J-A05021-17

2017 PA Super 112

DAVID G. OBERDICK IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

TRIZECHAHN GATEWAY, LLC, TRIZEC 

R&E HOLDINGS, LLC, SUCCESSOR-BYMERGER TO TRIZECHAHN GATEWAY, 

LLC, TRIZEC HOLDINGS II, INC., TRIZEC 

HOLDINGS II, LLC, F/K/A

TRZ HOLDINGS II, INC., SUCCESSORIN-INTEREST TO TRIZECHAHN 

GATEWAY, LLC, KATHLEEN G. KANE, 

ESQUIRE, TED R. JADWIN, ESQUIRE, 

NEAL H. LEVIN, ESQUIRE, FREEBORN & 

PETERS LLP, ALBERT J. ZANGRILLI, JR., 

ESQUIRE, AND YUKEVICH, MARCHETTI, 

LIEKAR & ZANGRILLI, P.C.,

SALLY G. OBERDICK

v.

TRIZECHAHN GATEWAY, LLC, TRIZEC 

R&E HOLDINGS, LLC, SUCCESSOR-BYMERGER TO TRIZECHAHN GATEWAY, 

LLC, TRIZEC HOLDING II, INC., TRIZEC

HOLDINGS II, LLC, f/k/a

TRZ HOLDINGS II, Inc., SUCCESSOR-ININTEREST TO TRIZENCHAHN GATEWAY, 

LLC, KATHLEEN G. KANE, ESQUIRE, TED 

R. JADWIN, ESQUIRE, NEAL H. LEVIB, 

ESQUIRE, FREEBORN & PETERS LLP, 

ALBERT J. ZANGRILLI, Jr., ESQUIRE, 

AND YUKEVICH, MARCHETTI, LIEKAR & 

ZANGRILLI, P.C.,

APPEAL OF: TRIZECHAHN GATEWAY, 

LLC, TRIZEC R&E HOLDINGS, LLC, 
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SUCCESSOR-BY-MERGER TO 

TRIZECHAHN GATEWAY, LLC, TRIZEC 

HOLDINGS II, INC., TRIZEC HOLDINGS 

II, LLC, f/k/a TRZ HOLDINGS II, INC., 

SUCCESSOR-IN-INTEREST TO 

TRIZECHAHN GATEWAY, LLC, KATHLEEN 

G. KANE, ESQUIRE, TED R. JADWIN, 

ESQUIRE, NEAL H. LEVIN, ESQUIRE, 

FREEBORN & PETERS LLP, ALBERT J. 

ZANGRILLI, JR., ESQUIRE, and 

YUKEVICH, MARCHETTI LIEKAR & 

ZANGRILLI, P.C.

No. 745 WDA 2016

Appeal from the Order entered April 19, 2016, 

in the Court of Common Pleas of Allegheny County

Civil Division at No(s): GD 15-4365, GD 15-4384

DAVID G. OBERDICK IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

TRIZECHAHN GATEWAY, LLC, TRIZEC 

R&E HOLDINGS, LLC, SUCCESSOR-BYMERGER TO TRIZECHAHN GATEWAY, 

LLC, TRIZEC HOLDINGS II, INC., TRIZEC 

HOLDINGS II, LLC, F/K/A

TRZ HOLDINGS II, INC., SUCCESSORIN-INTEREST TO TRIZECHAHN 

GATEWAY, LLC, KATHLEEN G. KANE, 

ESQUIRE, TED R. JADWIN, ESQUIRE, 

NEAL H. LEVIN, ESQUIRE, FREEBORN & 

PETERS LLP, ALBERT J. ZANGRILLI, JR., 

ESQUIRE, AND YUKEVICH, MARCHETTI, 

LIEKAR & ZANGRILLI, P.C.,

SALLY G. OBERDICK

v.
J-A05021-17

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TRIZECHAHN GATEWAY, LLC, TRIZEC 

R&E HOLDINGS, LLC, SUCCESSOR-BYMERGER TO TRIZECHAHN GATEWAY, 

LLC, TRIZEC HOLDING II, INC., TRIZEC 

HOLDINGS II, LLC, f/k/a

TRZ HOLDINGS II, Inc., SUCCESSOR-ININTEREST TO TRIZENCHAHN GATEWAY, 

LLC, KATHLEEN G. KANE, ESQUIRE, TED 

R. JADWIN, ESQUIRE, NEAL H. LEVIB, 

ESQUIRE, FREEBORN & PETERS LLP, 

ALBERT J. ZANGRILLI, Jr., ESQUIRE, 

AND YUKEVICH, MARCHETTI, LIEKAR & 

ZANGRILLI, P.C.,

APPEAL OF: TRIZECHAHN GATEWAY, 

LLC, TRIZEC R&E HOLDINGS, LLC, 

SUCCESSOR-BY-MERGER TO 

TRIZECHAHN GATEWAY, LLC, TRIZEC

HOLDINGS II, INC., TRIZEC HOLDINGS 

II, LLC, f/k/a TRZ HOLDINGS II, INC., 

SUCCESSOR-IN-INTEREST TO 

TRIZECHAHN GATEWAY, LLC, KATHLEEN 

G. KANE, ESQUIRE, TED R. JADWIN, 

ESQUIRE, NEAL H. LEVIN, ESQUIRE, 

FREEBORN & PETERS LLP, ALBERT J. 

ZANGRILLI, JR., ESQUIRE, and 

YUKEVICH, MARCHETTI LIEKAR & 

ZANGRILLI, P.C. No. 1162 WDA 2016

Appeal from the Order Entered April 19, 2016 

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): GD 15-4365

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.

OPINION BY BENDER, P.J.E.: FILED APRIL 19, 2017

Appellants, TrizecHahn Gateway, LLC, Trizec R&E Holdings, LLC, 

successor-by-merger to TrizecHahn Gateway, LLC, Trizec Holdings II, Inc., 
J-A05021-17

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Trizec Holdings II, LLC, f/k/a TRZ Holdings II, Inc., successor-in-interest to 

TrizecHahn Gateway, LLC (referred to collectively as “Trizec”), Kathleen G. 

Kane, Esq., Ted R. Jadwin, Esq., Neal H. Levin, Esq., Freeborn & Peters LLP, 

Albert J. Zangrilli, Jr., Esq., and Yukevich, Marchetti, Liekar & Zangrilli, P.C. 

(jointly referred to as “Appellants”), appeal from the April 19, 2016 order, 

denying their motion for summary judgment. After careful review, we 

reverse and remand for proceedings consistent with this opinion.

We glean the following facts and procedural history from the record. 

Trizec was the landlord of David G. Oberdick’s (“Mr. Oberdick”) former law 

firm. Trizec obtained a $3.3 million judgment against Mr. Oberdick and his 

partners for unpaid rent, after they abandoned their office lease and refused 

to pay the outstanding rent.1 In 2007, as part of its collection efforts, 

Trizec brought a claim against Mr. Oberdick and his wife, Sally G. Oberdick 

(“Mrs. Oberdick”) (collectively “the Oberdicks”), in the Court of Common 

Pleas of Allegheny County under the Pennsylvania Uniform Fraudulent 

Transfer Act (“PaUFTA”) (referred to as “UFTA action”). The Oberdicks filed 

preliminary objections to the complaint in the UFTA action. 

On January 23, 2008, before the UFTA action proceeded any further in 

state court, Mr. Oberdick filed a voluntary Chapter 7 bankruptcy petition in 

the United States Bankruptcy Court for the Western District of Pennsylvania. 

____________________________________________

1 This judgment was affirmed on appeal by the Pennsylvania Supreme Court. 

See Trizechahn Gateway LLC v. Titus, 976 A.2d 474 (Pa. 2009).
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The UFTA action was subsequently removed to the bankruptcy court, at the 

Oberdicks’ request, and was litigated therein as an adversary proceeding 

(“UFTA adversary action”).2 After the parties engaged in litigation of some 

preliminary matters, Trizec filed an Amended Complaint on February 14, 

2010. See Bankruptcy Court Opinion (“BCO”), 3/26/13, at 4.3 The 

bankruptcy trustee was then substituted for Trizec as the plaintiff in the 

____________________________________________

2 On April 22, 2008, the Oberdicks filed a notice of removal in the United 

States Bankruptcy Court for the Western District of Pennsylvania at No. 08-

20434 MBM, in which the Oberdicks averred that “the [UFTA action] is a core 

proceeding within the meaning of Section 157 of Title 28 of the United 

States Code in that it ‘arises under,’ ‘arises in,’ and/or is ‘related to’ a 

[d]ebtor’s case under the Bankruptcy Code,” and therefore, they requested 

that the “entirety of the [UFTA action]” be removed from the Allegheny 

County Court of Common Pleas to the bankruptcy court. See Notice of 

Removal, 4/22/08, at 1-3.

3

In its Memorandum Opinion, the bankruptcy court explained: 

The gravamen of the [UFTA adversary action] as set forth in the 

Amended Complaint is that [Mr. Oberdick] engaged in fraudulent 

transfers when, subsequent to the initiation of the Lease 

Litigation in July 2000, he deposited his individual earnings from 

the law firm of Meyer, Unkovic & Scott, LLP ... into a PNC Bank 

checking account that he jointly owned with Mrs. Oberdick in a 

tenancy by the entireties.... This was done primarily through the 

means of an electronic direct deposit. The contention is that 

such deposits constituted “transfers” under PaUFTA, and that 

such transfers by [Mr. Oberdick] were fraudulent, either actually 

or constructively because they had the effect of shielding [Mr. 

Oberdick’s] individual compensation from the reach of his 

creditors, such as Trizec, by converting it into entireties 

property.

Id. at 5-6. 
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UFTA adversary action. After extensive litigation, the bankruptcy court 

entered judgment on March 26, 2013, in favor of the Oberdicks, and 

dismissed the UFTA adversary action in its entirety. 

In March of 2015, after termination of the bankruptcy case, the 

Oberdicks each brought a one-count complaint against Appellants under the 

Dragonetti Act, 42 Pa.C.S. § 8351, et seq.

4

 On September 28, 2015, the 

Oberdicks each filed amended complaints in their respective cases. 

Thereafter, the two matters were consolidated (hereinafter referred to as 

“Dragonetti action”).5 Appellants moved for summary judgment and averred 

that the Oberdicks’ claims are preempted by the Bankruptcy Code. By order 

dated April 19, 2016, the trial court denied Appellants’ motion for summary 

judgment.6 

____________________________________________

4 Mr. Oberdick filed a Complaint in the Court of Common Pleas of Allegheny 

County on March 24, 2015, at No. GD-15-4365. On the same date, Mrs. 

Oberdick filed a separate complaint in the Court of Common Pleas of 

Allegheny County at No. GD-15-4384.

 

5 By order of court dated January 28, 2016, the action at GD-15-4384 was 

consolidated into the action at GD-15-4365. Notwithstanding consolidation, 

the court ordered that Mr. and Mrs. Oberdick would each retain their 

independent substantive claims and requests for relief. See Trial Court 

Order, 1/28/16. 

6 The April 19, 2016 order was amended on May 19, 2016, to include the 

following requisite language for a permissive appeal: 

[T]his Order involves a controlling question of law as to which 

there is a substantial ground for difference of opinion and that an 

immediate appeal from the Order may materially advance the 

ultimate termination of this matter. In particular, what portion, 

(Footnote Continued Next Page)
J-A05021-17

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On May 25, 2016, Appellants filed a timely notice of appeal at Docket 

No. 745 WDA 2016, seeking review of the denial of summary judgment as a 

collateral order, pursuant to Pa.R.A.P. 313. On June 17, 2016, Appellants 

separately filed a petition for permission to appeal at Docket No. 66 WDM 

2016, seeking review of the same order as a discretionary appeal from an 

interlocutory order, pursuant to Pa.R.A.P. 1311.7 By per curiam order dated 

August 9, 2016, this Court granted Appellants’ petition for permission to 

appeal and consolidated the two appeals at Docket No. 745 WDA 2016.8 

Herein, Trizec presents the following questions for our review:

1. [Trizec] filed fraudulent-transfer claims against [the 

Oberdicks] in state court, which [the Oberdicks] removed to 

(Footnote Continued) _______________________

if any, of [the Oberdicks’] claims are preempted per Stone 

Crushed [Partnership v. Kassab Archbold Jackson & 

O’Brien, 908 A.2d 875 (Pa. 2006)] (and McCue [v. 

Brandywine Realty Trust, 2013 WL 300893 (Pa. Cmwlth. 

January 4, 2013)]) and more specifically, whether claims based 

upon “procurement, initiation and/or continuation of civil 

proceedings” after removal of the underlying matter to 

bankruptcy court are preempted as a matter of law.

See Trial Court Order, 5/19/16; see also 42 Pa.C.S. § 702(b). 

7

In their petition, Appellants averred a controlling question of law as to 

whether federal bankruptcy law preempted the Dragonetti claims, because 

the basis for the Dragonetti action, although brought in state court, was 

litigated in bankruptcy court. 

8 After granting the petition for permission to appeal, this Court transferred 

the appeal at miscellaneous Docket No. 66 WDM 2016 to regular appeal 

Docket No. 1162 WDA 2016. Thereafter, the appeal at Docket No. 1162 

WDA 2016 was consolidated by per curiam order with the appeal at Docket 

No. 745 WDA 2016. 
J-A05021-17

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bankruptcy court after one of them filed a voluntary 

bankruptcy petition. The Bankruptcy Code and Rules preempt 

state-law wrongful-use-of-civil-proceedings claims based on 

litigation in bankruptcy court. Where [the Oberdicks] 

removed the underlying action to bankruptcy court before 

pleadings closed and thereafter litigated exclusively in 

bankruptcy court, do the Bankruptcy Code and Rules preempt 

any state-law wrongful-use-of-civil-proceedings claim? 

2. [The Oberdicks] filed wrongful-use-of-civil-proceedings claims 

based on fraudulent transfer litigation that they removed to 

bankruptcy court, and which were litigated there by the 

bankruptcy trustee. The federal Barton [D]octrine bars 

actions against bankruptcy trustees, trustee’s counsel, and 

other officers of the court without the bankruptcy court’s 

leave. Did [the Oberdicks] have to obtain leave to pursue 

their action against a creditor, and its attorneys, that, among 

other things, financed the trustee’s litigation, and therefore 

functioned as the equivalent of court-appointed officers? 

3. [Appellants] were denied summary judgment based on the 

federal Barton Doctrine. Pennsylvania courts have previously 

recognized that an order denying summary judgment based 

on a complete federal defense to a state law claim is 

appealable as a collateral order. Is the denial of summary 

judgment based on the Barton Doctrine defense appealable as 

a collateral order?

Appellants’ Brief at 3-4. 

Our standard of review with respect to a trial court’s decision to grant 

or deny a motion for summary judgment is well-settled: 

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 
J-A05021-17

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of proof of 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 

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, 95 A.3d 900, 904 (Pa. Super. 2014) (citations 

omitted). 

Appellants argue that they were entitled to summary judgment as a 

matter of law, because the Dragonetti action brought by the Oberdicks in 

state court is entirely preempted by the Bankruptcy Code and Federal Rules 

of Civil Procedure. The Oberdicks counter that preemption does not apply 

here, because the Dragonetti action arises from litigation “procured, initiated 

and continued in Pennsylvania state court.”9 Oberdicks’ Brief at 8. 

____________________________________________

9 The Oberdicks’ Dragonetti action asserts wrongful use of civil proceedings 

pursuant to 42 Pa.C.S. § 8351(a), which provides: 

(a) Elements of action.—A person who takes part in the 

procurement, initiation or continuation of civil proceedings 

against another is subject to liability to the other for 

wrongful use of civil proceedings:

(1) He acts in a grossly negligent manner or without 

probable cause and primarily for a purpose other 

than that of securing the proper discovery, joinder 

of parties or adjudication of the claim in which the 

proceedings are based; and 

(2) The proceedings have terminated in favor of the 

person against whom they are brought. 
J-A05021-17

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We begin our analysis with a review of the controlling case law 

regarding bankruptcy law preemption. In Stone Crushed, the Supreme 

Court of Pennsylvania granted allowance of appeal to determine, as a matter 

of first impression for the Court, whether the Bankruptcy Code preempts the 

entire field of bankruptcy, including a state tort claim for abuse of process 

based upon bankruptcy court proceedings. The Court conducted an in-depth 

review of the relevant case law from other jurisdictions. Ultimately, the 

Court concluded that “the Bankruptcy Code and Federal Rules of Civil 

Procedure preempt [an appellant’s] rights pursuant to state law for 

compensation in a wrongful use of civil proceedings or abuse of process 

claim grounded in bankruptcy court proceedings.” Stone Crushed, 908 

A.2d at 887 (emphasis added). The Court based its holding on the following 

reasons: (1) Congress evinced an intent to govern the whole field;10 and (2) 

____________________________________________

10 In reaching its conclusion, the Stone Crushed Court explained: 

The Supremacy Clause of the United States Constitution controls 

federal preemption. Congress has the undisputed power to 

preempt state law in areas of federal concern. Such preemption 

does not need to be explicit in a statute invalidating a state law. 

If the area in question is one of traditional state concern, it 

should be presumed that Congress did not intend to supersede 

state authority absent a clear and manifest legislative purpose to 

the contrary. 

Congress’ intent to preempt state law may be express or implied 

and ... may be found where Congress has legislated in a field so 

comprehensively that it has implicitly expressed an intention to 

occupy the given field to the exclusion of state law. 

(Footnote Continued Next Page)
J-A05021-17

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Fed.R.Civ.P. 11 (“Rule 11”), 28 U.S.C. § 1927, and the Bankruptcy Code 

potentially provide for the equivalent protection afforded by this 

Commonwealth to its citizens in a Dragonetti Act claim. Id. at 880. 

Following the holding in Stone Crushed, it is clear to this Court that, 

at the very least, the Dragonetti Act claims related to Appellants’ actions in 

bankruptcy court are preempted by bankruptcy law. It is the preemption of 

the claims which relate to Appellants’ actions in state court prior to the 

removal to bankruptcy court, however, that remains in question. Guided by 

the Court’s reasoning in Stone Crushed, we conclude for the reasons stated 

herein that the entire Dragonetti action brought against Appellants is 

preempted by the Bankruptcy Code and Federal Rules of Civil Procedure. 

First, despite the fact that the underlying UFTA action was initially filed 

in state court, the Oberdicks did not even wait for a ruling on their 

preliminary objections to the complaint before removing the case to 

bankruptcy court. Trizec subsequently filed an amended complaint in 

bankruptcy court, which then became the basis of the UFTA adversary 

action. The matter was fully litigated in bankruptcy court. Hence, the 

underlying action which gave rise to the Dragonetti action is clearly 

“grounded in bankruptcy court proceedings.” See id. at 887. 

(Footnote Continued) _______________________

Id. at 880-881 (internal citations omitted). After its analysis of the relevant 

case law, the Court was persuaded that “the [Bankruptcy] Code’s provision 

of remedies and sanctions implies an intent to govern sanctions as they 

relate to bankruptcy court proceedings.” Id. at 886.
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We further note that the majority of the assertions made by the 

Oberdicks in their amended complaint refer to Appellants’ conduct in 

bankruptcy court. See Oberdicks’ Amended Complaint, 9/28/15. 

Specifically, the Oberdicks aver - among other things - that Trizec failed to 

timely respond to discovery requests during the adversary action, 

disregarded deadlines set by the bankruptcy court and applicable bankruptcy 

rules of procedure, and failed to identify any specific, allegedly fraudulent 

transfers during the adversary litigation. See id. at 6-10. The Oberdicks 

further allege that Appellants failed to respond to their efforts at resolution 

of the adversary action. Id. at 12. After careful review of the record, it is 

abundantly clear that the Oberdicks’ claims under the Dragonetti Act are 

“grounded in bankruptcy court proceedings,” so as to subject them to 

preemption by the Bankruptcy Code and Federal Rules of Civil Procedure. 

See Stone Crushed, 908 A.2d at 887. 

Finally, the Oberdicks chose to litigate the UFTA action in bankruptcy 

court and subjected themselves to the federal bankruptcy rules and laws. 

As stated in Stone Crushed, the Oberdicks were provided equivalent - if not 

greater - protection under the Bankruptcy Code,11 the federal rules,12 and 28 

____________________________________________

11 See 11 U.S.C. § 105(a) (providing “[t]he court may issue any order, 

process, or judgment that is necessary or appropriate ... to prevent an abuse 

of process”). 

12 See Fed.R.Civ.P. 11; see also Fed.R.Bank.P. 9011 (adopting Rule 11 for 

purposes of bankuptcy cases.)

(Footnote Continued Next Page)
J-A05021-17

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U.S.C. § 1927,13 against frivolous claims and/or abuse of process, as 

afforded them under the Dragonetti Act. Nevertheless, the Oberdicks failed 

to avail themselves of these protections during the seven year duration of 

Mr. Oberdick’s Chapter 7 bankruptcy case. As a matter of policy, it seems 

only fair that the Oberdicks should now be precluded from benefiting from a 

similar state cause of action. As acknowledged by the Pennsylvania 

Supreme Court, “part of the policy underlying preemption ... is to prevent 

litigants from forum shopping to achieve a different result in federal court 

than they could obtain in state court.” Stone Crushed, 908 A.2d at 887 

(Footnote Continued) _______________________

Rule 9011 requires ... that attorneys’ submissions to the court 

not be “presented for any improper purpose, such as to harass 

or to cause unnecessary delay or needless increase in the cost of 

litigation,” that legal assertions be “warranted by existing law,” 

and that “factual contentions have evidentiary support.” 

Fed.R.Bankr.P. 9011(b). If any of these requirements is 

violated, a court has the discretion ... to impose sanctions, which 

may be initiated by motion or sua sponte by the court. Id.

9011(c). 

In re Miller, 730 F.3d 198, 203 (3d. Cir. 2013). See also Fed.R.Bank.P. 

1008 (requiring filings to be verified or contain an unsworn declaration of 

truthfulness under penalty of perjury). Bankruptcy Rules 1008 and 9011 

provide protection against perjury and frivolous claims, similar to Rule 11. 

Stone Crushed, 908 A.2d at 886. 

13 “Any attorney ... who so multiplies the proceedings in any case 

unreasonably and vexatiously may be required by the court to satisfy 

personally the excess costs, expenses, and attorneys’ fees reasonably 

incurred because of such conduct.” 28 U.S.C. § 1927. 
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(quoting Werner v. Plater-Zyberk, 799 A.2d 776, 782 (Pa. Super. 

2002)).14 

 Based on our determination that bankruptcy law preempts the claims 

asserted in the state court Dragonetti action, we need not address the 

remainder of Appellants’ claims. We reverse the trial court’s denial of 

summary judgment and remand for proceedings consistent with this opinion. 

Judgment reversed. Case remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/19/2017

____________________________________________

14 The Werner court further explained that “the Bankruptcy Code 

demonstrates Congress’s intent to create a whole system under federal 

control therefore mandating that the adjustment of rights and duties within 

the bankruptcy process itself is uniquely and exclusively federal, thereby 

precluding state law remedies for abuse of its proceedings.” Werner, 799 

A.2d at 791.