Bailey v. RAS Auto Body, PICS Case No. 14-0249 (Pa. Super. Feb. 10, 2014) Gantman, J. (12 pages).

SUPERIOR COURT

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APPELLATE LAW

Interlocutory Appeal • Pa.R.A.P. 341(c)

Bailey v. RAS Auto Body, PICS Case No. 14-0249 (Pa. Super. Feb. 10, 2014) Gantman, J. (12 pages).

The court quashed plaintiff's appeal because it was interlocutory and unappealable.

Plaintiff was the operator of an auto body shop supply service. A large share of his business derived from exclusive supply and reimbursement agreements. Plaintiff alleged that he and Sherwin-Williams Automotive Finishes were parties to an exclusive agreement. RAS entered into an exclusive supply agreement with Sherwin-Williams in May 2005, requiring RAS to use the Sherwin-Williams brand of automotive paints and supplies, and to purchase those items from plaintiff. Sherwin-Williams issued a $60,000 advance to RAS. In connection with the advance, plaintiff alleged he entered into a reimbursement agreement with Sherwin-Williams whereby plaintiff was the named beneficiary of RAS's purchasing obligations.

Plaintiff filed an amended complaint alleging that defendants engaged in conspiracy to violate the agreements by selling and buying automotive paints and products outside of plaintiff's exclusive arrangement. Defendants Mueller and Sherwin-Williams filed preliminary objections, which the trial court granted in part, allowing plaintiff 15 days to file a more definite pleading. Plaintiff then filed a second amended complaint, to which Mueller and Sherwin-Williams also objected. On July 17, 2012, the trial court dismissed plaintiff's fraud and misrepresentation count against Mueller and Sherwin-Williams, due to plaintiff's failure to file a responsive brief to the new preliminary objections.

On August 6, 2012, plaintiff filed a notice of appeal of the order dismissing his fraud and misrepresentation count as to Mueller and Sherwin-Williams. On August 24, 2012, Mueller and Sherwin-Williams filed motions to quash the appeal. The court quashed the appeal as interlocutory and unappealable, without prejudice to plaintiff to seek certification under Pa.R.A.P. 341(c).

On September 20, 2012, plaintiff filed a motion seeking Rule 341(c) certification of finality in the trial court, which was granted on November 7, 2012. Plaintiff then filed a notice of appeal on November 16, 2012. Mueller and Sherwin-Williams again challenged the appealability of the trial court's orders, claiming the certification frustrated the purpose of the amendments to Rule 341(c), which were intended to prevent piecemeal appeals.

The court held that the trial court erred in summarily concluding that the effective dismissal of Mueller created an exceptional circumstance. The dismissal of fewer than all parties is an insufficient reason to certify an order as final. Furthermore, the trial court failed to consider any of the four factors under Rule 341(c). The trial court declared certification would facilitate the resolution of the case, but the court emphasized that certification under Rule 341(c) requires the conclusion that an immediate appeal would facilitate resolution of the entire case. The court quashed the appeal.