J-A06043-15

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SUNLIGHT ELECTRICAL CONTRACTING 

CO., INC.

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

JOHN J. TURCHI, JR., TURCHI, INC., 

23S23 CONSTRUCTION, INC. AND 

CARRIAGE HOUSE CONDOMINIUMS, G.P.

Appellees No. 1877 EDA 2014

Appeal from the Order Entered May 16, 2014

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 130201418

BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED MARCH 30, 2015

Sunlight Electrical Contracting Co., Inc. (“Sunlight”) appeals from an 

order granting summary judgment to John J. Turchi, Jr. (“Turchi”), Turchi, 

Inc., 23S23 Construction, Inc. (“23S23”) and Carriage House 

Condominiums, G.P. (“CHC GP”) (collectively “Appellees”) and dismissing all 

of Sunlight’s claims “without prejudice to reassert them if permitted by the 

bankruptcy court.” The trial court determined that (1) the bankruptcy 

estates of 23S23 and CHC GP (or the trustees of these estates) were 

indispensable parties, and (2) because the bankruptcy estates were closed, 

Sunlight had to ask the bankruptcy court for permission to re-open the 

estates and join them as defendants. 
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In this appeal, Sunlight argues persuasively that the bankruptcy 

estates are not indispensable parties. Appellees do not vigorously contest 

the indispensable party issue; instead, Appellees insist that Sunlight lacks 

standing to bring this action. 

We reverse and remand for further proceedings. We disagree with the 

trial court’s conclusion that the bankruptcy estates are indispensable parties. 

Moreover, Appellees waived their argument that Sunlight lacked standing to 

pursue claims against Appellees in the trial court. Even if Appellees 

preserved this issue for appeal, we hold that Sunlight has standing to 

prosecute this action. We leave all remaining issues for the trial court to 

resolve on remand.

A detailed procedural history will lay the foundation for our decision. 

Sunlight was a subcontractor at a real estate development project at 23 

South 23rd Street in Philadelphia known as the Carriage House 

Condominium (“the Condominium”). The owner of the Condominium was 

Carriage House Condominiums L.P. (“CHC LP”), whose general partner was 

CHC GP. Turchi was the principal owner and officer of both CHC LP and CHC 

GP. Turchi was also the sole owner and officer of Turchi, Inc. and 23S23. 

The same attorneys represent all Appellees.

In February 2005, Sunlight entered into a written agreement with 

23S23 to perform the electrical construction on the project. The agreement 

designated 23S23 as the “Construction Manager” and CHC LP as the “owner” 

of the project. Sunlight alleges that 23S23 paid some, but not all, of the 
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money due under the subcontract and also failed to pay for additional work 

that 23S23 requested Sunlight to perform, notwithstanding Turchi’s repeated 

promises to make payment. 23S23 and CHC LP allegedly funneled monies 

to Turchi, Inc. and Turchi that were due and owing to Sunlight. 

In December 2008, Sunlight filed a complaint in the Court of Common 

Pleas of Philadelphia County (“trial court”) against Turchi and twelve other 

defendants, including 23S23 and Turchi, Inc. Sunlight asserted a federal 

RICO claim against Turchi under 18 U.S.C. § 1962 based on his alleged 

fraudulent schemes and unlawful use of 23S23, CHC LP and other entities in 

orchestrating these schemes. In addition, Sunlight alleged state law claims 

against Turchi for fraud and alter ego/veil piercing claims against 23S23 and 

CHC LP in an attempt to target Turchi’s assets. On December 16, 2008, 

based on the federal RICO claim, Turchi filed a notice of removal in the 

United States District Court for the Eastern District of Pennsylvania (“district 

court”).

In April 2009, 23S23 and CHC LP both filed for bankruptcy under 

Chapter 11 in the United States Bankruptcy Court for the Eastern District of 

Pennsylvania. The district court placed Sunlight’s case in civil suspense due 

to the automatic stay arising from these bankruptcies. 

In December 2009, Sunlight moved for relief from the automatic stay 

in order to pursue its claims against Turchi and the other appellees. 

Appellees filed a response in opposition to Sunlight’s motion for relief, but 
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shortly thereafter, Appellees withdrew their opposition to Sunlight’s motion. 

On January 21, 2010, the Bankruptcy Court granted Sunlight leave to pursue 

its claims against 23S23, CHC LP, and all non-debtor defendants, including 

Turchi, in the district court.1 

In April 2012, Sunlight filed an amended complaint in the district court 

against Appellees which amplified its RICO claim and alter ego/piercing 

claims against Turchi. Appellees filed an answer to the amended complaint 

and later moved for partial summary judgment. On January 18, 2013, the 

district court granted summary judgment to Turchi on the RICO claim and 

dismissed the state law claims without prejudice to Sunlight reasserting 

them in state court. Sunlight Electrical Contracting Co. v. Turchi, 918 

F.Supp.2d 392 (E.D.Pa.2013). 

On February 14, 2013, in accordance with the district court’s order, 

Sunlight returned to the trial court and filed a complaint alleging state law 

claims against Appellees. Later in 2013, Sunlight filed an amended 

____________________________________________

1 Both bankruptcy estates later closed. On April 6, 2010, counsel for 

Appellees informed the Bankruptcy Court that 23S23 had no assets. On 

June 29, 2010, the Bankruptcy Court confirmed CHC LP’s plan of 

reorganization and declared its debts discharged. In July 2011, the 

bankruptcy trustee entered a “report of no distribution” concerning 23S23,

stating that he “made a diligent inquiry into the financial affairs of the 

debtor(s) and the location of the property belonging to the estate; and that 

there is no property available for distribution from the estate over and above 

that exempted by law.” In September 2012, the Bankruptcy Court entered 

an order closing 23S23’s bankruptcy.
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complaint which included four counts: (1) an action against Turchi under the 

Contractor and Subcontractor Payment Act, 73 P.S. § 501 et seq.; (2) an 

action against Turchi and 23S23 for participating together in a scheme to 

defraud Sunlight; (3) an action against Turchi and Turchi, Inc. for 

participating together in a scheme to defraud Sunlight; and (4) an action 

against Turchi for fraud. Appellees filed an answer to the amended 

complaint with new matter. In November 2013, Appellees filed a motion for 

summary judgment contending, inter alia, that Sunlight lacked standing to 

prosecute alter ego/veil piercing claims against Turchi -- the first time in the 

five years of litigation that Appellees challenged Sunlight’s lack of standing.2 

On May 16, 2014, the trial court entered summary judgment in favor 

of Appellees. The trial court characterized Sunlight’s claims as “veil piercing” 

claims and stated that these claims belonged in Bankruptcy Court:

Such veil piercing claims against Turchi and Turchi, 

Inc. are potential assets of 23S23’s and CHC, LP’s 

bankrupt estates. However, Sunlight ... chose not to 

pursue such claims in the bankruptcy court where 

they belong, nor to do so on behalf of all similarly 

situated creditors. Instead, [Sunlight] asserted 

individual claims seeking the repayment of the 

allegedly stolen sums directly and only to it.

The point of a bankruptcy proceeding is not to shield 

a swindler from the reach of those he duped. It is 

____________________________________________

2 Appellees also argue that various affirmative defenses defeated Sunlight’s 

claims as a matter of law. 
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instead a chance for his victims to help the trustee 

locate the debtor’s assets so that they can be 

distributed fairly among all his creditors. This court 

would undermine the federal bankruptcy scheme if it 

were to permit Sunlight’s individual veil piercing 

claims to proceed here. Instead, Sunlight’s claims in 

this action must be dismissed without prejudice for 

them to be re-filed in re-opened bankruptcy 

proceedings involving 23S23 and CHC LP.

Opinion filed May 16, 2014, p. 3.

Sunlight filed a timely notice of appeal and a timely Pa.R.A.P. 1925(b) 

statement claiming that Appellees waived the defense of Sunlight’s lack of 

standing by not raising it until their motion for summary judgment. In 

response, the trial court filed a Pa.R.A.P. 1925(a) opinion in which it 

asserted, sua sponte, that it was proper to dismiss Sunlight’s action for 

failure to join two “indispensable” parties, the bankruptcy estates of 23S23 

and CHC LP:

In this case, [Sunlight’s] standing is called into 

question because the right it is attempting to enforce 

belongs to someone else, namely two, now closed, 

federal bankruptcy estates. Those estates, whose 

rights are being litigated here, therefore appear to 

be indispensable parties to this litigation. Failure to 

join an indispensable party is a non-waivable 

defense, which goes to the court’s subject matter 

jurisdiction, and may be raised at any time, even sua 

sponte. . . 

An award to [Sunlight] on the veil piercing claims it 

asserted in this action would necessarily deprive the 

bankruptcy estates and the bankrupt entities’ 

creditors of assets that could be distributed in accord 

with federal bankruptcy law. In other words, the 

estates’ rights to those assets could be impaired by a 

ruling on [Sunlight’s] claims, which makes the 
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estates indispensable parties to this litigation. As 

indispensable parties, the bankruptcy estates, or 

their trustees, must be joined as plaintiffs, or the 

court lacks jurisdiction to hear the matter. Since the 

estates are closed, the court directed [Sunlight] to 

attempt to re-open them, so the trustees may bring 

the claims for piercing the corporate veil that were 

asserted by [Sunlight] here.

Pa.R.A.P. 1925(a) Opinion filed September 15, 2014, pp. 2-3. 

On August 13, 2014, after filing its notice of appeal, Sunlight filed a 

motion in Bankruptcy Court to re-open bankruptcy proceedings in the closed 

23S23 and CHC GP estates. Sunlight argued that the Bankruptcy Court 

closed 23S23’s estate because 23S23 misled the court into believing that 

23S23 had no assets to distribute. According to Sunlight, (1) Turchi 

siphoned $660,000, first to 23S23 and then to Turchi, Inc. (or himself), (2) 

counsel for 23S23 misrepresented to the Bankruptcy Court that 23S23 had 

no assets and failed to advise the court of these siphoning activities, (3) the 

monies that flowed through 23S23 in this fashion constituted assets of 

23S23 that the Bankruptcy Court did not administer or distribute due to 

counsel’s misrepresentation, and (4) these funds remain unabandoned 

property of the bankruptcy estate to this day because they have not formally 

been administered or distributed.

On September 3, 2014, following a hearing on Sunlight’s motion to reopen bankruptcy proceedings, the Bankruptcy Court denied Sunlight’s 

motion. Sunlight did not appeal the Bankruptcy Court’s order.
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Sunlight raises four issues in this appeal, which we re-order for 

purposes of disposition:

1. Whether the trial court erred in concluding that ‘as 

indispensable parties, the bankruptcy estates, or 

their trustees, must be joined as plaintiffs, or the 

court lacks jurisdiction to hear the matter,’ where 

the trial court failed to consider the Order entered by 

the bankruptcy court on January 21, 2010, a copy of 

which was Exhibit 7 to defendants’ ‘Motion of 

Summary Judgment’, which Order granted plaintiff 

leave to resume the prosecution of its alter ego and 

piercing claims against John J. Turchi, Jr. and to 

litigate those claims to final judgment[?]

2. Whether the trial court erred in dismissing all of 

[Sunlight’s] claims on the grounds that it lacked 

standing to assert the claims stated in its amended 

complaint, where defendants did not raise, plead or 

otherwise assert lack of standing in their preliminary 

objections, in their answer to the amended 

complaint, or as new matter[?]

3. Whether the trial court erred in dismissing all of 

[Sunlight’s] claims on the grounds that it ‘would 

undermine the federal bankruptcy scheme by 

allowing Sunlight’s individual veil piercing claims to 

proceed here,’ where a) defendants admitted by 

their answer to paragraph 64 of the amended 

complaint that plaintiff had satisfied all conditions 

precedent to its right to assert and pursue its claims; 

b) defendants, and particularly defendant John J. 

Turchi, Jr. (‘Turchi’), are judicially and equitably 

estopped from asserting [Sunlight’s] lack of standing 

on the basis of the pleadings and motions they filed 

in the federal court litigation docketed at No. 2:08-

cv-05834-SD, none of which asserted Sunlight’s lack 

of standing to assert and pursue the identical claims; 

c) neither Turchi nor Turchi, Inc. has filed a petition 

in bankruptcy, and the common law claims stated in 

the four counts of the amended complaint are not 

only ‘veil piercing claims’ and are not within the 

scope of jurisdiction of the bankruptcy court; d) 
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there is no controlling authority in any case decision 

of any state court of Pennsylvania or Delaware, or in

either state’s ‘corporation law’, for the proposition 

that a debtor-in-possession or a trustee has 

exclusive standing to pursue a principal of a debtor 

on a veil piercing claim[?]

4. Whether the trial court erred in dismissing all of 

[Sunlight’s] claims, as stated in its amended 

complaint, ‘without prejudice to reassert them if 

permitted by the bankruptcy court’, where the trial 

court should have exercised its discretion and 

authority to stay all proceedings in this civil action 

pending the further order of the court, rather than 

dismissing all of [Sunlight’s] claims[?]

Brief For Appellant, pp. 4-6 (statement of questions involved in appeal).

These four questions boil down to whether Sunlight’s action is 

defective due to failure to join an indispensable party and/or lack of 

standing. 

We review the indispensable party question first. An indispensable 

party is one whose rights are so connected with the claims of the litigants 

that no decree can be made without impairing its rights. Sabella v. 

Appalachian Development Corp., 103 A.3d 83, 90 (Pa.Super.2014). “In 

Pennsylvania, an indispensable party is one whose rights are so directly 

connected with and affected by litigation that he must be a party of record 

to protect such rights, and his absence renders any order or decree of court 

null and void for want of jurisdiction.” Cry, Inc. v. Mill Service, Inc., 640 

A.2d 372, 375 (Pa.1994). This jurisdiction issue presents a pure question of 
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law for which our standard of review is de novo. Mazur v. Trinity Area 

School Dist., 961 A.2d 96, 101 (Pa.2008). 

The indispensable party calculus involves, at a minimum, the following 

factors:

1. Do absent parties have a right or interest related 

to the claim?

2. If so, what is the nature of that right or interest?

3. Is that right or interest essential to the merits of 

the issue?

4. Can justice be afforded without violating the due 

process rights of absent parties?

Id.

The 23S23 and CHC GP bankruptcy estates are not indispensable 

parties, because it is possible for Sunlight to win a judgment against 

Appellees without impairing the rights of the estates. On January 21, 2010, 

the bankruptcy court granted relief from the automatic stay to Sunlight so 

that it could proceed in federal district court against Appellees. This order 

effectively reduced the bankruptcy estates’ rights to a remote and 

contingent interest in the outcome of Sunlight’s action against Appellees. 

These rights are not “so directly connected with and affected by litigation 

that [the bankruptcy estates] must be [parties] of record to protect such 

rights.” Cry, Inc., supra, 640 A.2d at 375. 

In reaching this conclusion, we find instructive the Eleventh Circuit’s 

summary of automatic stay precepts and the rights of bankruptcy estates 

following an order granting relief from the automatic stay: 
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Upon a debtor’s filing of a bankruptcy petition, his 

legal and equitable interests in property become the 

property of the bankruptcy estate. 11 U.S.C. § 

541(a)(1). The filing of a petition also operates as 

an automatic stay, preventing the creation, 

perfection, or enforcement of any lien against the 

estate’s property. 11 U.S.C. § 362(a)(4). The 

bankruptcy court may grant creditors relief from the 

stay after notice and a hearing. 11 U.S.C. § 362(d). 

A stay-relief order is a final order that is immediately 

appealable, Borg–Warner Acceptance Corp. v. 

Hall, 685 F.2d 1306, 1309 (11th Cir.1982), and not 

subject to collateral attack, F.D.I.C. v. Shearson–

American Exp., Inc., 996 F.2d 493, 498 (1st 

Cir.1993). A bankruptcy court’s order lifting the 

automatic stay is not equivalent to an abandonment 

of the estate’s property. Catalano v. Comm’r, 279 

F.3d 682, 686–87 (9th Cir.2002). When a 

bankruptcy trustee abandons estate property, the 

estate is completely divested of any interest in the 

abandoned property. Id. On the other hand, when 

a bankruptcy court grants a creditor relief from the 

automatic stay for part of the estate’s property, the 

bankruptcy estate retains a residual interest in that 

property. See id. But, a stay-relief order normally 

allows the relieved creditor to realize its interest in 

the collateral, Killebrew v. Brewer (In re 

Killebrew), 888 F.2d 1516, 1519–20 (5th 

Cir.1989), by, for example, pursuing a foreclosure 

action. If such a foreclosure sale results in proceeds 

in excess of the relieved creditor’s interest, the 

surplus proceeds normally belong to the estate. Id.

Old West Annuity and Life Ins. Co. v. Apollo Group (“Old West”), 605 

F.3d 856, 862-63 (11th Cir. 2010) (emphasis added). 

In this case, the Bankruptcy Court’s relief order relegated the 

bankruptcy estates’ interests to any “surplus” proceeds arising from 
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Sunlight’s litigation against Appellees. Old West, supra. While Sunlight’s 

litigation theoretically could yield surplus proceeds,3the likelihood of this 

occurrence is speculative. Therefore, the bankruptcy estates’ interests in 

this litigation are too contingent for them to be indispensable parties. 

Compare Sabella, supra, 103 A.3d at 90 (party is indispensable only when 

no decree can be made without impairing its rights). 

We now turn to Appellees’ claim that Sunlight lacks standing, an 

argument first raised in Appellees’ motion for summary judgment below. We 

agree that Appellees have waived this defense by failing to raise it in their 

state court pleadings. Pa.R.Civ.P. 1032(a) (“a party waives all defenses and 

objections which are not presented either by preliminary objection, answer 

or reply, except a defense which is not required to be pleaded under Rule 

1030(b), the defense of failure to state a claim upon which relief can be 

granted, the defense of failure to join an indispensable party, the objection 

of failure to state a legal defense to a claim, the defenses of failure to 

exercise or exhaust a statutory remedy and an adequate remedy at law and 

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3

For example, surplus proceeds could arise from a sheriff’s sale on Turchi’s 

house during execution of Sunlight’s judgment that generates greater 

proceeds than the amount of Sunlight’s judgment. The surplus proceeds 

would flow into the two bankruptcy estates for distribution. The estate of 

23S23, which has been closed since 2012, presumably would have to be reopened to distribute such proceeds. It is unclear from the record whether 

CHC LP’s estate remains open. If it has closed, it, too, presumably would 

have to be re-opened for distribution purposes.
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any other nonwaivable defense or objection”). Even if Appellees had 

preserved this issue for appeal, it is devoid of merit. 

The core concept of standing is that a person who is not adversely 

affected in any way by the matter he seeks to challenge is not aggrieved 

thereby and has no standing to obtain a judicial resolution to his challenge. 

Johnson v. American Standard, 8 A.3d 318, 329 (Pa.2010). Standing is a 

question of law, so our standard of review is de novo, and our scope of 

review is plenary. Id., 8 A.3d at 326. 

Appellees’ challenge to Sunlight’s standing is unconvincing. Sunlight 

clearly had standing to proceed against Appellees when it originally 

commenced suit in 2008. Although this case was diverted to federal court 

and later to Bankruptcy Court, the Bankruptcy Court’s January 21, 2010 

order granting relief from the automatic stay permitted Sunlight to proceed 

on its own in its action against Appellees without any participation by the 

bankruptcy estates. Old West, supra, 605 F.3d at 862-63. This order has 

never been rescinded. Thus, Sunlight has the unfettered right to seek, and, 

if it has a meritorious case, obtain all damages from Appellees to which it is 

entitled, and the bankruptcy estates have the right to obtain any “surplus” 

proceeds in excess of Sunlight’s right of recovery. 

It also bears emphasis that prior to the Bankruptcy Court’s order, 

Appellees had ample opportunity to challenge Sunlight’s standing or to argue 

that the bankruptcy estates had exclusive standing. Appellees actually filed 
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an objection in Bankruptcy Court to Sunlight’s motion for relief from the 

automatic stay but then withdrew their objection in advance of the order 

granting Sunlight relief. Having withdrawn their objection to Sunlight’s 

motion for relief from the stay, Appellees cannot challenge Sunlight’s 

standing now. Cf. Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 861-

62 (9th Cir.2008) (during bankruptcy proceedings, appellants/debtors waived 

right to appeal order granting bank relief from automatic stay by failing to 

object to bank’s standing in Bankruptcy Court).4 

Accordingly, we conclude that the bankruptcy estates are not 

indispensable parties, and that Sunlight has standing to pursue its claims 

against Appellees in the trial court. We remand to the trial court for further 

proceedings on all issues not resolved in this memorandum.

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4 On January 26, 2015, Sunlight filed a motion to strike portions of 

Appellees’ brief relating to a motion that Sunlight filed in Bankruptcy Court 

on August 13, 2014, subsequent to its appeal to this Court. Sunlight 

requested in its August 13, 2014 motion that the Bankruptcy Court re-open 

bankruptcy proceedings in the closed 23S23 and CHC GP estates. On 

September 3, 2014, the Bankruptcy Court denied Sunlight’s motion. 

Because Sunlight did not prevail in Bankruptcy Court, its motion to re-open 

bankruptcy proceedings has no effect on this appeal. Had Sunlight prevailed 

in its motion, principles of judicial estoppel might have precluded Sunlight 

from asserting positions in this appeal that were inconsistent with its motion. 

In Re Adoption of S.A.J., 838 A.2d 616, 621 (Pa.Super.2003) (judicial 

estoppel precludes party from taking a position inconsistent with a position 

that it successfully maintains in different court). But since it did not prevail, 

its gambit in another court is of no legal consequence in this appeal. We 

deny Sunlight’s motion to strike as moot.
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Reversed and remanded for further proceedings. Sunlight’s motion to 

strike portions of Appellees’ brief denied as moot. Jurisdiction relinquished. 

Judge Ott joins in this memorandum.

Judge Panella concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/30/2015