McCray, L. v. Lawrence Street Associates (memorandum)
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J-A30036-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 LOPEZ McCRAY, Appellee v. LAWRENCE STREET ASSOCIATES, LLC, IS LAWRENCE STREET, ISAF, LP, AND SHERMAN TOPPIN REAL ESTATE, LLC, APPEAL OF: SHERMAN TOPPIN REAL ESTATE, LLC, Appellant : : : : : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1055 EDA 2013 Appeal from the Judgment entered on March 5, 2013 in the Court of Common Pleas of Philadelphia County, Civil Division, No. 110402634 April Term 2011 BEFORE: FORD ELLIOTT, P.J.E., WECHT and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED APRIL 15, 2014 In this slip-andappeals from the Judgment1 entered against it and Lawrence Street 1 STRE purports to appeal from the Order denying its Post-Trial Motion challenging the verdict entered against it. However, this Court has stated -trial motions is interlocutory. Pa.R.A.P. 301(a), (c), and (d)[.] Once that judgment is entered however, Keystone Dedicated Logistics, Inc. v. JGB Enters., 77 A.3d 1, 2 n.1 (Pa. Super. 2013) (brackets, ellipses, internal quotation marks and citations to case law omitted). In the instant case, the March 5, 2013. Accordingly, we have corrected the caption to reflect that the appeal properly lies from the March 5, 2013 Judgment. J-A30036-13 2 and in favor of Lopez McCray The trial court set forth the relevant history underlying this appeal as follows: Plaintiff lived at 4510 [North] Lawrence Street, [3] On December 19 and 20, 2009, nearly two feet of snow had fallen. STRE sent snow remov snow removal service it provided. For that snow removal service, STRE charged separately from its income as receiver[4] $200 per day. A total of $400 was billed for snow removal offers professional and dependable Snow Management Services for Commercial and MultiFurther, the invoices indicate common element entry/exit points, exterior steps, exterior No snow had fallen between December 20 and December 25. On December 25, between 12[:00] a.m. and 1[:00] a.m., Plaintiff used a backdoor to take out his trash. Plaintiff slipped and fell on steps covered with ice and snow leading to a common alleyway. The alleyway was dark. The outside lights had been broken for some time. 2 Lawrence Street is not a party to this appeal. Likewise, IS Lawrence Street, and ISAF, LP, are not parties to this appeal because the trial court entered an Order dismissing them from the case prior to trial, and Plaintiff has not appealed this Order. Accordingly, we have corrected the caption to state that the sole appellant in this case is STRE. 3 The Property was owned by Lawrence Street. 4 - below. -2- J-A30036-13 Plaintiff suffered herniated discs in his neck and back, and a closed-head injury. Plaintiff attempted self-treatment for a month, but the pain and headaches finally caused him to seek medical care. He received medical treatment for 11 months, and was out of work due to the accident for nearly a year. Plaintiff back has yet to fully recover. He incurred $7,310 in outstanding medical bills. Court dated March 24, 2009 [(hereinafter referred to as the er of the Property owned by Lawrence Street. That [O]rder required STRE Order, 3/24/09.] The [Receiver] Order also authorized STRE to as Id.] To the extent that STRE acted within the scope of the receivership, the Order immunized STRE f management. If STRE acted outside the scope of the receivership, the Order provided no immunity. Specifically, the Order provides that: If the Receiver shall have acted in accordance with the terms and conditions of this Order, neither the Receiver, nor any of its employees, agents, attorneys, partners, members, officers, or directors, shall have any liability as to any claim, actions or causes of action of any third parties who have or would have claims against the owner of the not authorized by the terms of this Order. [Receiver Order, 3/24/09.] Trial Court Opinion, 6/4/13, at 1-3 (footnotes added; footnotes in original omitted). Following a procedural history that is not germane to this appeal, on September 12, 2012, the case proceeded to a non-jury trial. Subsequently, -3- J-A30036-13 on November 16, 2012, the trial court found in favor of Plaintiff, and against STRE and Lawrence Street, jointly and severally, in the amount of $25,000. STRE timely filed a Post-Trial Motion,5 which the trial court denied. and Lawrence Street in the amount of $25,000. In response, STRE filed a Notice of Appeal within 30 days of the entry of Judgment. On appeal, STRE presents the following issues for our review: 1. Whether the trial court erred in finding that [STRE] [] acted outside the scope of its receivership in providing 2. Whether the trial court erred in finding [that STRE] is liable to Plaintiff as an independent contractor hired by the Receiver[, i.e., STRE,] for snow removal services, when STRE should be immune from liability because it is the same entity as the Receiver, and is the entity that performed the actual receivership services? Brief for Appellant at 3 (footnote omitted).6 simultaneously. 5 Lawrence Street did not join in the Post-Trial Motion, nor did it appear as a party at trial. 6 We observe that STRE presents a third claim in the Argument section of its Brief that it did not set forth in its Statement of Questions Presented. Brief for Appellant at 14 (argui this claim to be waived. See Pa.R.A.P. 2116(a) (stating will be considered unless it is stated in the statement of questions involved patently lacks merit because STRE is not a government entity, nor did it attain the status as a government entity through its appointment by the trial court as the receiver. -4- J-A30036-13 An appellate court reviews a challenge to the verdict entered in a nonjury trial according to the following standard: Our appellate role in cases arising from non-jury trial verdicts is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. The findings of fact of the trial judge must be given the same weight and effect on appeal as the verdict of a jury. We consider the evidence in a light most favorable to the verdict winner. We will reverse the trial court only if its findings of fact are not supported by competent evidence in the record or if its findings are premised on an error of law. McEwing v. Lititz Mut. Ins. Co., 77 A.3d 639, 646 (Pa. Super. 2013) (citation omitted). In its Opinion, the trial court summarized the relevant law regarding court-appointed receivers, and the pertinent provisions of the Receiver Order involved in this case: equity. His duty is to protect and preserve, for the benefit of the persons ultimately entitled to it, an estate over which the court Warner v. Conn, 32 A.2d 740, 741 (Pa. 1943).] It has long been the rule under Pennsyl [ , 103 A. 215, only such powers and authorities as are given him by the court and must n Trust Co. v. Am. Assembling Mach. Co., 38 A.2d 220, 224 (Pa. 1944).] So long as the receiver acts within the scope or authority of the court, the receiver will be paid for his services and immune from liability. However, if the receiver acts independently outside of the scope of court[-]appointed power, the receiver is subject to liability. [Id.] The March 24, 2009 [Receiver] Order outlines the scope of -5- J-A30036-13 [Receiver] Order is that STRE is immunized from third party claims when acting in its scope as receiver. The [Receiver] Order charges STRE to maintain the Property, and authorizes STRE to employ individuals and entities necessary for that task. STRE removed snow from the Property on December 19 and 20, 2009, but billed for those services separately from its role as receiver. Trial Court Opinion, 6/4/13, at 3 (emphasis added). Receiver[,] to be acting outside the scope of its receivership when it billed 7 Order Appellant at 6, 8. We disagree. The trial court concisely addressed this claim in its Opinion as follows: Effectively and actually, STRE, as receiver, hired itself as an independent contractor to perform snow removal. The invoice states that STRE removed snow from the common areas and entry and exit points of the [Property], and charges for that service. STRE negligently failed to remove snow from the rear common area and exit point of the [Property], the area where Plaintiff fell. Therefore, STRE is liable to Plaintiff as it would have been as a negligent independent contractor hired by the receiver for snow removal. Trial Court Opinion, 6/4/13, at 3 (emphasis added). We agree with the trial these services separately from its income generated as receiver. By so doing, STRE acted independently, and outside of the scope of its court7 -6- J-A30036-13 appointed power under the Receiver Order, thus opening itself up to third party liability. See id.; see also (stating court[-]appointed po STRE is not entitled to immunity under the Receiver Order, despite its Receiver, and because it is an entity that performed the actual receivership grant immunity to individuals or entities that STRE hired and paid to perform maintenance tasks, even where the hired entity was STRE itself. management responsibilities through the employment of itself, its actions or Appellant at 12. Initially, we observe that STRE cites to no legal authority in support of this claim, nor does our research reveal any supporting authority. In any event, scope of the receivership, and, therefore, its negligent actions or omissions regarding snow removal are not immune to third party suits. lack merit, and we therefore affirm the Judgment entered against it and in favor of Plaintiff. -7- J-A30036-13 Judgment affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/15/2014 -8-
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