247 A.3d 42
Pa. Super. Ct.2021Background
- Kerwin obtained a 2014 federal judgment against Steven Rosenblum (Debtor); Debtor filed Chapter 13 bankruptcy in December 2014 and Kerwin received derivative standing in bankruptcy to pursue fraudulent-transfer claims on the estate’s behalf.
- In May 2015 Kerwin sued Allan Rosenblum (Debtor’s father) and Michelle Zarro under the Pennsylvania Uniform Fraudulent Transfer Act (PUFTA), alleging Debtor transferred ownership/interests in two gyms (Levittown and Torresdale) and equipment for no consideration.
- At the October 2019 jury trial (Kerwin pro se) Kerwin abandoned requests to set aside transfers and sought only money judgments; he called Debtor, Allan, and himself and introduced Zarro’s interrogatory answers and documents.
- After Kerwin rested, defendants moved for a compulsory nonsuit; the trial court granted the nonsuit, denied Kerwin’s post-trial motions, and entered judgment for defendants in February 2020. Kerwin appealed.
- The Superior Court affirmed the nonsuit as to Allan (no evidence he received any transferred property or benefited from the 2012 transaction) but vacated the nonsuit as to Zarro and remanded for a new trial (sufficient evidence raised that Debtor abandoned Torresdale equipment to Zarro for no consideration while insolvent).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether law-of-the-case/coordinate jurisdiction barred nonsuit | Earlier judge overruled preliminary objections; that decision should prevent a later judge from granting nonsuit | Coordinate-jurisdiction rule inapplicable at different procedural stage; trial judge may decide sufficiency of trial evidence | Trial judge not barred; law-of-the-case/coordinate-jurisdiction doctrine did not prevent nonsuit |
| Whether bankruptcy-court ruling collaterally estopped defendants from disputing elements | Bankruptcy court’s prior ruling precludes relitigation; estoppel should prevent defendants from contesting fraudulent-transfer elements | Bankruptcy ruling only granted derivative standing and did not decide meritorious transfer issues; defendants not parties to bankruptcy merits ruling | Collateral estoppel inapplicable; bankruptcy order did not decide the merits against these defendants |
| Whether nonsuit was erroneous as to Allan Rosenblum | Kerwin argues evidence showed Debtor transferred assets that benefitted Allan (50% owner of Quick-Fit) | Allan never received funds or property from the 2012 transaction; Quick-Fit received Debtor’s payment; no evidence Allan benefited or received proceeds | Affirmed as to Allan: insufficient evidence that Debtor transferred property to or for Allan’s benefit |
| Whether nonsuit was erroneous as to Michelle Zarro | Kerwin argues evidence showed Debtor abandoned Torresdale gym/equipment to Zarro for no consideration while insolvent | Trial court concluded landlord, not Debtor, conveyed equipment to Zarro (no transfer from Debtor shown) | Reversed as to Zarro and remanded: evidence (Debtor testimony, Zarro admissions, 2014 ownership claim, lease) was sufficient for a jury to find a transfer to Zarro for no consideration |
| Whether denial of Kerwin’s later summary-judgment motion was appealable/meritorious | Kerwin claims summary judgment should have been entered for him on liability | Denial of summary judgment based on evidence becomes moot after trial; summary motion relied on movant’s own affidavits and admissions insufficient to meet movant’s burden | Denial not a separate appealable error here; in any event, summary-judgment grounds lacked merit |
Key Cases Cited
- Riccio v. American Republic Insurance Co., 705 A.2d 422 (Pa. 1997) (coordinate-jurisdiction rule does not bar a later judge from ruling at a different procedural stage)
- K.H. ex rel. H.S. v. Kumar, 122 A.3d 1080 (Pa. Super. 2015) (same principle regarding procedural-stage limitation on coordinate-jurisdiction rule)
- T.M. v. Janssen Pharmaceuticals Inc., 214 A.3d 709 (Pa. Super. 2019) (standard for reviewing a compulsory nonsuit)
- Kovacevich v. Regional Produce Cooperative Corp., 172 A.3d 80 (Pa. Super. 2017) (nonsuit review and abuse-of-discretion standard)
- Fell v. 340 Associates, LLC, 125 A.3d 75 (Pa. Super. 2015) (PUFTA Section 5104 standards)
- Mid Penn Bank v. Farhat, 74 A.3d 149 (Pa. Super. 2013) (fraudulent-transfer principles under PUFTA)
- Knoll v. Uku, 154 A.3d 329 (Pa. Super. 2017) (PUFTA Section 5105 insolvency standard)
- Whitaker v. Frankford Hospital of City of Philadelphia, 984 A.2d 512 (Pa. Super. 2009) (denial of summary judgment premised on evidentiary sufficiency is superseded by trial record)
- Woodford v. Insurance Department, 243 A.3d 60 (Pa. 2020) (discussing summary-judgment standards post-hearing)
- Penn Center House, Inc. v. Hoffman, 553 A.2d 900 (Pa. 1989) (movant cannot obtain summary judgment based solely on movant’s own affidavit/testimony)