author: HERRON, J.,

text:
    In re Beal

      C.P. of Philadelphia County
    May 4, 2015
   HERRON, J.,

Background

Albert R. Beal, Sr. died on July 17, 2013. Prior to his death, he had executed a will dated June 16, 2011 leaving the residue of his estate in equal shares to his four children: Albert Beal, Bryan Beal, Nell Beal and Helene Beal. He named his daughter, Nell Beal (presently, West), as executrix. His will left nothing to his “long-separated” wife, Ann Beal, who had filed a divorce action against him. While grounds for divorce were approved by the court on July 25, 2007, no final divorce decree had been entered at the time of Albert Sr.’s death.

Albert had been an attorney licensed in Pennsylvania and had owned a home in Philadelphia for nearly thirty years. Of his four children, three resided in Pennsylvania at the time of his death. Following his separation from his wife, Albert Sr. continued to live in Philadelphia in an apartment complex on Johnson Street in Germantown. A daughter, Helene, lived nearby for roughly nine years. Around 2008, Albert Sr. was diagnosed with Alzheimer’s Disease as well as cardiovascular problems. At this point, his daughter Nell, who lived in Annapolis, Maryland, began traveling frequently to Philadelphia to see him. In the Spring of 2010, Albert suffered a leg wound that would not heal and Nell traveled to Philadelphia numerous times to care for him. After an operation followed by rehab, Nell decided to take her father to Maryland in August 2010 so that she could more easily care for him as he underwent further rehabilitation. None of her other siblings had been able to care for their father in Pennsylvania and assisted living facilities were deemed too expensive. After he was taken to Maryland, Albert Sr. never returned to Philadelphia. His daughter Helene testified that she was greatly relieved when her father went to Maryland because her sister, Nell, took very good care of him while he resided in a cottage close to Nell’s house. She conceded, however, that she never visited him once he left Philadelphia for Annapolis. Albert Sr.’s wife, Ann, knew that Albert Sr. had been moved to Annapolis but she did not know when. She communicated with him only by phone and wrote to him “once or twice.”

Throughout his stay in Maryland, it was his daughter, Nell, who cared for Albert Sr. She arranged for him to stay in a cottage near her home and made sure he had a monitor at all times because he was a fall risk. She managed his medications, prepared his meals, took him to the doctors, cleaned his house, did his laundry, bathed and dressed him. After 2011 or 2012, she took care of his financial affairs and retained the accountant who prepared his tax returns.

Albert Beal died in Maryland on July 17, 2013. Seven days after Albert Sr.’s death, his wife Ann’s attorney sent a letter to Nell demanding that as executrix she file a copy of Mr. Beal’s will with the Register of Wills for Anne Arundel County in Maryland. In response, Nell, who was unrepresented by counsel at that point, filed the will in Anne Arundel County. The will was subsequently transferred to Philadelphia. On December 2, 2013, the Philadelphia Register of Wills granted letters testamentary to Nell.

On January 28, 2014 Ann Beal filed an appeal of the decree of the Philadelphia Register of Wills, asserting that the will should be revoked and transferred to the Register of Wills of Anne Arundel County, Maryland for probate because Albert Sr. had been domiciled in Maryland at the time of his death. Nell responded by filing preliminary objections asserting that the appeal should be dismissed because Ann Beal, though admittedly still married to Albert Sr. at the time of his death, lacked standing to bring this appeal because she had no interest in her husband’s estate by virtue of 20 Pa.C.S. §2106(a), which provides:

Forfeiture
Spouse’s share. —
(1) A spouse who, for one year or upwards previous to the death of the other spouse, has willfully neglected or refused to perform the duty to support the other spouse, or who for one year or upwards has willfully and maliciously deserted the other spouse, shall have no right or interest under this chapter in the real or personal estate of the other spouse.
(2) A spouse shall have no right or interest under this chapter in the real or personal estate of the other spouse if:
(i) the other spouse dies domiciled in this Commonwealth during the course of divorce proceedings;
(ii) no decree of divorce has been entered pursuant to 23 Pa.C.S. §3323 (relating to decree of court), and
(iii) grounds have been established as provided in 23 Pa.C.S.A. §3323(g).

As the executrix emphasized, Ann had not been named as a beneficiary under her husband’s will and under 20 Pa.C.S. §2106(a) she did not qualify as an intestate heir. Ann countered that she did have standing in this appeal if, as she contended, her husband died a domiciliary of Anne Arundel county in Maryland because under Maryland law she would be able to take an elective share against her deceased husband’s estate. She conceded that this option was not available to her in Pennsylvania because by seeking a divorce and having the grounds established by court, she had forfeited her right to claim an elective share of Albert Sr.’s estate if he died a domiciliary in Pennsylvania under 20 Pa.C.S.A. §2203(c). She argued, however, that Albert Sr. had died a domiciliary of Maryland; therefore, under Pennsylvania law her right to elect would be determined by Maryland law as set forth in section 2202 of the PEF code which provides that under such a scenario, Maryland law would apply:

§ 2202. Right of election; nonresident decedent
When a married person not domiciled in this Commonwealth dies, the rights, if any, of his surviving spouse to an elective share in property in this Commonwealth are governed by the law of the decedent ⅛ domicile at death, but the rights of the electing spouse shall be subject to the rights of fiduciaries, custodians and obligors within this Commonwealth and transferees for value of and holders of liens for value on real estate or tangible personal property located in this Commonwealth under section 2211 (relating to determination of effect of election; enforcement).
20 Pa.C.S.A. §2202

In contrast to Pennsylvania, Ann contends, “Maryland law does not provide that if ground have been established [for divorce] that the surviving spouse may not take an elective share against the decedent’s estate.” To support this argument, she invoked one section of the Maryland Code, Estate and Trusts, Section 3-203(b) which merely provides:

§3-203. Election by spouse of share of net estate
Election of one-third share of net estate
(b) Instead of property left to the surviving spouse by will, the surviving spouse may elect to take a one-third share of the net estate if there is also a surviving issue, or a one-half share of the net estate if there is no surviving issue.
MD. Code, Estates and Trusts, §3-203(b).

Based on this argument that Ann could assert an elective share against Albert Sr.’s will if he died a domiciliary of Anne Arundel County, Maryland, this court overruled the preliminary objections and scheduled a hearing to resolve the dispute over Albert Sr.’s domicile at the time of his death. In retrospect, however, the scheduling of the hearing was premature because the issue of Ann’s right to claim an elective share against the will under Maryland law had not been fully resolved.

As in Pennsylvania, a spouse’s right to claim an elective share of her deceased husband’s estate in Maryland is bound by specific time limits. Section 3-206 of the Maryland Trust and Estate Code provides:

Deadline for election
(a)(1) The election of a surviving spouse to take an elective share shall be made within the later of:
(1) Nine months after the date of the decedent’s death; or
(ii) Six months after the first appointment of a personal representative under a will.
(2)(i) Within the period for making an election, the surviving spouse may file with the court a petition for an extension of time, with a copy given to the personal representative.
(ii) For good cause shown, the court may extend the time for election for a period not to exceed three months of at a time.

MD Code, Estates and Trusts, § 3-206.

Albert Sr. died on July 17, 2013. Letters testamentary were granted to Nell Beal West on December 2, 2013. Nowhere is there any record that Ann Beal either filed an election or sought an extension for making such an election. Since Albert Beal Sr.’s will had initially been filed in Maryland in response to a letter by Ann Beal’s attorney, there would have been ample opportunity to make an initial filing in Maryland. While the Maryland statute allows for extensions of time to file an election, that extension must be sought prior to the expiration of “the period originally prescribed or extended by a previous order.” Downes v. Downes, 388 Md. 561, 572, 880 A.2d 343 (Md.Ct. Appeals 2005). The Downes court unequivocally concluded that a court has no discretion to grant an untimely extension. It emphasized: “an untimely request for extension must be denied. There is no other option.” Downes, 388 Md. at 576, 880 A.2d at 352. In so ruling, it explained that “there has been no retreat from the principle that the ability to renounce a Will in favor of a statutory share is to be strictly construed (see Bunch v. Dick, supra, 287 Md. 358,412 A.2d 405), and the law still favors the expeditious administration and early settlement of Estates.” Downes. 388 Md. at 578, 888 A.2d 353

Legal Analysis

Under section 908 of the PEF code an appeal from a decree of the Register of Wills may be brought by a party who has been “aggrieved” by the register’s decree: “Any party in interest seeking to challenge the probate of a will or who is otherwise aggrieved by a decree of the register, or a fiduciary whose estate or trust is so aggrieved, may appeal therefrom to the court within one year of the decree.” 20 Pa.C.S. § 908(a). To establish that she is aggrieved by a register’s decree, and therefore has standing to proceed with an appeal, a party must show that she “is directly and adversely affected by a judgment, decree or order and has some pecuniary interest which is thereby injuriously affected.” Estate of Seasongood, 320 Pa. Super. 565, 569, 467 A.2d 857, 859 (Pa. Super. 1983). Merely having a relationship with a decedent does not suffice to establish standing to contest his will. Estate of Luoneo, 2003 Pa. Super. 17, 823 A.2d 942, 956 (Pa. Super. 2003), app. denied, 577 Pa. 722, 847 A.2d 1287 (Pa. 2003). In the Estate of Seasongood, for instance, the court concluded that the appellants lacked standing to challenge a will where they would not have qualified as intestate heirs if the will they challenged had been deemed invalid. On the other hand, where a widow challenging a will presented for probate a later will under which she would have taken more, she had standing to contest the first will. Estate of Boland, 99 Pa. Super. 321, 1930 WL 3625 (Pa. Super. 1930). The key point is that a party must “show that his pecuniary interest in the estate is aggrieved by probate of the will at issue.” Estate of Luongo, 2003 Pa. Super. 171, 823 A.2d 942, 956 (Pa. Super. 2003). This is precisely what Ann Beal cannot show.

Under Pennsylvania law, a court may at any time raise sua sponte the issue of standing to appeal from a decree of the register. As the Pennsylvania Superior Court in the Estate of Luoneo explained:

When a statute [i.e. 20 Pa.C.S.A. §908(a)] creates a cause of action and designates who may sue, the issue of standing becomes interwoven with that of subject matter jurisdiction. Standing then becomes a jurisdictional prerequisite to an action, [and] can be raised at any time, by any party, or by the court sua sponte.
Estate of Luongo, 823 A.2d at 953-54 (quoting Grom v. Burgoon, 448 Pa. Super. 616, 672 A.2d 823, 824(1996).

Likewise, in the Estate of Briskman. 2002 Pa. Super. 287, 808 A.2d 928, 933 (Pa. Super. 2002), the Pennsylvania Superior Court concluded that the appellant had not waived the issue of the contestant’s standing to challenge a will where she failed to raise it in the first instance before the Orphans’ Court. Because the appellate court concluded that the niece challenging a 1993 will lacked standing to bring this challenge since she had no pecuniary interest in the decedent’s estate due to the existence of a prior will under which she was not a beneficiary, the appellate court concluded it need not address the various other issues raised by the appellant on appeal. The issue of standing was thus dispositive.

Likewise, in this case the issue of Ann Beal’s standing to challenge the Register of Wills decree probating her husband’s will in Philadelphia and granting letters testamentary to Nell Beal West must be addressed, albeit in the context of Albert Sr.’s domicile at the time of his death. This issue was first — and only — raised when Nell Beal West filed preliminary objections to Ann Beal’s appeal that sought (1) to strike the decree admitting her husband’s will to probate in Philadelphia and (2) to transfer the will to the Register of Wills of Anne Arundel County. Nell questioned Ann Beal’s pecuniary interest in the estate. Ann countered that she would elect against Albert Sr.’s will under Maryland law. Ann conceded that under Pennsylvania law she lacks standing to elect against Albert Sr.’s will because she had filed for divorce and grounds had been established. This is due to 20 Pa.C.S.A. §2203 (c) which explicitly excludes from the right to elect against a decedent’s estate “in the event a married person domiciled in this Commonwealth dies during the course of divorce proceedings, no decree of divorce has been entered pursuant to 23 Pa.C.S. §3323 and grounds have been established as provide in 23 Pa.C.S. §3323(g).” 20 Pa.C.S.A. §2203(c). But, she insists, there is another PEF code section — 20 Pa.C.S.A. §2202 — that offers her the right to elect against Albert Sr.’s will if— as she contends — he died a domiciliary of Maryland. The Maryland statute Ann invokes, MD Code, Estates and Trusts, §3-203, does not on its face preclude spouses from seeking an elective share where they have filed for divorce but no final decree has been entered at the time of the deceased spouse’s death. Section 3-203 merely provides that in Maryland: “Instead of property left to the surviving spouse by will, the surviving spouse may elect to take a one-third share of the net estate if there is also a surviving issue, or one-half of the net estate if there is no surviving issue.” MD Code, Estates and Trusts, §3-203(b). In this circuitous route, the Maryland statute would provide standing for Ann Beal’s will contest in Philadelphia when linked with the Pennsylvania statute 20 Pa.C.S.A. §2202 if she can establish Albert Sr. died a Maryland domiciliary.

The rub with this sweeping argument is that it does not delve deeply enough into the intricacies of the relevant Maryland statutes. It does not grapple, for instance, with the strict time limits imposed by Maryland statute as to deadlines for filing an election against a decedent’s will. Section 3-206 of the Maryland Estates and Trust statute sets forth unambiguous deadlines:

Deadline for election
(a)(1) The election by a surviving spouse to take an elective share shall be made within the later of:
(i) Nine months after the date of the decedent’s death; or
(ii) Six months after the first appointment of a personal representative under a will.
MD, Code, Estate and Trusts, 3-206(a).

Ann’s claim to standing to challenge Albert Sr.’s will in Pennsylvania therefore hangs on this delicate thread. On further analysis, that thread proves illusory. Ann has failed even to allege that she has, in fact, filed a timely claim for an elective share with any court. While theoretically she had the option to do so in Maryland, especially since Albert Sr.’s will had been originally filed in Maryland, there is no fact on record of Ann having preserved her claim. Recent Maryland precedent, moreover, states unambiguously that extensions to these deadlines are strictly applied and an extension may not be granted unless filed within the initial period or a period of extension. See Downes v Downes, 388 Md. 561, 880 A.2d 343 (Md. Ct. Appeals 2005). The statute of a sister state is a question of fact to which this court must extend judicial notice. DeTemple Estate, 51 Pa. D. & C. 2d 87, 90, 92 (Allegheny Cty. O.C. 1971) (where decedent died a domiciliary of Missouri and his widow filed a timely election against his will in Missouri, a Pennsylvania court is bound by that election). Since Ann has no viable claim under Maryland law, her claim to standing before this court crumbles and disappears.

The hearing held on Ann’s appeal focused primarily on whether Albert Sr. died a domiciliary of Maryland. Ann presented only her own testimony and that of her daughter, Helene. That testimony was unpersuasive in light of the concession by Helene that she had not seen her father during his entire tenure in Maryland though she gratefully acknowledged that her sister, Nell, had taken very good care of him and he was happy. More conclusive were the documents Ann presented at the hearing. Albert Sr.’s will stated, for instance, that Albert Beal, Sr. was “of the county of Anne Arundel, State of Maryland.” Ex. Beal 93-100. Albert Beal Sr.’s tax returns for 2011 indicated a Maryland address and were filed in Maryland; according to Nell Beal West, her father did not file any Pennsylvania taxes that year. Albert Sr. had voted in the 2012 presidential campaign, though he had not voted in any other state or local elections in Maryland, while he had consistently voted in such elections in his prior years in Pennsylvania. His obituary had stated that Albert Sr. was “of Annapolis, formerly of Philadelphia.” On the other hand, Albert Sr. never relinquished his membership to his church in Philadelphia, St. Martins- in- the- Field. Albert Sr. never owned any real estate in Maryland. Instead, he lived in his cottage there with no lease but on a month to month basis. Ultimately, however, the issue of Albert Sr. ’s domicile at the time of his death is not properly before this court in light of Ann Beal’s lack of standing to present a will contest based on the facts of record.

There is, however, one tangential issue that remains. Inherent in Ann Beal’s challenge to the probate of Albert Sr.’s will in Philadelphia is an argument that if he died a domiciliary of Maryland the Philadelphia Register would lack jurisdiction to grant letters testamentary to the executrix under his will. This position is undermined, however, by a key fact that came out at the hearing. At the time of his death, Albert Sr. owned no real property in Maryland. For the last years of his life, he had lived in a cottage near his daughter on a month to month basis. Similarly, he had given up his apartment in Philadelphia three months after he moved to Maryland. According to unrebutted testimony by Nell Beal West, however, Albert Sr. did have property in Pennsylvania that is subject to the ongoing divorce proceedings. Under Pennsylvania law, the presence of decedent’s property in a county provides a basis for granting letters testamentary even where the decedent was not domiciled in Pennsylvania at the time of his death:

Letters testamentary or of administration on the estate of a decedent domiciled in the Commonwealth at the time of his death shall be granted only by the register of the county where the decedent had his last family or principal residence. If the decedent had no such domicile in the Commonwealth, letters testamentary or of administration may be granted by the register of any county wherein property of the estate shall be located and, when granted, shall be exclusive throughout the Commonwealth. 20Pa.C.S.A. § 3151(emphasis added).

Based on the record as a whole, therefore, Ann Beal lacked standing to bring her challenge to the probate of Albert Beal Sr.’s will in Philadelphia. Her appeal is dismissed as set forth in a contemporaneously issued final decree.

      . Because many of the parties share the same last name, Beal, for convenience they will be referred to by their first names.

      . Ex. Beal 93-100, June 16, 2011 Albert Beal, Sr. Will, Article Fifth. He also specifically did not bequeath anything to his adopted son, Michael Luk. His will further provided as to Ann Beal: “In the event of my death before a final decree in divorce from my long separated wife, ANN M. BEAL, has been entered by the court, I authorize my executor, in her discretion, to make all reasonable and economically justified efforts to retrieve from ANN M. BEAL, all of my personal assets she removed from our marital home and the marital assets which I would have received in an equitable distribution of the marital property in divorce or the value of proceeds from the sale of such assets.” Id. Article Fifth. See also 9/30/14 N.T. at 7 (Ann Beal); 11/13/14 Ann Beal Brief at 2.

      . 9/30/14 N.T. at 105 (Nell Beal West).

      . 9730/14 N.T. at 9 & 11 (Ann Beal).

      . 9/30/14 N.T. at 14 (Helene Beal).

      . 9/30/14 N.T. at 121-124,103-04, 36,48-49 (Nell Beal West).

      . 9/30/14 N.T. at 17 (Helene Beal).

      . 9/30/14 N.T. at 27 (Helene Beal); 9/30/14 N.T. at 10, 12 (Ann Beal).

      . 79730/14 N.T at 37-41 (Nell Beal West).

      . 9/30/14 N.T. at 53-57 (Nell Beal West).

      . See 4/7/14 Nell Beal West Preliminary Objections, Memo of Law at 6.

      . 4/17/14 Ann Beal Answer, Memo of Law at 5-6. Section 2203 of the PEF code sets forth the criteria for a spouse’s right of election against the estate of a decedent who dies in Pennsylvania. Section 2203 (c) explicitly states that the right to election “shall not apply in the event a married person domiciled in this Commonwealth dies during the course of divorce proceedings, no decree of divorce has been entered pursuant to 23 Pa.C.S. §3323 and grounds have been provided in 23 Pa.C.S. §3323(g).” 20 Pa.C.S.A. §2203(c).

      . 4/17/14 Ann Beal Answer, memo of law at 5.

      . See 4/17/14 Ann Beal Answer, memo of law at 5-6.

      . In Pennsylvania, “[t]he election must be filed with the clerk before the expiration of six months after the decedent’s death or before the expiration of six months after the date of probate, whichever is later.” 20 Pa.C.S. §2210(b).

      . The Seasongood court also concluded that this challenge to the will was untimely, but because appellants lacked standing, it was not necessary to address other issues. Estate of Seasongood, 320 Pa. Super, at 569 n.2, 467 A.2d at 859 n.2.

      . 4/17/14 Ann Beal Answer, memorandum at 5.

      . 4/17/14 Ann Beal Answer, memorandum at 5-6.

      . Section 2202 of the PEF code states: “When a married person not domiciled in the Commonwealth dies, the rights, if any, of his surviving spouse to an elective share in property in this Commonwealth are governed by the laws of the decedent’s domicile at his death.”

      . Tex. Beal 81-90. 9/30/14 N.T. at 38-41 (Nell Beal West),

      . 9/30/14 N.T. at 68-69 (Nell Beal West).

      . Ex. Beal 101-02.

      . 9/30/14 N.T. at 106-09 (Nell Beat West).

      . 9/30/14 N.T. at 103, 70 (Nell Beal West).

      . See, e.g., Estate of Seasoneood, 320 Pa. Super, at 569 n.2, 467 A.2d at 859 n.2 (“because we hold that the Orphans’ court properly held that the appellants did not have standing to contest the will, it is not necessary for us to address the timeliness of appellant’s objection raising undue influence, lack of testamentary capacity and forgery”)’ Estate of Briskman, 808 A.2d at 931 (“Because we conclude the appellee had no standing to contest the will, we do not need to address appellant’s claims”).

      . 9/30/14 N.T. at 47, 63, 70, 72,103 (Nell Beal West).

      . 9/30/14 N.T. at 101-02 & 64 (Nell Beal West).


source: Caselaw Access Project

author: ROGERS, J.,

license: Public Domain

text:
    MTPCS LLC v. Hollis

      C.P. of Montgomery County,
    Nos. 2012-21508, 518 EDA 2014, 519 EDA 2014

      Matthew Anthony Taylor and Joseph Warminski Jesiolowski, for appellants.

      John J. McAneney and Tracey Lee Potere, for appellees.
    April 7, 2015
   ROGERS, J.,

I. INTRODUCTION

Appellant MTPCS, LLC d/b/a Cellular One (“appellant MTPCS”) and third party appellants Jonathan Foxman, Daniel E. Hopkins, Broadpoint Holdco, LLC, Broadpoint, LLC, Central Louisiana Holdco, LLC, MTPCS Holdings, LLC, OK-5 Holdco, LLC and TX-10 Holdco, LLC (together “appellants”) have appealed to the Superior Court of Pennsylvania (“Superior Court”) from this court’s orders dated and docketed on January 7, 2014, overruling appellants’ preliminary objections in part. For the reasons set forth below, the court’s January 7, 2014 orders should be affirmed and the case remanded for further proceedings.

II. FACTUAL AND PROCEDURAL HISTORY

The relevant facts and procedural history underlying this consolidated appeal are as follows. By letter dated June 24, 2010, Third party appellant Jonathan Foxman offered appellee Charles M. Hollis (“Hollis”) the position of executive vice president and chief operating officer on behalf of appellant MTPCS. (Complaint, filed 8/7/12 (“complaint”), Exhibit A). Hollis, a resident of Fort Wayne, Indiana, agreed to commute to appellant’s headquarters in Wayne, Pennsylvania, for the first two years of employment. {Id.). In addition to signing the offer letter, Hollis also signed an employee and noncompetition agreement dated September 30, 2010 {Id. at Exhibit B), six restricted equity grant agreements dated September 30,2010 (joinder complaint against additional defendants, filed 10/9/12 (“joinder complaint”), Exhibits C-H) and, later, three second amended and restated limited liability company agreements and two amended and restated limited liability company agreements effective September 21, 2011 (preliminary objections of [appellant MTPCS], filed 12/28/12, Exhibits 2-6). In relevant part, the documents provide as follows:

EMPLOYEE AND NONCOMPETITION AGREEMENT
THIS EMPLOYEE AND NONCOMPETITION AGREEMENT (this “agreement”) is made as of September 30,2010 between [appellant] MTPCS, LLC, a Delaware limited liability company (the “company”) and [appellee] Charles M. Hollis (the “executive”).
⅝ ⅝ ⅝ *
18. Consent to jurisdiction.
(a) EACH OF THE PARTIES HERETO HEREBY CONSENTS TO THE JURISDICTION OF ALL STATE AND FEDERAL COURTS LOCATED IN PENNSYLVANIA, AS WELL AS TO THE JURISDICTION OF ALL COURTS TO WHICH AN APPEAL MAY BE TAKEN FROM SUCH COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING, WITHOUT LIMITATION, ANY PROCEEDING RELATING TO ANCILLARY MEASURES IN AID OF ARBITRATION, PROVISIONAL REMEDIES AND INTERIM RELIEF, OR ANY PROCEEDING TO ENFORCE ANY ARBITRAL DECISION OR AWARD. EACH PARTY HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS TO BRING ANY SUIT, ACTION OR OTHER PROCEEDING IN OR BEFORE ANY COURT OR TRIBUNAL OTHER THAN THE COURTS DESCRIBED ABOVE AND COVENANTS THAT IT SHALL NOT SEEK IN ANY MANNER TO RESOLVE ANY DISPUTE OTHER THAN AS SET FORTH IN THIS SECTION OR AS PROVIDED IN THE NONDISCLOSURE AND DEVELOPMENTS AGREEMENT, OR TO CHALLENGE OR SET ASIDE ANY DECISION, AWARD OR JUDGMENT OBTAINED IN ACCORDANCE WITH THE PROVISIONS HEREOF.
⅝ ⅝ ⅝ ⅝
20. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.

(Complaint, Exhibit B) (emphasis added).

RESTRICTED EQUITY GRANT AGREEMENT
THIS RESTRICTED EQUITY GRANT AGREEMENT (this “agreement”) is entered into as of [Sept. 30], 2010 by and between [third party LLC appellant], a Delaware limited liability company (the “company”) and Charles M. Hollis (the “executive”).
WHEREAS, the company and the executive have entered into that certain employment agreement, dated as of [Sept. 30], (the “employment agreement”), whereby the executive is accepting the position of executive vice president and chief operating officer; and
WHEREAS, the company and the executive desire to set forth the terms on which the company will grant and sell to the executive certain restricted equity interests in the company.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth, the parties hereto agree as follows:
1. Definitions. For the purposes of this agreement, the following terms shall have the following respective meanings.
* * * ⅝
“LLC agreement” shall mean the limited liability company agreement or operating agreement among the members of the company, as in effect from time to time.
* * * ⅝
6. LLC Agreement. By signing this agreement, executive agrees to be bound by the terms of the LLC agreement and thereby admitted as a Class B member (as defined in the LLC agreement).
7. Miscellaneous Provisions.
* * * *
(h) Consent to Jurisdiction. EACH OF THE PARTIES HERETO HEREBY CONSENTS TO THE JURISDICTION OF ALL STATE AND FEDERAL COURTS LOCATED IN DELAWARE, AS WELL AS TO THE JURISDICTION OF ALL COURTS TO WHICH AN APPEAL MAY BE TAKEN FROM SUCH COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING, WITHOUT LIMITATION, ANY PROCEEDING RELATING TO ANCILLARY MEASURES IN AID OF ARBITRATION, PROVISIONAL REMEDIES AND INTERIM RELIEF, OR ANY PROCEEDING TO ENFORCE ANY ARBITRAL DECISION OR AWARD. EACH PARTY HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS TO BRING ANY SUIT, ACTION OR OTHER PROCEEDING IN OR BEFORE ANY COURT OR TRIBUNAL OTHER THAN THE COURTS DESCRIBED ABOVE AND COVENANTS THAT IT SHALL NOT SEEK IN ANY MANNER TO RESOLVE ANY DISPUTE OTHER THAN AS SET FORTH IN THIS SECTION OR AS PROVIDED IN THE NONDISCLOSURE AND DEVELOPMENTS AGREEMENT, OR TO CHALLENGE OR SET ASIDE ANY DECISION, AWARD OR JUDGMENT OBTAINED IN ACCORDANCE WITH THE PROVISIONS HEREOF. EACH OF THE PARTIES HERETO HEREBY EXPRESSLY WAIVES ANY AND ALL OBJECTIONS IT MAY HAVE TO VENUE, INCLUDING, WITHOUT LIMITATION, THE INCONVENIENCE OF SUCH FORUM, IN ANY OF SUCH COURTS. IN ADDITION, EACH OF THE PARTIES CONSENTS TO THE SERVICE OF PROCESS BY PERSONAL SERVICE OR ANY MANNER IN WHICH NOTICES MAY BE DELIVERED HEREUNDER IN ACCORDANCE WITH SECTION 7 OF THIS AGREEMENT.
⅜⅜‡⅜
(J) Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.

(Joinder complaint against additional defendants, filed 10/9/12 (“joinder complaint”), Exhibits C-H) (emphasis added).

Second amended and restated limited liability company agreement
This second amended and restated limited liability company agreement of [third party LLC appellant] (the “company”) is made as of September 21, 2011 (the “effective date”) by and among the persons listed on Schedule Ato this agreement as Class Amembers..., the persons listed on Schedule A to this agreement as Class B members ... The Class A members and the Class B members sometimes are referred to collectively in this agreement as the “members,” and each individually as a “member.”
WHEREAS, the company was formed as a limited liability company under the Delaware Limited Liability Company Act... by the... entry by the company into that certain limited liability company agreement dated as of March 26, 2010 as the sole member of the company;
* * * *
WHEREAS, in connection with (i) the recapitalization of the units..., (ii) the admission of certain other persons as members and (iii) the amendment of the terms of the limited liability company agreement dated as March 26, 2010, the members entered into the amended and restated limited liability company agreement dated as of June 16, 2010; and
WHEREAS, the company and each member ... desire to amend and restate that certain amended and restated limited liability company agreement, dated as of June 16, 2010, as amended, modified, supplemented or restated from time to time as set forth herein.
* * * *
10.03. Entire Agreement. This agreement and each member’s agreement, as the case may be, constitutes the entire agreement of the members relating to the company and supersedes all prior contracts or agreements with respect to the company, whether oral or written, and, to the extent that the terms of any employment agreement vary in any respect from the terms of this agreement, this agreement shall control and take precedence.
10.04. Limitation of Litigation; dispute resolution. All disputes, claims, or controversies arising out of or relating to this agreement, or any other agreement executed and delivered pursuant to this agreement, or the negotiation, validity or performance hereof and thereof or the transactions contemplated hereby and thereby, that are not resolved by mutual agreement shall be resolved solely and exclusively by binding arbitration to be conducted before J.A.M.S. or its successor. The parties understand and agree that this arbitration provision shall apply equally to claims of fraud or fraud in the inducement. The arbitration shall be held in Boston, Massachusetts before a single arbitrator and shall be conducted in accordance with the rules and regulations promulgated by J.A.M.S. unless specifically modified herein.
* * ⅝ *
(e) Each of the parties hereto irrevocably and unconditionally consents to the exclusive jurisdiction of J.A.M.S. to resolve all disputes, claims or controversies arising out of or relating to this agreement or any other agreement executed and delivered pursuant to this agreement or the negotiation, validity or performance hereof and thereof or the transactions contemplated hereby and thereby and further consents to the jurisdiction of the courts of Massachusetts for the purposes of enforcing the arbitration provisions of Section 10.04 of this agreement.
* * * *
10.07. Governing Law; Severability. This agreement is governed by and shall be construed in accordance with the law of the State of Delaware, exclusive of its conflict-of-laws principles.

(Preliminary objections of [appellant MTPCS] to counterclaim of Hollis, filed 12/28/12, Exhibits 2-6) (emphasis added).

Although Hollis received bonuses as well as salary increases for 2011 based on his performance, appellant MTPCS through third party appellant Foxman terminated his employment on March 16,2012. (Joinder complaint at ¶¶ 33-38,42). On August 7,2012, appellant MTPCS filed a complaint in the Court of Common Pleas of Montgomery County against Hollis and another former employee, alleging tortious conduct as well as breach of contract on the part of Hollis and seeking damages pursuant to the employment agreement.

On October 9, 2012, Hollis filed his answer with new matter and counterclaim against appellant MTPCS as well as a joinder complaint against third party appellants. In Count IV of the counterclaim as well as Count IV of the joinder complaint, Hollis asserts a claim for fraudulent inducement. Taking the facts as alleged by Hollis, appellants had represented that “no executive’s equity interests were or would be vesting on an accelerated schedule, and/or otherwise have their vesting schedule changed or altered, when in fact the equity interests of several executives... were changed to vest on an accelerated schedule or became fully vested.” (Counterclaim, filed 10/9/12 (“Counterclaim”), at ¶ 90; joinder complaint at ¶ 114). “Hollis would not have agreed to sign documents associated with the refinancing transaction had he known the true facts regarding the accelerated vesting of other executives’ equity interests.” {Id. at 117). According to Count IV of the counterclaim and the joinder complaint, Hollis suffered the loss of the immediate and full vesting of his equity interests in contravention of the employment and restricted equity agreements. {Id. at ¶ 119). In Count VII of the joinder complaint, Hollis alleged a breach of fiduciary duty by third party appellants Foxman and Hopkins through their acts constituting, inter alia, fraudulent inducement. (Joinder complaint, Count VII).

More than seventy-five (75) days later, appellants filed numerous preliminary objections to Hollis’s counterclaim and joinder complaint on December 28, 2012. Appellants asserted in relevant part that Hollis, a resident of Fort Wayne, Indiana, must defend against their claims in Pennsylvania, but litigate his counterclaims separately in the courts of Pennsylvania and Delaware and at private arbitration in Boston, Massachusetts, based upon the three (3) different forum selection clauses in the three (3) agreements.

Upon review of the record, the issues presented to this court, the applicable law and after hearing argument, the undersigned sustained appellants’ preliminary objections in the nature of a motion to strike Hollis’s demand for attorney’s fees from certain counts and overruled the objections to Hollis’s claims for breach of contract, fraudulent inducement, breach of fiduciary duty and civil conspiracy by two orders dated January 7,2014. (January 7, 2014 Orders). The undersigned also overruled appellants’ preliminary objections in the nature of a motion to strike Hollis’s demand for punitive damages. (Id.). Appellants filed their respective answers with new matter to the counterclaim and the joinder complaint on January 27, 2014. Each new matter contains an averment that Hollis’s claims for fraudulent inducement and breach of fiduciary duty fail because they are subject to the binding arbitration provision in the amended operating agreements.

On February 5, 2014, appellants filed two separate notices of appeal to the Superior Court. The undersigned issued two orders onFebruary 18,2014, directing appellants to file concise statements of the errors complained of on appeal (“concise statement”). Appellants filed their concise statements on March 10, 2014. The Superior Court consolidated the appeals sua sponte by order filed on April 1, 2014.

III. ISSUES

Appellants raise the following issues on appeal:

Whether the court erred in its order: preliminary objections of plaintiff, MTPCS, LLC d/b/a Cellular One, to counterclaims of defendant Charles Hollis by overruling plaintiff’s preliminary objection pursuant to Pa.R.C.P. 1028(a)(6) as to Count IV (fraudulent inducement) of the counterclaim of defendant Charles Hollis (“Hollis”) and refixsing to compel Hollis to submit his fraudulent inducement claim to binding arbitration as required under the terms of the amended and restated limited liability agreements for Broadpoint Holdco, LLC, Central Louisiana Holdco, LLC, MTPCS Holdings, LLC, OK-5 Holdco, LLC, and TX-10 Holdco, LLC (the “amended operating agreements”), where: (a) the amended operating agreements contain valid arbitration provisions that are binding on Hollis; and (b) Hollis’ fraudulent inducement claim falls within the scope of the arbitration provisions.

(Appellant MTPCS’s concise statement filed March 10, 2014).

Whether the court erred in its order: third party defendants’ preliminary objections to joinder complaint of defendant Charles Hollis by overruling third party defendants’ preliminary objection pursuant to Pa.R.C.P. 1028(a)(6) as to Counts IV (fraudulent inducement) and VII (breach of fiduciary duty) of the joinder complaint of defendant Charles Hollis (“Hollis”) and refusing to compel Hollis to submit his fraudulent inducement and breach of fiduciary duty claims to binding arbitration as required under the terms of the amended and restated limited liability agreements for Broadpoint Holdco, LLC, Central Louisiana Holdco, LLC, MTPCS Holdings, LLC, OK-5 Holdco, LLC, and TX-10 Holdco, LLC (the “amended operating agreements”), where: (a) the amended operating agreements contain valid arbitration provisions that are binding on Hollis; and (b) Hollis’ fraudulent inducement and breach of fiduciary duty claims fall within the scope of the arbitration provisions.

(Third party appellants’ concise statement filed March 10, 2014).

IV. DISCUSSION

In their single issue on appeal, appellants assert that this court erred by refusing to compel Hollis to submit two of his claims to binding arbitration in Boston, Massachusetts. The court disagrees.

As a prefatory matter, the only ruling currently on appeal is the undersigned’s decision to overrule appellants’ preliminary objections in the nature of a motion to dismiss Hollis’s counterclaim for fraudulent inducement and Hollis’s joinder complaint counts for fraudulent inducement and breach of fiduciary duty based on the amended operating agreements’ arbitration clause mandating private arbitration in Boston, Massachusetts. Among appellants’ numerous objections, only this ruling is arguably immediately appealable. See Midomo Company, Inc. v. Presbyterian Housing Development Company, 739 A.2d 180, 183-184 (Pa. Super. 1999).

Pennsylvania courts generally favor the settlement of disputes by arbitration as a matter of public policy. Elwyn v. DeLuca, 48 A.3d 457, 461(Pa. Super. 2012). Nevertheless, this liberal policy “does not require the rubber stamping of all disputes as subject to arbitration.” McNulty v. H&R Block, Inc., 843 A.2d 1267, 1271 (Pa. Super. 2004). “[T]he issue of whether a party agreed to arbitrate a dispute is a threshold, jurisdictional question that must be decided by the court.” Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 654(Pa. Super. 2013) (citation omitted).

With respect to the application of an arbitration agreement, the Superior Court has instructed:

Where aparty to a civil action seeks to compel arbitration, a two-part test is employed. Id. First, the trial court must establish if a valid agreement to arbitrate exists between the parties. Id. Second, if the trial court determines such an agreement exists, it must then ascertain if the dispute involved is within the scope of the arbitration provision. Id. If a valid arbitration agreement exists between the parties, and the plaintiff’s claim is within the scope of the agreement, the controversy must be submitted to arbitration. Highmark Inc. v. Hospital Service Ass ’n. of Northeastern Pennsylvania, 785 A.2d 93, 98 (Pa. Super. 2001), appeal denied, 568 Pa. 720, 797 A.2d 914 (2002).
This court has explained the interpretation of arbitration agreements as follows:
(1) arbitration agreements are to be strictly construed and not extended by implication; and (2) when parties have agreed to arbitrate in a clear and unmistakable manner, every reasonable effort should be made to favor the agreement unless it may be said with positive assurance that the arbitration clause involved is not susceptible to an interpretation that covers the asserted dispute.
Id., at 98. “To resolve this tension, courts should apply the rules of contractual constructions, adopting an interpretation that gives paramount importance to the intent of the parties and ascribes the most reasonable, probable, and natural conduct to the parties.” Id. In interpreting a contract, the ultimate goal is to ascertain and give effect to the intent of the parties as reasonably manifested by the language of their written agreement. Id.

Callan v. Oxford Land Development, Inc., 858 A.2d 1229, 1233 (Pa. Super. 2004). Accord Setlock v. Pinebrook Personal Care and Retirement Center, 56 A.3d 904, 907-OS (Pa. Super. 2012). “In analyzing the contract, [a court] must take care to note the surrounding circumstances, the situation of the parties when the contract was made, and the objects they apparently had in view and the nature of the subject matter.” McNulty, supra at 1272 (citing Huegel v. Mifflin Construction Company, Inc., 796 A.2d 350, 354 (Pa. Super. 2002)).

Additionally, Pennsylvania law provides “[w]here several instruments are made as part of one transaction they will be read together, and each will be construed with reference to the other; and this is so although the instruments may have been executed at different times and do not in terms refer to each other.” Southwestern Energy Production Company v. Forest Resources, LLC, 83 A.3d 177, 187 (Pa. Super. 2013) (quoting Huegel, supra at 354-55). Accord International Milling Company v. Hachmeister, 380 Pa. 407, 417-18, 110 A.2d 186, 191 (1955). Further, agreements all dealing with the same subject matter may be interpreted together, even though they are not made by the same parties. See Conshohocken Federal Savings and Loan Association v. Period and Country Homes, Inc., 430 A.2d 1173, 1179 (Pa. Super. 1981) (interpreting intent of parties who signed three interrelated construction and loan agreements).

In support of their position that Hollis, a resident of Fort Wayne, Indiana, must defend against Appellant MTPCS’s claims in Montgomery County, Pennsylvania, but litigate his counterclaims separately in Pennsylvania, Delaware and Massachusetts, appellants cited general propositions from cases which are distinguishable from the matter argued before this court. See e.g. Central Contracting Company v. C.E. Youngdahl & Company, Inc., 418 Pa. 122, 209 A.2d 810 (1965); Autochoice Unlimited, Inc. v. Avangard Auto Finance, Inc., 9 A.3d 1207 (Pa. Super. 2010); O’Hara v. First Liberty Insurance Corporation, 984 A.2d 938 (Pa. Super. 2009), and Patriot Commercial Leasing Company, Inc. v. Kremer Restaurant Enterprises, LLC, 915 A.2d 647 (Pa. Super. 2006).

In Central Contracting, supra, the arbitration agreement at issue designated the proper forum for disputes as the courts of the County of New York, State of New York. The Pennsylvania Supreme Court reiterated the applicable law as follows:

The modem and correct mle is that, while private parties may not by contract prevent a court from asserting its jurisdiction or change the rales of venue, nevertheless, a court in which venue is proper and which has jurisdiction should decline to proceed with the cause when the parties have freely agreed that litigation shall be conducted in another forum and where such agreement is not unreasonable at the time of litigation. Such an agreement is unreasonable only where its enforcement would, under all circumstances existing at the time of litigation, seriously impair plaintiff’s ability to pursue his cause of action. Mere inconvenience or additional expense is not the test of unreasonableness since it may be assumed that the plaintiff received under the contract consideration for these things. If the agreed upon forum is available to plaintiff and said forum can do substantial justice to the cause of action then plaintiff should be bound by his agreement. Moreover, the party seeking to obviate the agreement has the burden of proving its unreasonableness.

Id. at 133-134, 209 A.2d at 816 (citations omitted). The Central Contracting Court remanded the case back to the Allegheny County Common Pleas Court for a determination as to whether that court had jurisdiction and whether the agreement was or was not unreasonable. Id. at 134-135, 209 A.2d at 816-817.

In O’Hara v. First Liberty Insurance Corporation, 984 A.2d 938 (Pa. Super. 2009), the insureds brought a breach of contract claim in Philadelphia County against their automobile insurance company for underinsured motorist benefits. The Superior Court affirmed the Philadelphia trial court’s decision to sustain the insurer’s preliminary objection to venue based upon a forum selection clause contained in the insurance policy which required insureds to bring any lawsuit in a court of competent jurisdiction in the county and state of the insured’s legal domicile at the time of the accident. Id. at 939. Because the insureds lived in Delaware County, the Philadelphia trial court transferred the case to the Court of Common Pleas of Delaware County. Id. Writing for the majority, Judge Kelly concluded, in part, “[ajppellants have failed to persuade us that requiring them to litigate their lawsuit in the county in which they live and in which the accident occurred would ‘injure the public or be against the public good rid. at 943.

The dispute in Autochoice Unlimited, Inc. v. Avangard Auto Finance, Inc., 9 A.3d 1207 (Pa. Super. 2010) centered on a dealer agreement entered into between two corporate entities who agreed to Florida as the proper venue and choice of law. Id. at 1209. The Superior Court panel determined, inter alia, that the plaintiff did not sustain its burden of proving unreasonableness. Id. at 1216. Accordingly, the court held that the Philadelphia County trial court did not abuse its discretion or err in sustaining the defendants’ preliminary objection to forum in Philadelphia based on that agreement. Id. at 1209.

Finally, in Patriot Commercial Leasing Company, Inc. v. Kremer Restaurant Enterprises, LLC, 915 A.2d 647 (Pa. Super. 2006), the Superior Court upheld a Montgomery County trial court’s decision to overrule preliminary objections based upon the forum selection clauses in several contracts between commercial entities. In virtually the reverse factual scenario of the instant lawsuit, the multiple commercial defendants from Missouri, Wisconsin and Alabama in Patriot Commercial Leasing objected to litigating their equipment leasing agreements in Montgomery County. Id. at 649. One of the reasons cited by the Montgomery County court for retaining jurisdiction was the conservation of resources. Id. at 652.

Instantly, there is no question that litigating this matter in three (3) separate forums would be inconvenient and expensive. The issue is whether enforcing the three (3) different clauses would “seriously impair” Hollis’s lawsuit. See Morgan Trailer Manufacturing Company v. Hydraroll, Ltd., 759 A.2d 926, 930 (Pa. Super. 2000) (concluding contract requiring Pennsylvania plaintiff to litigate in England would seriously impair plaintiff’s lawsuit). The undersigned determined that enforcing the three (3) different forum selection clauses in three (3) different states would seriously impair Hollis’s lawsuit.

Appellant MTPCS filed a lawsuit in Montgomery County alleging fraud, breach of fiduciary duties/duty of loyalty, civil conspiracy, unjust enrichment, forfeiture/ disgorgement and breach of contract, based upon the parties’ employment agreement and an employee policy manual. Pursuant to Rules 1030, 1031 and 2252 of the Pennsylvania Rules of Civil Procedure, Hollis filed his new matter as well as a counterclaim and a joinder complaint in Montgomery County. Appellants presented no case to this court with facts similar to the instant matter in support of their position that Hollis must defend against appellant MTPCS ⅛ complaint in Montgomery County but litigate his counterclaims in the courts of Pennsylvania and Delaware and at private arbitration in Boston, Massachusetts.

Hollis asserts that the three (3) separate agreements with three (3) different forum selection clauses preclude Hollis from selecting one forum in which to litigate his claims which are based upon the three agreements. Hollis relies upon Array Healthcare Facilities Solutions, Inc. v. Pesce, in support of his argument that the entire matter should stay in the Montgomery County Court of Common Pleas.

In Array Healthcare, the Honorable Allan L. Tereshko determined that the two agreements in question, an employment agreement and a buy-sell agreement, were independent documents and that the arbitration clause in one agreement did not apply to the other. Id. at 559. Rather than split the two actions and sending one to Cumberland County, however, the trial court cited Pa.R.C.P. 213.1 in support of coordinating the actions in Philadelphia County. Id. at 559-560. Judge Tereshko explained the rationale as follows:

the promotion of judicial efficiency and the minimization of delay, costs, redundancy and possibility of inconsistent verdicts that may occur from separate proceedings far outweigh any prejudice associated with coordination of actions in the Philadelphia Court of Common Pleas. See Pa.R.C.P. 213.1(a). Rule 213.1(a) provides for coordination of actions when there are proceedings pending in different counties which involve a common question of law or fact or which arise from the same transaction or occurrence. The interest in coordinating actions before the Philadelphia Court of Common Pleas would prevent having arbitration in Cumberland County pursuant to the buy-sell agreement and a trial in Philadelphia Court of Common Pleas on the employment agreement. This could also result in an inconsistent verdict with the findings of the Philadelphia Court of Common Pleas.

Array Healthcare, supra.

The Honorable Terrence R. Nealon recently applied similar reasoning in Bingham v. Poswistilo, 2011 WL 8809426 (Lackawanna Cty. 2011) to join and try tort and underinsured motorist claims in a single action where the claims share common questions of fact or law following Koken. In his review of the cases favoring joinder under Pa.R.C.P. 2229, Judge Nealon noted “courts within those judicial districts have concluded that joinder of tort and UIM claims also conserves limited judicial resources, avoids multiplicity of suits and unnecessary litigation delay and expense, and safeguards against inconsistent verdicts in separate proceedings.” Id. at *5.

Finally, as the Superior Court has previously explained:

Avoiding the public court system to save time and money is a laudable societal goal. But, avoiding the public court system in a way that effectively denies citizens access to resolving everyday societal disputes is unconscionable. Goals favoring arbitration of civil disputes must not be used to work oppression. When the goals given in support of contract clauses like this are used as a sword to strike down access to justice instead of as a shield against prohibitive costs, we must defer to the overriding principle of access to justice.

McNulty, supra at 1274.

Instantly, this court found that the three agreements at issue were interrelated and that the same parties as well as common questions of fact and law militated in favor of retaining jurisdiction for all claims. Moreover, appellant MTPCS’s principal place of business is in Montgomery County, third party appellants Foxman and Hopkins both reside in Montgomery County and the third party limited liability companies all maintain their principal place of business in Montgomery County. (Answer to joinder complaint ¶¶ 2-13). While Array Healthcare and Bingham are factually distinguishable, the logic therein is sound. The undersigned concludes, in line with other Pennsylvania trial courts, that the avoidance of multiplicity of suits and unnecessary litigation delay and expense as well as the safeguards against inconsistent verdicts in separate proceedings all weigh in favor of litigating the entire matter in one forum, the Montgomery County Court of Common Pleas. Accordingly, appellants’ issue warrants no relief.

V. CONCLUSION

Based upon the reasoning set forth herein, the undersigned respectfully requests that the court’s January 7, 2014 orders be affirmed and the case remanded for further proceedings.

      . MTPCS, LLC d/b/a Cellular One is the plaintiff in the underlying action.

      . Jonathan Foxman, Daniel E. Hopkins, Broadpoint Holdco, LLC, Broadpoint, LLC, Central Louisiana Holdco, LLC, MTPCS Holdings, LLC, OK-5 Holdco, LLC and TX-10 Holdco, LLC are third party defendants in the underlying action.

      . Appellant MTPCS’s complaint contains counts in fraud, breach of fiduciary duty, civil conspiracy, unjust enrichment, forfeiture/ disgorgement and breach of contract. Notably, the complaint demands a jury trial even though the employment agreement contains a waiver of jury trial provision. (Complaint, Exhibit B at ¶ 20).

      . Appellants have preserved their objections to forum for a potential appeal upon entry of a final order. By filing a complaint in Montgomery County and their respective answers to Hollis’s counterclaim and joinder complaint, appellants have arguably waived their right to an immediate interlocutory appeal. See generally, Stanley-Laman Group, Ltd. v. Hyldahl, 939 A.2d 378 (Pa. Super. 2007). The court notes that appellants filed their notices of appeal on the twenty-ninth (29th) day, nine (9) days after filing their answers.

      . Because appellants have raised identical forum arguments, the court will address them together.

      . See footnote 4 supra.

        . Appellants did not file a petition to compel arbitration but, rather, preliminary objections seeking dismissal pursuant to Pa.R.C.P. 1028(a) (6).

      . Appellants also rely upon KPMG LLP v. Cocchi, 132 S.Ct. 23 (2011) (quoting Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213 (1985)) and Salley v. Option One Mortgage Corporation, 592 Pa. 323, 925 A.2d 115 (2007). Both cases analyze agreements under the Federal Arbitration Act, 9 U.S.C.A. § 1 et seq. which is not applicable in the case sub judice.

      . The court acknowledges that only its decision declining to compel arbitration in Boston, Massachusetts is on appeal. However, to properly reach this decision, the court was required to view all of the surrounding circumstances and the situation of the parties at the time of litigation. See Central Contracting, supra\ McNulty, supra.

      . 2 Pa. D.&C. 5th 547 (Philadelphia Cty. 2006), affirmed, 931 A.2d 60 (Pa. Super. 2007) (Table).

      . Insurance Federation of Pennsylvania, Inc. v. Koken, 585 Pa. 630, 889 A.2d 550 (2005).

      . Writing for the majority in McNulty, Judge Klein quoted from Lytle v. CitiFinancial Services, Inc., 810 A.2d 643, 667-68 (Pa. Super. 2002). The Pennsylvania Supreme Court has since abrogated the holding in Lytle that mandatory arbitration agreements in foreclosure actions under the Federal Arbitration Act are presumptively unconscionable where they reserve judicial remedies. Salley v. Option One Mortgage Corporation, supra. Notably, this court is not reaching the legal question of unconscionability.


author: LOVECCHIO, J.,

text:
    Commonwealth v. June

      C.P. of Lycoming County,
    No. CR-627-2014

      Anthony Ciuca, for Commonwealth.

      Joshua Bower, for defendant.
    April 25, 2015
   LOVECCHIO, J.,

By information filed on May 2, 2014, defendant is charged with seven counts of forgery and seven counts of identity theft. The charges arise out of a private criminal complaint that was filed by Thomas H. Ungard, Jr. against defendant. Mr. Ungard alleges that from February 8, 2006 through January 25, 2008, defendant completed applications for various student loans and listed Mr. Ungard as a cosigner by signing Mr. Ungard’s name without Mr. Ungard’s authorization. The loan applications were allegedly completed, signed and submitted on February 8, 2006; September 29, 2006; October 6, 2006; January 3, 2007; January 31, 2007; July 20, 2007; and February 25, 2008. The seven loans totaled approximately $60,000.00.

On February 24, 2015, defendant filed a motion to dismiss alleging that the prosecution was commenced later than permitted pursuant to 42 Pa. C.S. § 5552. Defendant asserts that the first alleged forgery occurred in October 2006 and the last forgery occurred in February 2008. Defendant further alleges that Mr. Ungard was made aware of the alleged crimes in December of 2010. Defendant asserts that all prosecutions for fraud and theft must be commenced within five (5) years after committed pursuant to 42 Pa. C.S. § 5552 (b).

A hearing was held before the court on March 24,2015. In defense of the petition, the Commonwealth first asserts that defendant’s motion is untimely.

The Commonwealth argues that defendant’s arraignment was scheduled for May 5, 2014. All pretrial motions must be filed within thirty (30) days of the date of the arraignment. This motion, however, was not filed until February 19, 2015 well after the thirty (30) day period.

Defendant counters that the court should consider the merits of the petition in the “interests of justice.” Defendant argues that the parties were attempting to resolve the issue via either ARD or a Rule 586 disposition and that once it became apparent that said disposition could not be achieved, counsel filed the motion.

The court concludes that defendant’s argument is disingenuous at best. Indeed, defendant’s argument that the interests of justice require the court to hear the motion belies the procedural posture of the case and what appears to the court to be clear manipulation by defendant.

Defendant’s preliminary hearing was held on April 15, 2014. Defendant’s arraignment was scheduled for May 5, 2014. A status conference was scheduled for August 1, 2014 and a pretrial was scheduled for August 12, 2014. There is nothing in the record at all indicating that the parties had been negotiating or attempted to reach a pretrial disposition.

On May 5, 2014, the court entered an order acknowledging the arraignment waiver and scheduling the status conference and pretrial as set forth above. On May 6, 2014, Robert Cronin, Esquire of the Lycoming County Public Defender’s Office entered his appearance for defendant. At the August 1, 2014 status conference, the potential plea agreement was first referenced. The court noted that “the plea agreement is contingent on the defendant making the necessary arrangements to have the cosigner/victim removed from the loan. If Defendant can arrange this, the Commonwealth will dismiss the charges.” Further, defendant was directed to appear for an October 10, 2014 status and to provide the court with verification that he was making efforts to accomplish the removal of the victim from the loans.

On October 10, 2014, defendant failed to appear for the status conference and obviously failed to provide any verification with respect to the plea agreement terms. Over defense counsel’s objection, a bench warrant was issued for defendant’s arrest.

On December 30, 2014, the Commonwealth filed a motion to revoke and forfeit bail. The hearing was scheduled for February 6,2015. Defendant appeared for the February 6,2015 hearing on the motion to revoke and forfeit bail. As well, the court held a hearing on the bench warrant.

In an order dated February 6, 2015, the court denied the Commonwealth’s motion to revoke and forfeit bail. While there was clearly a breach, the court exercised its discretion and decided to give defendant one additional opportunity. As was noted in the order:

The exercise of the court’s leniency in this situation is based upon the fact that the charges against the defendant do not involve personal injury, that the defendant does not appear to be a danger to society, that this is defendant’s first experience with the criminal justice system, that there may have been a miscommunication between the defendant and his counsel, and that the court does not wish to be overly punitive to the defendant when he may have at least an arguable defense.

Defendant was advised to next appear in court on March 27, 2015 for a criminal status.

On February 19, 2015, defendant filed his motion to dismiss. In the motion, defendant alleges that his then counsel did not become aware of the alleged violation with respect to the limitations on prosecutions until February 6, 2015 during the hearing to revoke bail and that his then counsel entered his appearance and filed the motion.

Defendant was represented by the public defender’s office beginning with the preliminary hearing and continues to be so represented. Defendant has not provided any reason whatsoever as to why the court should permit him to file this motion so late in the proceeding and months after it was required to be filed.

Assuming, however, that the court would proceed to the merits, the court would deny defendant’s motion.

Mr. Ungard testified at the hearing. He is the stepfather of defendant. Sometime in 2010, he believes in November of 2010, he became aware that defendant had forged his name on student loan applications.

Mr. Ungard was contacted by Sallie Mae, the loan provider and then began what he described as a long and detailed process in an attempt to rectify the matter.

Mr. Ungard credibly testified that for a 2 1/2 year period beginning with February, March or April of 2011 until the fall of 2013, he and his wife, defendant’s mother, essentially lost contact with defendant. While defendant would come in and out of town on occasion and while they would actually see him on occasion, defendant did not provide them nor were they aware of where defendant was residing or if he had a fixed residence. According to the information that they had, defendant supposedly went to West Chester University, left West Chester University and was living in either West Chester or the Philadelphia area and was homeless. They did not have an address for defendant but had a cell phone which gave them some ability to contact defendant although they were not able to have “regular contact.” It was not until October of 2013 that Mr. Ungard’s wife found out where the defendant was living.

According to Mr. Ungard, between early 2011 and late 2013, he left several voicemails with defendant pleading with him to contact him, left messages to get the matter taken care of, contacted him many times trying to reach out but without success. He and his wife did not know where defendant was residing for a long period of time. They were unable to ascertain his address.

Defendant also testified. He testified that in early 2010 he moved to West Chester, PA. He testified that he was a fulltime student at West Chester through the fall of 2012 at which time he stayed in West Chester for a short period of time, was living out of his car for a short period of time and then moved to Philadelphia. He indicated that he has resided in Philadelphia since 2012 or early 2013.

He indicated that he was in constant contact with his mother via phone calls and Facebook and that even though his home address was in Williamsport, much of his mail was forwarded to his West Chester address. He testified as well that he occasionally had contact with his mother in person.

With the parties’ consent and because defendant appeared to be having some difficulty with dates, the court contacted the West Chester University Registrar. The registrar was unwilling at first to provide any information but because defendant was present and was available via speaker phone, the registrar provided the court with defendant dates of attendance. According to the registrar, defendant attended West Chester University from August 2011 through May 2013.

The parties do not dispute that the applicable limitations of prosecution is five years from the date of the offense. Defendant argues that the date of the offense is the last date used in the complaint, or February 25, 2008. Defendant argues that the complaint had to be filed no later than February 25,2013, but it was not filed until March 27,2014.

The Commonwealth argues that the period of time between March of 2011 to October of 2013 should be excluded from the computation pursuant to the tolling statute. The tolling provision notes that the limitations period is tolled during the time period in which the defendant has no reasonably ascertainable place of abode. 42 Pa.C.S. §5554(1).

The court agrees. Preliminarily, the court notes that it finds the testimony of Mr. Ungard credible and the testimony of defendant not credible. Indeed, in assessing defendant’s credibility, the court finds that not much, if anything, of what he stated can be believed. Defendant’s statements were internally inconsistent, inconsistent with the statements of Mr. Ungard and the West Chester University Registrar, entirely self-serving and clearly a product of ill-will toward Mr. Ungard. Defendant’s demeanor also supports the court’s conclusion. Defendant was evasive, uncertain, skittish and reluctant to answer questions.

The court concludes that between at the very least March of 2011 until October 2013, defendant had no reasonably ascertainable place of abode. He may have been a student at West Chester University for a portion of that time but his address was not ascertainable by anyone, he did not provide it to anyone and, in fact, he was evading those who he allegedly defrauded. Defendant maintained his record address in Williamsport but bounced around between different apartments, dorms, others residences and even his car for a period of time.

The court cannot and will not sanction this evasive conduct or reward defendant. The law provides a mechanism for tolling and the elements have been satisfied.

ORDER

And now, this day of April 2015, following a hearing and argument, the court denies defendant’s motion to dismiss.


author: MCCOY, J.,

text:
    Orwig v. PennDOT

      C.P. of Lycoming County,
    Nos. 14-02896; 286 CD 2015

      Kelly Edward Solomon and Terrance M. Edwards, for appellant.

      Pro se appellee.
    April 28, 2015
   MCCOY, J.,

I. PROCEDURAL HISTORY

The Commonwealth of Pennsylvania, Department of Transportation, (hereinafter “appellant”) has appealed this court’s February 3, 2015, order. After a de novo hearing held on February 3, 2015, this court sustained appellee’s appeal of his license suspension and rescinded the twelve (12) month license suspension. Appellant filed a notice of appeal of the order of February 3,2015 on March 3,2015. Appellant filed a concise statement of errors complained of on appeal on March 27,2015. This opinion is submitted in regard to the pending appeal.

In appellant’s concise statement of matters complained of on appeal, filed March 25, 2015, appellant raised the following issue:

1. The trial court erred as a matter of law when it sustained the statutory appeal of Kristoffer Orwig (Orwig) from a one-year suspension of his operating privilege which the department imposed in accordance with the requirement of 75 Pa.C.S. §3804(e)(2)(i).

Appellant’s appeal should be denied and the court’s order affirmed.

II. FACTS

On February 3, 2015 during a de novo hearing of Orwig v. Commonwealth of Pennsylvania, Department of Transportation the following facts were determined to have occurred.

Kristoffer Orwig’s, (hereinafter “appellee”) driving license was suspended as a result of a charge from May 2004. The appellant did not receive the record of conviction from the York County Clerk of Courts until October 17, 2014. The appellant sent the notice of suspension to the appellee on October 28, 2014. Appellee filed an appeal of the suspension on November 6, 2014. A hearing was held February 3,2015.

The appellee said he would be prejudiced to lose his driver’s license after such a significant delay. Appellee testified “My life is completely different from what it was ten years ago, maybe losing my license then wouldn’t have really mattered much, but now it’s pretty important”. Hearing transcript, February 3,2015, Page 4, lines 18-21. Appellee’s testimony was credible. Appellant entered into evidence, appellee’s driving record as Commonwealth’s 1. Appellee had approximately 23 driving violations from 1993 until 2007. The driving record shows no further driving infractions after 2007.

II. DISCUSSION

In the review of a license suspension case, the analysis is whether the factual findings of the trial court are supported by the evidence presented and whether there was an error of law or abuse of discretion committed by the trial court. Sitoski v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, 11 A.3d 12, 17 n.5 (Pa. Commw. Ct. 2010) (quoting Nornhold v. Department of Transportation, Bureau of Driver Licensing, 881 A.2d 59, 62 n.4 (Pa. Commw. Ct. 2005).

The standard for sustaining an appeal based on delay requires a defendant to show: “(1) an unreasonable delay chargeable to PennDOT led the licensee to believe that [his] operating privileges would not be impaired; and (2) prejudice would result by having the operating privileges suspended after such delay.” DOT, Bureau of Driver Licensing v. Gombocz, 589 Pa. 404, 407 (Pa. 2006) (internal citations omitted).

The court finds that the delay can and must be attributed to the department. The attorney for the appellant was well aware of the break down in the system of waiting for the York County Clerk of Courts to supply convictions to the Department. Hearing transcript, February 3,2015, page 2, lines 19-21. Appellant informed the court that the system was so problematic that the general assembly amended the law to allow more drivers to receive occupational licenses in response to the delay. Id. The department’s continued reliance on this system of waiting for the York County Clerk of Courts to supply the record of convictions and applying the suspension without regard to passage of time or prejudice was unreasonable. “When PennDOT fails to take responsibility for moving a case forward under the circumstances where it is reasonable for it to be expected to do so, the delay is attributable to PennDOT”. DOT, Bureau of Driver Licensing v. Gombocz, 589 Pa. 404, 408 (Pa. 2006)(intemal citations omitted). The appellant argues it cannot be held responsible for the delays caused by other entities. This court believes, in this circumstance, where the appellant was on notice as to the delay in its system the delay must be attributed to the appellant.

Appellee was justified in the reliance upon the thought that his license would not be taken after a ten-year period from the date of the offense, and an eight-year period in which he had no further issue with the department. The court does find appellee would be prejudiced by the loss of license in excess of ten years after the conviction. This court specifically relies on appellee’s clean driving record in excess of eight years, to find that appellant has in fact dramatically improved his behavior.

CONCLUSION

The evidence supports the court’s factual determination that appellee would be prejudiced by a licenses suspension in excess of ten years after the underlying conviction, and that the delay is attributable to the appellant. Appellant knew the system of reliance upon the York County Clerk of Courts to timely produce records of conviction was flawed. Appellant’s continued reliance upon this system and application of suspension without concern for passage of time or prejudice was unreasonable.

The court’s order of February 3, 2015 should be affirmed and appellant’s appeal dismissed.


author: GRAY, J.,

text:
    Arthur v. Bosque Disposal Systems, LLC

      C.P. of Lycoming County,
    No. CV-15-00,515

      William P Carlucci, for plaintiff.

      Suzanne Illene Schiller, for defendants.
    May 14, 2015
   GRAY, J.,

ORDER

Before the court are the preliminary objections filed by defendants Waste Management, Inc. (WMI) and Waste Management of Pennsylvania, Inc. (WM-Pa) on March 23, 2015 to plaintiffs’ reinstated complaint. Upon consideration of the argument held on May 13, 2015, and briefs submitted by counsel, the court overrules the objections. The following discussion is provided in support of the court’s rulings.

A party may file preliminary objections based on the legal sufficiency or insufficiency of a pleading (demurrer) pursuant to Pa. R.C.P. 1028(a)(4). A demurrer tests the legal sufficiency of the complaint. Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 714 (Pa. Super. 2005). When reviewing preliminary objections in the nature of a demurrer, the court must “accept as true all well-pleaded material facts set forth in the complaint and all inferences fairly deducible from those facts.” Thierfelder v. Wolfert, 52 A.3d 1251, 1253 (Pa. 2012), citing, Stilp v. Commonwealth, 940 A.2d 1227, 1232 n.9 (Pa. 2007). In deciding a demurrer “it is essential that the face of the complaint indicate that its claims may not be sustained and that the law will not permit a recovery. If there is any doubt, it should be resolved by the overruling of the demurrer.” Melon Bank, N.A. v. Fabinyi, 650 A.2d 895, 899 (Pa. Super. 1994) (citations omitted). “Preliminary objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear andfree from doubt.” Bower v. Bower, 611 A.2d 181, 182 (Pa. 1992)(emphasis added).

Defendants filed three preliminary objections. The first preliminary objection is a demurrer to claims against WMI for failure to aver facts upon which the action is based. “The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pa. R.C.P. 1019(a). Defendants contend that the allegations against WMI are legal conclusions without any facts to support those conclusions. This court disagrees. In ¶ 7 of the complaint, plaintiffs aver that Bosque assigned its interests in the lease to one or both of the Williamsport Waste Management defendants, that they are related corporations, and that they are collectively successor in interest to Bosque. The court believes these are sufficient facts to state a claim against WMI for potential liability for obligations under the Bosque lease or equitable contracts.

The second and third preliminary objections are demurrers to equitable contractual claims on the grounds that such laims cannot be asserted in the alternative to a breach of contract claim. Specifically, defendants contend that a breach of an implied in fact contract and a claim for unjust enrichment cannot be asserted in the alternative to breach of an express contract unless the validity of the contract is disputed. Defendants’ brief, at 7-8, citing, Grudkowski v. Foremost Ins. Co., 556 Fed. Appx. 165, 170 n.8 (3rd Cir. 2014); Montanez v. HSBC Mortg. Corp. (USA), 876 F. Supp. 2d 504, 516 (E.D. Pa. 2012); Gallo v. PHH Morg. Corp., 916 F.Supp. 2d 537, 553 (D.N.J. 2012); and DTK Ventures, L.P. v. Russo, NO. 05 EQ 4059 (C.P. Lackawanna August 21, 2006) The court notes that the only cases cited to support this contention are federal cases interpreting Pennsylvania law.

By contrast, Pennsylvania Courts have repeatedly held that breach of contract and unjust enrichment may be plead as separate counts as alternative causes of action under Pa.R.C.P. 1020(c). Lugo v. Farmers Pride, Inc., 2009 PA Super 5, 967 A.2d 963 (Pa. Super. 2009), citing, Pa.R.C.P. 1020(c); Standard Pennsylvania Practice, § 16:59; Rollinson v. Clarke-DeMarco, 83 Pa. D. & C.4th 467, 2007 WL 4593471 (Pa.Com.Pl., Mercer Co., 2007); DTK Ventures, L.P. v. Russo, 2006 Pa. Dist. & Cnty. Dec. LEXIS 570,2006 WL 2988463 (Pa.Com.Pl., Lackawanna Co., August 21, 2006); Kerkel v. SPD Elec. Systems, 2003 Phila. Ct. Com. Pl. LEXIS 42, 2003 WL 23005010 (Pa.Com.Pl., Philadelphia Co., December 9, 2003). See, also, Shafer Elec. & Constr. v. Manila, 2013 PA Super 111, 67 A.3d 8, 2013 Pa. Super. LEXIS 722 (Pa. Super. 2013)(“Courts in this Commonwealth have continually recognized that a litigant may advance alternative or conflicting theories of recovery, including causes of action for breach of contract and quantum meruit/unjust enrichment.”) This court is compelled to follow the courts in this Commonwealth in this regard.

Accordingly, the court enters the following order.

ORDER

And now, this 14th day of May, 2015, it is ordered and directed that defendants’ objections are overruled. Defendant shall file an answer within twenty days. This matter is placed on the court’s January 2016 trial term. A separate scheduling order will be issued this same date.

      . Contrary to defendant’s assertion, DTK Ventures, supra, recognizes that litigants may “advance alternative or conflicting theories of recovery, including causes of action for breach of contract and unjust enrichment.” Id. (citations omitted.)


author: MCINERNEY, J.,

text:
    Forty Seven Hundred L.P. v. David Whitnack Distribution Inc.

      William J. O ’Brien, II, for appellant.

      Kierstin Marie Lange, for appellee.
    May 15, 2015
   MCINERNEY, J.,

Defendant-Appellant David Whitnack Distributing, Inc. (“appellant”) and appellant’s counsel, William J. O’Brien II, Esquire, (sometimes referred to collectively as “appellants”) appeal from a March 31, 2015 discovery order which granted sanctions against both appellant and Mr. O’Brien in the amount of $500 payable to plaintiffs-appellees Forty Seven Hundred, L.P.. et al., (“appellees”) as reasonable expenses, including attorney’s fees, incurred in obtaining (1) the February 10, 2015 order compelling appellant’s principal, David Whitnack, to appear for a deposition on or before February 24, 2015 and (2) the March 31, 2015 order for sanctions after Mr. Whitnack failed to appear. Because the appeal of a discovery order granting sanctions is interlocutory and not immediately appealable, this appeal should be quashed.

I. BACKGROUND

While the actions and inactions of appellant and its counsel have left this case with a convoluted procedural and factual history, the following is what this court believes is relevant at this juncture. On May 12, 2014, appellees commenced the instant action against appellant for breach of a commercial lease. Therein, appellees asserted damages against appellant for rent as a holdover tenant and for destruction to the property upon appellant actually vacating it.

On January 9, 2015, appellees served notices of deposition scheduling depositions of appellant’s principal, Mr. Whitnack, and appellant’s corporate designee for January 21, 2015. In response to appellees’ counsel’s request for confirmation that the requested witness(es) would be appearing for the scheduled deposition(s), on January 20, 2015, appellant’s counsel explained his position in an e-mail to appellees’ counsel that the discovery would not be provided because the matter was stayed pending disposition of an application for determination of finality pursuant to Pennsylvania Rule of Appellate Procedure 341(c) that appellant had filed in regard to an order disposing of preliminary objections to appellant’s counterclaims. On January 23, 2015, in response appellees’ counsel explained her position that this matter was not stayed because appellant’s application was untimely filed and, therefore, deemed denied and requested appellant immediately provide deposition date(s).

Appellant’s counsel did not respond to appellees’ counsel’s request, and on January 28,2015, appellees filed a motion to compel discovery. Therein, appellees asserted they are entitled to dispose Mr. Whitnack and appellant’s corporate designee, and time was of the essence with regard to these depositions because discovery was set to end on February 2, 2015. On February 10, 2015, following a hearing, this court entered an order requiring, among other things, appellant’s principal, Mr. Whitnack, and appellant’s corporate designee appear for deposition in appellees’ counsel’s offices on or before February 24, 2015.

At the hearing on February 10, 2015, appellant’s counsel, Mr. O’Brien, did not mention Mr. Whitnack was suffering from any infirmity that would affect his ability to sit for the deposition as ordered. On February 18, 2015, Mr. O’Brien sent a letter to the court requesting that it reconsider requiring Mr. Whitnack to appear for a deposition on or before February 24th because Mr. Whitnack was suffering from a most serious illness that Mr. O’Brien was previously instructed not to disclose and the associated pain and the pain medication were preventing Mr. Whitnack from producing cogent testimony. In lieu of Mr. Whitnack, Mr. O’Brien suggested producing only appellant’s general manager, Michael Davis, for deposition on February 24, 2015. In response, this court stated that the subject matter of Mr. O’Brien’s letter was not something that could appropriately be dealt with by letter, and if it was something that could not be worked out with opposing counsel, appellant would have to file a motion for reconsideration.

Appellant did not file a motion for reconsideration of the order requiring Mr. Whitnack to appear for a deposition on or before February 24th and Mr. Whitnack did not appear for such a deposition. On February 25, 2015, appellees filed a motion for sanctions — the March 31, 2015 order ultimately disposing of such being the subject of this appeal. In their motion for sanctions, appellees argued, among other things: “[appellees] specifically requested and the [c]ourt ordered that an appropriate designee ... appear for deposition and [Mr.] Whitnack... appear for deposition on or before February 24, 2015, neither of which appeared”; “Mr. Davis may have been an appropriate deponent on certain factual issues, but he did not [have] sufficient knowledge to serve as a corporate designee testifying to the areas of inquiry set forth in the notice of deposition and ordered by the court;” and “[Appellees] have been unable to secure the deposition of the only person with sufficient knowledge of all underlying facts and allegations set forth in this litigation or the only person to have verified the pleadings[, Mr. Whitnack].” As a sanction, appellees sought monetary sanctions and preclusion of evidence through dispositive motions and/or trial.

On March 10, 2015, a hearing was held for appellees’ motion for sanctions. Counsel for appellant, Mr. O’Brien, did not appear at the hearing and the motion was, therefore, treated as uncontested. By order dated March 10, 2015, this court granted appellees’ request to preclude appellant from introducing evidence or testimony in support of its alleged defenses through dispositive motions and/or trial, but denied its request to impose monetary sanctions.

On March 20, 2015, appellant filed a motion for reconsideration of the March 10, 2015 order. Therein, appellant’s counsel did not offer a non-negligent reason for failing to appear at the hearing. Rather, appellant’s counsel asserted that while he did enter the hearing on his schedule via his smartphone, the entry was not synced to his desktop (and was therefore not viewable thereon) because he either failed to sync the entry or the sync was interrupted by a poor cellular connection. Appellant’s counsel, however, also asserted:

Following medical tests and evaluation, in early January 2015, David Whitnack was diagnosed with stage IV stomach cancer. Soon after learning of that diagnosis, Mr. Whitnack met with [appellant’s] counsel to review [appellees’] written discovery requests. At that time, [appellees] had issued its January 9, 2015 notice of deposition .... Mr. Whitnack informed [appellant’s] counsel that he could not, at that time, endure a deposition due to the pain and discomfort of his illness, as compounded by prescribed pain medications. When [appellant’s] counsel suggested the filing of a motion for a protective order, Mr. Whitnack expressed firm objection. Mr. Whitnack explained that he had founded [appellant] in 1990 and, for the next twenty-four years, operated a HVAC supply business at 4700 B Wissahickon Avenue. After vacating his former leased premises, he learned that [appellees] had leased his former space to a competitor, Associate Refrigeration Inc.
⅝⅝⅝
Mr. Whitnack believed that [appellees] would disclose his medical condition to its tenant who might use the information to [appellant’s] commercial disadvantage. Counsel was directed by David Whitnack, [appellant’s] sole shareholder, not to disclose his medical condition in the course of this litigation.

With this background, appellant argued precluding it from introducing evidence and testimony in support of its defenses was too severe of a sanction for Mr. Whitnack’s failure to appear for deposition on or before February 24, 2015 where “[t]he proximate causes that Mr. Whitnack has not been deposed [were] [appellees’] delay in scheduling the deposition twelve days before the discovery deadline; and Mr. Whitnack’s medical condition.”

On March 30, 2015, appellees filed a response in opposition to appellant’s motion for reconsideration. Therein, appellees asserted this court properly awarded sanctions and appellant failed to provide a sufficient basis for reconsideration. In terms of failing to comply with the February 10,2015 order directing Mr. Whitnack to appear for a deposition on or before February 24,2015, appellees argued:

[Appellant] explains that two factors contributed to why Mr. Whitnack did not appear and that should excuse [appellant’s] noncompliance. First, [appellant] blames [appellees’] alleged delay in noticing his deposition. Second, Mr. Whitnack is allegedly suffering a serious illness. Even if both are true, these arguments could have/should have been raised by counsel on February 10, 2015 before the [c]ourt entered an order directing Mr. Whitnack to appear for a deposition before February 24, 2015. At a minimum, [appellant] could have/should have raised these factors through submission of a motion for reconsideration of the order compelling [Mr.] Whitnack’s deposition before February [24th]. In fact, when counsel notified the [c] ourt [Mr. Whitnack was sick by letter dated February 18, 2015], the [c]ourt notified counsel that a motion for reconsideration is required in order to entertain the request to vacate or amend the order requiring [Mr.] Whitnack appear for deposition. [Appellant] filed a motion for reconsideration of the other February 10th order [imposing a $1,000 monetary sanction against appellant’s counsel and disposing of another discovery motion], but chose not to file a motion for reconsideration of the [February 10th] order compelling depositions. [Appellant] has therefore waived its right to seek reconsideration of the order compelling [Mr.] Whitnack’s appearance and [appellant’s] motion for reconsideration of the sanctions order dated March 10, 2015 must be denied....

On March 31, 2015, this court granted reconsideration and vacated its March 10, 2015 order disposing of appellees’ motion for sanctions. That same date, this court entered a new order disposing of appellees’ motion for sanctions. In its new order, which is the order appealed from here, rather than impose the harsher penalty of precluding appellant from introducing evidence in support of its alleged defense through dispositive motions and/or trial, this court imposed a less severe monetary sanction of $500 each against appellant and Mr. O’Brien as compensation for reasonable expenses, including attorney’s fees, appellees incurred in obtaining the February 10, 2015 order compelling Mr. Whitnack to appear for a deposition on or before February 24, 2015, and the March 31, 2015 order for sanctions after Mr. Whitnack failed to appear.

In entering that order, this court was sympathetic to Mr. Whitnack’s illness. This court, however, was also sympathetic to the efforts appellees’ counsel were required to undergo to obtain discovery. And those efforts would have been significantly reduced if, among other things, Mr. Whitnack had refrained from instructing his counsel to not disclose for business reasons that he was ill at the February 10, 2015 hearing or if Mr. O’Brien had filed timely a motion for reconsideration from the February 10, 2015 order compelling Mr. Whitnack to appear for a deposition — a motion Mr. O’Brien has shown he is more than capable of filing — or if Mr. O’Brien had shown up at the March 10, 2015 hearing where the initial order disposing of the motion for sanctions was entered. On April 10, 2015, however, appellant and its counsel filed the instant appeal from this court’s March 31, 2015 discovery order imposing a modest monetary sanction against them for their conduct and as compensation for appellees additional expense.

On April 20, 2015, this court issued an order (1) directing appellants to file a Pennsylvania Rule of Appellate Procedure 1925(b) statement and (2) noting its belief that the March 31, 2015 order is interlocutory and not immediately appealable and the instant appeal should either be withdrawn or quashed. In their 1925(b) statement, appellants set forth five complaints of error, with only one directly related to the March 31, 2015 order that was appealed from and the others relating to the February 10, 2015 order compelling Mr. Whitnack to appear for a deposition on or before February 24, 2015. Having reviewed the 1925(b) statement, and while believing the complaints lack merit, it is the position of this court that the instant appeal should be quashed because appellants are at best seeking review of an interlocutory and not immediately appealable discovery sanctions order.

II. DISCUSSION

“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. Ct. 2006), quoting Pace v. Thomas Jefferson University Hosp., 717 A.2d 539, 540 (Pa. Super. Ct. 1998). “Afinal order is one that disposes of all the parties and all the claims, is expressly defined as a final order by statute, or is entered as a final order pursuant to the trial court’s determination.” Stahl v. Redcay, 897 A.2d at 485.

While “civil contempt orders imposing sanctions generally constitute final, appealable orders[,]” “under prevailing Pennsylvania law ... sanctions involving discovery orders remain interlocutory and not immediately appealable.” See Stahl, 897 A.2d at 487 n.2. See also 20 West’s Pa. Prac, Appellate Practice § 312.17 (“The exception to the general rule that a civil contempt order is appealable as long as it imposes sanctions involves sanctions for discovery orders; as a general matter, an order imposing ... sanctions for discovery violations is interlocutory and not immediately appealable”). Here, the March 31, 2015 order imposes sanctions for discovery violations. As such, the order is interlocutory and not immediately appealable.

The Superior Court has stated on a number of occasions that: “[a]s a general rule, [it] will not provide interim supervision of discovery proceedings conducted in connection with litigation pending in the several trial courts. In the absence of unusual circumstances, [it] will not review discovery or sanction orders prior to a final judgment in the main action.” Markey v. Marino, 521 A.2d 942, 944 (Pa. Super. Ct. 1987), quoting McManus v. Chubb Group of Ins. Cos., 493 A.2d 84, 87 (Pa. Super. Ct. 1985). In this case, there is no need from the court to deviate from the norm to review a discovery sanctions order that imposes modest monetary sanctions on appellant and its counsel for all the additional expense appellees incurred as a result of, among other things, Mr. Whitnack failing to allow appellant’s counsel to timely disclose his illness for business reasons and appellant’s counsel failing to timely file a motion for reconsideration of the order requiring Mr. Whitnack’s deposition or to show up for the hearing for the relevant motion.

WHEREFORE, for the reasons stated above, this appeal should be quashed.