J. A15037/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


DONALD NEWELL, ADMINISTRATOR OF             :     IN THE SUPERIOR COURT OF
THE ESTATE OF VICTOR NEWELL,                :          PENNSYLVANIA
DECEASED,                                   :
                    Appellant               :
                                            :
                    v.                      :
                                            :
COLORADO CAFE, MONTANA WEST,                :
INC., GIAMBRONE ENTERPRISES, L.P.,          :
JOHN GIAMBRONE, COLLEEN                     :
GIAMBRONE, JOSEPH GIAMBRONE,                :
ANGELA GIAMBRONE, GEORGE                    :
KRIZENOWSKI, THE STORM,                     :
DHL MACHINE COMPANY, DHL                    :
MACHINE INTERNATIONAL, INC.,                :
HALEIGH OLIEMULLER AND KIM                  :
OLIEMULLER                                  :
                                            :     No. 2612 EDA 2014

                 Appeal from the Order Entered August 5, 2014
              In the Court of Common Pleas of Philadelphia County
                        Civil Division No(s).: 120400813

BEFORE: BOWES, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 05, 2015

        Appellant, Donald Newell, administrator of the estate of Victor Newell,

deceased, appeals from the order entered in the Philadelphia County Court

of Common Pleas granting summary judgment in favor of Appellees,

Montana West, Inc., Giambrone Enterprises, L.P., John Giambrone, Colleen

Giambrone, Joseph Giambrone, Angela Giambrone, George Krizenowski, The

Storm, DHL Machine Co., and DHL Machine International, Inc. Because an

*
    Former Justice specially assigned to the Superior Court.
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underlying settlement agreement is contingent on how this Court rules on

this appeal, we quash this appeal as interlocutory.

      The underlying facts are not pertinent to our disposition. On August 5,

2014, the court granted the aforementioned motion for summary judgment.

On August 29, 2014, the court approved the following stipulation:

         AND NOW this 28th day of August, 2014, plaintiff Estate of
         Victor Newell and defendants Haleigh Oliemuller and Kim
         Oliemuller stipulate the case is settled pursuant to the
         following terms and conditions:

            1. The settlement among the plaintiff and defendants,
         Haleigh Olemuller [sic] and Kim Oliemuller is contingent on
         the final outcome of the Court’s motion for summary
         judgment Order dated August 5, 2014.

            2. If the Court’s August 5, 2014 Order granting
         summary judgment in favor of Defendants Montana West,
         Inc., Giambrone Enterprises, L.P., John Giambrone,
         Colleen     Giambrone,     Angela   Giambrone,      George
         Krizenowski and The Storm (the “Order”) is vacated and/or
         reversed by an appellate court, then the settlement among
         plaintiff and defendants, Haleigh Olemuller [sic] and Kim
         Oliemuller shall be stricken.

            3. However, if the August 5, 2014 Order is deemed final
         and unappealable then Haleigh Olemuller [sic] shall tender
         her Allstate automobile policy (#908075667) limit within
         twenty days from the date the Order becomes final and
         unappealable.

Ex. A to DHL Machine and DHL Int’l’s (collectively “DHL”) Mot. to Quash

Appeal. The stipulation was signed by Appellant’s counsel and counsel for

the Oliemullers.   Id.   The stipulation was also approved under the trial

judge’s signature. Id. Appellant did not file a praecipe to discontinue any

outstanding claims.


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      Appellant timely appealed on September 4, 2014. The court did not

order Appellant to comply with Pa.R.A.P. 1925(b), although it filed a Rule

1925(a) opinion. Appellant raised the following issues on appeal:

         Did the trial court err in finding that as a matter of law that
         [Appellee] Montana West did not owe [Victor Newell] a
         duty of care [given the following] undisputed facts . . . .

         Did the trial court err in finding that as a matter of law that
         [Appellee] DHL did not owe Victor Newell a duty of care
         when he was struck and killed on a state highway while
         walking to his parked car in DHL’s lot.

Appellant’s Brief at 5-7.1

      As a prefatory matter, we address Appellees’ renewed motion to

quash. Pennsylvania Rule of Appellate Procedure 341 defines a final order

for purposes of appeal:

            (a) General rule. Except as prescribed in subdivisions
         (d), and (e) of this rule, an appeal may be taken as of
         right from any final order of an administrative agency or
         lower court.

            (b) Definition of final order.         A final order is any
         order that:

            (1) disposes of all claims and of all parties . . . .

                                   *    *     *

            (c) Determination of finality. When more than one
         claim for relief is presented in an action, whether as a
         claim, counterclaim, cross-claim, or third-party claim or
         when multiple parties are involved, the trial court or other

1
  Appellant’s statement of questions presented included fifteen alleged
undisputed facts.




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           governmental unit may enter a final order as to one or
           more but fewer than all of the claims and parties only upon
           an express determination that an immediate appeal would
           facilitate resolution of the entire case. Such an order
           becomes appealable when entered. In the absence of such
           a determination and entry of a final order, any order or
           other form of decision that adjudicates fewer than all the
           claims and parties shall not constitute a final order.

Pa.R.A.P. 341(a)-(c).

           Pennsylvania law makes clear that an appeal may be taken
           from a final order or an order certified as a final order; an
           interlocutory order as of right; an interlocutory order by
           permission; or a collateral order. A final order is one that
           disposes of all the parties and all the claims in a case, is
           expressly defined as a final order by statute, or is entered
           as a final order pursuant to the trial court’s determination.
           [T]he appealability of an order goes directly to the
           jurisdiction of the Court asked to review the order.

Takosky v. Henning, 906 A.2d 1255, 1258 (Pa. Super. 2006) (footnotes,

citations, and quotation marks omitted). “Conversely phrased, ‘(a)n order is

interlocutory and not final unless it effectively puts the defendant ‘out of

court.’” Piltzer v. Independence Fed. Sav. & Loan Ass’n of Phila., 456

Pa. 402, 404, 319 A.2d 677, 678 (1974).

        A federal case illustrates the lack of finality caused by a contingent

settlement agreement. In Verzilli v. Flexon, Inc., 295 F.3d 421 (3d Cir.

2002),2 the parties stipulated to the following: “The parties agree that there


2
    With respect to federal decisions, we acknowledge the following:

           [F]ederal court decisions do not control the determinations
           of the Superior Court. Our law clearly states that, absent a
           United States Supreme Court pronouncement, the



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will be no further proceedings in this case unless the [district court’s] order

of April 3, 2001 [pretrial ruling on damages] is reversed on appeal.” Id. at

422 (second alteration in original). The stipulation also provided that if the

appellate court reversed, the defendant “will be permitted to present a full

and complete defense to all issues in this case (damage and liability).” Id.

The plaintiff appealed the trial court’s pretrial ruling and the Court of Appeals

examined whether it had jurisdiction.

      The   Verzilli Court ascertained whether          the   order   was “final,”

observing that a final order “ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment.” Id. at 424 (quoting

Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S. Ct. 2454, 2457,

57 L. Ed. 2d 351, 357 (1978)). The Court of Appeals held that the district

court’s order was not final, as it covered “only one possible outcome of the

appeal—an affirmance by this Court.”          Id. at 425.      “According to the

stipulation, if this Court should decide to reverse, then the matter would

return to the District Court for a full trial. Similarly, if this Court declined to


         decisions of federal courts are not binding on Pennsylvania
         state courts, even when a federal question is involved. . . .
         Whenever possible, Pennsylvania state courts follow the
         Third Circuit so that litigants do not improperly “walk
         across the street” to achieve a different result in federal
         court than would be obtained in state court.

NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 303 (Pa.
Super. 2012) (citations omitted); accord Parr v. Ford Motor Co., 109 A.3d
682, 693 n.8 (Pa. Super. 2014) (en banc).




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decide the propriety of the pretrial ruling, the case would be remanded to

the District Court.” Id. The Verzilli Court thus quashed the appeal for lack

of jurisdiction. Id.

      Instantly, the August 29, 2014 stipulation permits further litigation if

this Court affirms.     Nothing in the stipulation requires Appellant to accept

Haleigh Oliemuller’s offer of a sum equal to the limits of her automobile

insurance policy.      See Ex. A to DHL’s Mot. to Quash Appeal.    There is no

language compelling Appellant to discontinue with prejudice his claims

against each Oliemuller defendant.       See id.    The plain language of the

stipulation permits Appellant to continue pursuing his claims against each

Oliemuller defendant even if this Court affirms the order below and Haleigh

tenders her policy limit. See id. Simply, further piecemeal litigation could

ensue thus rendering the instant appeal premature.         See Pa.R.A.P. 341;

Takosky, 906 A.2d at 1258.         To paraphrase the Verzilli Court, the trial

court is not limited to only executing the judgment should this Court affirm.

See Verzilli, 295 F.3d at 424.         In sum, the conditional nature of the

stipulation defeats finality.   See Pa.R.A.P. 341; Verzilli, 295 F.3d at 424;

see also Fed. Home Loan Mortg. Corp. v. Scottsdale Ins. Co., 316 F.3d

431, 440 (3d Cir. 2003) (“[L]itigants should not be able to avoid the final

judgment rule without fully relinquishing the ability to further litigate

unresolved claims.” (citation omitted)). Accordingly, we quash.

      Appeal quashed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/5/2015




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