J-A32024-14

*Retired Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KEVIN K. ROBINSON, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

LLEM CORPORATION AND PINNACLE 

CAPITAL FUNDING,

Appellees No. 422 EDA 2014

Appeal from the Order Dated December 11, 2013

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): May Term, 2007 No: 1790

BEFORE: PANELLA, OLSON AND FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.: FILED MARCH 12, 2015

Appellant, Kevin K. Robinson, appeals from the order dated December 

11, 2013 in this action to quiet title. We affirm.

The trial court set forth the facts of this case as follows:

[Appellant] borrowed money on properties he owned at 

1500 and 1615 West Tioga Street, Philadelphia 19140 from 

[LLEM Corporation (“LLEM”)]. [Appellant] signed deeds in 

lieu of foreclosure that he agreed would be filed in the case 

of default. In these transactions, Patrick Maruggi acted as 

an intermediary between [Appellant] and LLEM, securing 

the mortgages and deeds in lieu of foreclosure and sending 

copies to LLEM. [Appellant] failed to pay as required. 

Maruggi filed the deeds in lieu of foreclosure, transferring 

ownership of the properties from [Appellant] to [] LLEM. 

Trial Court Opinion, 1/29/2014, at 1-2 (footnotes omitted).

Thereafter, the following conveyances of the properties resulted:

On April 29, 2005, 1500 West Tioga Street was deeded from 

[Appellant] to [LLEM], recorded May 7, 2005. On 
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September 13, 2006, this property was deeded to CK 

Investments, LLC (“CKI”), recorded March 16, 2007. 

Finally, CKI deeded this property to MDS Management 

Services, LLC (“MDS”), on November 24, 2008, recorded 

January 5, 2009.

 

On August 8, 2005, 1615 West Tioga Street was deeded 

from [Appellant] to Pinnacle Capital Funding, LLC 

(“Pinnacle”), recorded May 3, 2006. On September 13, 

2006, Pinnacle deeded this property to CKI, recorded March 

16, 2007. Finally, CKI deeded this property to MDS on 

November 24, 2008, recorded January 5, 2009.

MDS Management v. Robinson, 47 A.3d 1237 (Pa. Super. 2012) 

(unpublished memorandum) at 2-3. 

Procedurally, the case advanced as follows:

[Appellant] filed [a] quiet title action on May 18, 2007. The 

action was consolidated with two associated cases[, 

ejectment actions filed by CKI and MDS,] on July 3, 2010. 

[Following an appeal, this Court] directed that the [] quiet 

title action be tried before the associated consolidated 

cases. Accordingly, the matter proceeded to a nonjury trial 

on June 12 and 13, 2013. [The trial court] found for [] 

LLEM and against [Appellant], and restored the consolidated 

cases to the non-jury pool for trial pending appeal of the 

[trial court’s] finding. [Appellant] filed a motion for posttrial relief on July 3, 2013. [Appellant] timely appeals the 

[trial court’s] decision.

Trial Court Opinion, 1/29/2014, at 1 (unnecessary capitalization and 

footnote omitted). 

On appeal, Appellant presents the following issues for our review:1

____________________________________________

1

 MDS, as the subsequent purchaser for value of the subject properties 

following the various conveyances as outlined above, has filed a brief in 

opposition to Appellant’s appeal. 
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A. Whether the trial court committed [an] error of law and 

[an] abuse of discretion by denying [Appellant’s] quiet 

title claim where [a] licensed attorney stole title and then 

conveyed it multiple times and another licensed attorney 

simultaneously represented both the initial conveyee and 

a subsequent conveyee and, while having knowledge of 

and making judicial admissions of the fraudulence and 

impropriety of the previous conveyances, obstructed 

their reversal, solely in the interest of the subsequent 

conveyee.

B. Whether the trial court abused its discretion and 

committed an error of law by finding Maruggi’s initial 

conveyance of title to be valid while disregarding 

[Appellant’s] presentation of clear and convincing 

evidence of fraudulence by Maruggi in performing [the] 

initial conveyance, including [the] initial purported 

conveyor and conveyee both giving unrefuted testimony 

that the conveyance was fraudulent, particularly where 

[the] trial court was aware of previous court rulings 

regarding the fraudulence of the Maruggi conveyances by 

the Philadelphia Court of Common Pleas, the Supreme 

Court of New York, and United States District Court for 

the Southern District of New York.

C. Whether the trial court abused its discretion and

committed errors of law by denying [] LLEM’s motion for 

leave of court to amend [its] answer, by which LLEM 

sought to replace the duplicitous answer to [Appellant’s] 

quiet title complaint prepared and filed by [LLEM’s] 

former attorney, Brian Wind, Esquire, who 

simultaneously represented [the] subsequent recipient of 

the stolen title, MDS [Management Services, LLC], which, 

to this day, continues to obstruct the return of title to the 

theft victims.

D. Whether the trial court abused its discretion and 

committed [an] error of law by its order denying 

[Appellant’s] and LLEM’s joint motion in limine to 

preclude the re-argument of matters already decided by 

[this Court], to limit the trial to resolving the validity of 

the first Maruggi conveyance, and to preclude the 

continued interference and obstruction by the third 

conveyee, MDS.
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Appellant’s Brief at 1 (unnecessary capitalization and parentheticals 

omitted).2

First, we examine Appellant’s issues pertaining to evidentiary matters, 

before reviewing the other substantive issues presented. In his last issue 

presented, Appellant claims the trial court abused its discretion or committed 

an error of law by denying his motion in limine to preclude a handwriting 

expert from testifying at trial. Id. at 33. More specifically, Appellant 

contends that the trial court impermissibly allowed “third conveyee MDS” to 

present the testimony of a handwriting expert “two months after the close of 

discovery” to show that Appellant signed the deeds in lieu of foreclosure at 

issue herein. Id. at 33-34. Citing Pa.R.C.P. 4003.5 and related caselaw, 

Appellant contends that MDS violated the rules pertaining to the discovery of 

expert witnesses. Id. at 31-33. He claims “[i]t was clearly legal error for 

the trial court to accept evidence submitted by third conveyee MDS’s handwriting expert consisting of unlawfully notarized signatures[].” Id. at 34. 

Our standard of review is as follows:

Generally, a trial court's decision to grant or deny a motion 

in limine is subject to an evidentiary abuse of discretion 

standard of review. The term discretion imports the exercise 

of judgment, wisdom and skill so as to reach a 

dispassionate conclusion, within the framework of the law, 

and is not exercised for the purpose of giving effect to the 

will of the judge. Discretion must be exercised on the 

____________________________________________

2

 We note that Appellant’s arguments in his appellate brief do not 

correspond with the order in which the issues are presented. 
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foundation of reason, as opposed to prejudice, personal 

motivations, caprice or arbitrary actions. Discretion is 

abused when the course pursued represents not merely an 

error of judgment, but where the judgment is manifestly 

unreasonable or where the law is not applied or where the 

record shows that the action is a result of partiality, 

prejudice, bias or ill will.

Catlin v. Hamburg, 56 A.3d 914, 922 (Pa. Super. 2012) (citation omitted).

We have previously determined:

[Pennsylvania] Rule [of Civil Procedure] 4003.5 governs the 

disclosure of an expert's facts and opinions otherwise 

discoverable under the provisions of Rule 4003.1 and 

acquired or developed in anticipation of litigation or for trial. 

The Rule requires a party to disclose his expert's opinion 

prior to trial via answers to interrogatories or by providing a 

report. The answers or report must be signed by the expert. 

Pa.R.Civ.P. 4003.5(a)(1)(b). Furthermore, if the identity of 

an expert witness is not disclosed, Rule 4003.5 authorizes 

sanctions, such as preclusion of the proposed expert's 

testimony. Pa.R.Civ.P. 4003.5(b). The sanction authorized 

by Rule 4003.5 is not mandatory. Toogood v. Rogal, 764 

A.2d 552, 557 (Pa. Super. 2000). Rather, when a discovery 

violation occurs as a result of a failure to identify an expert 

witness, “the presiding court must balance the facts and 

circumstances of each case to determine the prejudice to 

each party.” Id. The court considers the following factors:

(1) the prejudice or surprise in fact of the party 

against whom the excluded witnesses would have 

testified, (2) the ability of that party to cure the 

prejudice, (3) the extent to which waiver of the rule 

against calling unlisted witnesses would disrupt the 

orderly and efficient trial of the case or of other 

cases in the court, and (4) bad faith or willfulness in 

failing to comply with the court's order.

Wolloch v. Aiken, 756 A.2d 5, 13 (Pa. Super. 2000).

Corrado v. Thomas Jefferson Univ. Hosp., 790 A.2d 1022, 1032 (Pa. 

Super. 2001) (parentheticals omitted).
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“While the late disclosure of the identity or qualifications of an expert 

is to be condemned, the mere occurrence of such a circumstance does not 

per se create grounds for a new trial.” Kemp v. Qualls, 473 A.2d 1369, 

1374 (Pa. Super. 1984). The preclusion of expert testimony based upon the 

late disclosure of information is “a drastic sanction” and is within the trial 

court’s discretion. Id. (citation omitted).

We turn now to the facts of this case. Upon remand from this Court, 

on September 21, 2012, the trial court issued a case management order and 

set the close of discovery for February 4, 2013. Upon review of the certified 

record, Appellant did not request expert discovery. On February 4, 2013, in 

its identification of trial witnesses and exhibits, MDS listed “William J. Ries to 

offer testimony related to the authenticity of signatures on relevant 

documents.” MDS Identification of Witnesses and Exhibits, 2/4/2013, at 2, ¶ 

1E. William J. Reis prepared a report dated March 3, 2013, which then was 

sent to Appellant on April 17, 2013. Appellant does not dispute that he 

received the report prior to trial. On May 16, 2013, Appellant filed a motion 

in limine “object[ing] to the purported handwriting expert report” and 

requested the trial court “preclude the report from being considered as 

evidence.” Appellant’s Motion in Limine, 5/16/2013, ¶ 14. Based upon these 

facts and the relevant law, we conclude that MDS identified its expert during 

discovery and sent Appellant a copy of the relevant expert report prior to 

trial. Thus, we discern no abuse of discretion in denying Appellant relief.
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Moreover, we note that at all times, Appellant has challenged the 

authenticity of the deeds in lieu of foreclosure. In his amended complaint to 

quiet title, filed on March 8, 2009, Appellant maintained that the subject 

properties were fraudulently conveyed using “forged documents, purportedly 

executed by [Appellant], which were not in fact executed by [Appellant].” 

Amended Complaint, 3/8/2009, at ¶ 6. Appellant attached copies of the 

deeds at issue. Thus, Appellant’s quiet title action put the authenticity of the 

documents squarely at issue. Certainly, Appellant cannot claim surprise that 

MDS produced an expert to defend against Appellant’s assertion that he did 

not sign the deeds and loan documents in question. There was no reason 

why Appellant could not cure any purported prejudice by retaining his own 

expert to support his claim that he did not execute the deeds in lieu of 

foreclosure. Before the close of discovery, William J. Ries was specifically 

listed as a trial witness. There is no evidence that any party acted in bad 

faith in failing to comply with the trial court’s discovery order. Accordingly, 

Appellant has not demonstrated prejudice. Hence, Appellant’s claim lacks 

merit. 

In his third issue presented, Appellant claims the trial court erred by 

denying LLEM’s motion for leave to amend its answer following this Court’s 

remand. Appellant’s Brief at 6. More specifically, Appellant maintains that 

prior counsel for LLEM, Attorney Brian Wind, “disregarded [LLEM’s] interests 

and direct instructions” because of his “simultaneous representation of 

competing parties with conflicting interests[]” when he filed the original 
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answer. Id. at 7. Appellant asserts that following this Court’s remand, 

“Attorney Joseph DiTomo[] officially entered his appearance for LLEM and 

moved for leave of court to amend the [a]nswer [Attorney Wind] had filed to 

[the quiet title] complaint.” Id. at 6. Appellant contends that the trial court 

erred by denying LLEM’s request to amend. 

Pennsylvania Rule of Civil Procedure 1033 provides in pertinent part 

that “[a] party ... by leave of court, may at any time ... amend his pleading. 

The amended pleading may aver transactions or occurrences which have 

happened before or after the filing of the original pleading, even though they 

give rise to a new ... defense.” Pa.R.Civ.P. 1033. Regarding amendment, 

this Court has previously determined:

Pleadings may be amended at the discretion of the trial 

court after pleadings are closed, while a motion for 

judgment on the pleadings is pending, at trial, after 

judgment, or after an award has been made and an appeal 

taken therefrom. Our courts have established as parameter 

a policy that amendments to pleadings will be liberally 

allowed to secure a determination of cases on their merits. 

A trial court enjoys broad discretion in evaluating 

amendment petitions. 

Despite this liberal amendment policy, Pennsylvania 

appellate courts have repeatedly ruled that an amendment 

will not be permitted where it is against a positive rule of 

law, or where the amendment will surprise or prejudice the 

opposing party. The prejudice, however, must be more 

than a mere detriment to the other party because any 

amendment requested certainly will be designed to 

strengthen the legal position of the amending party and 

correspondingly weaken the position of the adverse party. 

The mere fact that the adverse party has expended time 

and effort in preparing to try a case against the amending 

party is not such prejudice as to justify denying the 
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amending party leave to amend by asserting an affirmative 

defense which has a substantial likelihood of success.

All amendments have this in common: they are 

offered later in time than the pleading which they 

seek to amend. If the amendment contains 

allegations which would have been allowed inclusion 

in the original pleading (the usual case), then the 

question of prejudice is presented by the time at 

which it is offered rather than by the substance of 

what is offered. The possible prejudice, in other 

words, must stem from the fact that the new 

allegations are offered late rather than in the original 

pleading, and not from the fact that the opponent 

may lose his case on the merits if the pleading is 

allowed.

Denial of a petition to amend, based on nothing more than 

unreasonable delay, is an abuse of discretion. The 

timeliness of the request to amend is a factor to be 

considered, but it is to be considered only insofar as it 

presents a question of prejudice to the opposing party, as 

by loss of witnesses or eleventh hour surprise. 

Capobianchi v. BIC Corp., 666 A.2d 344, 346-347 (Pa. Super. 1995) 

(internal citations, quotations and brackets omitted) (emphasis in original).

Upon review of the record, we recognize the following facts in deciding 

Appellant’s amendment issue. Appellant commenced the quiet title action in 

May 2007. With leave of court, Appellant filed an amended complaint on 

March 8, 2009. LLEM filed its original answer in March 2009. In November 

2010, Attorney DiTomo, LLEM’s newly retained counsel, entered his 

appearance, informed the trial court that Attorney Wind had been formally 

discharged by LLEM, and asserted, for the first time, that the subject 

properties had been conveyed fraudulently. In March 2012, this Court 

remanded the consolidated matters to the trial court for resolution of the 
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quiet title action. In November 2012, LLEM filed a motion to amend its 

answer and, in its accompanying memorandum of law, averred the 

following:

The attorney who filed the answer to [Appellant’s] quiet title 

complaint on behalf of defendant LLEM [], a certain Brandon 

Wind, Esquire, also simultaneously represented the plaintiff 

MDS in [MDS’ ejectment action], in a clear conflict of 

interest.

Despite having been instructed by his former client LLEM 

that the quiet title complaint [] was correct, and that LLEM’s 

answers to that complaint should have been admissions, 

Attorney Wind instead filed answers denying the averments 

of [Appellant’s] quiet title complaint.

 

Unbeknownst to LLEM at that time, Attorney Wind’s answers 

to [Appellant’s] quiet title complaint were not designed to 

protect any interest of his then-client [], LLEM, but instead 

were designed to promote the interests of Wind’s thenclient in [the MDS ejectment action].

In further pursuit of the interests [] MDS, while still counsel 

of record representing [] LLEM [in the quiet title action], 

Attorney Wind caused a writ of execution to be issued 

against [Appellant], despite knowing, as his client LLEM told 

him, that title was never validly conveyed to LLEM from 

[Appellant]. 

During the course of the pre-appeal trial court litigation, 

both conflicting parties, [the ejectment action plaintiff], 

MDS, and [the quiet title action defendant], LLEM, replaced 

Attorney Wind with current counsel. Subsequently, Mr. 

Ralph Emproto, the President and sole shareholder of LLEM, 

reported Attorney Wind’s conduct in this matter to the 

Disciplinary Board of the Supreme Court of Pennsylvania.

Now that the matter has been through three appeals to the 

Superior Court, and remanded to the trial court, after more 

than five years of legal morass, resolution of the matter can 

be expedited by allowing current undersigned counsel of 
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LLEM to amend the discredited and tainted answer 

submitted by LLEM’s former counsel, Brandon Wind.

Memorandum of Law on Support of LLEM’s Motion for Leave of Court to 

Amend Answer, 11/19/2012, at *3 (unpaginated).

Applying the applicable law to the facts of this case, we conclude that 

the trial court did not abuse its discretion in denying LLEM’s motion to 

amend its answer. Appellant filed the quiet title complaint in 2007 and an 

amended complaint in 2009. In its original answer, filed in 2009, LLEM 

denied the substantive allegations in Appellant’s quiet title action. Changing 

tact in 2012, LLEM sought to amend its answer to admit those same 

allegations it had previously denied. However, as previously discussed, 

LLEM retained new counsel in 2010 and discharged Attorney Wind. At that 

time, LLEM alleged that the properties had been fraudulently conveyed. But, 

it was not until November 2012, two full years later, that LLEM sought to 

amend its answer to the quiet title action. The bench trial proceeded in June 

2013. Based on all of the foregoing, we conclude that LLEM’s request to 

amend was untimely and caused prejudice to the opposing party due to 

eleventh hour surprise. LLEM did not offer justification as to delay in 

seeking amendment despite the passage of at least two full years from the 

time it first knew that it was changing its position. Attorney Wind was fired 

in 2010. LLEM later claimed that it was because he filed the original answer 

without authorization. However, LLEM never explained why it waited two 

years to file a motion for leave to amend. A complete turnabout in position 

six months prior to trial amounted to prejudice to MDS, an opposing party. 
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Accordingly, the trial court did not abuse its discretion in denying LLEM’s 

motion for leave to amend its answer. Hence, Appellant’s third issue as 

presented lacks merit.

Finally, in his first two issues as presented, Appellant argues that the 

subsequent conveyances of the property were fraudulent. Pointing to other 

unrelated civil cases, Appellant claims that Patrick Maruggi, the intermediary 

between Appellant and LLEM, has been found guilty of committing fraud in 

other instances. Appellant’s Brief at 17, 29-30. Thus, he claims the trial 

court herein was required to apply the doctrine of collateral estoppel. Id. at 

21. Appellant also points out that, in 2011, the Supreme Court of New York 

suspended Maruggi’s license to practice law in that state. Id. at 17. These 

claims, however, are wholly extraneous to an action to quiet title. 

On these issues, the trial court determined:

Mortgages are contracts, and pursuant to the terms of the 

contract a mortgagee may foreclose on the mortgagor’s 

property upon default. A deed in lieu of foreclosure 

obviates the need for a foreclosure sale. Here, [Appellant’s] 

property was taken as payment for money borrowed when 

the deed in lieu of foreclosure was filed. Thus, the [trial 

court] denied [Appellant’s] claim to quiet title. 

[Appellant’s] post-trial motions argued that the [trial court] 

either misconstrued or refused to admit evidence of Patrick 

Maruggi’s behavior. Whether or not Maruggi had authority 

to file the deed in lieu of foreclosure is legally irrelevant to 

the question presented in this quiet title action. Whether or

not Maruggi had authority to file the deed in lieu of 

foreclosure may be relevant to the [consolidated] actions []. 

But it has no bearing on whether [Appellant] owns the 

property.
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Trial Court Opinion, 1/28/2014, at 2-3 (footnote citations omitted).

As the trial court noted, this cause of action boils down to the 

mortgage agreement. Upon review, Appellant accepted loans on the 

properties and agreed to make payments on them. The agreement states 

that failure to repay the loans constitutes immediate default, thereby 

allowing Appellant’s lenders to file the deeds in lieu of foreclosure. Appellant 

testified that he did not sign the deeds in lieu of foreclosure. See N.T., 

6/12/2013, at 294. As previously discussed, however, the trial court 

properly permitted William Ries to testify as a handwriting expert at trial and 

he opined that the deeds in lieu of foreclosure bore Appellant’s original 

signatures. See N.T., 6/13/2013, at 64-69. Appellant admitted that he 

received money on the loans and then defaulted. See N.T., 6/12/2013, at 

281-285. Therefore, the subsequently filed deeds were proper. As such, 

Appellant’s remaining appellate contentions regarding the subsequent 

conveyances are meritless.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/12/2015