HARRISBURG – A trio of Superior Court judges found that a rule of state appellate procedure applied in finalizing the dismissal of a civil complaint brought by a man who claimed while attending a house party, he was beaten so badly that he was once in a coma for eight days as a result of the attack.
Superior Court judges John T. Bender, Anne E. Lazarus and Correale F. Stevens affirmed the dismissal in the case brought by appellant Frank Lomuscio, against a variety of defendants who reside in a home where he attended a house party in the summer of 2014.
“On Jan. 30, 2017, appellant Frank Lomuscio filed a civil complaint averring that, on July 6, 2014, he attended a party at a residence located on Prospect Street in East Stroudsburg. Lomuscio alleged the residence was owned by Horace S. Cole and Sonya K. Cole, who leased the property to ElyOr Thacker, Ahmed Moustafa and Sherwin Jennings, who in turn permitted Andrew Torregrossa and Andrew Gleason to reside at the house,” Stevens said.
“Lomuscio claimed both the leasing and residing appellees were past or current students of East Stroudsburg University, belonged to the same fraternity and advertised the party through social media.”
However, the night went awry, according to Lomuscio.
“Lomuscio contended that during the July 6, 2014 party, the leasing and residing appellees served alcohol without monitoring the intoxication level or confirming the age of the guests, and at some point, ‘a group of individuals arrived…some of whom had previously attended parties hosted at the premises…and who were known to the hosts as troublemakers or individuals who had exhibited dangerous or criminal behavior,” Stevens said.
“Lomuscio admitted that, after the troublemaking individuals entered the premises, the leasing and residing appellees ‘eventually’ asked them to leave. However, instead of leaving, the troublemaking individuals assaulted some of the party-goers, including Lomuscio who was repeatedly ‘punched/kicked/stomped and struck in the head causing him to lose consciousness.”
Lomuscio explained he was transported to the hospital where he remained in a coma for eight days due to head and brain injuries sustained during the attack, and continues to receive rehabilitation.
In the resulting civil court lawsuit and by orders entered on July 24, 2019, the Monroe County Court of Common Pleas granted summary judgment in favor of Thacker, the Coles, Torregrossa, Gleason, and Moustafa as to all claims against them.
On Aug. 19, 2019, despite the fact the matter against original defendant Jennings and additional defendant Simon remained pending in the trial court, Lomuscio filed a notice of appeal to the Superior Court from the July 24, 2019 summary judgment orders.
“On Oct. 24, 2019, while the appeal was pending in this Court, Lomuscio filed a “Motion for Leave to Discontinue as to defendant, Sherwin Jennings, pursuant to Pa.R.C.P. 229.” Thereafter, on Oct. 25, 2019, this Court quashed Lomuscio’s Aug. 19, 2019, notice of appeal,” Stevens stated.
“No party objected to the motion for leave to discontinue as to Jennings, and on Feb. 3, 2020, appellant filed a motion entitled “Motion to Make Absolute the Rule of Oct. 30, 2019, and for a Determination of Finality Pursuant to Pennsylvania Rule of Appellate Procedure 341(c) regarding the orders entered in this matter on July 24, 2019, which collectively granted summary judgment in favor of defendants, Horace S. and Sonya Cole, Ely-Or Thacker, Ahmed Moustafa, Andrew Torregrossa and Andrew Gleason.”
According to Pa.R.A.P. 341(c), “When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the trial court or other government unit may enter a final order as to one or more but fewer than all of the claims and parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case.”
Here, Stevens explained that Lomuscio failed to recognize that additional defendant Simon was not dismissed from the lawsuit and the claims against him have not been fully resolved – and further, he did not ask the trial court to make an express determination that an immediate appeal would facilitate resolution of the entire case.
“Consequently, in granting appellant’s request for a determination of finality under Pa.R.A.P. 341(c), the trial court summarily indicated the summary judgment orders and the rule absolute discontinuing the case as to Jennings ‘are hereby designated and certified as final pursuant to Pa.R.A.P. 341(c).’ Importantly, the trial court made no ‘express determination that an immediate appeal would facilitate resolution of the entire case,’ and there is no indication the trial court considered any of the four factors set out in Rule 341’s note pertaining to the making of such a determination,” Stevens said.
“Accordingly, absent the trial court making ‘an express determination that an immediate appeal would facilitate resolution of the entire case,’ we conclude this Court’s jurisdiction has not been properly invoked under Rule 341(c). In light of the aforementioned, we conclude the orders at issue are interlocutory and not appealable at this juncture. Accordingly, we quash the instant appeal.”
Superior Court of Pennsylvania case 950 EDA 2020
Monroe County Court of Common Pleas case 4719-2016
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com