NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P J. OLIVERI TRUCKING, LLC IN THE SUPERIOR COURT OF PENNSYLVANIA

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P J. OLIVERI TRUCKING, LLC IN THE SUPERIOR COURT OF PENNSYLVANIA BILL GOODWIN CONSTRUCTION CO. AND WONDRA CONSTRUCTION, INC. v. APPEAL OF: THE DIME BANK, INTERVENOR No MDA 2013 Appeal from the Order May 10, 2013 in the Court of Common Pleas of Wyoming County Civil Division at No.: BEFORE: PANELLA, J., OLSON, J., and PLATT, J. * MEMORANDUM BY PLATT, J. FILED APRIL 09, 2014 Appellant, The Dime Bank (Dime), appeals from the order of May 10, 2013, which denied its petition to intervene in this underlying civil action for breach of a construction contract between J. Oliveri Trucking, LLC (Oliveri), Bill Goodwin Construction Company (Goodwin), and Wondra Construction, Inc. (Wondra). Because the May 10, 2013 order is not a final appealable order, we must quash this appeal. The underlying facts and procedural history in this matter are taken from the trial court s July 24, 2013 opinion: * Retired Senior Judge assigned to the Superior Court.

2 BP Wind Energy North America, the owner of the Mehoopany Wind Farm Project (hereinafter the Project ), contracted with Renewable Energy Systems Americas, Inc. (hereinafter RES ) to serve as the general contractor on the Project. RES in turn contracted with [Wondra] to build certain access roads associated with the Project. Wondra then entered into an oral subcontract with [Goodwin] for Goodwin to haul in gravel and other materials to Wondra. Goodwin then subcontracted with numerous hauling companies, including both Latona Trucking, Inc. (hereinafter Latona )[ 1 ] and [Oliveri] to perform the hauling work. In or around the summer of 2012[,] Goodwin became delinquent in payments to numerous of its hauling subcontractors on the project. Goodwin s debt to its subcontractors was in excess of the amount due to Goodwin by Wondra. As such, Wondra withheld all remaining payments to Goodwin in order to pay Wondra s subcontractors in the amount of Five Hundred Sixty Three Thousand Three Hundred Seventy Dollars and Thirty-Seven Cents ($563,370.37). Latona and Oliveri initiated separate civil actions by filing writ of summons in September 2012 and October 2012, respectively. Latona and Oliveri are seeking recovery of monies allegedly owed to them for services and/or equipment provided by them to Goodwin and/or Wondra in connection with the [Project] located in Wyoming County[,] Pennsylvania. Wondra filed a [p]etition for [i]nterpleader with [the trial court] for the deposit of the sum of Five Hundred Sixty Three Thousand Three Hundred Seventy Dollars and Thirty-Seven Cents ($563,370.37) (hereinafter the Escrow Fund ) for the benefit of Goodwin s subcontractors. Said Petition was granted on November 16, 2012 and Wondra deposited the Escrow Fund into [the trial court]. [Dime] filed a [p]etition to [i]ntervene asserting that it made a number of commercial loans to Goodwin. [Dime] initiated numerous actions in replevin and confessions of judgment in the Court of Common Pleas for Wayne County, 1 Latona is involved in the companion case to this matter, docketed at number 1090 MDA

3 Pennsylvania. On November 26, 2012, the Wayne County Court entered an order granting [Dime] an interest in property now owned or hereafter acquired. Based upon this, [Dime] asserts that it is [a] secured creditor with a perfected interest in the Escrow Fund that is superior to any of the claims that can be asserted by Latona or Oliveri. More specifically, [Dime] asserts that the Escrow Fund represents accounts receivable owed to Goodwin by Wondra and [Dime] has an interest therein. This Court denied [Dime s] [p]etition to [i]ntervene on May [10], 2013 upon consideration of the [p]etition to [i]ntervene, the response thereto, the briefs in support thereof and oral argument. [Dime] filed an [a]ppeal to the Pennsylvania Superior Court....[ 2 ] (Trial Court Opinion, 7/24/13, at 1-3). By order of July 16, 2013, this Court directed Dime to show cause as to why we should not quash this appeal as interlocutory. Dime filed a response to the order on July 30, On appeal, Dime raises the following question for our review: Whether a secured creditor with a perfected priority lien security interest in specifically identified collateral may intervene to assert a claim to its priority lien security interest in the specifically identified collateral? (Dime s Brief, at 6). Our scope and standard of review are as follows. This Court has long held that a question of intervention is a matter within the sound discretion of the trial court and we will review its decision under the manifest abuse of 2 By order of June 21, 2013, the trial court directed Dime to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Dime filed its Rule 1925(b) statement on July 8, 2013; the trial court issued an opinion on July 24, See Pa.R.A.P

4 discretion standard. See Allegheny Anesthesiology Assoc., Inc. v. Allegheny Gen. Hosp., 826 A.2d 886, (Pa. Super. 2003), appeal denied, 844 A.2d 550 (Pa. 2004) (citations omitted). In addressing an abuse of discretion standard, the Pennsylvania Supreme Court has stated: Where the discretion exercised by the trial court is challenged on appeal, the party bringing the challenge bears a heavy burden. As stated in Echon v. Pennsylvania Railroad Co., 365 Pa. 529, 534, 76 A.2d 175, 178 (1950) (quoting Garrett's Estate, 335 Pa. 287, , 6 A.2d 858, 860 (1939)), When the court has come to a conclusion by the exercise of its discretion, the party complaining of it on appeal has a heavy burden; it is not sufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power. 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. Paden v. Baker Concrete Constr. Inc., 658 A.2d 341, 343 (Pa. 1995) (quotation marks and one citation omitted). In ruling on a petition to intervene, the trial court must consider the factors enumerated in the Pennsylvania Rules of Civil Procedure, namely: (1) the entry of a judgment in such action or the satisfaction of such judgment will impose any liability upon such person to indemnify in whole or in part the party against whom judgment may be entered; or - 4 -

5 (2) such person is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof; or (3) such person could have joined as an original party in the action or could have been joined therein; or (4) the determination of such action may affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action. Pa.R.C.P Further, the trial court must determine whether the allegations of the petition have been established and, assuming that they have, whether they demonstrate an interest sufficient to justify intervention. Nemirovsky v. Nemirovsky, 776 A.2d 988, 992 (Pa. Super. 2001) (internal quotation marks and citation omitted). Prior to addressing the merits of Dime s claim, we must decide whether this appeal is properly before us. This Court has exclusive appellate jurisdiction from final orders of the courts of common pleas with the exception of those appeals that are within the jurisdiction of the Supreme Court or the Commonwealth Court. See 42 Pa.C.S.A Dime invokes our jurisdiction pursuant to Pennsylvania Rule of Appellate Procedure 313. (See Dime s Brief, at 1). The rule provides that an appellant can take an appeal of right from a collateral order, and it defines a collateral order as:... 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

6 Pa.R.A.P. 313(b). The Pennsylvania Supreme Court has stated, the collateral order doctrine is to be construed narrowly, and we require every one of its three prongs to be clearly present before collateral review is allowed. Rae v. Penna. Funeral Dir. Ass n, 977 A.2d 1121, 1126 (Pa. 2009) (citation omitted). Dime argues that the order denying intervention is separable from and collateral to the main cause of action, which it characterizes as based on the alleged failure of a contractor to pay its subcontractors for monies due and owing. (Response to this Honorable Court s July 16, 2013 Rule to Show Cause, 7/30/13, at 7). Dime states that it has no interest in whether the subcontractors were paid and that the failure to pay subcontractors is a separate issue from a borrower s obligation to pay a lender. (See id. at 7-8). We disagree. As the trial court discussed in its decision, the underlying litigation concerns the rights of creditors and their respective priority of payment. (See Trial Ct. Op., at 1-5). Dime sought to intervene so that it could assert a priority right over the other creditors to the monies in escrow. (See Response to this Honorable Court s July 16, 2013 Rule to Show Cause, - 6 -

7 7/30/13, at 7-8). The Commonwealth Court 3 has aptly stated that [i]n determining whether an order is separable from and collateral to the main cause of action, the court must decide whether the claimed rights affected by the order are also ingredients in the main cause of action. Fayette County Office of Planning, Zoning and Community Dev. v. Fayette County Zoning Hearing Bd., 981 A.2d 336, 341 (Pa. Cmwlth. 2009) (citation omitted). Here, the affected rights, lien priority, and entitlement to the escrowed funds, are clearly ingredients in the main cause of action. Thus, Dime has not shown that the order denying intervention was separate from and collateral to the main cause of action. See Pa.R.A.P. 313(b). Accordingly, we find that Dime has not met the first prong of the test. Further, with respect to the second prong, the Pennsylvania Supreme Court has stated: [f]or purposes of defining an order as a collateral order under Rule 313, it is not sufficient that the issue be important to the particular parties. Rather it must involve rights deeply rooted in public policy going beyond the particular litigation at hand.... Claims must be analyzed not with respect to the specific facts of the case, but in the context of the broad public policy interests that they implicate. Only those claims that involve interests deeply rooted in public policy can be considered too important to denied review. 3 While decisions of the Commonwealth Court are not binding on us, they may serve as persuasive authority. See Commonwealth v. Ortega, 995 A.2d 879, 885 (Pa. Super. 2010), appeal denied, 20 A.3d 1211 (Pa. 2011)

8 Geniviva v. Frisk, 725 A.2d 1209, (Pa. 1999) (quotation marks, some punctuation, and citations omitted). We find persuasive the Commonwealth Court s declaration that: the merits of the petition to intervene necessarily are considered as part of the analysis to determine whether the claim asserted is too important to be denied review, but that the mere assertion of a right to intervene is not per se too important to be denied review. In addition, we stated that [t]he appellant must at a minimum show actual entitlement to intervene under the applicable Rules of Civil Procedure in order to meet this test. Jefferson County v. Com., Dept. Envtl. Protection, 703 A.2d 1063, 1065 (Pa. Cmwlth. 1997) (quotation marks, citation, and footnote omitted). Here, Dime argues that the right is too important to be denied review because in its decision the trial court allowed the common law equitable rights for materialmen to surpass the foundational rights of Article 9 [of the Uniform Commercial Code], ignoring [Dime s] perfected security interest in the [Escrow Fund], and that is contrary to public policy. (Response to this Honorable Court s July 16, 2013 Rule to Show Cause, 7/30/13, at 10). However, as the trial court cogently discusses: The Pennsylvania Superior Court has held that an unpaid supplier s claim to interpleaded funds was superior to a secured creditor s interest. See, Trevdan Building Supply v. Toll Brothers, Inc., 996 A.2d 520, 522 (Pa. Super. 2010).... In Trevdan, a bank executed a receivable purchase agreement, which granted the bank the right to collect on all future and present invoices due and owing to the contractor, with a contractor who was in default on its loans with the bank and it had failed to pay its subcontractors. Id., 996 A.2d at 521. The bank then perfected its security interest by filing a UCC financing statement. Id. The Trevdan Court held that the financing statements and the receivables purchase agreement were - 8 -

9 irrelevant because neither was able to relegate [the subcontractor s] equitable lien to the undistributed contract funds to an inferior status to the [bank s] claim. Id., 996 A.2d 526. (Trial Ct. Op., at 4). While Dime attempts to distinguish Trevdan (See Response to this Honorable Court s July 16, 2013 Rule to Show Cause, 7/30/13, at 11-12), those attempts are not persuasive. We agree with the trial court that Trevdan is controlling in this matter. Thus, because Dime has not shown actual entitlement to intervene, it has not shown that this issue is too important to be denied review. See Geneviva, supra at ; Jefferson County, supra at Accordingly, we find that Dime has not met the second prong of the test. Lastly, with respect to the third prong, the Pennsylvania Supreme Court has stated whether a right is adequately vindicable or effectively reviewable, simply cannot be answered without a judgment about the value interests that would be lost through rigorous application of the final judgment requirements. Geniviva, supra at 1213 (citation and quotation marks omitted). In Mortgage Electronic Registration Systems, Inc. v. Malehorn, 16 A.3d 1138 (Pa. Super. 2011), this Court held that an appellant could not meet the third prong where she had already taken advantage of other legal remedies to protect her rights in the matter. See Mortgage Electronic Registration Systems, Inc., supra at

10 Here, the record clearly reflects that Dime has taken a variety of legal actions against Goodwin in Wayne County and has acquired judgments against them. (See Trial Ct. Op., at 2-3; Dime s Brief, at 12-13). Dime has already pursued other types of litigation in order to protect its rights. Thus, Dime s claim cannot become irreparably lost as required by the third prong of Rule 313(b). See Mortgage Electronic Registration Systems, Inc., supra at Accordingly, we find that Dime has not met the third prong of the test. Thus, for the reasons discussed above, we find that Dime has not shown an entitlement to an immediate appeal of right of a collateral order as required by Rule 313(b). Therefore, we are constrained to quash this appeal. Appeal quashed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/9/