J-S01028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RONALD WHITE, INDIVIDUALLY AND         :   IN THE SUPERIOR COURT OF
AS A SHAREHOLDER OF AND                :        PENNSYLVANIA
DERIVATIVELY ON BEHALF OF R&R          :
COAL, INC., AND WHITEY'S BEER          :
BARN, INC.                             :
                                       :
                                       :
            v.                         :
                                       :   No. 846 MDA 2017
                                       :
RUSSELL R. WHITE, LISA L. WHITE,       :
RICHARD R. WHITE, WHITEY WASH          :
ENTERPRISES, WHITE FOODS, INC.,        :
RR COAL, INC., AND WHITEY'S BEER       :
BARN, INC.                             :
                                       :
                                       :
APPEAL OF: RUSSELL R. WHITE AND        :
WHITEY WASH ENTERPRISES                :

               Appeal from the Order Entered May 12, 2017
 In the Court of Common Pleas of Schuylkill County Civil Division at No(s):
                              S-2559-2013

BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                     FILED FEBRUARY 08, 2018

     Russell White (Russell) and Whitey Wash Enterprises, (Appellants),

appeal from the orders entered on May 12, 2017 and May 17, 2017 denying

their motion for the recusal of Judge John Domalakes (Judge Domalakes)

and their petitions seeking injunctive relief and the removal of Edward

Brennan, Esquire (Attorney Brennan) as guardian/receiver in the above-

captioned matter. For the reasons that follow, we quash Appellants’ appeal

from the May 12, 2017 order denying their motion for recusal, and affirm
J-S01028-18


the May 17, 2017 order denying their petitions for injunctive relief and to

remove Attorney Brennan as guardian/receiver.

     We summarize the facts and procedural history of this case as follows.

Russell and Appellee, Ronald White (Ronald), each own fifty percent of RR

Coal, Inc., which operates two anthracite coal preparation plants and

Whitey’s Beer Barn, Inc., a beer distributor (the Corporations).         On

December 21, 2013, Ronald filed a complaint in which he alleged that

Russell was misusing the assets of the Corporations, which included, inter

alia, purchasing a Ford Mustang and other items with company money for

his own personal use. Ronald requested a preliminary injunction seeking the

appointment of a guardian to manage the operations of the Corporations.

On February 21, 2014, upon finding that Russell and Richard were unable to

operate the Corporations together in a lawful and proper manner, the trial

court issued an order appointing Attorney Brennan as guardian/receiver of

the Corporations.

     On October 16, 2015, Appellants filed a petition to remove Attorney

Brennan as guardian/receiver in which they accused him of mismanaging the

Corporations. Appellants sought the removal of Attorney Brennan because

they were dissatisfied with his recommendation to the court to liquidate the

corporations in order to satisfy all outstanding liens and encumbrances

against the entities and because he shut down Whitey’s Beer Barn.

Additionally, Appellants accused Attorney Brennan of repeatedly refusing to


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comply with the mandates of the trial court’s February 21, 2014 order.

Specifically, Appellants alleged that Attorney Brennan failed to file sufficient

accountings of all the financial matters of the Corporations.      Additionally,

Appellants challenged the veracity of the financial reports that Attorney

Brennan did file. Subsequently, on March 4, 2016, Appellants filed a petition

seeking the recusal of Judge Domalakes.

      On August 23, 2016, the trial court denied both petitions.       The trial

court credited Attorney Brennan’s detailed answer, which specifically denied

each of Appellants’ allegations of mismanagement. Trial. Ct. Op., 8/23/16,

at 3-4.   The court noted that it was satisfied from all of the reports and

recommendations filed by Attorney Brennan regarding the management of

the Corporations that Attorney Brennan was managing the businesses in a

prudent and reasonable manner.        Id.   Regarding Appellants’ petition for

recusal, the trial court concluded that Appellants’ claims amounted to little

more than dissatisfaction with the court’s decisions and “its method for

conducting proceedings[,]” which was not a valid for recusal.         Id. at 8.

Additionally, in its August 23, 2016 order, the trial court adopted Attorney

Brennan’s recommendation to liquidate the Corporations. Id. at 9.

      Appellants appealed the August 23, 2016 order to this Court, but filed

a praecipe to withdraw the appeal on September 7, 2016. On September

19, 2016, Appellants filed a motion to stay the liquidation of the assets of

the Corporations. The same day, the trial court entered an order denying


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the motion without prejudice because Appellants were in the process of

obtaining new counsel.      On October 7, 2016, Appellants filed a notice of

appeal from the August 23, 2016 and September 19, 2016 orders. Attorney

Brennan filed a motion to quash the appeal on the basis that the appeal

from the August 23, 2016 order was untimely and the appeal from the

September 19, 2016 order was interlocutory because the trial court denied

that order without prejudice while Appellants hired a new attorney.      On

November 30, 2016, this Court granted the motion to quash.

      On March 29, 2017, Attorney Brennan filed a motion for a rule to show

cause as to why the guardianship/receivership should not be converted to a

liquidating receivership.    The following day, the trial court entered the

requested rule to show cause.

      On April 18, 2017, Appellants filed an answer in which they once again

requested the immediate removal of Attorney Brennan as guardian/receiver

and the appointment of Shane Hobbs, Esquire in his place. The same day,

Appellants also filed another motion for the recusal of Judge Domalakes.

Appellants alleged that, inter alia, Judge Domalakes was a material witness

in this case because he issued an ex parte order in this matter on February

27, 2015. On May 8, 2017, Appellants filed a motion for a preliminary and

permanent injunction seeking to enjoin Attorney Brennan from (1) taking

any action relating to liquidating the Corporations, and (2) continuing as

guardian/receiver in this matter. Once again, Appellants accused Attorney


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Brennan of failing to file sufficient formal accountings for the Corporations

and of financially mismanaging the Corporations.

      On May 11, 2017, the trial court held a hearing on Appellants’

motions.    On May 12, 2017, the trial court entered an order denying

Appellants’ motion for recusal and on May 17, 2012, the trial court denied

their motion to remove Attorney Brennan as guardian/receiver and for

injunctive relief. Appellants appealed to this Court.

      On appeal, Appellants raise the following issues for our review:

            1.    Whether a trial court judge who becomes a
            material witness in a case and who fails to enforce
            and require obedience to his own court orders
            entered in the case should be ordered to recuse
            himself from further proceedings in such case?

            2.     Whether a corporate guardian/receiver who
            financially destroys two corporations should be
            immediately relieved of the difficulties of his/her
            office where he/she commits serial violations of the
            mandatory commands contained in the appointing
            court’s     order     directing    the      corporate
            guardian/receiver to preserve and protect the
            property of a corporations [sic] and to file yearly
            reports of all the financial transactions of the two
            corporations?

Appellants’ Brief at 2.

      Prior to discussing the issues raised by Appellants, we must first

address Attorney Brennan’s application to quash this appeal, as it implicates

our jurisdiction to review this matter. In his application to quash, Attorney

Brennan argues that this Court should quash Appellants’ appeal as

interlocutory.

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      In support of this argument, Attorney Brennan first asserts that the

trial court’s order denying Appellants’ motion for recusal is an interlocutory

order that is not appealable as of right or as a collateral order.     In their

answer, Appellants respond by arguing that “[a] decision by a Trial Judge

deciding a motion seeking the Judge’s recusal due to disqualification is an

appealable order pursuant to Pa.R.A.P. 313[,] as it is a collateral order

whereby this recusal issue cannot be addressed and resolved on appeal from

a final judgment in the case.” Answer to Application to Quash, 10/30/17, ¶

14.

      This Court may address the merits of an appeal taken from “(a) a final

order or an order certified as a final order; (2) an interlocutory order

[appealable] as of right; (3) an interlocutory order [appealable] by

permission; or (4) a collateral order.”    Commerce Bank v. Kessler, 46

A.3d 724, 728 (Pa. Super. 2012), quoting Stahl v. Redcay, 897 A.2d 478,

485 (Pa. Super. 2006) (citations omitted); see also Pa.R.A.P. 341(b). “As a

general rule, only final orders are appealable, and final orders are defined as

orders disposing of all claims and all parties.” Am. Indep. Ins. Co. v. E.S.,

809 A.2d 388, 391 (Pa. Super. 2002); see also Pa.R.A.P. 341(a) (“[A]n

appeal may be taken as of right from any final order of a government unit or

trial court.”).

      This Court has routinely held that, pursuant to the above authority, a

pre-trial motion seeking to recuse a judge from further proceedings is not a


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J-S01028-18


final order. See In re Bridgeport Fire Litig., 51 A.3d 224, 229 (Pa. Super.

2012) (“an order on a motion for recusal is an interlocutory order for

purposes of an appeal”); see also Rohm and Haas Co. v. Lin, 992 A.2d

132, 149 (Pa. Super. 2010); Krieg v. Krieg, 743 A.2d 509, 511 (Pa. Super.

1999); Hahalyak v. Integra Fin. Corp., 678 A.2d 819 (Pa. Super. 1996);

Kenis v. Perini Corp., 682 A.2d 845 (Pa. Super. 1996). Additionally, this

Court has stated that an appeal from the denial of a pre-trial motion to

recuse does not fall within any of the categories listed in Rules 311

(Interlocutory Appeals as of Right) or 313 (Collateral Orders)1 of the

Pennsylvania Rules of Appellate Procedure.          Krieg, 743 A.2d at 511.

Therefore, the trial court’s May 12, 2017 denying Appellants’ motion for the

recusal of Judge Domalakes is not a final order or an interlocutory order




____________________________________________


1   Rule 313 provides:

              (a) General rule. An appeal may be taken as of
              right from a collateral order of an administrative
              agency or lower court.

              (b) Definition.      A collateral order 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.




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J-S01028-18


appealable as of right or a collateral order.           Accordingly, we quash

Appellants’ appeal from the May 12, 2017 order.

         Next, Attorney Brennan asserts that the trial court’s May 17, 2017

order denying Appellants’ request for a preliminary injunction and their

petition to remove Attorney Brennan as guardian/receiver was likewise

interlocutory and not appealable as of right.       In their answer, Appellants

respond by arguing that an order refusing to modify a receivership or other

similar matter is appealable as of right under Rule 311(a)(2) and that the

May 17, 2017 order constitutes such an order because they were seeking to

have the guardianship/receivership modified by removing Attorney Brennan

as guardian/receiver.        Similarly, Appellants contend that under Rule

311(a)(4), an order that grants or denies an injunction is appealable as of

right.

         The May 17, 2017 order does not constitute a final order as defined by

Rule 341(b) and Appellants do not dispute this assessment.               Rather,

Appellants assert that the order is appealable under Rule 311(a), which

governs appeals as of right from interlocutory orders.

         Appellants argue that the instant order is appealable pursuant to either

subsections (a)(2) or (a)(4) of Rule 311.       Rule 311(a)(2) provides for an

interlocutory appeal as of right from an order “confirming, modifying or

dissolving or refusing to confirm, modify or dissolve an attachment,

custodianship, receivership or similar matter affecting the possession or


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control of property.”     Pa.R.A.P. 311(a)(2).   Rule 311(a)(4) permits an

interlocutory appeal to be as of right taken from an order “granting,

continuing, modifying, refusing or dissolving injunctions or refusing to

dissolve or modify injunctions.”    Pa.R.A.P. 311(a)(4).   In interpreting Rule

311(a), this Court has explained:

            Orders     involving   attachments,    receiverships,
            custodianships or other similar matters affecting the
            possession or control of property, are among the
            classes of interlocutory orders which are appealable
            as of right. Rule 311(a)(2), supra. Interlocutory
            orders involving injunctions are likewise appealable
            as of right. Rule 311(a)(4), supra.

Jerry Davis, Inc. v. Nufab Corp., 677 A.2d 1256, 1259 (Pa. Super. 1996).

      In this case, the trial court’s May 17, 2017 order denied Appellants’

petition to remove Attorney Brennan as guardian/receiver and their related

petition for injunctive relief.   Thus, the trial court’s May 17, 2017 order

constitutes an order refusing to modify a receivership and an order refusing

an injunction. As such, the May 17, 2017 order, although interlocutory, is

immediately appealable as of right under Rule 311(a)(2) and (4).

      We now turn our attention to the merits of Appellants’ appeal from the

May 17, 2017 order. Appellants argue that the trial court erred in denying

their petitions for injunctive relief and to remove Attorney Brennan as

guardian/receiver.

      Generally, “appellate courts review a trial court order refusing or

granting a preliminary injunction for an abuse of discretion.”        Summit



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Towne Ctr., Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d 995,

1000 (Pa. 2003).

             An abuse of discretion is not merely an error of
             judgment. Paden v. Baker Concrete Constr[.],
             Inc., [] 658 A.2d 341, 343 ([Pa.] 1995). Rather, an
             abuse of discretion exists if the trial court renders a
             judgment that is manifestly unreasonable, arbitrary,
             or capricious, or if it fails to apply the law or was
             motivated by partiality, prejudice, bias, or ill will.
             Harman v. Borah, [] 756 A.2d 1116, 1123 ([Pa.]
             2000). If the record adequately supports the trial
             court’s reasons and factual basis, the court did not
             abuse its discretion. Id.

Ambrogi v. Reber, 932 A.2d 969, 974 (Pa. Super. 2007). “[R]eview of a

trial court’s order granting or denying preliminary injunctive relief is ‘highly

deferential.’”   Warehime v. Warehime, 860 A.2d 41, 46 (Pa. 2004)

(citation omitted). “This ‘highly deferential’ standard of review states that in

reviewing the grant or denial of a preliminary injunction, an appellate court

is directed to ‘examine the record to determine if there were any apparently

reasonable grounds for the action of the court below.’”           Id. (citation

omitted).

      A party seeking a preliminary injunction must establish each of the six

following prerequisites and the failure to establish any one of them is fatal to

the request:

             First, a party seeking a preliminary injunction must
             show that an injunction is necessary to prevent
             immediate and irreparable harm that cannot be
             adequately compensated by damages. Second, the
             party must show that greater injury would result
             from refusing an injunction than from granting it,

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            and, concomitantly, that issuance of an injunction
            will not substantially harm other interested parties in
            the proceedings. Third, the party must show that a
            preliminary injunction will properly restore the
            parties to their status as it existed immediately prior
            to the alleged wrongful conduct. Fourth, the party
            seeking an injunction must show that the activity it
            seeks to restrain is actionable, that its right to relief
            is clear, and that the wrong is manifest, or, in other
            words, must show that it is likely to prevail on the
            merits.     Fifth, the party must show that the
            injunction it seeks is reasonably suited to abate the
            offending activity.     Sixth and finally, the party
            seeking an injunction must show that a preliminary
            injunction will not adversely affect the public
            interest.

Duquesne Light Co. v. Longue Vue Club, 63 A.3d 270, 275 (Pa. Super.

2013) (quotations and citation omitted).

      Appellants make two primary contentions in support of their argument

that the trial court erred in denying their petitions for injunctive relief and to

remove Attorney Brennan as guardian/receiver. First, Appellants assert that

the trial court should have dismissed Attorney Brennan because he was not

interested in operating Whitey’s Beer Barn (one of the Corporations) on a

day-to-day basis, which he was required to do pursuant to the trial court’s

February 21, 2014 order appointing him as guardian/receiver.            Appellants

claim that when a court appoints a guardian/receiver to manage a business,

and that individual “later decides he doesn’t want to operate the business

and unilaterally takes it upon himself to shutter the business, he should be

immediately removed from office[.]” Appellants’ Brief at 10.




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      In denying Appellant’s petitions to remove Attorney Brennan as

guardian/receiver and for injunctive relief, the trial court concluded that

Appellants failed to establish that an injunction “is necessary to prevent

immediate and irreparable harm.”     Trial Ct. Op., 5/17/17, at 4.     The trial

court found that Attorney Brennan was appropriately performing his role as

guardian/receiver. Id. at 5. The court explained:

            The Court finds credible the testimony of [Attorney
            Brennan] and concludes that he has demonstrated
            conscientious, effective and devoted efforts to
            properly manage both entities despite interference
            and continuous criticism of his efforts. His responses
            to the criticisms of [Appellants] demonstrate that he
            had cogent reasons for his actions.

Id.

      We conclude that the record supports the trial court’s determination.

There is no support in the record for Appellants’ argument that the trial court

should have dismissed Attorney Brennan because he was not interested in

operating the Corporations. Attorney Brennan did state at the May 11, 2017

hearing that he shut down Whitey’s Beer Barn, in part, because he did not

“want to operate the business[.]”       N.T., 5/11/17, at 27.        Appellants,

however, reference this statement entirely out of context. At the hearing,

Attorney Brennan offered a litany of reasons for why he shut down the

operations of Whitey’s Beer Barn. Attorney Brennan stated that all of the

employees of the business, including the manager, quit; he could not quickly

find a qualified individual approved by the Liquor Control Board to replace



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the manager; and because it is illegal to sell expired beer in Pennsylvania,

he had to return much of the business’ inventory, and consequently, it ran

out of money. Id. at 27-30. The only way he could have kept the business

running would have been to manage it on a day-to-day basis, which he was

unable to do.   See id.   Moreover, Appellants provide no indication that if

Attorney Brennan had taken over the day-to-day operations of Whitey’s Beer

Barn, it would have been profitable.

     Contrary to Appellants’ assertion, there was no requirement in the

February 21, 2014 order appointing Attorney Brennan as guardian/receiver

that required him to manage the day-to-day operations of the Corporations.

Rather, the order provided Attorney Brennan “with the following authority”:

           … to manage and conduct the business and
           occupation now and heretofore conducted by the
           Corporations in such manner as will in Guardian’s
           judgment produce most satisfactory results, so that
           the operation of the business and occupation of the
           Corporations shall be continued in the same manner
           as at present, including the extension of the usual
           credits to purchasers of merchandise, to exercise the
           authority and rights of the Corporations to preserve
           and protect the Corporations’ business and
           properties in proper condition and repair, so that
           they may be safely and advantageously used, to
           protect the title and possession of assets, to secure
           and develop the business of the Corporations, and in
           their discretion to employ and discharge such
           persons     and     make    such    payments      and
           disbursements as may be needful in so doing and to
           make business, employment and wage, and salary
           decisions.

Order, 2/21/14, ¶ 5(a).



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        Given the several challenges facing Whitey’s Beer Barn, both from a

personnel and financial standpoint, the record supports the trial court’s

finding that Attorney Brennan properly exercised his authority when he

determined that the most appropriate course of action for Whitey’s Beer

Barn was to shut it down. See N.T., 5/11/2017, at 27-30. To the extent

that it would have even been feasible, or permitted by the Liquor Control

Board, Attorney Brennan was under no obligation to assume management of

the day-to-day operations of the business. Therefore, the trial court did not

abuse     its   discretion   by   declining   to   remove   Attorney   Brennan   as

guardian/receiver on this basis.

        Second, Appellants contend that the trial court should have removed

Attorney Brennan as guardian/receiver because he failed to provide

sufficient reports tracking the financial transactions of the Corporations as

mandated by the court’s February 21, 2014 order.               In connection with

Attorney Brennan’s alleged failure to file proper financial reports, Appellants

also challenge the veracity of the accountings filed by Attorney Brennan and

accuse him of financial “maladministration” of the Corporations. Appellants’

Brief at 21.

        As with Appellants’ first argument, there is no record to support their

contention that the trial court should have removed Attorney Brennan

because he failed to provide appropriate reports tracking the financial




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transactions of the Corporations.    With respect to financial reporting, the

February 21, 2014 order provided :

           On a yearly basis, the Guardian shall file with the
           Protonotary’s office a formal accounting of all
           financial matters of the corporations and supply to all
           the parties a copy of that accounting to which any of
           the parties may file objections.

Order, 2/21/14, ¶ 5(a).

     The record contains numerous financial reports and accountings for

both Corporations.   See, e.g., Guardian’s Second Formal Accounting and

Report for Whitey’s Beer Barn, 6/23/16; Guardian’s Formal Accounting and

Report for RR Coal, Inc., 3/9/16; Guardian’s Formal Accounting and Report

for Whitey’s Beer Barn, 4/1/15; see also Petition Seeking Immediate

Removal of Receiver, 4/18/17, Exhibit 41. These reports cover the financial

matters of the Corporations dating back to 2014, when the trial court

appointed Attorney Brennan as guardian/receiver.       Additionally, Attorney

Brennan also testified at the May 11, 2017 hearing that he disclosed

everything asked of him and that he on numerous occasions invited

Appellants and their attorney to his office to review anything that they

wanted related to the Corporations, but they never did. N.T., 5/11/17, at

15-25.

     To the extent Appellants challenge the veracity or completeness of

these reports, as noted above, the trial court found Attorney Brennan’s




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reports and testimony to be credible.     See Trial Ct. Op., 5/17/17, at 4-5;

Trial. Ct. Op., 8/23/16, at 3-4. This Court has routinely held:

            the credibility of witnesses is an issue to be
            determined by the trier of fact. On appeal this Court
            will not revisit the trial court's determinations ...
            regarding the credibility of the parties. Thus, [an]
            argument, which would require this Court to revisit
            and essentially reverse the [trial court] on his
            credibility determinations, provides no grounds for
            relief.

Stephan v. Waldron Elec. Heating & Cooling LLC, 100 A.3d 660, 667

(Pa. Super. 2014) (quotations and citations omitted).          Thus, we cannot

conclude that the trial court abused its discretion by declining to remove

Attorney Brennan as guardian/receiver for his alleged failure to file proper

financial reports and accountings for the Corporations.

      Finally, we note that this is not the first attempt by Appellants to

remove Attorney Brennan as guardian/receiver, and the trial court has

previously denied their attempts to do so.     In general, Appellants largely

seek the removal of Attorney Brennan based on their dissatisfaction with the

long-term   decisions   he   has   made   regarding    the   liquidation   of   the

Corporations. Appellants provide no authority for the proposition that such

dissatisfaction constitutes a basis upon which a trial court may remove a

guardian/receiver. Indeed, their appellate brief lacks citation to any binding

or relevant authority that would support the removal of Attorney Brennan for

any of the reasons articulated by Appellants.         Accordingly, because the

record supports the trial court’s decision to deny Appellants’ petition to

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remove Attorney Brennan as guardian/receiver and their motion for

injunctive relief, we affirm the trial court’s May 17, 2017 order.

      Appeal quashed in part and affirmed in part.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/08/2018




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