J-A08018-14 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

SUSAN L. KATZ IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 

v. 

JAMES R. KATZ 

 Appellant No. 1014 WDA 2013 

Appeal from the Order of May 15, 2013 

In the Court of Common Pleas of Allegheny County 

Family Court at No(s): FD 03-000652-008 

BEFORE: SHOGAN, OLSON and WECHT, JJ.: 

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 03, 2014 

Appellant, James R. Katz, appeals from an order entered on May 15, 

2013 in the Court of Common Pleas of Allegheny County that granted 

summary judgment in favor of Kirk B. Burkley, Esq. and the Bernstein Law 

Firm, P.C. (collectively “Receiver”). After careful review, we affirm.1

____________________________________________ 

1

 The Receiver filed a motion to quash this appeal pursuant to Pa.R.A.P. 

1975(5) and (7). In support of the motion, the Receiver alleges that 

Appellant failed to file and serve a designation of the contents of his 

reproduced record, improperly included in the reproduced record excerpts of 

his deposition transcript that were not found in the certified record on 

appeal, and failed to include in the reproduced record the Receiver’s 

summary judgment motion, brief in support, reply brief and related exhibits. 

Receiver’s Motion to Quash and/or Strike, 11/20/13, at 3. Since we have 

denied Appellant’s request for relief on appeal, we deny the Receiver’s 

motion to quash as moot. 
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 We summarize the relevant procedural and factual history as follows. 

Susan L. Katz (“Wife”) filed a complaint in divorce against Appellant on 

November 19, 2003. Both sides acknowledge that contentious litigation 

ensued in the following years. Appellant is the sole proprietor or 

shareholder in several entities engaged in the business of acquiring and 

developing real property and managing rental properties in the Pittsburgh 

area. These real estate assets constitute a significant portion of the marital 

estate in this case. In December 2009, Wife served notice that she intended 

to present a motion to the court seeking appointment of a receiver. Wife’s 

motion alleged that Appellant inappropriately used certain funds from his 

businesses.2

 Appellant denied Wife’s allegations in his answer to her motion. 

 Following oral argument on January 27, 2010, the trial court granted 

Wife’s motion and appointed the Receiver to manage the affairs of 

Appellant’s real estate businesses and to protect and preserve the marital 

estate prior to equitable distribution. Trial Court Order, 1/27/10; Trial Court 

Opinion, 9/4/13, at 1. In its order, the trial court gave the Receiver 

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2

 Specifically, Wife alleged that: (1) Appellant received significant payments 

from one of his real estate entities; (2) Appellant misrepresented personal 

debts as business obligations for one of his real estate entities; (3) Appellant 

withdrew substantial funds that had been held in escrow to secure 

performance of certain road work for a real estate development project; 

and, (4) there was a great need to avoid mismanagement of the marital 

assets because of a substantial claim Wife’s father filed against the marital 

estate. Motion for Appointment of a Receiver, 2/17/10, at ¶¶ 8-29. 
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exclusive control over Appellant’s business entities, including the specific 

authority to engage in a broad range of activities central to the oversight 

and operation of a real estate enterprise. See Trial Court Order, 1/27/10, 

¶¶ 1-7. The appointment order provided that the Receiver was entitled to 

compensation as enumerated in an attached schedule.3

 The court’s order 

also stated that “the Receiver [shall not] be liable to anyone for any actions 

taken or omitted by them except upon a finding by th[e trial c]ourt that they 

acted or failed to act as a result of malfeasance, bad faith, gross negligence 

or reckless disregard for their duties[.]” Id. at 2 (unpaginated). 

 Appellant, on two occasions, filed motions before the trial court to 

remove the Receiver. The trial court denied those motions by orders 

entered on June 16, 2010 and December 13, 2010. The trial court 

terminated the receivership on November 7, 2011, following the completion 

of the parties’ equitable distribution trial. On December 14, 2011, Appellant 

filed claims against the Receiver, alleging malfeasance, bad faith, and gross 

negligence in the Receiver’s performance of his duties. On November 5, 

2012, the Receiver moved for summary judgment.4

 The trial court granted 

the Receiver’s motion on May 15, 2013. This appeal followed. 

____________________________________________ 

3

 The trial court did not attach a compensation schedule to its appointment 

order. 

4

 The record reflects that the Receiver served its motion on Appellant’s 

counsel on November 5, 2012. However, the Receiver filed its motion with 

the court on December 6, 2012. 
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 In his brief, Appellant raises the following claims for our review: 

Does a [c]ourt of [c]ommon [p]leas abuse its discretion and

commit an error of law in granting a Receiver’s [m]otion for 

[s]ummary [j]udgment in a [c]laim [a]gainst the Receiver where 

a) the record is replete with material factual disputes regarding 

the conduct of the Receivership; b) the same court recently held 

a hearing on a contempt petition against the Receivership that 

raises material factual questions regarding the conduct of the 

Receivership; and c) the time for discovery set by order of the 

court in the [c]laim against the Receiver had not expired? 

Does a [c]ourt of [c]ommon [p]leas abuse its discretion and/or 

commit an error of law in the appointment of a Receiver by a) 

not holding a hearing to establish facts sufficient to justify the 

Receiver’s appointment; b) not completing its appointing order 

establishing a fee schedule or otherwise approving the Receiver’s 

proposed fees; [] c) not requiring periodic reporting and 

accounting by the Receiver; and d) not establishing the

recognized standard of care of the Receiver? 

Appellant’s Brief at 6. 

 Appellant’s first claim asserts that the trial court erred in granting the 

Receiver’s motion for summary judgment. Our standard of review governing 

such claims is as follows: 

A reviewing court may disturb the order of the trial court only 

where it is established that the court committed an error of law 

or abused its discretion. As with all questions of law, our review 

is plenary. 

In evaluating the trial court's decision to enter summary 

judgment, we focus on the legal standard articulated in the 

summary judgment rule. Pa.R.C.P. 1035.2. The rule states that 

where there is no genuine issue of material fact and the moving 

party is entitled to relief as a matter of law, summary judgment 

may be entered. Where the non-moving party bears the burden 

of proof on an issue, he may not merely rely on his pleadings or 

answers in order to survive summary judgment. Failure of a 

non[-]moving party to adduce sufficient evidence on an issue 
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essential to his case and on which it bears the burden of proof 

establishes the entitlement of the moving party to judgment as a 

matter of law. Lastly, we will view the record in the light most 

favorable to the non-moving party, and all doubts as to the 

existence of a genuine issue of material fact must be resolved 

against the moving party. 

Thompson v. Ginkel, 2014 WL 2726989, *2 (Pa. Super. 2014) (citations 

omitted). 

 In his first claim, Appellant contends that the trial court improperly 

granted summary judgment because the transcript of his three-day 

deposition raised genuine issues of material fact. Appellant alleges that his 

testimony demonstrated that the marital estate sustained significant damage 

because of “six-figure fees” generated by the Receiver for work that was 

neither approved nor performed properly. Citing excerpts of his deposition 

transcript in the reproduced record, Appellant challenges a wide array of the 

Receiver’s activities in managing the affairs of Appellant’s real estate 

businesses. See Appellant’s Brief at 12-14. 

 Appellant is not entitled to relief based upon his contention that his 

deposition testimony raised genuine issues of material fact that precluded 

summary judgment. Our review of the certified record confirms that 

Appellant never filed the transcripts of his deposition testimony before the 

trial court.5

 Appellant tacitly acknowledges this fatal oversight and attempts 

____________________________________________ 

5

 The Receiver filed certain excerpts of Appellant’s deposition as exhibits to 

its summary judgment motion. 
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to overcome this omission by asserting in his brief that, “it is clear that 

Appellant’s [r]esponse to the [m]otion for [s]ummary judgment included 

supplementation of the record with the Appellant’s entire deposition, which 

was obviously disregarded by the trial court.” Id. at 15. A careful review of 

Appellant’s response, however, belies this assertion. A copy of Appellant’s 

complaint against the Receiver, captioned as “Claim Against Receiver,” is the 

only exhibit attached to Appellant’s response. No other exhibits are included 

with Appellant’s filing. 

 As our standard of review establishes, where the non-moving party 

bears the burden of proof on an issue, he may not rely on his pleadings or 

answers in order to survive summary judgment. Thompson, supra. To 

withstand his opponent’s motion, the non-moving party “must set forth 

specific facts by way of affidavit, or in some other way as provided by the 

rule, demonstrating that a genuine issue exists.” Salerno v. Philadelphia 

Newspapers, 546 A.2d 1168, 1171 (Pa. Super. 1988). Here, Appellant 

claims that his deposition transcript raised material issues of fact and that 

the trial court erred in disregarding this material. Although reliance upon 

deposition testimony is an approved means of resisting summary judgment, 

see Pa.R.C.P. 1035.1 (the term “record” includes depositions) and Pa.R.C.P. 

1035.3 (within 30 days, adverse party must identify one or more issues of 

fact arising from the record that controverts evidence cited in the motion), 

the certified record shows that Appellant never filed his deposition testimony 
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before the trial court. Hence, Appellant is not entitled to relief on his 

opening claim. 

 Appellant’s effort to circumvent this defect by including his deposition 

transcript in the reproduced record is unavailing. Our appellate rules define 

the record on appeal as follows: 

Rule 1921. Composition of Record on Appeal 

 

The original papers and exhibits filed in the lower court, paper 

copies of legal papers filed with the prothonotary by means of 

electronic filing, the transcript of proceedings, if any, and a 

certified copy of the docket entries prepared by the clerk of the 

lower court shall constitute the record on appeal in all cases. 

Pa.R.A.P. 1921. 

“It is well-established that this Court may only consider items which 

have been included in the certified record and those items which do not 

appear of record do not exist for appellate purposes.” McEwing v. Lititz 

Mut. Ins. Co., 77 A.3d 639, 644 n.2 (Pa. Super. 2013) (internal quotation 

and citation omitted). Moreover, “[t]he failure to include a document in the 

certified record is a deficiency which cannot be remedied merely by including 

copies of the missing documents in a brief or in the reproduced record.” Id. 

(internal quotation and citation omitted). 

In this case, our decision not to review the portions of Appellant’s 

deposition transcript included within the reproduced record is not motivated 

by wooden adherence to inflexible formalities. On occasion, this Court is 

willing to make informal inquiries and ask trial courts to locate documents 
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filed before them and certify those materials as supplemental records. Cf. 

id. Here, however, the thrust of Appellant’s claim is that the trial court 

erred in granting summary judgment by disregarding his deposition 

testimony. It is obvious that a trial judge cannot err in failing to consider 

materials that a litigant never filed with the court. Thus, reviewing the 

reproduced record would do nothing to aid our assessment of whether the 

trial court erred in granting the Receiver’s motion. Moreover, we reject 

Appellant’s suggestion that the trial court should have requested “missing” 

transcripts from his counsel. See Appellant’s Brief at 15. Rule 1035.3 

places the burden of responding to a motion for summary judgment squarely 

upon the non-moving party, not the trial court. Pa.R.C.P. 1035.3(a)(1) and 

(2) (adverse party must, within 30 days of service of motion, identify 

either issues of fact in the record or evidence essential to a claim or 

defense). For each of these reasons, this Court cannot consider the 

reproduced record of Appellant’s deposition transcript.6

In his next claim, Appellant asserts that the trial court erred and 

abused its discretion in granting summary judgment before the designated 

close of discovery. Appellant points out that the trial court entered summary 

____________________________________________ 

6

 Appellant’s brief makes a passing reference to a claim that the trial court 

disregarded material issues of fact regarding the Receiver’s performance 

that emerged from a contempt hearing conducted before the trial court in 

advance of its order granting summary judgment. Appellant’s Brief at 14. 

This claim is wholly undeveloped and thus waived. 
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judgment in favor of the Receiver on May 15, 2013, notwithstanding an 

existing order that discovery would close on or around May 31, 2013, which 

was 60 days after Appellant’s deposition. Appellant also notes that the 

Receiver’s deposition was never taken and that certain documents requested 

from the Receiver were not produced. Appellant concludes that he was 

prejudiced because he did not get a full and fair opportunity to supplement 

the discovery record and to oppose the Receiver’s motion.

As stated above, Rule 1035.3 governs responses to motions for 

summary judgment, including situations in which a party is unable to oppose 

requests for summary disposition. In relevant part, it states: 

Rule 1035.3. Response. Judgment for Failure to Respond 

* * * 

(b) An adverse party may supplement the record or set forth the 

reasons why the party cannot present evidence essential to

justify opposition to the motion and any action proposed to be 

taken by the party to present such evidence. 

(c) The court may rule upon the motion for judgment or permit 

affidavits to be obtained, depositions to be taken or other 

discovery to be had or make such other order as is just. 

Pa.R.C.P. 1035.3. 

 In Kerns v. Methodist Hosp., 574 A.2d 1068 (Pa. Super. 1990), we 

discussed at length the factors relevant to a trial court’s discretionary 

authority to insure prompt and adequate discovery and the interplay of that 

authority with the court’s consideration of dispositive motions. In Kerns, we 

said: 
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It is well-settled that Pa.R.C.P. 1035[] controls claims that 

summary judgment was improvidently granted prior to the 

completion of necessary discovery. It is equally well-settled that 

the standard of review for an appellate court reviewing a 

decision to grant or deny a continuance to complete further 

discovery under Pa.R.C.P. 1035[] is whether the trial court 

abused its discretion. 

The [appellants in Kerns] complain that they were not given an 

adequate opportunity for discovery. The applicable rules provide 

no timetable for discovery; rather, the parties are permitted to 

engage in the various types of discovery simultaneously, subject 

to the supervision of the trial court. In supervising discovery, 

the trial court has broad discretion to take such action as it 

deems appropriate to insure prompt and adequate discovery. 

It may be an abuse of discretion to deny a continuance to 

complete further discovery when the party opposing summary 

judgment has been denied an adequate opportunity to conduct 

reasonable discovery. In [a prior case], this Court held that the 

trial court erred in failing to apply Pa.R.C.P. 1035[] and in 

granting summary judgment when the moving party had failed 

to disclose necessary documents and records. We concluded by 

noting that the opposing party was entitled to an opportunity to 

conduct appropriate discovery. Similarly, in [another case], this 

Court held that the trial court had abused its discretion in 

scheduling a class certification hearing, sua sponte, less than 

five months after the filing of a complicated class action suit, 

despite the fact that the plaintiff was still pursuing timely 

discovery on the very issue to be decided in the certification 

hearing. 

On the other hand, appellate courts of this Commonwealth have 

found no abuse of discretion in denying a continuance to pursue 

further discovery pursuant to Pa.R.C.P. 1035[] when a 

reasonable period for discovery had expired, and the opposing 

party failed to demonstrate the materiality of the outstanding 

discovery or the opposing party failed to demonstrate that it had 

proceeded in a timely manner with respect to the discovery 

sought. In [one case], this Court found no abuse of discretion in 

denying a continuance because the outstanding discovery 

requests could not have provided material evidence sufficient to 

withstand summary judgment had the continuance sought been 

granted. In [another case], this Court held that the trial court [] 
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abused its discretion in permitting an eleventh-hour deposition of 

a material witness whose identity and whereabouts had been 

known for more than four years. In [still another case], this 

Court rejected a claim that an inadequate discovery period had 

been permitted. We noted that counsel had failed to commence 

discovery until after the pleadings were closed, the three and 

one half months available for discovery after pleadings were 

closed was more than sufficient given the uncomplicated nature 

of the case, and the efficacy of the further discovery requested 

was wholly speculative. 

Kerns, 574 A.2d at 1073-1074 (internal case citations and footnote 

omitted). 

 Applying the factors set out in Kerns, we are persuaded that the trial 

court did not abuse its discretion in granting the Receiver’s motion for 

summary judgment shortly before the scheduled conclusion of discovery. 

We begin with a review of the timeline of the events of this case, which 

reveals that the trial court permitted a reasonable time-period for discovery. 

Appellant filed his claims against the Receiver on December 14, 2011, 

shortly after the conclusion of the parties’ equitable distribution trial. Almost 

one year later, in November 2012, the Receiver moved for summary 

judgment. Appellant timely responded within 30 days. The Receiver’s 

motion remained pending before the court for approximately six months 

before the trial court granted summary judgment on May 15, 2013. The 

only uncompleted discovery that Appellant mentions in his brief is the 

deposition of the Receiver and unspecified documents that the Receiver 

failed to produce. There is little doubt that Appellant became aware of the 

need to commence and diligently pursue discovery in support of his claims 
J-A08018-14 

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once he initiated litigation against the Receiver. All doubt was removed once 

the Receiver moved for summary judgment. Given the nature of the claims 

asserted in this matter, and the other factors addressed below, we believe 

the eighteen-month time-period from the commencement of Appellant’s 

claims until the order granting summary judgment was a period of sufficient 

length within which Appellant could conduct a single deposition and press his 

claim for any outstanding discovery. 

 We also conclude that the unsubstantiated probative value of the 

outstanding discovery weighs against finding an abuse of discretion. We 

examine this factor by looking to the totality of the circumstances of this 

litigation. Appellant does not challenge the actions of an entity with which 

he was unfamiliar. His own filings confirm that he created, nurtured, and 

operated the various real estate entities at issue for at least two decades. 

Because of this, Appellant was deeply familiar with their operations and he 

was uniquely positioned to assist his counsel in developing litigation 

strategies against the Receiver, targeting material documents for production, 

and identifying key witnesses for deposition. Indeed, Appellant leveled a 

lengthy list of claims challenging numerous aspects of the Receiver’s 

oversight and operation of the real estate businesses. Despite this and 

despite the intimacy and depth of Appellant’s (and his counsel’s) knowledge 

of the real estate entities, Appellant nowhere explains what information he 

hoped to uncover through the outstanding discovery, how that information 
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would have supported his claims, and why any unproduced or undiscovered 

information would have altered the trial court’s disposition of the Receiver’s 

motion. In short, Appellant made no effort, before the trial court or this 

Court, to demonstrate the significance of any pending discovery. 

 For related reasons, we fail to see how Appellant was prejudiced by 

any supposed deprivation of a full and fair opportunity to oppose the 

Receiver’s motion. While this case was pending before the trial court, 

Appellant never advanced any explanation, pursuant to Rule 1035.3(b), as 

to why the outstanding discovery was impeding his efforts to respond to the 

Receiver’s filing or to withstand summary judgment. We agree with the trial 

court’s assessment that further discovery in this case would have been futile 

as of May 15, 2013 and that it was appropriate at that juncture to turn to 

the merits of the Receiver’s motion. See Trial Court Opinion, 9/4/13, at 5. 

Thus, given Appellant’s failure to show an inadequate period for 

investigation, the materiality of any outstanding discovery, or any prejudice 

resulting from the trial court’s actions, we discern no abuse of discretion in 

the trial court’s order granting summary judgment two weeks before the 

previously scheduled completion of discovery. See Pappas v. UNUM Life 

Ins. Co. of America, 856 A.2d 183, 186 (Pa. Super. 2004) (“Summary 

judgment may be entered prior to the completion of discovery in matters 

where additional discovery would not aid in the establishment of any 

material fact.”) (citation omitted). 
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 In large part, Appellant’s remaining claims challenge the trial court’s 

procedures for implementing the receivership and the contents of the trial 

court’s appointment order. Specifically, Appellant claims the trial court erred 

in failing to conduct a fact hearing before appointing the Receiver. 

Additionally, Appellant argues that an appointment order must mandate: 

1) periodic accounting by the receiver; 2) preapproval of fees; and, 3) a 

standard of care for the receiver which embraces a concept of ordinary 

negligence. We address each of these claims in turn. After we address 

Appellant’s final contention regarding the trial court’s identification of an 

appropriate standard of care in an appointment order, we shall then review 

the trial court’s application of the standard to the summary judgment record 

in this case.7

 As our factual recitation states, Wife moved for the appointment of a 

receiver in December 2009, citing specific grounds for her concerns about 

preserving the marital estate. Appellant responded through counsel. 

Thereafter, the trial court convened oral argument on Wife’s request and 

heard from both parties’ counsel. At the conclusion of the argument, the 

trial court appointed the Receiver. By the time the court appointed the 

____________________________________________ 

7

 We recognize that Appellant’s challenge to the appointment order focuses 

on the propriety of the trial court’s appointment process, while application of 

the standard of care involves a more conventional summary judgment 

analysis. We believe, however, that the close logical connection between 

these two issues merits consecutive treatment. 
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Receiver in this case, it had presided over the parties’ divorce litigation for 

six years. During this period, the trial court no doubt developed familiarity 

with both the facts and the parties. See Trial Court Opinion, 9/4/13, at 7. 

Appellant cites no authority compelling the trial court to convene an 

evidentiary hearing prior to the appointment of a receiver. In view of the 

trial court’s knowledge of the litigants and the issues, together with the 

parties’ opportunity to advocate their respective positions on the 

appointment of a receiver, we discern no impropriety or error in the trial 

court’s appointment following oral argument. 

 Appellant next asserts that an order appointing a receiver should 

mandate periodic accounting, preapproval of fees, and a standard of care 

that holds the receiver liable for his ordinary negligence. Appellant argues 

that more stringent judicial oversight is appropriate because Pennsylvania 

law embraces ordinary negligence as the standard of care that governs the 

Receiver’s actions in pursuit of his charged duties, in contrast with the 

determination of the trial court. The trial court rejected this contention, 

concluding instead that a receiver derives his powers and liabilities 

exclusively from the court’s appointment order. Although our research 

confirms an admitted paucity of recent case law on the scope and nature of 

a receiver’s liability under Pennsylvania law, we summarize the relevant 

principles below. 
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“The authority of a receiver and the effect of his action depend almost 

entirely on the purpose of his appointment and the extent of his powers 

conferred by the decree appointing him.” Duplex Printing Press Co. v. 

Clipper Pub. Co., 62 A. 841-842 (Pa. 1906). “The legal status of a 

receiver, his authority and duty, is clear. He is the officer-the executive 

hand-of a court of equity. His duty is to protect and preserve, for the 

benefit of the persons ultimately entitled to it, an estate over which the 

court has found it necessary to extend its care.” Warner v. Conn, 32 A.2d 

740, 741 (Pa. 1943) (internal quotations and citations omitted). 

In describing the power of a receiver to make business judgments 

within the scope of his appointed duties, our Supreme Court has said: 

The authority of a receiver, as an executive in control, is subject 

to the court alone; he exercises the functions of the board 

of directors, managers and officers, takes possession of 

corporate income, property, and assets, directs not only 

its operation, but, while in control, its policies on all lines.

It is his duty to preserve the property from untimely sale, and 

his obligation in this respect differs from that of a sheriff or other 

officer commanded to execute a writ in a given time. He has 

power to delay action until a more advantageous time is present, 

when it may not be necessary. 

Continental Bank & Trust Co. of New York v. American Assembling 

Mach. Co., 38 A.2d 220, 222-223 (Pa. 1944) (emphasis added). 

 An appointment order entered by a court is not the sole means 

through which a receiver might engage in permitted action. Subsequent 

ratification and approval by a court also offer safe harbor for a receiver’s 

activities. See In re Wilson’s Estate, 97 A. 453, 454 (Pa. 1916) (A 
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“[r]eceiver of [a] corporation does not become personally liable on [a] note 

given without authority in [the] absence of fraud, concealment, or intention 

or agreement to assume liability. Ratification and approval by [the] court of 

[the] account of [the] receiver showing [the] giving of [the] note without 

authority is equivalent to prior authority by court.”). The court that 

appointed the receiver retains exclusive jurisdiction over matters such as the 

presentation and adjudication of claims, the distribution of estate property, 

and the receiver’s accounting. Warner, 32 A.2d at 741; Garland v. 

Wilson, 137 A. 266, 268 (Pa. 1927). 

 Appellant cites four Pennsylvania cases in which surcharges against 

receivers were upheld because the appointing courts found that the 

receivers acted negligently and were otherwise derelict in their courtappointed duties. See Appellant’s Brief at 17, citing American Assembling 

Mach. Co., 38 A.2d at 224 (receiver surcharged and commissions disallowed 

where trial court found receiver to be negligent, guilty of wasting assets, and 

guilty of purchasing receivership assets without court approval); Pangburn 

v. American Vault, Safe & Lock Co., 54 A. 508 (Pa. 1903) (receiver 

surcharged and commissions disallowed where trial court found receiver to 

be negligent, guilty of wasting assets, guilty of acting without good faith, 

and guilty of concealing personal interest in purchase of receivership 

assets); Simpson v. Kerkeslager, 1909 WL 547, *5 (Pa. Super. 1909) 

(receiver held personally responsible to insurance agent for premiums paid 
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by agent on property insurance where receiver ultimately learned that entity 

in receivership had no interest in insured property); and, Covington v. 

Hawes-LA Anna Co., 91 A. 514 (Pa. 1914) (receiver surcharged and 

compensation disallowed where receiver admitted negligence to trial court 

and facts overwhelmingly established receiver’s responsibility for shrinkage 

of receivership assets). These cases are easily distinguishable from the 

present matter in which the trial court approved the Receiver’s conduct and 

found no malfeasance, bad faith, or gross negligence. In each case, the 

appointing courts specifically found that the receivers failed to discharge 

their duties. Hence, we are not persuaded that these cases establish an 

ordinary negligence standard for all Pennsylvania receiverships. The trial 

court properly determined that, under Pennsylvania law, the standard of 

care is set by the appointment order.8

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8

 We are reluctant to expand, in all cases, the standard of care to include 

ordinary negligence in the absence of clear statutory or precedential 

guidance. By definition, courts appoint receivers to oversee the operations 

of troubled entities or entities that must be operated, at least temporarily, 

for the benefit of individuals or groups whose interests might not align 

precisely with those of the original owners, as in the present matter. 

Monitoring and approval by the court offers the best solution to guard 

against poor stewardship in these unique situations. To allow claims 

predicated largely upon unsupported contentions that routine, daily business 

functions could have been performed “better,” as Appellant seems to argue 

in the present case, would frustrate this process. In this connection, we 

note that the business judgment rule insulates managers of a business from 

liability for business decisions made: (1) in good faith; (2) where the 

manager is not interested in the subject of the business judgment; (3) is 

informed with respect to the subject of the business judgment to the extent 

(Footnote Continued Next Page) 
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 In any event, whether the standard of care applicable to the Receiver 

is confined to malfeasance, bad faith, and gross negligence or whether it 

extends further to include ordinary negligence, as Appellant suggests, is 

substantially immaterial to our determination of whether the trial court erred 

in granting the Receiver’s motion.9 We have reviewed the summary 

judgment record, including the Receiver’s motion and its exhibits, 

Appellant’s response and the attached claim against the Receiver, and 

Appellant’s answers to interrogatories.10 Our effort to ferret out a precise 

factual basis for Appellant’s claims has proven fruitless. The record reveals 

(Footnote Continued) _______________________ 

he reasonably believes to be appropriate under the circumstances; and (4) 

rationally believes that the business judgment in question is in the best 

interests of the organization. See Viener v. Jacobs, 834 A.2d 546, 557 

(Pa. Super. 2003), appeal denied, 857 A.2d 680 (Pa. 2004). In light of the 

monitoring function of the court, we see no reason, and Appellant has 

offered none, to expose a receiver to greater liability than that which is 

imposed upon other similarly situated managers. 

9

 We note that Appellant’s claim against the Receiver did not include a claim 

for ordinary negligence. The only theories alleged by Appellant included 

malfeasance, bad faith, and gross negligence, consistent with the trial 

court’s appointment order. 

10 Appellant filed answers to interrogations with the court on July 23, 2012. 

Appellant’s Answers to Interrogatories and Requests for Production of 

Documents, 7/23/12. In his answers, Appellant complained that the 

Receiver failed to pay bills in a timely manner. Id. at 2-3. Appellant, 

however, never identified the bills that were not paid on a timely basis. 

Moreover, Appellant’s answers made only broad, unspecified accusations 

with respect to his claims alleging improper billing procedures, inflated bills, 

the qualifications of marketing and management personnel, property 

maintenance, and co-mingling of funds. Appellant also offered no factual 

basis for his damage claims. 
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that Appellant failed to come forward with specific evidence that raised 

genuine issues of material fact. Appellant’s bald and speculative assertions 

regarding the Receiver’s conduct lack specific evidentiary support and are 

insufficient to withstand summary judgment. 

 As the trial court determined, the Receiver’s activities were authorized 

by the appointment order or subsequently approved or ratified by the court. 

In this case, [Appellant], made bald accusations of malfeasance. 

He claims actions of the Receiver were grossly negligent, but 

ignores that those acts were either pre-authorized or otherwise 

ratified by [the court] after adequate and factually detailed 

justification in support of those actions was presented to the 

[court] by the Receiver. [Appellant] further ignores that the 

very actions he complains of led to the preservation of the 

marital estate or, indeed, its increase in value. As examples: 1) 

[o]n June 16, 2010, [the court] entered an [o]rder which 

authorized the Receiver to post a $60,000.00 cash bond to allow 

for the dedication of a road in the Enclave Development without 

which said development was stalled; 2) [o]n March 16, 2011, 

[the court] entered an order permitting the Receiver to hire a 

contracting firm to repair one of [Appellant’s] properties 

preventing its condemnation and increasing its sale price; 3) 

[l]astly, in [the court’s] termination order, [the court] authorized 

and approved payment of the Receiver’s fees. 

In this case, [Appellant] has failed to meet his burden of 

establishing a disputed issue of material fact. That he has 

disputes with business choices made by the Receiver which were 

ratified by this court does not constitute a “material” factual 

dispute, when such choices did not result in damages. 

Trial Court Opinion, 9/4/13, at 4-5. 

 Moreover, even if the applicable standard of care permitted liability for 

ordinary negligence, Appellant failed to prove damages in the form of a 
J-A08018-14 

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cognizable diminution in the value of the marital estate. The trial court 

made the following findings which are supported by the record. 

[Appellant never raised exclusion of ordinary negligence from the 

court’s appointment order and never advanced this theory of 

relief in his claim against the Receiver. But even if the trial court 

were to apply a mere negligence standard, t]he Receiver 

preserved the value of the marital estate, as he was charged to 

do and as the record demonstrates, so there are no damages 

which could be asserted. As damages are an essential element 

of a claim whether negligence and gross negligence is asserted, 

the lack of damages defeats the claim, making [s]ummary

[j]udgment appropriate. 

Id. at 6. We concur with the factual and legal components of this 

assessment.11

____________________________________________ 

11 In addition to alleged diminution in value of receivership property, 

Appellant’s claims also assert that, “the marital estate in this case was 

subject to unnecessary fees and a severe diminution of value under the 

Receiver’s watch.” Appellant’s Brief at 18. Appellant attributes much of this 

alleged loss to the Receiver’s activities involving a homeowners’ association. 

See id. at 19. Appellant, however, does not specify what activities and 

which corresponding fees were unwarranted. Thus, his vague assertion is 

insufficient to resist summary judgment. To advance a viable claim, 

Appellant needed to specify the unwarranted activities, aggregate the time 

allotted to those tasks, and multiple that time by the Receiver’s 

compensation rate. This method would produce an alleged ascertainable 

loss that could be presented at trial. In the absence of such a specific 

contention, summary judgment was appropriate. 

Appellant also appears to suggest that the trial court’s termination of the 

Receivership lends evidentiary support for his claims. Id. This contention 

lacks merit. The trial court terminated the Receivership after the parties’ 

equitable distribution trial. At this point, there was no longer any purpose 

for the Receivership since the parties had taken possession of their 

respective shares of the businesses and the properties. Trial Court Opinion, 

9/4/13, at 7. 
J-A08018-14 

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 Because Appellant has failed to specify evidence that raises a genuine 

issue of material fact, summary judgment was appropriate. We also reject 

Appellant’s challenges to the trial court’s appointment order and procedures. 

Accordingly, we affirm the judgment entered in favor of the Receiver and 

against Appellant. 

 Judgment affirmed. Motion to quash denied as moot. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/3/2014