J-S09040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    MARY TOULOUMES, EXECUTRIX OF                :   IN THE SUPERIOR COURT OF
    THE ESTATE OF HARRY TOULOUMES               :        PENNSYLVANIA
                                                :
                      Appellant                 :
                                                :
               v.                               :
                                                :
    WOODS & WILDLIFE FORESTRY                   :
    CONSULTANT, LLC                             :
                                                :
                      Appellee                  :          No. 271 MDA 2017

                Appeal from the Order Entered January 13, 2017
              In the Court of Common Pleas of Cumberland County
                      Civil Division at No(s): 2012-05709


BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY GANTMAN, P.J.:                                FILED MARCH 28, 2018

        Appellant,   Mary    Touloumes,        executrix   of   the   estate   of   Harry

Touloumes (“Decedent”), appeals from the order entered in the Cumberland

County Court of Common Pleas, which denied her motion to amend the

complaint. We quash the appeal.

        The relevant facts and procedural history of this case are as follows.

Appellant initiated this action against Appellee, Woods & Wildlife Forestry

Consultant, LLC, by writ of summons on September 14, 2012.1 The parties

engaged in pre-complaint discovery, and on August 3, 2015, Appellant filed


____________________________________________


1 Appellant also sued Peachey’s Wood Products, LLC (“Peachey’s”).
Peachey’s settled with Appellant and is not a party to this appeal.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S09040-18


a complaint.      In her complaint, Appellant alleged, inter alia, Appellee’s

owner, Jeffrey Eason, contacted Decedent in 2007 to secure a contract to

timber on Decedent’s farms.            On April 17, 2007, Mr. Eason presented

Decedent with a Consulting Agreement.2 Under the Consulting Agreement,

Decedent and “Woods & Wildlife Forestry” agreed Mr. Eason would solicit

bids to companies interested in timbering on Decedent’s farms. Mr. Eason

would execute the process of bidding by providing stumpage information and

tours of the sale area to prospective buyers, and oversee and control the

selected    harvesting    company       according   to   a   separate   Timber   Sales

Agreement.       Decedent would pay a fifteen percent (15%) fee for the

consulting service.

       Following Mr. Eason’s consulting efforts, Peachey’s won the bid to

timber on one of Decedent’s farms.             On September 28, 2008, Mr. Eason

presented Decedent with a Timber Sales Agreement for Decedent and

Peachey’s to execute.3 Under the Timber Sales Agreement, Peachey’s would

pay $43,885.00 for the timber, with all checks made payable to “Woods &

Wildlife Forestry.” According to Appellant’s complaint, Peachey’s paid only a

total of $25,971.25 to Woods & Wildlife Forestry; and Woods & Wildlife

____________________________________________


2 The letterhead to the Consulting Agreement is titled: “WOODS &
WILDLIFE.”

3The letterhead to the Timber Sales Agreement is titled: “Woods & Wildlife
Forestry.”



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Forestry paid Decedent only $10,000.00.         Appellant sought judgment

against Appellee for money owed under the contract.

     Appellee filed an answer and new matter on September 1, 2015.

Appellee claimed it was not a party to the relevant contracts because the

company named in the complaint did not come into existence until January

1, 2012. Appellee maintained Appellant had sued the wrong party and the

statute of limitations had expired to add another defendant. Appellee filed a

motion for judgment on the pleadings on November 4, 2015, based on the

same claim. The court did not rule on Appellee’s motion for judgment on the

pleadings.

     On December 9, 2016, Appellant filed a motion to amend the

complaint to substitute Jeffrey Eason t/d/b/a Woods & Wildlife Forestry

Consultant as the proper defendant in this case instead of Appellee.

Appellant claimed Mr. Eason was personally involved in the relevant

transactions in this matter and admitted liability during depositions.

Appellee responded to Appellant’s motion on January 5, 2017, insisting that

at the time of the relevant contracts, Mr. Eason was operating as a sole

proprietorship. Appellee claimed Appellant should have known the LLC was

not in existence at the time of the contracts because the relevant documents

did not contain the “LLC” designation.

     On January 13, 2017, the court denied Appellant’s motion to amend

the complaint. Appellant filed a motion for reconsideration on January 30,


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2017, and a notice of appeal on February 7, 2017. On February 9, 2017, the

court denied Appellant’s motion for reconsideration. The court did not order

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and Appellant filed none.

      On February 28, 2017, this Court issued a rule to show cause why the

appeal should not be quashed as interlocutory.       Appellant responded on

March 10, 2017, claiming the appeal was proper under Pa.R.A.P. 313

(governing collateral orders) because: (1) the order on appeal involves the

denial of a motion to amend the designation of Appellee’s name from a

company to an individual, whereas the underlying claim involves breach of

contract claims; (2) if the appeal does not proceed, Appellant will be forced

to prepare for a trial and litigate a claim she will ultimately lose due to the

inaccurate designation of the defendant in this matter; additionally, any

damages due to Appellant would be delayed by the time and expense of trial

and the appeal process; and (3) the consequence of the court’s order

effectively puts Appellant “out of court”; Appellant admits she can continue

the litigation but insists she will unquestionably lose because Appellee was

not in existence as a company at the time of execution of the contracts. On

March 17, 2017, this Court discharged the rule to show cause and deferred

the issue to the merits panel.

      Appellant raises the following issue for our review:

         DID THE TRIAL COURT COMMIT AN ERROR OF LAW OR
         ABUSE ITS DISCRETION BY DENYING [APPELLANT’S]

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         MOTION TO AMEND COMPLAINT FOR DESIGNATION OF
         DEFENDANT’S NAME PURSUANT TO PA.R.C.P. § 1033?

(Appellant’s Brief at 4).

      As a preliminary matter, “the appealability of an order directly

implicates the jurisdiction of the court asked to review the order.” Estate of

Considine v. Wachovia Bank, 966 A.2d 1148, 1151 (Pa.Super. 2009).

Pennsylvania law makes clear:

         [A]n appeal may be taken from: (1) a final order or an
         order certified as a final order (Pa.R.A.P. 341); (2) an
         interlocutory order as of right (Pa.R.A.P. 311); (3) an
         interlocutory order by permission (Pa.R.A.P. 312, 1311, 42
         Pa.C.S.A. § 702(b)); or (4) a collateral order (Pa.R.A.P.
         313).

Stahl v. Redcay, 897 A.2d 478, 485 (Pa.Super. 2006), appeal denied, 591

Pa. 704, 918 A.2d 747 (2007). A final order is one that disposes of all the

parties and all the claims; or is entered as a final order pursuant to the trial

court’s determination under Rule 341(c).         See Pa.R.A.P. 341(b)(1), (3).

Generally, an order denying or granting a party’s request to amend the

pleadings is interlocutory and not immediately appealable.          Ferraro v.

McCarthy-Pascuzzo,          777   A.2d   1128,   1131   n.2   (Pa.Super.   2001)

(explaining appellants could not immediately appeal denial of motion to

amend complaint to substitute different party as defendant because order

denying motion to amend complaint was interlocutory; appellants properly

challenged order denying motion to amend complaint in appeal from final

order granting summary judgment in favor of appellee).


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      A collateral order is defined in Rule 313 as follows:

         Rule 313. Collateral Orders

                                  *    *    *

            (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(b). Our Supreme Court has explained:

         [T]he collateral order doctrine is a specialized practical
         application of the general rule that only final orders are
         appealable as of right. Thus, Rule 313 must be interpreted
         narrowly, and the requirements for an appealable collateral
         order remain stringent in order to prevent undue corrosion
         of the final order rule.

Melvin v. Doe, 575 Pa. 264, 272, 836 A.2d 42, 46-47 (2003).            “To that

end, each prong of the collateral order doctrine must be clearly present

before an order may be considered collateral.” Id. at 272, 836 A.2d at 47.

      “With regard to the first prong of the collateral order doctrine, an order

is separable from the main cause of action if it is entirely distinct from the

underlying issue in the case and if it can be resolved without an analysis of

the merits of the underlying dispute.” K.C. v. L.A., 633 Pa. 722, 729, 128

A.3d 774, 778 (2015) (internal citation and quotation marks omitted). “The

first part of the collateral order test is not satisfied when the trial court

denies a [motion] to amend a complaint, as the complaint is the precise

vehicle to state a cause of action and related theories of recovery.” Pace v.


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Thomas Jefferson University Hosp., 717 A.2d 539, 541 (Pa.Super. 1998)

(holding order denying leave to amend complaint did not qualify as collateral

order under Rule 313; rather, Rule 312, governing interlocutory appeals by

permission, provides only means by which order denying leave to amend

complaint may be appealed prior to entry of final order).

       Instantly, the order denying Appellant’s motion to amend            the

complaint is not a “final” order under Rule 341 because it does not dispose

of the underlying breach of contract claims.        See Pa.R.A.P. 341(b)(1);

Ferraro, supra. The court has yet to rule on Appellee’s outstanding motion

for judgment on the pleadings. If the court grants Appellee’s motion, that

order will be a final order and Appellant can timely appeal to challenge the

court’s denial of her motion to amend the complaint. See id. Further, the

order denying Appellant’s motion to amend the complaint is not entirely

distinct from the main cause of action because the complaint is the vehicle in

which Appellant asserts her cause of action against the defendant.         See

Pace, supra.       Additionally, Appellant will not necessarily have to proceed

through a trial before having an opportunity to appeal. Thus, the order on

appeal fails the collateral order doctrine.4     See Pa.R.A.P. 313(b); K.C.,

____________________________________________


4 Appellant makes no argument that the order appealed from was expressly
entered as final by the trial court. See Pa.R.A.P. 341(b)(3), (c). Likewise,
Appellant does not qualify the order on appeal as interlocutory as of right
(see Pa.R.A.P. 311) and did not seek to appeal by permission (see Pa.R.A.P.
312, 1311, 42 Pa.C.S.A. § 702(b)).



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supra; Pace, supra. Accordingly, we decline to address Appellant’s claim

on the merits at this time and quash the appeal.

     Appeal quashed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/28/2018




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