Rae v. Pa. Funeral Dir's Ass'n, 602 Pa. 65, 977
      A.2d 1121, 1124–1125 (2009); 42 Pa.C.S.A. § 742; Pa.R.A.P.
      341(a). A final order is defined as any order that: “(1) disposes of
      all claims and of all parties; [ ](2) is explicitly defined as a final
      order by statute; or (3) is entered as a final order pursuant to
      [Pennsylvania Rule of Appellate Procedure 341(c)].” Pa.R.A.P.
      341(b).

McGrogan v. First Cmwlth. Bank, 74 A.3d 1063, 1075 (Pa.Super. 2013).

      Gordon appeals the trial court’s dismissal of his counterclaims with

prejudice.   Rule 341, which defines final orders, was amended in 1992 to


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J-A19033-19



“generally eliminate[] appeals as of right … from orders not ending the

litigation as to all claims and as to all parties.” Pa.R.A.P. 341, note.4 The note

to Rule 341 “includes a partial list of orders previously interpreted by the

courts as appealable as final orders under Rule 341 that are no longer

appealable as of right” which includes “an order dismissing a counterclaim but

leaving pending the complaint which initiated the action[.]” Id.

       We agree with the trial court’s finding that Gordon’s appeal should be

quashed under Rule 341.          While the challenged order dismissed Gordon’s

counterclaim, the complaint that initiated the main action is still pending.    As

the trial court’s order did not dispose of all claims and parties in this case, the

trial court's order entered on June 7, 2018, was not a final order.

       In addition, we find that the trial court’s order is also not appealable as

an interlocutory order as of right under Rule Pa.R.A.P. 311 and Gordon did not

seek permission to file an appeal of the interlocutory order under Pa.R.A.P.

312. Moreover, Gordon makes no attempt to argue that he has appealed a

collateral order, which is “an order separable from and collateral to the main

cause of action where the right involved is too important to be denied review

and the question presented is such that if review is postponed until final

judgment in the case, the claim will be irreparably lost.” Pa.R.A.P. 313.
____________________________________________


4   The note to Rule 341 recognizes that, prior to its 1992 amendment, “there
was case law that orders not ending the litigation as to all claims and all parties
are final orders if such orders have the practical consequence of putting a
litigant out of court.” Id. See Fidelity Bank v Duden, 521 A.2d 958, 960
(Pa.Super. 1987).


                                           -5-
J-A19033-19



Gordon’s right to appeal the dismissal of his counterclaims will not be

irreparably lost if review is postponed until the resolution of the main action.

      Based on the foregoing reasons, we conclude that we lack jurisdiction

over the appeal and decline to review the merits of Gordon’s remaining claims

on appeal.

      Appeal quashed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/19




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