J-A23013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DILLON MCCANDLESS KING COULTER &                 IN THE SUPERIOR COURT OF
GRAHAM, LLP, THOMAS W. KING, III,                      PENNSYLVANIA
ESQUIRE, AND MICHAEL T. RUPERT

                            Appellees

                       v.

JACQUELINE C. RUPERT

                            Appellant                No. 1648 WDA 2015


                   Appeal from the Order September 18, 2015
                 In the Court of Common Pleas of Butler County
                        Civil Division at No(s): 12-10019


BEFORE: LAZARUS, J., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                            FILED APRIL 20, 2017

        Jacqueline C. Rupert appeals from the order of the Court of Common

Pleas of Butler County, entering declaratory judgment with respect to certain

questions related to the disposition of the proceeds of an underlying tort

settlement, as well as obligations under a fee agreement entered into by and

between Rupert, her ex-husband, Michael T. Rupert, and her former counsel

in that litigation, appellees Dillon McCandless King Coulter & Graham, LLP,

and Thomas W. King, III, Esquire. Upon careful review, we affirm.

        The trial court thoroughly set forth the extensive factual and

procedural history of this matter in its September 18, 2015, Memorandum
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A23013-16



Opinion. See Trial Court Opinion, 9/18/15, at 2-6. As we write only for the

parties, who are intimately familiar with the history of the case, we will not

repeat that background information here.

      Jacqueline has raised the following issues for our consideration:

      1. Whether there was a justiciable controversy when Dillon
      McCandless sought declaratory relief (1) that it did not have to
      pay expenses[,] which were not being paid and which Jacqueline
      never sought[,] and (2) . . . that Jacqueline was not entitled to
      certain funds, a matter previously decided in a domestic action
      between Michael and Jacqueline?

      2. Whether the doctrine of lis pendens prevented Michael from
      asserting a claim that he previously brought in a domestic action
      which was pending [prior to] this action?

      3. Did the doctrines of [j]udicial [e]stoppel, [r]es [j]udicata,
      [c]ollateral [e]stoppel or [c]oordinate [j]urisdiction bar Michael
      from pursuing a different result in a declaratory civil action
      previously decided favorably to him in a domestic declaratory
      judgment action brought by him?

      4. Should the trial court have ordered Dillon McCandless to
      deposit an unknown but substantial sum of money, to which it
      acknowledged it had no claim, into an IOLTA account for an
      extended period and provide no evidence of the amount, how [it
      was] calculated or that it was deposited?

      5. Did Dillon McCandless have standing to bring an action to
      determine ownership of funds to which it had no claim; and
      could have been interpled?

      6. Is Jacqueline, who has been awarded the unknown sum of
      money, entitled to interest for the period during which it was
      withheld and retained by Dillon McCandless or Michael who could
      have but did not interplead it?

      7. Whether money to which only one party in the litigation is
      entitled should be withheld pending the outcome of an appeal
      not involving entitlement to that money?

Brief of Appellant, at 4-5.


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      As the trial court notes in its Pa.R.A.P. 1925(a) opinion dated

December 1, 2015, this case has a “long and contentious” history. Id. at 6.

In particular, it is apparent from the tone and substance of both parties’

briefs that significant animosity exists, not only between the parties, but also

between their counsel. At the heart of this dispute is Jacqueline’s contention

that Dillon McCandless filed the instant declaratory judgement action under

false pretenses.     Specifically, Jacqueline has long asserted that the

declaratory judgment action “was only a vehicle for Dillon McCandless,

acting with the connivance of Michael, to obtain a platform for a coordination

motion under Pa.R.C.P. 213 to change the venue for the anticipated

malpractice and fraud case [against Dillon McCandless from Allegheny

County to Butler County] and to bully Jacqueline into not pursuing it.” Brief

of Appellant, at 32-33. Indeed, this Court arrived at the same conclusion in

reversing the trial court’s order directing coordination of the suits. In doing

so, this Court noted:

      [T]he present declaratory judgment action was filed on an
      entirely false premise. A declaration was sought concerning the
      validity of an accord that Jacqueline never claimed was void. . . .
      This action was instituted based upon fabricated allegations,
      which were not oversights or minor mistakes but which formed
      the complete underpinning of the lawsuit. The [declaratory
      judgment] litigation was nothing more than a ploy designed to
      deprive Jacqueline of the benefit of her chosen forum in which to
      litigate her malpractice case. . . .        [W]e hold that the
      [declaratory judgment complaints] are nullities for purposes of a
      coordination order.




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J-A23013-16



Dillon McCandless v. Rupert, 1573 WDA 2012, at 16-17 (Pa. Super. filed

11/7/13) (unpublished memorandum decision) (vacating order coordinating

declaratory judgment and malpractice actions in Butler County and directing

that malpractice action proceed in Allegheny County).

       Thus, we are presented with a confounding situation where, in an

appeal concerning a distinct, though clearly related, matter, this Court has

previously concluded that Dillon McCandless’ declaratory judgment action –

at least in its first two incarnations1 – was a sham. Nevertheless, not being

bound by that finding,2 the trial court allowed Dillon McCandless to amend

its declaratory judgment complaint.            The trial court ultimately concluded

that, while Dillon McCandless’ third amended complaint in declaratory

judgment presented a legitimate question as to the enforceability and

application of the Amended Fee Agreement, the Agreement was, in fact,

valid and Jacqueline was entitled to her agreed-upon recovery thereunder.

       For her part, Jacqueline’s objections to Dillon McCandless’ declaratory

judgment action did not involve any claim on her part that the Amended Fee
____________________________________________


1
  Dillon McCandless filed an original and two amendments of its declaratory
judgment complaint, all of which were dismissed on preliminary objections,
before the trial court allowed the fourth version to proceed. This Court
rendered its decision on the coordination issue after the complaint had been
dismissed twice and while preliminary objections to the third incarnation
were pending.
2
  Jacqueline does not assert that the trial court in this matter was bound by
this Court’s findings regarding the fabricated nature of Dillon McCandless’
declaratory judgment action.



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Agreement was void or unenforceable.             See Answer, 5/8/15, at ¶ 133

(“Although originally having contended that Jacqueline alleged that the

Amend[ed Fee Agreement] was not enforceable, [Dillon McCandless] now

acknowledge that she never contested its validity.”).       Indeed, Jacqueline’s

answer and new matter defended the validity of the Amended Fee

Agreement and sought, in its ad damnum clause, payment of the 3-1/3

percent of the proceeds allocated to her thereunder. Moreover, on appeal,

Jacqueline’s issues – with the exception of her claim for statutory interest –

relate only to the appropriateness of the declaratory judgment action itself,

and not to the underlying issue of the validity of the Amended Fee

Agreement.

       However, challenges to the procedural mechanism by which Dillon

McCandless brought this matter before the court are now moot, as

Jacqueline’s recovery is the same whether or not we find merit to her claims.

Under the Amended Fee Agreement, the validity of which Jacqueline

does not dispute, Jacqueline is entitled to 3-1/3 percent of Michael’s

recovery in the underlying Ford litigation.3      Thus, even if she prevailed on

the substance of her appellate claims, she has not demonstrated that she




____________________________________________


3
  She has conceded that this sum is equal to $103,230, the amount that is
currently on deposit with the Prothonotary of Butler County.




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J-A23013-16



has suffered any prejudice. Her claims – save the question of interest—are

simply academic at this point.4

       Accordingly, we will address the only justiciable issue that remains,

Jacqueline’s entitlement to interest on her portion of the settlement

proceeds. Jacqueline asserts that she is entitled to statutory interest from

the date Michael settled with Ford, December 3, 2013, to present. Relying

on Penneys v. Pennsylvania Railroad Company, 183 A.2d 544 (Pa.

1962), and Christo v. Tuscany, Inc., 533 A.2d 461 (Pa. Super. 1987),

Jacqueline argues that, under Pennsylvania law, a plaintiff may recover

interest as a matter of right in matters arising out of a contract dispute. She

claims that, because Dillon McCandless was holding the money, they are

liable to pay the interest.

       The trial court concluded that, because it found that a legitimate

question existed as to the application of the Amended Fee Agreement, Dillon
____________________________________________


4
  Even if we were to conclude, as Jacqueline requests, that: (1) there was
no justiciable controversy upon which to base a declaratory judgment action,
see Brief of Appellant, at 4 (Statement of Questions Involved, No. 1); (2)
the doctrine of lis pendens precluded Michael from seeking a determination
as to the effect of the Amended Fee Agreement, see Brief of Appellant, at 4
(Statement of Questions Involved, No. 2); (3) the doctrines of judicial
estoppel, res judicata, collateral estoppel and coordinate jurisdiction bar
Michael’s declaratory judgment claims, see Brief of Appellant, at 4
(Statement of Questions Involved, No. 3); and (4) Dillon McCandless lacked
standing to bring the declaratory judgment action, see Brief of Appellant, at
4 (Statement of Questions Involved, No. 5), Jacqueline would be in the same
position she is now: pursuant to the Amended Fee Agreement, Jacqueline
would remain entitled to 3-1/3 percent of Michael’s Ford settlement and
nothing more.



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J-A23013-16



McCandless did not improperly withhold Jacqueline’s proceeds pending the

resolution of the declaratory judgment action.         See Trial Court Opinion,

12/1/15, at 3.       As such, the court declined to award interest.         We can

discern no error of law or abuse of discretion.

        Jacqueline cites Penneys, supra, in which our Supreme Court relied

on the Restatement (First) of Contracts § 3375 to support the award of

statutory interest in a contract claim, even where there is a good-faith

dispute as to the debt or other duty owed.         Here, however, there was no

“breach of contract” that precipitated an “award” by the court.             Indeed,


____________________________________________


5
    Section 337 of the Restatement provides:

        If the parties have not by contract determined otherwise, simple
        interest at the statutory legal rate is recoverable as damages for
        breach of contract as follows:

           (a) Where the defendant commits a breach of a contract to
           pay a definite sum of money, or to render a performance
           the value of which in money is stated in the contract or is
           ascertainable by mathematical calculation from a standard
           fixed in the contract or from established market prices of
           the subject matter, interest is allowed on the amount of
           the debt or money value from the time performance was
           due, after making all the deductions to which the
           defendant may be entitled.

           (b) Where the contract that is broken is of a kind not
           specified in Clause (a), interest may be allowed in the
           discretion of the court, if justice requires it, on the amount
           that would have been just compensation if it had been paid
           when performance was due.

Restatement (First) of Contracts § 337 (1932).



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J-A23013-16



Jacqueline never actually asserted a claim to the 3-1/3 percent until she filed

her Answer and New Matter to Dillon McCandless’ third amended complaint

on May 12, 2015.        Prior to that, she studiously avoided taking a position,

either in her pleadings or in court.6 Indeed, in filing a declaratory judgment

action, Dillon McCandless arguably sought to avoid a situation in which a

breach of the contract would occur.            Thus, Penneys and section 337 are

inapplicable.

       Likewise, Jacqueline’s reliance on Christo v. Tuscany, Inc., supra, is

misplaced. Christo involved the question of whether recovery of damages

for an improvidently issued injunction could be limited by the amount of the

bond posted by         the plaintiff under Pa.R.C.P. 1531(b) and whether

defendants were entitled to lost investment income on their security. The

Court concluded, under Rule 1531, that the defendant’s recovery was not

____________________________________________


6
  For example, the following exchange took place between Michael Linn,
Esquire, counsel for Michael, and Joshua Lyons, Esquire, counsel for
Jacqueline, at the April 16, 2014 hearing on Dillon McCandless’ petition to
maintain status quo:

       [MR. LINN:] So, you know, with respect, Judge, if you ask Mr.
       Lyons do you make a claim of this money, if the answer is no,
       there’s an awful lot of trees we just cut down in the forest. If
       the answer is yes, we have a focused field to plow. Easy.

       MR. LYONS: Unfortunately, I can’t give a response to that right
       now[.]

N.T. Hearing, 4/16/14, at 20.




                                           -8-
J-A23013-16



limited to the amount of the bond and that lost profit damages directly

attributable to the improvidently granted injunction were recoverable, where

ascertainable with reasonable certainty.         Christo is readily distinguishable

from the instant matter. Christo involved the grant of a special injunction

under the Rule 1531 of the rules of civil procedure, which provided a specific

remedy for a party injured by an improvidently granted preliminary

injunction.7 The instant matter does not involve an injunction governed by

rule or statute; indeed, Jacqueline cites no specific basis, statutory or

otherwise, that provides for the award of interest in a declaratory judgment

action.

        For the foregoing reasons, we conclude that the trial court did not err

in declining to award interest to Jacqueline. Further, Jacqueline’s remaining

appellate claims are moot.


____________________________________________


7
    Rule 1531(b) provides, in relevant part, as follows:

        (b) . . . [A] preliminary or special injunction shall be granted
        only if

           (1) the plaintiff files a bond in an amount fixed and with
           security   approved       by   the   court,  naming    the
           Commonwealth as obligee, conditioned that if the
           injunction is dissolved because improperly granted
           or for failure to hold a hearing, the plaintiff shall pay
           to any person injured all damages sustained by
           reason of granting the injunction and all legally
           taxable costs and fees[.]

Pa.R.C.P. 1531(b) (emphasis added).



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J-A23013-16



     Order affirmed.      Motion to dismiss denied.   Motion to release funds

denied.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/20/2017




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