NON- PRECEDENTI AL DECI SI ON - SEE SUPERI OR COURT I.O.P Appellees No. 545 WDA 2013

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1 NON- PRECEDENTI AL DECI SI ON - SEE SUPERI OR COURT I.O.P JUERGEN MROSS Appellant I N THE SUPERI OR COURT OF PENNSYLVANI A VOYAGER JET CENTER, LLC., VOYAGER GROUP, L.P., AND JAMES J. DOLAN v. Appellees No. 545 WDA 2013 Appeal from the Order March 7, 2013 I n the Court of Com m on Pleas of Allegheny County Civil Division at No(s): GD BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J. MEMORANDUM BY LAZARUS, J. FI LED APRI L 1, Juergen Mross appeals the order entered by the Court of Com m on Pleas of Allegheny County sustaining prelim inary objections on behalf of Voyager Jet Center and dism issing Mross com plaint with prejudice. Upon careful review, we affirm. The facts of this case are as follows. Mross entered a Purchase and Sales Agreem ent with Spanish Peaks Holdings, LLC ( Spanish Peaks ), to purchase a condom inium in Montana. The Purchase and Sales Agreem ent provided for a refund of buyer s deposits in the event of a default by seller. When such default occurred, Mross dem anded return of his deposit, which am ounted to $569, Mross alleges that Jam es J. Dolan, general m anager of Spanish Peaks, orally prom ised Mross cash and/ or credit for air

2 travel on Voyager Jet, a private charter air service Dolan controls, in lieu of returning Mross Spanish Peaks deposit. I n October 2011, Spanish Peaks filed for bankruptcy in the United States District Court for the District of Delaware. Mross asserted a claim for his deposit, $569,500.00, in the Spanish Peaks bankruptcy proceedings. I n addition to asserting his claim in bankruptcy, Mross filed the instant litigation against Dolan, Voyager Group, L.P., and Voyager Jet Center, LLC. (collectively Voyager ). None of the nam ed appellees is a party to the Spanish Peaks Purchase and Sales Agreem ent. 1 Consequently, Voyager filed prelim inary objections to the com plaint, arguing that Mross prior pending claim s in bankruptcy bar the instant action, and that his claim was legally infirm because the purported prom ise by Voyager lacked consideration. The trial court sustained the prelim inary objections and gave Mross tim e to am end his com plaint. On January 4, 2013, Mross filed an am ended com plaint. The trial court granted Voyager s prelim inary objections to the am ended com plaint and dism issed Mross claim s with prejudice on March 7, I n its Rule 1925(a) opinion, the trial court explained that it based its decision on the 1 Mross avers that appellees are alter egos of each other and Dolan in that Dolan dom inates the other appellees, has ignored their status as separate business entities, has used them to further his own personal interests, and has so dom inated and controlled their affairs and com m ingled their funds that their separate existence was a m ere sham. Appellant s Am ended Com plaint, at

3 pendency of Mross prior claim, for the sam e am ount sought here, in the Spanish Peaks bankruptcy. The trial court was also skeptical about the sufficiency of consideration in light of the underlying facts of the case. This tim ely appeal followed. On appeal, Mross presents the following issues for our review: 1. Whether a lower court m ay dism iss with prejudice a com plaint at the prelim inary objection stage by m aking conclusive legal findings based on facts outside the allegations of the com plaint, and on legal argum ents without evidence? 2. Whether a lower court m ay grant prelim inary objections without specifically referring and adhering to the allegations of the com plaint, or to the standard of decision governing its analysis? 3. Whether a lower court m ay reach a final conclusion about the absence of consideration at the prelim inary objection stage without related evidence? 4. Whether a lower court m ay ignore two claim s that did not rely on consideration when dism issing with prejudice a contract claim on the basis of alleged duplicate consideration? 5. Whether a lower court m ay ignore conclusive procedural errors in granting prelim inary objections? 6. Whether a lower court m ay find a settlem ent with a non-party in bankruptcy that was considered as preclusive to this action, when allegations related to a different agreem ent are pleaded? Brief of Appellant, at 4. Most of Mross claims are predicated on the trial court s decision to sustain Voyager s prelim inary objections and dism iss his com plaint. Therefore, we will first address whether the trial court properly dism issed Mross com plaint, which when resolved m ay substantially curtail the need for further appellate review

4 The standard of review we apply when considering a trial court s sustaining of prelim inary objections is well settled. Our standard of review of an order of the trial court overruling or sustaining prelim inary objections is to determ ine whether the trial court com m itted an error of law. When considering the appropriateness of a ruling on prelim inary objections, the appellate court m ust apply the sam e standard as the trial court. Prelim inary objections in the nature of a dem urrer test the legal sufficiency of the com plaint. When considering prelim inary objections, all m aterial facts set forth in the challenged pleadings are adm itted as true, as well as all inferences reasonably deducible therefrom. Prelim inary objections which seek the dism issal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. I f any doubt exists as to whether a dem urrer should be sustained, it should be resolved in favor of overruling the prelim inary objections. Hand v. City of Philadelphia, 65 A.3d 916, 920 (Pa. Super. 2013) (quoting Richm ond v. McHale, 35 A.3d 779, 783 ( Pa. Super. 2012)) (citations om itted). Additionally, I n order to plead successfully the defense of lis pendens, i.e., the pendency of a prior action, it m ust be shown that the prior case is the sam e, the parties are the sam e, and the relief requested is the sam e. The three-pronged identity test m ust be applied strictly when a party is seeking dism issal under the doctrine of prior pending action. Crutchfield v. Eaton Corp., 806 A.2d 1259, 1262 (Pa. Super. 2002) (citations om itted). Mross argues that the am ount he claim s in the instant action is separate and distinct from the am ount owed to him by Spanish Peaks. This reasoning is fundam entally flawed. When Mross agreed to the Voyager - 4 -

5 offer, he accepted a new prom ise to the satisfaction of a previously existing claim. He cannot now seek relief on both agreem ents. 2 A review of the record shows that Mross seeks repaym ent of the sam e debt, from the sam e party, Jam es Dolan, and requests the sam e relief, $569,500.00, in both actions. I n establishing all three prongs of the identity test, Voyager successfully pled the defense of prior pending action. Crutchfield, supra. 3 Accordingly, the trial court s decision to sustain Voyager s prelim inary objections was proper. 2 Whether an agreem ent constitutes a substitute contract or an accord is a m atter of interpretation. Substituted contracts and accords share m any traits since both rest upon the elem ents of a valid contract. Their differentiation lies chiefly in the parties intent concerning their respective effect on any prior agreem ent of the parties. A substituted contract is a m ode of extinguishing one obligation by another, that is, the acceptance of a new prom ise in satisfaction of a previously existing claim while in the case of an accord and satisfaction it is not the new prom ise itself but the perform ance of the new prom ise that is accepted as a satisfaction. Since a substituted contract is accepted as satisfaction of a pre-existing duty, it thus bars the revival of the pre-existing duty following a breach of the substituted contract. However, where the term s of an accord are breached, the nondefaulting party m ay enforce the accord, or, at his option, enforce the underlying the previous agreem ent. See Now icki Constr. Co. v. Panar Corp., N.V., 492 A.2d 36, (Pa. Super. 1985). 3 Our review is lim ited to the record and the parties briefs. Upon our review, we conclude that Mross seeks to recover $569, from Jam es J. Dolan, in both his capacity as controlling partner of Voyager Jet Center and in his capacity as general m anager of Spanish Peaks Holdings. This is not to say evidence m ay exist entitling Mross to go beyond the protections afforded by these separate corporate entities. However, we are not asked to pierce the corporate veil, nor are we provided with evidence from the record that would entitle us to do so. Therefore, we will not address such m atters

6 Furtherm ore, we find Mross reliance on University of Maryland v. Peat Marw ick Main & Co., 923 F.2d 265 (3rd Cir. 1991) m isguided. Mross cites this case for the proposition that when litigating sim ilar actions in federal and state courts, both m ay continue until one is decided. I d. at However, the origin of this rule points to controversies concerning concurrent jurisdiction am ong state and federal courts. The rule is well recognized that the pendency of an action in the state court is no bar to proceedings concerning the sam e m atter in the Federal court having jurisdiction, for both the state and Federal courts have certain concurrent jurisdiction over such controversies, and when they arise between citizens of different states the Federal jurisdiction m ay be invoked, and the cause carried to judgm ent, notwithstanding a state court m ay also have taken jurisdiction of the sam e case. See McClellan v. Carland, 217 U.S. 268, 282 (1910). This is not a case of concurrent jurisdiction. Rather, Mross attem pts to pursue the sam e debt in both federal and state court. Dism issal on the grounds of prior pending action is therefore appropriate to prevent this pursuit of duplicative claim s. Because we have determ ined that the instant case is barred by the doctrine of prior pending action, we will not address Mross argum ents regarding proper consideration for his contract claim s, nor will we address his claim s of prom issory estoppel and equitable estoppel. Even if we were to consider Mross estoppel claim s, we find them to be legally inadequate. I n his fifth issue, Mross argues that the trial court allegedly ignored conclusive procedural errors in granting Voyager s prelim inary objections. Mross directs our attention to Voyager s subm issions, which he argues raise - 6 -

7 objections based on allegations outside the am ended com plaint in direct contravention of the procedures outlined in Civil and Fam ily Court Rules of Allegheny County Court of Com m on Pleas Rule 1028(c). 4 We find these errors to be harm less because Mross suffered no prejudice as dem onstrated by his appropriate and tim ely responses to each of Voyager s subm issions. Order affirm ed. MUNDY, J., files a Dissenting Mem orandum. Judgm ent Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/ 01/ Specifically, Mross takes issue with Voyager s failure to label its prelim inary objections correctly, its decision to attach a brief to its prelim inary objections, and its request for argum ent for sooner than 90 days