J-S51017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EDWIN CHIN,                                      IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

STEPHEN CHIN,

                            Appellant                 No. 780 EDA 2017


                Appeal from the Judgment Entered May 16, 2013
              In the Court of Common Pleas of Philadelphia County
               Civil Division at No(s): 2455 September Term, 2012


V.O. REALTY CORP.,                               IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

STEPHEN CHIN,

                            Appellant                 No. 795 EDA 2017


                Appeal from the Judgment Entered July 16, 2014
              In the Court of Common Pleas of Philadelphia County
               Civil Division at No(s): 2325 December Term, 2012


BEFORE: BOWES and SHOGAN, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                       FILED SEPTEMBER 27, 2017




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S51017-17


       Stephen Chin (“Appellant”) appeals from the orders granting partial

summary judgments in favor of Appellant’s brother Edwin Chin (“Edwin”)

and V.O. Realty Corporation (“V.O. Realty”). We affirm.

       This appeal arises out of two consolidated cases (the “underlying

actions”).1   In the first case, Edwin filed a complaint against Appellant at

2455 September Term, 2012, for damages to an apartment Edwin owned,

which Appellant used for storage. Appellant filed counterclaims for equitable

relief and damages with regard to two properties that were the subject of an

orphans’ court matter involving the brothers and docketed at O.C. No. 1766

DE of 2006 (“orphans’ court proceeding”).        The trial court entered partial

summary judgment in favor of Edwin on Appellant’s counterclaims, ruling

they were barred by the doctrine of res judicata.       Order, 5/16/13.     As a

result of the ruling, Appellant’s counterclaims did not proceed to trial.

       In the second case, Edwin’s solely owned company, V.O. Realty, filed a

complaint against Appellant at 2325 December Term, 2012, seeking eviction

of Appellant and his wife from its apartment and damages for unjust

enrichment or lost rental income. In response, Appellant filed an affirmative

defense, claiming an ownership interest in V.O. Realty. However, Appellant

claimed no such interest in the orphans’ court proceeding, and the orphans’

court held that Edwin solely owned V.O. Realty. Accordingly, in the second
____________________________________________


1
   The Honorable Gary Glazer consolidated the two actions on May 16, 2013.
Trial Court Opinion, 11/17/16, at 1.



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case, the trial court entered partial summary judgment in favor of V.O.

Realty, ruling that Appellant’s defense was barred by the doctrine of res

judicata. Order, 7/19/14. As a result of the ruling, Appellant could not use

his defense at trial.

      Following a nonjury trial of the underlying actions on April 16, 2016,

the trial court filed decisions on June 23, 2016, finding in favor of Appellant

in Edwin’s action and in favor of V.O. Realty in its action, but only on V.O.

Realty’s claim for ejectment. Edwin and V.O. Realty appealed. Appellant did

not file post-trial motions or appeal the June 23, 2016 decisions, having

substantially prevailed at trial. Rather, in a single notice of appeal docketed

at 2322 EDA 2016 on July 21, 2016, Appellant attempted to appeal the May

16, 2013, and July 16, 2014 interlocutory orders, granting partial summary

judgment in favor of Edwin at 2455 September Term, 2012, and in favor of

V.O. Realty at 2325 December Term, 2012, respectively (“the Orders”).

Appellant’s appeal at 2322 EDA 2016 was consolidated with appeals of the

June 23, 2016 decisions filed by Edwin and V.O. Realty at 2323 EDA 2016

and 2324 EDA 2016, respectively.        This Court dismissed the consolidated

appeals sua sponte for “failure to preserve issues for review.”       Superior

Court Order, 12/20/16.

      Appellant filed praecipes for entry of judgment in the underlying

actions on February 1, 2017, and judgments were entered therein on

February 2, 2017.       Appellant then filed new notices of appeal, challenging


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the Orders.      Notices of Appeal, 2/13/17.       Upon receiving the notices of

appeal, the trial court opined that the Orders should be affirmed. See Trial

Court Opinions, 3/17/17.

       This Court directed Appellant to show cause why his appeals “should

not be dismissed for failure to preserve any issues for appellate review.”

Superior Court Order, 3/17/17.            Appellant responded that (1) “he seeks

review of two prior interlocutory orders . . . which were completely unrelated

to the conduct of the trial” and (2) because he “was the verdict winner at

trial, and does not allege any error at trial, he was not required to file a

post-trial motion.”       Response to Order to Show Cause, 3/23/17, at 3.

Appellant further asserts that “it would have been inappropriate and

unwarranted to ask the trial judge . . . to review” the orders of another

judge entered before the matters were transferred out of the Commerce

Court program.2 Id. at 3.

       Because the issue of appealability affects our jurisdiction, we may

raise it sua sponte. Morgan Trailer Mfg., Co. v. Hydraroll, Ltd., 804 A.2d

26, 29–30 (Pa. Super. 2002). This case involves the interplay between the


____________________________________________


2
     “The Philadelphia Commerce Court Case Management Program
(“Commerce Court”) is a specialized civil program of the Trial Division of the
Philadelphia Court of Common Pleas. Commercial and business-to-business
disputes filed after January 2000, that are not subject to the court’s
Compulsory Arbitration Program, are assigned to the Commerce Court.”
http://www.courts.phila.gov/common-pleas/trial/civil/units/commerce-program.asp



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preservation of issues related to pre-trial rulings and Pa.R.C.P. 227.1(c),

which governs post-trial motions. Pa.R.C.P. 227.1(c) provides as follows:

         (c) Post-trial motions shall be filed within ten days after

            (1) verdict, discharge of the jury because of inability
            to agree, or nonsuit in the case of a jury trial; or

            (2) notice of nonsuit or the filing of the decision
            or adjudication in the case of a trial without
            jury or equity trial.

         If a party has filed a timely post-trial motion, any other
         party may file a post-trial motion within ten days after the
         filing of the first post-trial motion.

Id. at (c)(1) and (2) (emphases added).

      The Pennsylvania Supreme Court has stated that the filing of
      post-trial motions is mandatory if a litigant wishes to preserve
      issues for appellate review. See L.B. Foster Co. v. Lane
      Enterprises, Inc., 551 Pa. 307, 710 A.2d 55 (1998)
      (“Pa.R.Civ.P. 227.1 requires parties to file post-trial motions in
      order to preserve issues for appeal. If an issue has not been
      raised in a post-trial motion, it is waived for appeal purposes.
      See Benson v. Penn Central Transportation Company, 463
      Pa. 37, 342 A.2d 393 (1975) and Commonwealth v. Metz, 534
      Pa. 341, 633 A.2d 125 (1993)”); Lane Enterprises, Inc. v.
      L.B. Foster Co., 551 Pa. 306, 710 A.2d 54 (1998) (same).

Diamond Reo Truck Co. v. Mid-Pac. Indus., Inc., 806 A.2d 423, 428 (Pa.

Super. 2002). The plain language of Rule 227.1(c)(2) mandates the filing of

post-trial motions within ten days of the filing of a decision in a bench trial in

order to preserve issues for appellate review.

      Notwithstanding    Rule   227.1,   in   reviewing   an   order   sustaining

preliminary objections filed in an equity action thirty years ago, the

Pennsylvania Supreme Court interpreted the exceptions requirements of

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Pa.R.C.P. 1518—predecessor of Rule 227.1—as “intended to become

operative after trial and by no stretch of the imagination [was it] to be

applied to pre-trial orders.”      U.S. National Bank in Johnstown v.

Johnson, 487 A.2d 809, 812 (Pa. 1985) (emphasis in original). Pursuant to

U.S. National Bank, neither a pre-trial order striking a lis pendens nor a

pre-trial order sustaining preliminary objections is an adjudication “triggering

the Pa.R.C.P. 1518 exceptions requirements.” Id. at 812–813.

      Most recently, this Court applied U.S. National Bank in the context of

a pretrial order entering partial summary judgment in favor of an automobile

accident defendant.    Citing U.S. National Bank, we stated in Vetter v.

Miller, 157 A.3d 943 (Pa. Super. 2017), “A motion for post-trial relief may

not be filed to orders disposing of motions for summary judgment.” Id. at

948. Additionally, we have held, “[I]t is unnecessary to include a prior order

granting summary judgment in post-trial motions for purposes of issue

preservation.” B.K. et rel. S.K. v. Chambersburg Hosp., 834 A.2d 1178

(Pa. Super. 2003) (quoting K.H. v. J.R., 826 A.2d 863 (Pa. 2003)); Feeney

v. Disston Manor Personal Care Home, 849 A.2d 590 (Pa. Super. 2004)

(relying on B.K.). The note to current Rule 227.1 echoes the case law:

      A motion for post-trial relief may be filed following a trial by jury
      or a trial by a judge without a jury pursuant to Rule 1038. A
      motion for post-trial relief may not be filed to orders disposing of
      preliminary objections, motions for judgment on the pleadings or
      for summary judgment, motions relating to discovery or other
      proceedings which do not constitute a trial.

Pa.R.C.P. No. 227.1, Note (citing U.S. National Bank).

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J-S51017-17


       In the case at hand, Appellant has appealed two pretrial orders

granting partial summary judgment to Edwin and V.O. Realty. We reiterate,

“The   lower     court’s   decision    to      grant   partial   summary   judgment   is

independently appealable upon entry of final judgment.” Vetter, 157 A.3d

at 948 (citing Betz v. Pneumo Abex, 44 A.3d 27, 54 (Pa. 2012) (“[A]n

appeal of a final order subsumes challenges to previous interlocutory

decisions.”)).    Final judgments were entered in the underlying actions on

February 2, 2016; thus, we have jurisdiction to entertain Appellant’s

appeals.    See Johnston the Florist, Inc. v. TEDCO Const. Corp., 657

A.2d 511, 514 (Pa. Super. 1995) (en banc) (explaining entry of final

judgment is required to invoke our jurisdiction).

       Appellant raises the following questions for our consideration:

       1.     Whether the Trial Court erred in its May 16, 2013 order
              granting summary judgment against [A]ppellant on his
              counterclaim in Chin v. Chin.

       2.     Whether the Trial Court erred in its July 16, 2014 order
              granting partial summary judgment as to as to [sic]
              defendant’s New Matter in VO Realty v. Chin.

Appellant’s Brief at 4.3

____________________________________________


3
  Appellant’s brief does not conform to Pa.R.A.P. 2119 insofar as he failed to
divide the argument into sections that correspond with the two issues he
raised in his statement of questions involved.       Although this Court is
authorized to quash a nonconforming brief, Appellant’s procedural misstep
does not substantially impede our ability to perform appellate review;
therefore, we shall address the merits of the arguments that have been
preserved for review. Pa.R.A.P. 2101.



                                            -7-
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     Appellant challenges the pretrial entry of partial summary judgment in

favor of Edwin and V.O. Realty. In reviewing matters of summary judgment,

we are governed by the following well-established principles:

            Our scope of review of an order granting summary
     judgment is plenary. We apply the same standard as the trial
     court, reviewing all the evidence of record to determine whether
     there exists a genuine issue of material fact. We view the record
     in the light most favorable to the non-moving party, and all
     doubts as to the existence of a genuine issue of material fact
     must be resolved against the moving party. Chenot v. A.P.
     Green Services, Inc., 895 A.2d 55, 60–61 (Pa. Super. 2006)
     (citation omitted).

            Motions for summary judgment implicate the plaintiff’s
     proof of the elements of his cause of action. Chenot, 895 A.2d
     at 61 (citation omitted). Summary judgment is proper “if, after
     the completion of discovery relevant to the motion, including the
     production of expert reports, an adverse party who will bear the
     burden of proof at trial has failed to produce evidence of facts
     essential to the cause of action or defense which in a jury trial
     would require the issues to be submitted to a jury.” Pa.R.C.P.
     1035.2(2). In other words, “whenever there is no genuine issue
     of any material fact as to a necessary element of the cause of
     action or defense which could be established by additional
     discovery or expert report,” Pa.R.C.P. 1035.2(1), and the
     moving party is entitled to judgment as a matter of law,
     summary judgment is appropriate. Thus, a record that supports
     summary judgment either (1) shows the material facts are
     undisputed or (2) contains insufficient evidence of facts to make
     out a prima facie cause of action or defense. Chenot, 895 A.2d
     at 61.

           When reviewing a grant of summary judgment, we are not
     bound by the trial court’s conclusions of law, but may reach our
     own conclusions. Id. We will disturb the trial court’s order only
     upon an error of law or an abuse of discretion.           “Judicial
     discretion requires action in conformity with law on facts and
     circumstances before the trial court after hearing and
     consideration.” Chenot, 895 A.2d at 61 (citation omitted).
     Consequently, the court abuses its discretion if, in resolving the
     issue for decision, it misapplies the law, exercises its discretion

                                    -8-
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     in a manner lacking reason, or does not follow legal procedure.
     Id. (citation omitted).

            Where the discretion exercised by the trial court is
     challenged on appeal, the party bringing the challenge bears a
     heavy burden. It is not sufficient to persuade the appellate court
     that it might have reached a different conclusion if charged with
     the duty imposed on the court below; it is necessary to go
     further and show an abuse of the discretionary power. Chenot,
     895 A.2d at 61 (citation omitted). An abuse of discretion is not
     merely an error of judgment, but if in reaching a conclusion the
     law is overridden or misapplied or the judgment exercised is
     manifestly unreasonable or the result of partiality, prejudice,
     bias or ill-will, as shown by the evidence or the record, discretion
     is abused. Id. at 61–62 (citation omitted).

Continental Casualty Company v. Pro Machine, 916 A.2d 1111, 1115–

1116 (Pa. Super. 2007).

     Appellant first argues the trial court erred in entering partial summary

judgment on his counterclaims in Edwin’s favor because “the Orphans’ Court

did not adjudicate those claims and, in fact, they were not even presented to

the Orphans’ Court for determination.”    Appellant’s Brief at 13.   Appellant

explains that, in the orphans’ court action, he requested that Edwin be

directed to file a supplemental accounting based on Edwin’s withholding of

assets belonging to their mother’s estate; Appellant did not “ask the

Orphans’ Court to award him income from the properties he believed Edwin

to have wrongfully converted,” which request was the basis for Appellant’s

counterclaims.   Id. at 16.   Appellant contends that no final judgment was

entered on any of the issues raised in his counterclaims because they arose

only after the Orphans’ Court ruled that “Edwin had obtained possession of


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the 937 Race Street Property and 126 Tenth Street Property through a

forged Power of Attorney.” Id. at 18.

      In response, Edwin asserts:

      [F]rom the very beginning of the Orphans’ Court Action,
      [Appellant] sought affirmative relief from the Orphans’ Court in
      the form of both a transfer of the properties in question, as well
      as a disgorgement of the income related to those properties. It
      was only when the Orphans’ Court refused to provide the latter
      relief that [Appellant] concocted his current argument.

Edwin’s Brief at 33.

      The trial court dismissed Appellant’s counterclaims after concluding

they were barred by the doctrine of res judicata:

             Plaintiff, Edwin Chin, commenced the current action
      alleging breach of contract, conversion, negligence and unjust
      enrichment. Subsequently, [Appellant] filed counterclaims for an
      accounting (Count I), conversion (Count II), fraud and
      misrepresentation (Count III), enforcement and decree and
      constructive trust (Count IV), unjust enrichment (Count V) and
      tortious interference (Count VI). [Edwin] now brings the instant
      motion for summary judgment asserting that the doctrine of res
      judicata bars [Appellant’s] counterclaims for Counts I-V.
      Alternatively, [Appellant] argues that the current claims are
      distinguished from the prior causes of action in the Orphans’
      Court proceeding because the relief requested is different.
      However, the court finds this argument meritless.

            [Edwin] and [Appellant] are brothers. Prior to initiating
      the current action, the parties engaged in litigation over the
      administration of their deceased mother’s estate which included
      the possession of and title to a number of family properties and
      businesses. The matter proceeded to trial before the Honorable
      Joseph D. O’Keefe, on May 14, 2009. [Appellant] alleges that in
      the Orphans’ Court proceeding he sought possession of the
      disputed properties and in the current proceeding he seeks
      income allegedly owed to him from the properties prior to the
      transfer of possession.


                                    - 10 -
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            In the Orphans’ Court proceeding, [Appellant] filed
     objections and amended objections which disputed [Edwin’s]
     first and final account of the estate and alleged that [Edwin] did
     not include income from the disputed properties. See [Edwin’s]
     motion for summary judgment, Exhibit C. [Appellant] further
     argues that although the income from the disputed properties
     was mentioned in the objections and amended objections, it was
     not argued in court and therefore not adjudicated.           Judge
     O’Keefe noted in his opinion that “all objections having been
     addressed and adjudicated . . .” awarded [Appellant] ownership
     of the properties located at 937 & 939 Race Street, Philadelphia,
     Pennsylvania. Id. at Exhibit E. Judge O’Keefe did not award
     [Appellant] past income from the disputed properties. Id. This
     court finds, pursuant to Judge O’Keefe’s opinion, in which all
     objections were addressed and adjudicated, that the current
     claims of [Appellant] are barred by the doctrine of res judicata.
     Further, [Appellant] stipulates to dismissing Count VI for tortious
     interference. See defendant’s response to plaintiff’s motion for
     summary judgment, p. 1.          Therefore, [Edwin’s] motion for
     summary judgment is granted and [Appellant’s] counterclaims
     are dismissed.

Trial Court Order, 5/16/13, at unnumbered page 1–2 n.1.

     We have explained the doctrine of res judicata as follows:

            Under the doctrine of res judicata, or claim preclusion, a
     final judgment on the merits by a court of competent jurisdiction
     will bar any future action on the same cause of action between
     the parties and their privies. The doctrine therefore forbids
     further litigation on all matters which might have been raised
     and decided in the former suit, as well as those which were
     actually raised therein. Similarly, [t]he doctrine of collateral
     estoppel or issue preclusion prevents a question of law or an
     issue of fact that has once been litigated and fully adjudicated in
     a court of competent jurisdiction from being relitigated in a
     subsequent suit.

Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 286 (Pa.

Super. 2016) (internal citations and quotation marks omitted). Application

of the doctrine of res judicata as an absolute bar to a subsequent action


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requires that the two actions possess the following common elements: “(1)

identity of the thing sued upon; (2) identity of the cause of action; (3)

identity of the parties; (4) identity of the capacity of the parties.”

Stoeckinger v. Presidential Financial Corp. of Delaware Valley, 948

A.2d 828, 832 (Pa. Super. 2008).      The doctrine is designed to conserve

limited judicial resources, establish certainty in judgments, and protect the

party relying upon the judgment from vexatious litigation.          Yamulla

Trucking & Excavating Co., Inc. v. Justofin, 771 A.2d 782, 784 (Pa.

Super. 2001).

      In the orphans’ court proceeding, Edwin, as executor, and Appellant,

as objector, litigated the real and personal property assets of their mother’s

estate to final judgment. Estate of Chin, 38 A.3d 916, 1717 EDA 2010 (Pa.

Super. filed November 10, 2011) (unpublished memorandum), appeal

denied, 50 A.3d 124 (Pa. filed August 13, 2012).        Consequently, Edwin

retained title to several real properties and to a share of several business

interests, and Appellant received title to two real properties and to a share

of several business interests.      Contrary to Edwin’s characterizations,

however, our review of the record indicates that Appellant sought an

accounting—not distribution—of Edwin’s “receipts of income from the

business interest and properties.”       Amended Objections, 4/9/13, at

misnumbered ¶ 10(6). Subsequently, Appellant sought:

      recovery of monies due to him as a result of Edwin’s fraudulent
      conduct and conversion of real property, which fraudulent

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      conduct was adjudicated in the Orphans’ Court Action, for which
      [Judge] O’Keefe . . . ordered that Edwin convey real property
      and shares to [Appellant], but for which [Judge] O’Keefe . . . did
      not adjudicate [Appellant’s] rights to personal property related
      to Edwin’s fraudulent conduct.

Response in Opposition to Plaintiff’s Motion for Summary Judgment,

5/10/13, at ¶ 21. Thus, we agree with Appellant that his counterclaims were

not expressly raised in the orphans’ court proceeding or addressed by the

orphans’ court.

      The flaw in Appellant’s reasoning, however, is that he could have

raised his counterclaims in the orphans’ court proceeding.         Appellant’s

counterclaims and the orphans’ court proceeding share sufficient identity of

(1) the thing sued upon; (2) the cause of action; (3) the parties; and (4) the

capacity of the parties.   Stoeckinger, 948 A.2d at 832.     In the orphans’

court proceeding and the counterclaims, Appellant averred that Edwin acted

fraudulently with regard to their mother’s estate and requested an

accounting.   Appellant could have raised his counterclaims in the orphans’

court proceeding and requested the disbursement of ill-gotten gains, in the

event the orphans’ court determined that Edwin had acted fraudulently.

Rather, more than three years after the orphans’ court determined that

Edwin had, in fact, acted fraudulently, Appellant hitched his counterclaims to




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Edwin’s    unrelated     action     for   damages.4         Consequently,      Appellant’s

counterclaims are barred by the doctrine of res judicata. Accord Mariner

Chestnut       Partners,      152     A.3d     at     286   (“The   doctrine     [of   res

judicata] . . . forbids further litigation on all matters which might have

been raised and decided in the former suit, as well as those which were

actually raised therein.”) (emphasis supplied).

       Appellant’s second complaint is that the trial court erred in granting

partial summary judgment in favor of V.O. Realty based on res judicata

because “the Orphans’ Court never addressed whether [Appellant] had an

ownership interest in V.O. Realty separate and apart from his mother’s

interest[.]”    Appellant’s Brief at 25.            According to Appellant, the “basic

elements for application of res judicata were not met here.” Id. at 26 n.6.

Appellant contends:

       Here, there was no identity of things sued upon or for because
       the Orphans’ Court matter related to whether Edwin had fulfilled
       his responsibilities as Executor and transferred estate assets to
       [Appellant]. . . . Here, in the VO Realty action, the issues were
       whether [Appellant] had an independent basis for ownership in
       VO Realty Company.

Id. Appellant further argues that his name is listed on court pleadings and

the satisfaction of mortgage papers as a co-owner of V.O. Realty and that he

“paid for construction and improvements to the property as a co-owner.”
____________________________________________


4
   Appellant’s counterclaims are arguably time-barred, as well. See 42
Pa.C.S. § 5524 (actions for torts must be brought within two years of when
an injury is inflicted and the right to institute a suit arises).



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Id. at 26.    Thus, Appellant concludes, Edwin knew Appellant had an

ownership interest in V.O. Realty. Id. at 27.

      Edwin retorts that Appellant “took the position with the Orphans’ Court

that if it did not award him his mother’s shares pursuant to her Will,

[Appellant] would have no ownership interest in those Corporations

[including V.O Realty].”     Edwin’s Brief at 37.     Citing Appellant’s own

representations that he had no ownership interest in V.O. Realty, Edwin

continues:

      [Appellant] either knew that he had some independent
      ownership interest in V.O. Realty, yet he deliberately lied to the
      Orphans’ Court about that interest . . . [o]r, [Appellant] knew he
      had no independent ownership interest in V.O. Realty. . . . As a
      result of those representations, the trial court concluded that the
      Orphans’ Court did, in fact, fully resolve the issue of the
      ownership interest in V.O. Realty, on all fronts.

Id. at 38.

      The trial court disposed of Appellant’s second issue as follows:

            [Appellant] is claiming an ownership interest in V.O. Realty
      separate and apart from his mother’s estate. As previously
      noted, the parties in this matter engaged in extensive litigation
      over the administration of their deceased mother’s estate before
      the Honorable Joseph D. O’Keefe. Among the issues before
      Judge O’Keefe was [Appellant’s] claim that [Edwin] had
      improperly failed to include the mother’s shares in V.O. Realty in
      the estate because the shares had been improperly transferred
      to [Edwin] prior to their mother’s death. In the Orphans’ Court
      action, [Appellant] conceded that the only ownership [interest]
      he claimed would have been through his mother’s will.

            [Appellant’s] claim is barred by the doctrine of res
      judicata. The doctrine applies to all claims “that were raised or
      could have been raised in the previous adjudication.” Stilp v.
      Commonwealth of PA, 910 A.2d 775, 783 (Pa. Comm. Ct. 2006).

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      [Appellant] asserts that his ownership is evidenced by various
      documents which were not utilized in the Orphans’ Court
      proceeding.     This court agrees with [V.O. Realty] that
      [Appellant] could have and should have presented these
      documents in the Orphans’ Court proceeding when he challenged
      [Edwin’s] ownership interest in V.O. Realty, particularly since
      [Appellant] was claiming that his only interest in V.O. Realty
      would have been through his mother’s will. [Appellant] had
      ample opportunity to present his claims before Judge O’Keefe
      but chose not to do so. As a result, he is precluded from doing
      so in the instant litigation. See Daniels v. State Farm Mutual
      Ins. Co., 305 Pa. Super. 352, 356 (1982). Therefore, [V.O.
      Realty’s] motion for summary judgment is granted and
      paragraph 37 of [Appellant’s] new matter is dismissed.

Trial Court Order, 7/16/14, at unnumbered page 2 n.1.

      We reiterate that the doctrine of res judicata requires identity of the

thing sued upon, the cause of action, the parties, and the capacity of the

parties; the doctrine is designed to conserve judicial resources, establish

certainty in judgments, and protect litigants from vexatious litigation.

Stoeckinger, 948 A.2d at 832; Yamulla Trucking, 771 A.2d at 784. With

these principles in mind, we consider Appellant’s position disingenuous.

      The orphans’ court proceeding clearly involved the issue of who owned

shares in several corporations, including V.O. Realty, that were to pass to

Appellant under his mother’s will but that Edwin claimed as a result of

purchasing them from his mother before her death. In the orphans’ court

proceeding, Appellant claimed ownership to V.O. Realty only through his

mother’s will. Amended Objections, 4/9/13, at misnumbered ¶¶ 5(4), 7(2).

Following a non-jury trial, the orphans’ court found that, despite Appellant’s

claim, Edwin validly purchased V.O. Realty from his mother and, therefore,

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solely owned that corporation. Trial Court Opinion on Remand, 10/6/11, at

1.   This Court affirmed that decision on appeal, and the Pennsylvania

Supreme Court denied allowance of appeal. Estate of Chin, 38 A.3d 916,

1717 EDA 2010 (Pa. Super. filed November 10, 2011) (unpublished

memorandum), appeal denied, 50 A.3d 124 (Pa. filed August 13, 2012).

     Yet, in Appellant’s response to V.O. Realty’s action underlying this

appeal, he claims an ownership interest in V.O. Realty independent of his

mother’s will. Answer and New Matter, 2/1/13, at ¶ 37. Again, the flaw in

Appellant’s argument is that he could have raised his defense to the validity

of Edwin’s purchase in the orphans’ court proceeding, but he did not.

Rather, more than three years after the orphans’ court concluded that Edwin

solely owned V.O. Realty, Appellant hitched his ownership claim to V.O.

Realty’s unrelated action for damages. Consequently, Appellant’s defense is

barred by the doctrine of res judicata.     Mariner Chestnut Partners, 152

A.3d at 286.

     We have reviewed all the evidence of record in the light most

favorable to Appellant and resolved all doubts as to the existence of a

genuine issue of material fact against Edwin and V.O. Realty. Chenot, 895

A.2d at 60–61. In doing so, we discern no error of judgment, no overriding

or misapplying of the law, no manifestly unreasonable exercise of judgment,

no partiality, prejudice, bias or ill-will, as shown by the evidence or the

record. Id. at 61–62. Thus, we conclude the trial court did not abuse its


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discretion in granting Edwin and V.O. Realty partial summary judgment and

dismissing Appellant’s counterclaims and defense based on the doctrine of

res judicata.

      Judgments affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2017




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