J-S38033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RONALD G. McCLURE,                        :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                  Appellant               :
                                          :
            v.                            :
                                          :
GERALD BRANN, d/b/a BRANN,                :
WILLIAMS, CALDWELL & SHEETZ,              :
                                          :
                  Appellee                :          No. 2104 MDA 2014

            Appeal from the Order entered on October 29, 2014
             in the Court of Common Pleas of Bradford County,
                      Civil Division, No. 11 CV 000243

BEFORE: WECHT, STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED JUNE 30, 2015

      Ronald G. McClure (“McClure”) appeals from the Order entering

summary judgment against him and in favor of Gerald Brann, d/b/a Brann,

Williams, Caldwell & Sheetz (“Attorney Brann”), in this legal malpractice

action. We affirm.

      In its Opinion, the trial court provided the following concise summary

of the facts underlying the instant appeal:

            [McClure] entered into a gas lease with Fortuna Energy in
      2005; the lease involved an 80[-]acre parcel of land owned by
      [McClure], himself. At the time of the inception of the lease[,
      McClure] was married to Janet McClure [(“Janet”) (McClure and
      Janet collectively referred to as “the McClures”). McClure] later
      sold the leased parcel to John and Denise Feusner [collectively,
      “the Feusners”].       [Attorney Brann] represented both the
      Feusners and [McClure] in the matter of the sale of the property.
      The original agreement of sale[,] drawn up by [Attorney Brann,]
      indicated that [the McClures] reserved for themselves one-half of
      the oil, gas and mineral rights in the property and that, upon the
J-S38033-15


      death of the survivor of the [McClures], the oil, gas and mineral
      rights would pass to [the Feusners] or whoever owned the
      property at that time. As it turned out, the Feusners were
      unable to secure a loan for the purchase of the property and
      Robert and Ruth Garrison [collectively, “the Garrisons”] joined
      them in the purchase. The second agreement of sale reflected
      the addition of the Garrisons as Buyers and provided that, upon
      the death of the survivor of the Grantors (McClures), the one-
      half interest in the gas, oil, and mineral rights in the property
      would pass to Grantees (Feusners and Garrisons) or whoever
      owned the property at the time. [The McClures] were divorced
      in 2011. On 15 June 2011, a divorce hearing was conducted
      before a Bradford County, Pennsylvania, Hearing Master[,] … at
      which [McClure] asserted that he never intended that Janet []
      share in the retention of the gas, oil, and mineral rights, that the
      gas lease was his alone, and that he [had] signed documents to
      the contrary only because [Attorney Brann] told him that
      Pennsylvania law required him to do so. However, the hearing
      Master found the conveyance and grant of gas, oil[,] and mineral
      rights to Janet [] to have been intentional and knowing….

Trial Court Opinion, 10/20/14, at 2 (unnumbered).

      In July 2011, McClure filed the within legal malpractice action against

Attorney Brann.     McClure alleged that Attorney Brann incorrectly advised

him regarding a transfer of oil, gas and mineral rights to Janet.     Ultimately,

Attorney Brann filed an Amended Answer and New Matter, asserting the

affirmative defense of collateral estoppel. Attorney Brann filed a Motion for

Summary Judgment on June 16, 2014, which the trial court denied.

Attorney Brann filed a Motion for reconsideration of the trial court’s Order, or

for certification of the issue for immediate appeal. See 42 Pa.C.S.A. § 702

(pertaining   to   interlocutory   appeals   by   permission);   Pa.R.A.P.   1311

(requiring an application for an amendment of an interlocutory order to be

filed within 30 days). After a hearing on Attorney Brann’s Motion, the trial


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J-S38033-15


court entered an Order on October 29, 2014, which vacated its prior Order

and granted Attorney Brann’s Motion for Summary Judgment.            McClure

timely filed a Notice of Appeal, and a court-ordered Pa.R.A.P. 1925(b)

Concise Statement of Matters Complained of on Appeal.

      McClure now raises the following issue for our review:

      DID THE TRIAL COURT ERR IN GRANTING [ATTORNEY BRANN’S]
      MOTION FOR SUMMARY JUDGMENT BASED ON COLLATERAL
      ESTOPPEL?

Brief for Appellant at 1.

      McClure claims that the trial court erred as a matter of law in

concluding that his cause of action is barred by the doctrine of collateral

estoppel. Id. at 3. McClure argues that in his prior divorce proceeding, the

hearing master addressed whether Janet had a marital interest in the oil,

gas and mineral rights underlying the property.         Id. at 4.    In that

proceeding, the hearing master found that Janet did, in fact, have an

interest in the oil, gas and mineral rights. Id. By contrast, McClure argues,

the issue in the instant case “deals not with if [Janet,] in fact[,] has an

interest[,] but instead with how and why that interest was created.”     Id.

McClure contends that because the issues are not identical, collateral

estoppel does not bar his current action. Id.

      Pennsylvania law provides that

      summary judgment may be granted only in those cases in which
      the record clearly shows that no genuine issues of material fact
      exist and that the moving party is entitled to judgment as a
      matter of law. The moving party has the burden of proving that


                                 -3-
J-S38033-15


      no genuine issues of material fact exist. In determining whether
      to grant summary judgment, the trial court must view the record
      in the light most favorable to the non-moving party and must
      resolve all doubts as to the existence of a genuine issue of
      material fact against the moving party.           Thus, summary
      judgment is proper only when the uncontroverted allegations in
      the pleadings, depositions, answers to interrogatories,
      admissions of record, and submitted affidavits demonstrate that
      no genuine issue of material fact exists, and that the moving
      party is entitled to judgment as a matter of law. In sum, only
      when the facts are so clear that reasonable minds cannot differ,
      may a trial court properly enter summary judgment. … With
      regard to questions of law, an appellate court’s scope of review
      is plenary. The Superior Court will reverse a grant of summary
      judgment only if the trial court has committed an error of law or
      abused its discretion.      Judicial discretion requires action in
      conformity with law based on facts and circumstances before the
      trial court after hearing and consideration.

Cresswell v. Pennsylvania Nat’l Mut. Cas. Ins. Co., 820 A.2d 172, 177

(Pa. Super. 2003) (quotation and emphasis omitted).

      Here, the trial court concluded as a matter of law that McClure’s claim

is barred by the doctrine of collateral estoppel. Collateral estoppel applies if

four elements are present:

      (1) An issue decided in a prior action is identical to the one
      presented in a later action; (2) The prior action resulted in a final
      judgment on the merits; (3) The party against whom collateral
      estoppel is asserted was a party to the prior action, or is in
      privity with a party to the prior action; and (4) The party against
      whom collateral estoppel is asserted had a full and fair
      opportunity to litigate the issue in the prior action.

Columbia Med. Group, Inc. v. Herring & Roll, P.C., 829 A.2d 1184, 1190

(Pa. Super. 2003).

      In its Opinion, the trial court addressed McClure’s claim and concluded

that it lacks merit.   Trial Court Opinion, 10/20/14, at 4-6 (unnumbered).


                                   -4-
J-S38033-15


The trial court’s determination is supported by the record, and its legal

conclusion is sound.   Accordingly, we affirm on the basis of the trial court’s

reasoning, as stated in its Opinion, with regard to McClure’s claim. See id.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/30/2015




                                  -5-
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RONALD G. MCCLURE,                                        IN THE COURT OF COMMON PLEAS
                          PLAINTIFF                                         OF

                                                           BRADFORD COUNTY,
                          vs.                                                          PENNSYLVANIA



GERALD BRANN, d/b/a BRANN,                                           No. 11 CV 000243
WILLIAMS, CALDWELL, AND SHEETZ,

                              DEFENDANTS
.....................................................................................................................
.....................................................................................................................

                                          OPINION AND ORDER




Procedural History

    On 5 July 2011, Plaintiff filed a legal malpractice claim against Defendant alleging

that Plaintiff was incorrectly advised by Defendant in the matter of the transfer of certain

oil, gas, and mineral rights to Plaintiff's wife in an earlier sale of real property.

Defendant, on 17 April 2014, filed an amended answer to Plaintiff's complaint in which

he asserted the affirmative defense of collateral estoppel. A motion for summary

judgment was filed by Defendant on, or about, 18 April 2014, which motion was denied

by Order dated 16 June 2014. Defendant filed a motion for reconsideration of the Order

of 16 June 2014 or appellate certification of the issue addressed in that motion, on, or

about, 15 July 2014. Hearing upon the motion for reconsideration or appellate

certification was held on 11 September 2014.
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Overview

  Plaintiff entered into a gas lease with Fortuna Energy in 2005; the lease involved an

80 acre parcel of land owned by Plaintiff, himself. At the time of the inception of the

lease Plaintiff was married to Janet McClure. Plaintiff later sold the leased parcel to

John and Denise Feusner . Defendant represented both the Feusners and Plaintiff in

the matter of the sale of the property.   The original agreement of sale drawn up by

Defendant indicated that Sellers reserved for themselves one-half of the oil, gas, and

mineral rights in the property and that, upon the death of the survivor of the sellers, the

oil, gas, and mineral rights would pass to Buyers or whoever owned the property at that

time. As it turned out, the Feusners were unable to secure a loan for the purchase of the

property and Robert and Ruth Garrison joined them in the purchase. The second

agreement of sale reflected the addition of the Garrisons as Buyers and provided that,

upon the death of the survivor of the Grantors (McClures), the one-half interest in the

gas, oil, and mineral rights in the property would pass to Grantees (Feusners and

Garrisons) or whoever owned the property at the time. Plaintiff and Janet McClure were

divorced in 2011. On 15 June 2011, a divorce hearing was conducted before a

Bradford County, Pennsylvania, Hearing Master (09FC000497) at which Plaintiff

asserted that he never intended that Janet McClure share in the retention of the gas, oil,

and mineral rights, that the gas lease was his alone, and that he signed documents to

the contrary only because Defendant told him that Pennsylvania law required him to do

so. However, the Hearing Master found the conveyance and grant of gas, oil and

mineral rights to Janet McClure to have been intentional and knowing.      In the instant

matter, Plaintiff seeks remuneration for the oil, gas, and mineral rights transferred to

Janet McClure and, in support of his claim, advances the same argument adduced at
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the earlier divorce proceeding, viz., that he was improperly influenced by Defendant to

convey the rights to Janet McClure.


Discussion


   DEFENDANT argues that summary judgment should be granted, or appellate

certification should be ordered, in the instant case based upon the legal principle of

collateral estoppel, Defendant's argument is founded upon his belief that the instant

issue of whether the acts of Plaintiff in conveying certain gas, oil, and mineral rights to

Janet McClure were intentional, knowing, and voluntary had been decided at Plaintiff''s

divorce proceeding of 15 June 2011. Plaintiff, on the other hand, asserts that collateral

estoppel does not apply because the instant matter does not involve the same parties

as were involved in the divorce proceeding. Upon reconsideration of the record of the

instant case, the transcript of the divorce proceeding, the findings and

recommendations of the Hearing Master in the divorce proceeding, the ensuing court

order granting the divorce, and the arguments advanced by the Parties involved in the

instant matter, this Court agrees with Defendant that the principle of collateral estoppel

is applicable to this case and that, therefore, Defendant's motion for summary judgment

should be granted.


   "Collateral estoppel, or issue preclusion, is a doctrine that prevents relitigation of an

issue in a later action, despite the fact that it is based on a cause of action different from

the one previously litigated." Griffinv. Cent. SprinklerCorp., 2003 PA Super 160,

823 A.2d 191(citing Balentv. City of Wilkes-Barre, 542 Pa. 555, 669 A.2d 309 (Pa.

1995).
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   Under Pennsylvania law, in order to prevail upon a plea of collateral estoppel it must

be shown that: (1) the issue presented to the court is identical to one presented in an

earlier action; (2) the prior action resulted in a final judgment on the merits; (3) the party

against whom collateral estoppel is asserted was a party to the prior action, or in privity

with a party to the prior action; and, (4) the party against whom collateral estoppel is

asserted had a full and fair opportunity to litigate the issue in the prior action. See

Ewing v. Ewing, 2004 PA Super 46 (2004), 843 A.2d 1282 (Pa.Super. 2004)(citing

Shaffer v. Smith, 543 Pa. 526, 673 A.2d 872 (1996)(Note: Pennsylvania appellate

courts in more recent cases have required an additional showing that the determination

in the prior proceeding was essential to the judgment. See, e.g., Caltroppa v. Carlton,

2010 PA Super 85, 998 A.2d 643, 646 (Pa.Super. 2010); Chada v. Chada, 2000 PA

Super 186, 756 A.2d 39 (Pa.Super. 2000)).


   Here, the records of Plaintiff's divorce case and the instant case plainly show that the

only issue litigated at the divorce proceeding and asserted in the instant case is whether

Plaintiff knowingly and voluntarily conveyed certain gas, oil and mineral rights to Janet .

McClure. In fact, at the divorce hearing of 15 June 2011, Plaintiff sought to obtain

equitable distribution credit in the amount of the value of certain gas, oil, and mineral

rights which he had conveyed to his wife at the time of the sale of property addressed

above. Plaintiff's argument for relief at the hearing was based upon his assertion that

his attorney at the time of the sale, the instant Defendant, told him that he had to sign

the documents that conveyed to Janet McClure, his spouse at the time of hearing, a

share of the gas, oil, and mineral rights to the property being sold notwithstanding that

he claimed to be sole owner of the property. (N.T. at p.43, lines 11-13; p.49, lines 6-
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                                                                      i




10; p.51, lines 2-9). Plaintiff in his instant malpractice suit, again seeks to recover the

value of the same gas, oil, and mineral rights conveyed to Janet MCCLURE, and for

exactly the same reason advanced at the earlier divorce hearing, viz., as the result of

incorrect counsel provided by Defendant.


   Adequate documentation exists to show that Plaintiff was a Party to the earlier

divorce proceeding. (See, e.g., case record of 09FC000497 includinghearing

transcriptof 15 June 2011). The record of the instant case establishes that Plaintiff is

the object of the plea of collateral estoppel being asserted in the case.


   It is clear from the transcript of the divorce proceeding of 15 June 2011 that the

hearing was comprehensive in nature, that the Parties, including instant Plaintiff had a

full and fair opportunity to present evidence, question witnesses, and present argument

in support of their respective claims, and that the Hearing Master had the opportunity to

determine the credibility of the testimony offered. Instant Plaintiff was represented by

counsel at the hearing and Defendant in the instant case testified and was cross-

examined by his attorney upon the issue of Defendant's role, if any, in influencing

Plaintiff to sign the documents conveying gas, oil, and mineral rights to Janet

MCCLURE. Plaintiff and Janet MCCLURE also testified and were cross-examined at

the hearing upon the same issue. Additional evidence in the form of the sales

agreement and deed relating to the sale of the property involving the gas, oil, and

mineral rights alluded to above was adduced and considered by the Hearing Master.

Upon considering the testimony and documentary evidence presented, the Hearing

Master found, inter a/ia, that:
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 "[h]usband's [instant PLAINTIFF] argument against his intent to transfer property is not
credible given his actual testimony as against the other witnesses. The transfer and
grant to wife [Janet MCCLURE] of gas, oil, and mineral rights is considered an
intentional and knowing transfer given all testimony and circumstances. It is further
found that wife's marital interest in the gas, oil and mineral rights through her marital
ownership interest in the real estate is further confirmation of the written transfer intent."
(Discussionparagraph of Hearing Master's Recommendations).


   Significantly, in terms of the instant matter, the Hearing Master also noted that "[t]he

parties' stipulated settlement deals with all other equitable distribution issues .... "

(Discussion paragraph of Hearing Master's Recommendations). The Court has

read this statement to mean that the issue of the gas, oil, and mineral rights, the same

issue upon which the instant case is based, was the only one litigated at the divorce

hearing; in fact, the hearing transcript shows that issue of the gas, oil and mineral rights

was the only issue litigated at the divorce proceeding.


   There is no indication that exceptions to the recommendations of the Hearing Master

were filed or that a hearing de nova was requested.


   Following the divorce hearing, the Hearing Master forwarded his recommendations

to the Court. Court records show that, on 5 August 2011, an order of court was entered

to case 09FC000497, the divorce matter in connection with which the hearing of 15

June 2011 was based. In that order, Maureen T. Beirne, President Judge of the

Bradford County Court of Common Pleas, in accordance with the Hearing Master's

recommendation, decreed that "[o]il, gas, and mineral rights reserved on deed dated

July 21, 2009, Bradford County Register and Record instrument #251588 is distributed

half to each party as each party's division of marital property as each party's separate
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property." (BCCCP Order to #09FC000497 dtd 5 August2011 at b.). Thus, the

determination made at the hearing was essential to the resulting judgment.


   There is no record of an appeal having been taken from the Order of 5 August 2014,

and the Order became final in accordance with Pennsylvania law.


   "A judgment is deemed final for purposes of ... collateral estoppel unless or until it is

reversed on appeal." Green v. Green, 2001 PA Super 256, 783 A.2d 788

(2001)(citing Shaffer v. Smith, 543 Pa. 526, 673 A.2d 872 (Pa. 1996).


   In light of the foregoing, the Court is convinced that all prongs of the collateral

estoppel applicability test, including prong number five, are met and that the principle of

collateral estoppel is properly invoked and applied in the instant case.


   Accordingly, the following Order is entered:
