Combat v. Kerwin

• Decision Date: 25 February 2021
• Docket Number: No. 654 EDA 2020,654 EDA 2020
• Citation: 247 A.3d 42
• Court: Pennsylvania Superior Court
• Parties: XTREME CAGED COMBAT & Ryan Kerwin v. Michelle ZARRO & Allan Rosenblum Appeal of: Ryan Kerwin

247 A.3d 42

XTREME CAGED COMBAT & Ryan Kerwin

v.Michelle ZARRO & Allan Rosenblum

Appeal of: Ryan Kerwin

No. 654 EDA 2020

Superior Court of Pennsylvania.

Submitted December 1, 2020

Filed: February 25, 2021

Ryan Kerwin, appellant, pro se.

Carol B. McCullough, Warminster, for Zarro and Rosenblum, appellees.

Ruthie A. Jordan,Philadelphia, for Extreme Caged Combat, appellee.

BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.^*

OPINION BY COLINS, J.:

Appellant Ryan Kerwin (Plaintiff) appeals pro se from a judgment entered in favor of Michelle Zarro and Allan Rosenblum (collectively Defendants) in a fraudulent transfer action following the trial court's grant of a nonsuit against him and the denial of his post-trial motions. For the reasons set forth below, we affirm the trial court's judgment in favor of defendant Allan Rosenblum, but vacate its judgment in favor of defendant Zarro and remand this case for a new trial of Plaintiff's claim against defendant Zarro.

Plaintiff filed a trademark infringement action against Steven Rosenblum (Debtor) and others in in the United States District Court for the Eastern District of Pennsylvania in July 2012 and in August 2014, a judgment was entered in his favor against Debtor and the other defendants in that action in the amount of $76,800. On December 11, 2014, Debtor filed a voluntary bankruptcy petition under Chapter 13 of the Bankruptcy Code.

On May 29, 2015, while Debtor's bankruptcy was pending, Plaintiff¹ filed the instant action against Defendants seeking relief against them under the Pennsylvania Uniform Fraudulent Transfer Act (PUFTA), 12 Pa.C.S. §§ 5101 – 5110 (in effect February 1, 1994 to February 19, 2018).² In his Complaint, Plaintiff averred that in August 2012, after he filed the trademark infringement action, Debtor used $50,000 of his own money to purchase a Levittown, Pennsylvania gym (the Levittown gym) and made defendant Allan Rosenblum, his father, a 50% owner of the Levittown gym. Complaint ¶¶7-9, 29-44. Plaintiff also averred that Debtor transferred his ownership of a gym at 8801 Torresdale Avenue, Philadelphia (the Torresdale gym) and its equipment to defendant Zarro, a friend. Id. ¶¶19-28, 38-44. Plaintiff averred that Debtor received no consideration for these transfers, asserted that the transactions constituted fraudulent transfers under Sections 5104 and 5105 of PUFTA, and sought to both recover damages from Defendants and set aside Defendants' ownership of the transferred property. Id. ¶¶38-44, 52-53, 57-58. On February 29, 2016, the bankruptcy court granted Plaintiff derivative standing to proceed with this action on behalf of Debtor's estate. In re Rosenblum , 545 B.R. 846, 863-73, 875 (Bankr. E.D. Pa. 2016).

Defendants filed preliminary objections to Plaintiff's complaint and the court overruled those preliminary objections without opinion in February 2016. Trial Court Order, 2/10/16. Plaintiff filed a motion for summary judgment against defendant Zarro in January 2016, while Defendants' preliminary objections were pending, and that motion was denied by the same judge who had overruled the preliminary objections. Trial Court Order, 3/15/16. Plaintiff filed a second motion for summary judgment in 2018, seeking judgment against both defendants. In 2019, a different judge, from the Court of Common Pleas of Chester County, was assigned to this action and that judge denied Plaintiff's second summary judgment motion. Trial Court Order, 9/26/19.

This action proceeded to a jury trial on October 7, 2019, before the latter judge, at which Plaintiff represented himself pro se . At trial, Plaintiff abandoned his requests to set aside the transfers and sought only money judgments from Defendants. N.T. Trial, 10/8/19, at 249-50. Plaintiff called three witnesses, Debtor, defendant Allan Rosenblum, and himself. Plaintiff also read into evidence defendant Zarro's interrogatory answers and introduced various documents into evidence, including a 2014 property claim made by defendant Zarro concerning the Torresdale gym and a lease between her and the Torresdale gym's landlord. On October 8, 2019, after Plaintiff rested his case, Defendants moved for a compulsory nonsuit and the trial court granted Defendants' motion. Id. at 244-70. Plaintiff timely filed post-trial motions seeking removal of the nonsuit and, alternatively, a directed verdict in his favor or a new trial. On February 12, 2020, the trial court entered an order denying Plaintiff's post-trial motions. Judgment against Plaintiff and in favor of Defendants was entered on Plaintiff's praecipe on February 13, 2020. This timely appeal followed.

Plaintiff argues the following issues as grounds for reversal of the trial court's judgment:

A. Whether Appellant presented evidence at trial that if believed by the jury would have entitled him to judgment and whether the trial court erred in entering a non-suit against Appellant.

B. Whether the trial court improperly supported its decision to enter the non-suit against Appellant by resolving issues of fact against Appellant instead of allowing those issues to be decided by the jury.

C. Whether the trial court committed an error of law when it denied Appellant's motion for summary judgment and his subsequent request for judgment notwithstanding the verdict/non suit.

D. Whether the trial court violated the law of the case doctrine when it made legal findings that directly overruled and conflicted with the legal findings made by a [sic ] another judge who had previously ruled in the same case.

E. Whether the trial court violated the doctrine of collateral estoppel when it made legal and factual findings that directly overruled and conflicted with the legal and factual findings made by the United States Bankruptcy Court who had previous ruled in the bankruptcy case that gave rise to the fraudulent transfer suit against the defendants in this case.

Appellant's Brief at 5-6 (unnecessary capitalization and suggested answers omitted).³ We first address Plaintiff's fourth and fifth issues, in which he claims that the trial court was barred by prior decisions from granting a nonsuit, followed by his first and second issues concerning the merits of the nonsuit, which we address together, and then his third issue.

In his fourth issue, Plaintiff argues that the trial court was barred from granting a nonsuit in favor of Defendants under the law of the case doctrine because a different judge had overruled Defendants' preliminary objection in the nature of a demurrer. This claim is without merit.

Contrary to Plaintiff's assertions, the law of the case doctrine does not bar a trial judge from ruling in defendants' favor at trial on an issue as to which a different judge overruled preliminary objections. Under the coordinate jurisdiction rule, an aspect of the law of the case doctrine, a judge may generally not alter the resolution of a legal question previously decided by another judge of that court. Riccio v. American Republic Insurance Co. , 550 Pa. 254, 705 A.2d 422, 425 (1997) ; Parker v. Freilich , 803 A.2d 738, 745 (Pa. Super. 2002). This rule, however, applies only where the second judge rules on the same type of motion as the first judge; the coordinate jurisdiction rule does not bar a judge at a later and different procedural stage of the case from overruling another judge's decision on preliminary objections, even on an identical legal issue and even where the record is unchanged. Riccio , 705 A.2d at 425-26 ; K.H. ex rel. H.S. v. Kumar , 122 A.3d 1080, 1091-92 (Pa. Super. 2015) ; Parker , 803 A.2d at 745-46 ; Mellon Bank, N.A. v. National Union Insurance Co. of Pittsburgh , 768 A.2d 865, 870-71 (Pa. Super. 2001). Because the ruling here was at trial, a different procedural posture from the preliminary objections, the coordinate jurisdiction rule could not limit the trial court's authority to grant a nonsuit.⁴

In his fifth issue, Plaintiff argues that even if he did not prove his causes of action, the trial court erred in granting a nonsuit because the bankruptcy court's decision in In re Rosenblum , supra , collaterally estopped Defendants from disputing the elements of those claims. This argument likewise fails.

The doctrine of collateral estoppel precludes a party from disputing an issue only where all of the following five elements are satisfied: (1) the issue is identical to an issue decided in a prior case, (2) the prior case resulted in a final judgment on the merits, (3) the party against whom collateral estoppel is asserted was a party to the prior case, or is in privity with a party to that case, (4) there was a full and fair opportunity to litigate the issue in the prior case, and (5) the determination in the prior case was essential to the judgment. E.K. v. J.R.A. , 237 A.3d 509, 521 (Pa. Super. 2020) ; Wilmington Trust, N. A. v. Unknown Heirs , 219 A.3d 1173, 1179 (Pa. Super. 2019). Whether collateral estoppel bars re-litigation of an issue is a question of law subject to this Court's plenary, de novo review. Wilmington Trust, N. A. , 219 A.3d at 1179.

The requirements for collateral estoppel are absent here. Neither Allan Rosenblum nor Zarro was a party to the proceedings out of which the bankruptcy court decision arose. Rather, the parties to those proceedings were Plaintiff and Debtor. 545 B.R. at 852-53. Most importantly, there was no judgment in the bankruptcy court decision on the issues here, whether Plaintiff's evidence against Defendants was sufficient to prove a fraudulent transfer cause of action and whether Debtor made any fraudulent transfer. The issue before the bankruptcy court was whether Plaintiff could bring a fraudulent transfer action against Defendants on behalf of Debtor's estate. Id. at 852-53, 873, 875. The bankruptcy court's only ruling concerning the merits of Plaintiff's action was a determination that Plaintiff's averments in his complaint that Debtor transferred ownership interests in the Levittown gym and the Torresdale gym and the contents of...