J-A31024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HORSHAM TOWNE ASSOCIATES AND               :    IN THE SUPERIOR COURT OF
575 HORSHAM ROAD OWNER, LLC                :         PENNSYLVANIA
                                           :
                                           :
              v.                           :
                                           :
                                           :
JOHN HURLEY, T/A EDIBLES                   :
RESTAURANT AND PUB                         :    No. 1555 EDA 2017
                                           :
                     Appellant             :

               Appeal from the Judgment Entered April 19, 2017
     In the Court of Common Pleas of Montgomery County Civil Division at
                             No(s): 2014-04519


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

MEMORANDUM BY OLSON, J.:                               FILED MARCH 23, 2018

       Appellant, John Hurley, t/a Edibles Restaurant and Pub, appeals from

the judgment entered on April 19, 2017, in favor of Plaintiff Horsham Towne

Associates (hereinafter “Plaintiff”) and against Appellant, in the amount of

$268,228.28. We affirm.

       On March 3, 2014, Plaintiff filed a complaint against Appellant,

claiming that Appellant breached the terms of a commercial lease by failing

to   pay   rent    when   due.   Plaintiff’s   Complaint,    3/3/14,   at   ¶¶ 1-20.

Specifically, Plaintiff averred, it owns the Horsham Square Shopping Center

in Horsham, Pennsylvania and, in November 2004, it began leasing

commercial property to Appellant.        Id. at ¶¶ 1-5.      Plaintiff claimed that

Appellant failed to pay rent when due and that, as of the filing of the

complaint, Appellant owed Plaintiff $205,696.89.            Id. at ¶ 11.    Further,

____________________________________
* Former Justice specially assigned to the Superior Court.
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Plaintiff claimed that it demanded that Appellant surrender the premises, but

Appellant refused and, thus, unpaid rent continues to accrue. Id. at ¶¶ 13-

14.

      Plaintiff’s complaint contained two counts:        breach of lease and

demand for possession.        With respect to the claims, Plaintiff sought

“judgment in the full amount due and owing . . . plus rent that continues to

accrue as well as [attorneys’] fees and costs” and possession of the

leasehold to the exclusion of Appellant. See id. at ¶¶ 10-20.

      After the trial court overruled Appellant’s preliminary objections,

Appellant filed an answer, new matter, and counterclaim.              Within the

answer, Appellant generally denied that it was in breach of the lease

agreement and that it “failed to make payments when due.” See Appellant’s

Answer, New Matter, and Counterclaim, 7/2/14, at ¶¶ 8 and 10. Moreover,

in response to Plaintiff’s averment that, “[a]s of the date of this complaint,

[Appellant] owes $205,696.89,” Appellant simply answered:               “Denied.

[Appellant] does not owe to the Plaintiff [$205,696.89].”          See Plaintiff’s

Complaint,    3/3/14,   at   ¶ 11;   Appellant’s   Answer,   New    Matter,   and

Counterclaim, 7/2/14, at ¶ 11.

      Appellant’s counterclaim alleged that Plaintiff had “committed fraud

because prior to the signing of the lease [Appellant] made inquiries of []

Plaintiff of the non-competition clause contained in the subject lease.”

Appellant’s Answer, New Matter, and Counterclaim, 7/2/14, at ¶ 2 (some

internal capitalization omitted).    Appellant claimed that, “as a direct and

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proximate result of [Plaintiff’s fraudulent statements, Appellant] was sued by

DeVenuto Restaurant, Inc. for violating [] Plaintiff’s lease with Via Vento

Restaurant with regard to its covenant not to compete.”         Id. at ¶ 7.   In

doing so, Appellant claimed, Plaintiff breached the covenant of quiet

enjoyment in the lease and was liable to it for the tort of fraudulent

representation. Id. at ¶¶ 1-7.

      Plaintiff answered Appellant’s counterclaim. In response to Appellant’s

claim that Plaintiff breached the covenant of quiet enjoyment in the lease

and committed fraud, Plaintiff answered:

        Denied as conclusion of law to which no response is
        required. By further response, it is specifically denied that
        Plaintiff has committed fraud. Any mention or possible
        notion of fraud upon information and belief harkens back to
        a lawsuit filed in 2005 to which Plaintiff and [Appellant]
        were named as defendants.           That suit and all claims,
        counterclaims, and cross claims among all of the parties to
        the suit, including Plaintiff and [Appellant] in this case, have
        been settled in a confidential settlement agreement dated
        April 10, 2006.        The signature page containing the
        signatures of Plaintiff and [Appellant] is attached [to the
        pleading].

        Furthermore, and in addition to this otherwise frivolous
        averment and claim, [Appellant] is mixing contract and tort
        claims for no good or legitimate reasons other than to delay
        resolution of this case. Finally, if the settlement agreement
        does not cut off any possible counterclaims, certainly, the
        two-year statutes of limitations to fraud bars suit almost
        eight years after the same allegations were raised and
        settled and subject to the doctrine of res judicata.
        Accordingly, the averment is frivolous and subject to
        sanctions.

Plaintiff’s Answer to Counterclaim, 7/24/14, at ¶ 2.


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       On October 14, 2014, Plaintiff filed a motion for judgment on the

pleadings and claimed that it was entitled to judgment in its favor because

Appellant generally denied that it was in breach of the lease agreement and,

thus, admitted to the breach, and because Appellant’s counterclaims were

frivolous. See Plaintiff’s Motion for Judgment on the Pleadings, 10/14/14, at

¶¶ 11-20; Plaintiff’s Memorandum of Law in Support of Motion, 10/14/14, at

1-7.

       On February 23, 2015, the trial court granted, in part, Plaintiff’s

motion for judgment on the pleadings. In particular, the trial court: granted

Plaintiff’s motion on the issue of Appellant’s liability for breach of contract;

dismissed Appellant’s counterclaims; and, declared that it would schedule a

hearing to assess the amount of damages at a later date. Trial Court Order,

2/23/15, at 1.

       On May 31, 2016, Appellant filed a “Petition to Substitute Transferee

as Plaintiff” (hereinafter “Appellant’s Petition”).      Within the petition,

Appellant averred that, in July 2014, Plaintiff assigned “all of its rights,

including but not limited to all rents, issues and profits, under the subject

lease” to an entity named 575 Horsham Road Owner, LLC (hereinafter “575

Horsham”). Appellant’s Petition, 5/31/16, at ¶ 3. Appellant claimed that, as

a result of this transfer, Plaintiff “no longer has any claim against

[Appellant]” and that the trial court “should substitute 575 Horsham [] as

party plaintiff.” Id. at ¶¶ 6-8 (some internal capitalization omitted).




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      On November 29, 2016, the trial court entered an order that granted

Appellant’s Petition in part.   Specifically, the trial court ordered that 575

Horsham was joined – but not substituted – as plaintiff in the action. Trial

Court Order, 11/29/16, at 1.

      The trial court held the assessment of damages hearing on November

30, 2016. During the hearing, the trial court heard testimony that, up until

the date that Plaintiff transferred the property to 575 Horsham, Appellant

owed to Plaintiff: $174,705.99 in unpaid rent; $44,075.00 in late fees; and

$48,583.26 that accrued at the conclusion of an “agreed abatement.” N.T.

Damages Hearing, 11/30/16, at 27-29 and 33-34.

      At the end of the hearing, the trial court concluded that Appellant was

liable to Plaintiff in the total amount of $268,228.28.        See Trial Court

Decision, 12/13/16, at 1; see also Amended Trial Court Decision, 1/9/17, at

1. The trial court’s amended decision reads:

      AND NOW, this [9th] day of January, 2017, it is hereby ORDERED
      that . . . judgment is awarded in favor of Plaintiff and against
      [Appellant] as follows:

      Unpaid rent due under lease []                  $174,705.99

      Amount due after agreed abatement ended [] 48,583.26

      Late fees (9/1/09 to 6/30/14) []                44,075.00

      Amount of costs                                 864.03

      For a combined judgment of                      $268,228.28




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       In accordance with 42 Pa.C.S.A. § 8101, interest shall accrue on
       $268,224.28 at the lawful rate from the date of the verdict until
       the judgment is paid by [Appellant].

Trial Court Amended Decision, 1/9/17, at 1 (some internal capitalization

omitted).

       The trial court denied Appellant’s timely post-trial motion on January

24, 2017 and, on April 19, 2017, judgment was entered on the verdict.

Appellant filed a timely notice of appeal on May 15, 2017. Appellant raises

two claims on appeal:

         [1.] Did the [trial] court [] commit reversible error and
         abuse its discretion in granting judgment on the pleadings
         on the issue of liability of [Appellant] to Plaintiff?

         [2.] Did the [trial] court [] commit reversible error and
         abuse its discretion in denying [Appellant’s] motion to
         dismiss and refusing to permit [Appellant] to put on a
         defense at trial, which defense would have demonstrated
         both that Plaintiff [] had assigned and transferred all of its
         rights under the subject lease to 575 Horsham [] and that
         the action was barred as against both [p]laintiffs on the
         basis of res judicata and collateral estoppel?

Appellant’s Brief at 4 (some internal capitalization omitted).1




____________________________________________


1 Appellant filed a separate appeal from the April 19, 2017 judgment and we
docketed this separate appeal at 241 EDA 2017. The appeal docketed at
241 EDA 2017 is duplicative of the current appeal, as the appeal lies from
the same April 19, 2017 judgment and, within Appellant’s brief at that
appeal, Appellant raises the same substantive claims that he raises in the
current appeal. We have thus quashed the appeal at 241 EDA 2017 as
duplicative of the current appeal.



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J-A31024-17



      First, Appellant contends that the trial court erred when it granted

Plaintiff’s motion for judgment on the pleadings as to the issue of Appellant’s

liability. This claim fails.

      We have explained:

         Judgment on the pleadings is permitted under Pennsylvania
         Rule of Civil Procedure 1034, which provides that “after the
         pleadings are closed, but within such time as not to
         unreasonably delay trial, any party may move for judgment
         on the pleadings.”      Pa.R.C.P. 1034(a).    A motion for
         judgment on the pleadings is similar to a demurrer. It may
         be entered when there are no disputed issues of fact and
         the moving party is entitled to judgment as a matter of law.

         Appellate review of an order granting judgment on the
         pleadings is plenary and we apply the same standard
         employed by the trial court. Our review is confined to the
         pleadings and relevant documents. We must accept as true
         all well pleaded statements of fact, admissions, and any
         documents properly attached to the pleadings presented by
         the party against whom the motion is filed, considering only
         those facts that were specifically admitted. We will affirm
         the grant of such a motion only when the moving party's
         right to succeed is certain and the case is so free from
         doubt that the trial would clearly be a fruitless exercise.

McLafferty v. Council for the Ass’n of Owners of Condo. No. One,

Inc., 148 A.3d 802, 806-807 (Pa. Super. 2016) (some internal citations

omitted).

      Appellant claims that the trial court erred in granting Plaintiff judgment

on the pleadings solely because: “Plaintiff sold the leased premises to [575

Horsham] on July 1, 2014. In doing so, it transferred all of its rights under

the lease to [575 Horsham]. Because of this[, Plaintiff] . . . no longer has




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J-A31024-17



any claim against [Appellant] under the lease agreement.” Appellant’s Brief

at 19 (some internal capitalization omitted).

      Appellant’s claim on appeal immediately fails, as Appellant has not

cited to any contractual provision between Plaintiff and 575 Horsham that

assigned Appellant’s lease (or the right to collect the unpaid rent and fees

that Appellant owed to Plaintiff) from Plaintiff to 575 Horsham.          See

Appellant’s Brief at 18-23. Indeed, Appellant has not cited to anything that

would prohibit Plaintiff from recovering the unpaid rent and fees that

Appellant owed to Plaintiff during the time that Plaintiff was the owner and

lessor of the land. See id. To be sure, the trial court noted:

        [Appellant] argues that after this lawsuit began, ownership
        of the property was transferred. This court does not find
        that any such transfer is relevant to [Appellant’s] obligation
        to pay rent owed to Plaintiff. The new owner, 575 Horsham
        . . . [,] was joined in this lawsuit. Joseph Ventresca, a
        representative of the new owner, 575 Horsham . . . ,
        appeared at the hearing on November 30, 2017 and made
        no objection to the relief sought by Plaintiff. Indeed, on
        January 11, 2017, 575 Horsham . . . filed a response
        opposing [Appellant’s] request for post trial relief.

Trial Court Opinion, 6/23/17, at 4 n.6 (some internal capitalization omitted).

      Thus, Appellant’s first claim on appeal cannot succeed.

      For Appellant’s second and final claim on appeal, Appellant contends

that the trial court erred when it “den[ied Appellant’s] motion to dismiss and

refus[ed] to permit [Appellant] to put on a defense at trial.”     Appellant’s

Brief at 23. According to Appellant, his defense “would have demonstrated

both that Plaintiff [] had assigned and transferred all of its rights under the


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J-A31024-17



subject lease to 575 Horsham [] and that the action was barred as against

both plaintiffs on the basis of res judicata and collateral estoppel.” Id.

      As we have held:

        the doctrines of res judicata and collateral estoppel . . .
        serve to preclude the litigation, respectively, of claims and
        issues that have previously been litigated.

        Where there has previously been rendered a final judgment
        on the merits by a court of competent jurisdiction, the
        doctrine of res judicata will bar any future suit on the same
        cause of action between the same parties. Invocation of
        the doctrine of res judicata (claim preclusion) requires that
        both the former and latter suits possess the following
        common elements:

            1. identity in the thing sued upon;
            2. identity in the cause of action;
            3. identity of persons and parties to the action; and
            4. identity of the capacity of the parties suing or being
            sued.

        Collateral estoppel (issue preclusion) is closely related to res
        judicata, but bears certain distinctions[.]

        . . . [T]he doctrine of res judicata, subsumes the more
        modern doctrine of issue preclusion which forecloses re-
        litigation in a later action, of an issue of fact or law which
        was actually litigated and which was necessary to the
        original judgment. Collateral estoppel applies if (1) the issue
        decided in the prior case is identical to one presented in the
        later case; (2) there was a final judgment on the merits; (3)
        the party against whom the plea is asserted was a party or
        in privity with a party in the prior case; (4) the party or
        person privy to the party against whom the doctrine is
        asserted had a full and fair opportunity to litigate the issue
        in the prior proceeding and (5) the determination in the
        prior proceeding was essential to the judgment.

        Collateral estoppel does not require identity of causes of
        action or parties. However, while res judicata will bar

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J-A31024-17


           subsequent claims that could have been litigated in the prior
           action, but which actually were not, collateral estoppel will
           bar only those issues that actually were litigated in the prior
           proceeding.

Chada v. Chada, 756 A.2d 39, 42-43 (Pa. Super. 2000) (some internal

quotations and citations omitted).

         In essence, Appellant claims that a later suit – that 575 Horsham filed

against Appellant, in October 2014, to recover unpaid rent that Appellant

owed to 575 Horsham – barred Plaintiff’s current lawsuit against Appellant

that Plaintiff filed on March 3, 2014. Appellant’s Brief at 26. This argument

fails.

         In 575 Horsham’s suit against Appellant, 575 Horsham filed suit to

collect the $10,200.00 in unpaid rent that Appellant owed 575 Horsham after

575 Horsham became the owner of the property, while Appellant was still a

holdover on the premises.         See, e.g., Landlord and Tenant Complaint,

10/28/14, at 1. In the case at bar, Plaintiff sued Appellant to recover the

$174,705.99 in unpaid rent (and additional, other fees) that Appellant owed

to Plaintiff through the end of June 2014 – or, until Plaintiff sold the

premises to 575 Horsham.         Thus, res judicata does not bar Plaintiff’s suit

against Appellant, as there is neither an identity of the parties nor an

identity of “the thing sued upon.” See Chada, 756 A.2d at 42-43. Further,

collateral estoppel does not shield Appellant from suit, as “the issue decided

in the prior case” (the unpaid rent Appellant owed 575 Horsham from July

2014 onward) was not identical to the issue presented in the case at bar



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(the unpaid rent Appellant owed Plaintiff during the time Plaintiff owned the

premises). Id. Appellant’s claim on appeal thus fails.

     Judgment affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/18




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