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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

LEO J. SHANNON T/D/B/A                  :    IN THE SUPERIOR COURT OF
SHANNON REAL ESTATE CO.,                :          PENNSYLVANIA
                                        :
                        Appellant       :
                                        :
                   v.                   :         No. 1221 MDA 2015
                                        :
PRIDE HEALTH CARE, INC.                 :


                 Appeal from the Order Entered June 4, 2015,
               in the Court of Common Pleas of Luzerne County
                       Civil Division at No. 2012-10886


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED APRIL 21, 2016

     Leo J. Shannon t/d/b/a Shannon Real Estate Co. (“Shannon”) appeals

from the order of June 4, 2015, sustaining defendant/appellee, Pride Health

Care, Inc.’s (“Pride”) preliminary objections and dismissing Shannon’s

amended complaint. After careful review, we affirm.

     We have gleaned the following facts from the record. In 1994, Pride

agreed to buy a tract of land in Exeter, Pennsylvania, from Gruen Marketing

Corporation (“Gruen”), a watch manufacturing company.               Pride is a

manufacturer of high-end wheelchairs.       The agreement of sale, dated

November 23, 1994, contained the following provisions:

           6.6    Brokers.    Buyer [(Pride)] represents to the
                  Seller   [(Gruen)]    that   no   Broker    was
                  instrumental in bringing about this sale and
                  that all negotiations with respect to the terms


* Former Justice specially assigned to the Superior Court.
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                 of this Agreement were conducted directly
                 between Buyer and Seller. Buyer agrees that
                 should any claim be made for [a] Broker’s
                 commission through or on account of any acts
                 of the Buyer or its representatives, including,
                 but without limitation, a claim by Leo J.
                 Shannon      and/or    Shannon     Real  Estate
                 Company, the Buyer will defend and hold the
                 Seller free and harmless from any and all
                 liabilities and expenses therewith, including
                 attorney’s fees and costs of suit, subject to
                 Buyer’s right, upon notice of such claim by
                 Seller, which notice shall be promptly provided
                 by Seller, to select and engage counsel of its
                 choosing. The provisions of this paragraph
                 shall survive the delivery of the Deed.

           6.7   Right of First Refusal. As further consideration
                 to induce Buyer to purchase the Property,
                 Seller grants Buyer a right of first refusal to
                 purchase that portion of the tract and
                 improvements which Seller is retaining, which
                 right of first refusal shall continue as long as
                 Seller owns the remaining tract.                In
                 furtherance of the foregoing, in the event
                 Seller receives a bona fide offer to purchase
                 the remaining tract and improvements or any
                 portion thereof from a reputable arms-length
                 third party prospective Purchaser with the
                 reasonable      capacity    to    complete    the
                 acquisition, Seller shall, within three days of
                 receipt of such written offer, provide a copy of
                 same to Buyer.       Within three (3) days of
                 receipt of such offer, Buyer shall either elect to
                 purchase the remaining tract and make a
                 written offer to purchase on the identical terms
                 proposed by the third party prospective
                 Purchaser, or decline, in which case this right
                 of first refusal shall lapse. If Buyer fails to
                 respond within the three (3) day period
                 afore-referenced, this provision shall lapse.

Agreement of sale, 11/23/94 at 10.



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      The question of whether or not Shannon is entitled to a broker’s

commission on the 1994 sale is the subject of pending litigation at case

number 1996-C of 1997.          In 1998, four years later, Pride purchased an

adjacent tract of land from PNC Bank.           The property had previously been

owned by Gruen.      Shannon claimed that it was also entitled to a broker’s

commission on the 1998 sale, because of the right of first refusal contained

in Section 6.7 of the original sales agreement. Shannon brought suit against

Pride and Gruen at case number 3263 of 2002, and obtained a default

judgment against Gruen in the amount of $156,130.92.              Gruen has not

appealed that judgment.

      On July 18, 2011, Shannon and Pride appeared before the Honorable

Kenneth D. Brown, S.J., on Shannon’s motion to confirm indemnification and

enforce   judgment    against    Pride.     Shannon     sought   to   enforce   the

indemnification provision in Section 6.6 of the sales agreement.         Shannon

argued that Pride was responsible for paying the default judgment entered

against Gruen. Shannon also noted that, “just for procedural purposes, we

filed a motion to bifurcate the issues against Gruen versus Pride for the sole

purpose of coming here today to enforce the judgment.”                  (Notes of

testimony, 7/18/11 at 14.)

      In response, Pride argued that the right of first refusal was not

exercised. (Id. at 17.) According to Pride, a bona fide offer was made to

Gruen for the second parcel and Pride refused to exercise its option to



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purchase it at that time.    (Id.)   Pride did not purchase the second parcel

from PNC Bank until 1998, and another broker was involved in that

transaction.   (Id. at 17-18.)       Pride denied that the 1998 sale was

consummated pursuant to Section 6.7 of the 1994 sales agreement. (Id. at

18.)   Therefore, Pride argued that it had no duty to indemnify Gruen for

Shannon’s broker’s commission. (Id.)

       In addition, Pride argued that Shannon was not a party to the 1994

sales agreement and, in fact, was specifically excluded by Section 6.6. (Id.

at 17.) The contract was only between Pride and Gruen. (Id.) Pride also

argued that Shannon was not an intended third-party beneficiary.          (Id.)

Therefore, Shannon would lack standing to enforce the indemnification

clause. (Id. at 19.)

       According to Shannon, it was a third-party beneficiary and the

judgment against Gruen allowed it to proceed to levy against Pride under the

indemnification clause.     (Id. at 6.)     Shannon pointed out that it was

specifically referenced in Section 6.6 by name and the parties clearly

contemplated that Shannon was going to attempt to collect a broker’s

commission from the sale.       (Id. at 15.)    Regarding the application of

Section 6.7 to the second sale, Shannon argued that Section 6.7 did not

place any time restriction on the right of first refusal. (Id. at 22.) The right

of first refusal remains in effect as long as the seller owns the remaining

tract. (Id. at 22-23.)



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     Counsel for Pride suggested that perhaps the matter should be

litigated in a separate action, rather than as a motion to confirm

indemnification in the case before Judge Brown:

           [JOSEPH L. VULLO, ESQ.]: My thought would be
           that it would have to be a third -- another action that
           would have to be litigated based upon the facts of
           this.     Sort through the facts, whether this
           indemnification clause applies to the second four-
           year-later sale.

           THE COURT:      Would it potentially behoove both
           parties to treat this matter as a declaratory
           judgment issue that requires an evidentiary hearing?

           MR. VULLO: If the Court would allow some period of
           discovery, yes, that would not -- I don’t think Pride
           would be opposed to that.

           THE COURT: It just appears to me offhand that it
           seems like it’s a declaratory judgment because the
           Plaintiff is asking the Court to declare these rights
           and resolve an issue.

Id. at 20-21.

     Counsel for Shannon disagreed that the indemnification issue could not

be litigated as part of the case pending before Judge Brown:

           [WILLIAM E. VINSKO, JR., ESQ.]: While we don’t
           believe it’s premature at this point because we have
           a judgment, we believe that we can enforce this
           indemnification. For judicial economy sake, I don’t
           believe that a full declaratory judgment action is
           necessary only because the facts and the issues of
           how much is owed were actually litigated with
           counsel present for Pride. And when we had this
           hearing --

           THE COURT: In your judgment against Gruen?



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             MR. VINSKO: Judgment against Gruen; I apologize.
             So any issues that could have been raised could
             have been raised at that time, and they were not.
             So, therefore, the evidentiary work, you know, is
             addressed.

Id. at 23-24.    Counsel for Pride disagreed that there were no evidentiary

issues outstanding:

             And as far as counsel’s claim that the evidentiary
             issues have been resolved by virtue of the default
             judgment against Gruen, the only evidentiary issues
             that were resolved there were the amount of
             damages against Gruen, not whether Pride has any
             obligation to indemnify Gruen relative to that second
             sale.

Id. at 25.

      On August 8, 2011, Judge Brown denied Shannon’s “Motion to Confirm

Indemnification and Enforce Judgment Against Pride Health Care, Inc.,”

without prejudice, “because the relief sought by [Shannon] should more

properly be considered in the context of a separate and distinct cause of

action rather than in the context of the instant motion.” (Order, 8/8/11 at 1

¶1; RR at 97.) Shannon brought the instant declaratory judgment action by

filing a complaint against Pride on July 2, 2012, alleging that pursuant to

Section 6.6 of the 1994 sales agreement between Pride and Gruen, Pride is

responsible for the liability created by the judgment entered against Gruen.

Shannon sought a declaratory determination by the court that the 1994

sales agreement requires Pride to pay the liability established through the

judgment against Gruen in the amount of $156,130.92 plus interest and



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costs; and that Shannon may immediately commence execution on said

judgment against Pride.

        Pride   filed   preliminary   objections   to   the   complaint,   and   on

February 20, 2015, Pride’s preliminary objections were sustained and

Shannon’s complaint was dismissed, with leave to file an amended complaint

within 25 days. An amended complaint was filed on March 16, 2015. Pride

again filed preliminary objections on April 6, 2015, together with a brief in

support, arguing, inter alia, that Shannon lacked standing to sue under the

1994 sales agreement and also failed to join an indispensable party (Gruen).

Shannon filed an answer to Pride’s preliminary objections on May 1, 2015.

On June 4, 2015, the Honorable Michael T. Vough sustained Pride’s

preliminary objections and dismissed Shannon’s complaint with prejudice.

Judge Vough attached a memorandum opinion explaining his reasons for

sustaining Pride’s preliminary objections in the nature of a demurrer.

Initially, Judge Vough determined that Shannon lacked standing to sue

under the 1994 sales agreement where it was neither a party to that

agreement, nor a third-party beneficiary. (Trial court opinion, 6/4/15 at 2.)

Judge Vough also found that Shannon failed to join an indispensable party.

(Id.)    Gruen clearly had an interest related to Shannon’s claim, and no

decree could be entered without impairing that interest.              (Id. at 3.)

Therefore, Shannon’s failure to join Gruen as a defendant deprived the court

of jurisdiction. (Id.)



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     A timely notice of appeal was filed on July 6, 2015.          On August 3,

2015, Shannon was ordered to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days; Shannon

complied on August 25, 2015, asserting that this declaratory judgment

action was filed as a direct consequence of the directive of Judge Brown.

(Rule 1925(b) statement, 8/25/15 at 2.)             On September 8, 2015,

Judge Vough    issued   a   statement   in   lieu   of   opinion   pursuant   to

Pa.R.A.P. 1925(a)(1), relying on his June 4, 2015 memorandum.

     Shannon has raised the following issue for this court’s review:

           WHETHER THE TRIAL COURT COMMITTED AN ERROR
           OF LAW OR ABUSED ITS DISCRETION IN
           SUSTAINING THE PRELIMINARY OBJECTIONS AND
           DISMISSING THE AMENDED COMPLAINT IN THE
           INSTANT CASE WHEN THE HONORABLE SENIOR
           JUDGE KENNETH BROWN DIRECTED THIS COURSE
           OF ACTION IN A COLLATERAL MATTER?

Shannon’s brief at 3.

           Our scope of review is plenary when reviewing a trial
           court’s order sustaining preliminary objections in the
           nature of a demurrer. See Glassmere Fuel Serv.,
           Inc. v. Clear, 900 A.2d 398, 401 (Pa.Super. 2006).
           “In order to determine whether the trial court
           properly sustained Appellee’s preliminary objections,
           this court must consider as true all of the well-
           pleaded material facts set forth in the complaint and
           all reasonable inferences that may be drawn from
           those facts.” Id. at 402. In conducting appellate
           review, preliminary objections may be sustained by
           the trial court only if the case is free and clear of
           doubt. See Knight v. Northwest Sav. Bank, 747
A.2d 384, 386 (Pa.Super. 2000).




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Wheeler v. Nationwide Mut. Fire Ins. Co., 905 A.2d 504, 505 (Pa.Super.

2006), appeal denied, 916 A.2d 1103 (Pa. 2007).

     The Declaratory Judgments Act provides: “When declaratory relief is

sought, all persons shall be made parties who have or claim any interest

which would be affected by the declaration, and no declaration shall

prejudice the rights of persons not parties to the proceeding.” 42 Pa.C.S.A.

§ 7540(a).

             Section 7540(a)’s requirement that all who have an
             interest in the declaration be made parties to the
             action is mandatory. Konidaris v. Portnoff Law
             Assocs., Ltd., 884 A.2d 348 (Pa.Cmwlth.2005),
             appeal granted, 588 Pa. 760, 903 A.2d 539
             (2006); Allegheny County v. Commonwealth, 71
             Pa.Cmwlth. 32, 453 A.2d 1085 (1983). A party is
             indispensable when his rights are so connected with
             the claims of the litigants that no decree can be
             made without impairing those rights. Sprague v.
             Casey, 520 Pa. 38, 550 A.2d 184 (1988). Failure to
             join or serve parties as required by the statute is a
             jurisdictional defect, and may be raised by a court on
             its own motion at any time, even on appeal.
             Konidaris; Polydyne, Inc. v. City of Phila., 795
A.2d 495 (Pa.Cmwlth.2002).         Where the defect
             exists, dismissal is appropriate. Konidaris.

Pilchesky v. Doherty, 941 A.2d 95, 101 (Pa.Cmwlth. 2008). “The burden

of proving that all interested persons have been made parties to the action,

or have received reasonable notice, is on the petitioner.” Moraine Valley

Farms, Inc. v. Connoquenessing Woodlands Club, Inc., 442 A.2d 767,

769 (Pa.Super. 1982).

             In Mechanicsburg Area School District v. Kline,
             494 Pa. 476, 481, 431 A.2d 953, 956 (1981), our


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             Supreme Court set forth the following guidelines for
             determining whether a party is to be considered
             indispensable in pending litigation:

             1.    Do absent parties have a right or interest
                   related to the claim?

             2.    If so, what is the nature of that right or
                   interest?

             3.    Is that right or interest essential to the
                   merits of the issue?

             4.    Can justice be afforded without violating
                   the due process rights of absent parties?

             It has been held that an inquiry into whether a party
             is indispensable is to be from the prospective [sic] of
             protecting the rights of the absent party, not from
             the view of whether the joinder or nonjoinder of a
             party would make the matter more difficult to
             litigate.  See E-Z Parks, Inc. v. Philadelphia
             Parking Authority, 103 Pa.Cmwlth. 627, 521 A.2d
71 (1987), appeal denied, 517 Pa. 610, 536 A.2d
1334 (1987).

Grimme Combustion, Inc. v. Mergentime Corp., 595 A.2d 77, 81

(Pa.Super. 1991), appeal denied, 607 A.2d 254 (Pa. 1992).

        In this case, even assuming Shannon has standing to enforce the

indemnification provision between Pride and Gruen, we agree with the trial

court that Gruen is an indispensable party.      Gruen’s rights relative to the

default judgment entered against it will be affected by the outcome of this

case.    Clearly, Gruen has an interest related to Shannon’s claim, and no

decree can be entered without impairing that interest. Therefore, Shannon’s

failure to join Gruen as a defendant deprived the trial court of jurisdiction.



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     Shannon complains that Judge Brown denied its motion to confirm

indemnification and enforce judgment against Pride and indicated that

Shannon should re-raise the issue in a separate declaratory judgment

action, as it has done. However, Judge Brown’s decision in a separate case

would not excuse Shannon’s failure to join an indispensable party.

Moreover, nothing in Judge Brown’s order would excuse the failure to include

an indispensable party in the declaratory judgment action.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/21/2016




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