J-A26002-20

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GLEBA, INC. 

Appellant

v.

TRI-STATE AUTO AUCTION, INC., 

DAVID BOWE AND JEROME COMBS 

AND THOMAS J. PUHL

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2108 EDA 2019

Appeal from the Order Entered May 16, 2019

In the Court of Common Pleas of Montgomery County Civil Division at 

No(s): 2017-19677

GLEBA INC., 

Appellant

v.

TRI-STATE AUTO AUCTION INC., 

THOMAS PUHL, DAVID BOWE AND 

JEROME COMBS

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 IN THE SUPERIOR COURT 

OF

 PENNSYLVANIA

 No. 3200 EDA 2019

Appeal from the Order Entered May 10, 2019

In the Court of Common Pleas of Montgomery County Civil Division at 

No(s): 2017-19677

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED: FEBRUARY 19, 2021

Gleba, Inc. (“Gleba”) appeals at docket No. 2108 EDA 2019 from the 

May 16, 2019 order granting the cross-motion for summary judgment of Tri-

____________________________________________

* Former Justice specially assigned to the Superior Court.
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State Auto Auction, Inc. (“Tri-State”), David Bowe, and Jerome Combs 

(collectively “Tri-State Appellees”), and dismissing its amended complaint in 

its entirety with prejudice.1 Gleba further appeals at docket No. 3200 EDA 

2019 from the May 10, 2019 order granting summary judgment in favor of 

Thomas J. Puhl (“Appellee Puhl”) and dismissing its amended complaint in its 

entirety with prejudice.2 Gleba challenges the trial court’s dismissal of its 

lawsuit on the grounds of res judicata. After careful review of the record, we 

affirm, but remand for the correction of a clerical error.

3

 

This appeal arises from a dispute over a non-residential lease entered 

into between Tri-State, as lessor, and Gleba, as lessee. Gleba initiated this 

action on August 9, 2017, with the filing of a complaint against Tri-State and 

Appellee Puhl, as an interested party, in the Court of Common Pleas of 

____________________________________________

1 By order dated May 10, 2019, the trial court granted Tri-State Appellees’ 

cross-motion for summary judgment and dismissed Gleba’s amended 

complaint with prejudice. Upon consideration of Gleba’s application for a 

determination of finality pursuant to Pa.R.A.P. 341(c), the court amended the 

May 10, 2019 summary judgment order as entered, by order dated May 16, 

2019, which restated that Gleba’s amended complaint is dismissed in its 

entirety, with prejudice, and declared the order final to facilitate an immediate 

appeal pursuant to Pa.R.A.P. 341(c). 

2 The trial court initially denied as moot Gleba’s Rule 341(c) application for 

finality of the order in favor of Appellee Puhl; however, by per curiam order 

dated November 21, 2019, this Court granted Gleba’s petition for review, 

pursuant to Pa.R.A.P. 702(b), and directed this matter to proceed before this 

Court as an appeal from the May 10, 2019 order. 

3 Since these consecutively listed appeals stem from a single civil action in the 

court below and raise identical issues, we consolidate the above-captioned 

cases sua sponte for ease of disposition. 
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Montgomery County. On March 30, 2016, however, prior to the 

commencement of the instant matter, Tri-State filed a complaint against 

Gleba,4 seeking a declaratory judgment pertaining to the same lease 

(“Declaratory Judgment Action”).5 

The trial court’s dismissal of Gleba’s amended complaint in the instant 

action was based on the following factual findings made in the Declaratory 

Judgment Action, which are incorporated in its Pa.R.A.P. 1925(a) opinion:6

1. [Tri-State] is a Pennsylvania corporation with its registered 

office in Conshohocken, Montgomery County. 

2. [Gleba] is a Pennsylvania corporation with its registered office 

in West Conshohocken, Montgomery County. 

3. Tri-State is the title owner of an approximately 5.4 acre parcel 

of improved land located at 538 Swedeland Road (“538 

Swedeland”), Upper Merion Township, Montgomery County 

(“the Premises”). 

4. COBOCO, LP (“COBOCO”) is a limited partnership formed with 

Tri-State as the general partner and the two individual 

principals of Tri-State as the limited partners. 

____________________________________________

4 See Tri-State Auto Auction, Inc. v. Gleba, Inc., No. 2016-06133 (Pa. Ct. 

Com. Pl., Montgomery County filed March 3, 2016), appeal quashed, 2679 

EDA 2018 (Pa. Super. Sept. 25, 2018), appeal docketed 1846 EDA 2020 (Oct. 

15, 2020). 

5 Tri-State also filed confessions of judgment against Gleba on June 24, 2016 

and December 9, 2016, at docket Nos. 2016-13334 and 2016-29319, 

respectively, seeking possession of the leased premises and recovery of 

unpaid rent and taxes. On May 2, 2017, the trial court issued an order 

consolidating Tri-State’s actions at docket No. 2016-06133.

6 See Trial Court Opinion (“TCO”), 6/4/20, at 2-9. 
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5. COBOCO owns a contiguous, approximately five (5) acre parcel 

of improved land located at 504 Swedeland Road (“504

Swedeland”), Upper Merion Township, Montgomery County. 

6. The COBOCO property at 504 Swedeland has no street frontage 

and access is limited to a small driveway that is an easement 

across the Premises at 538 Swedeland. 

7. Tri-State owned and operated an automobile auction company 

and used the entire ten (10) acres of the two (2) parcels to 

operate the business. Once Tri-State stopped their automobile 

auction business in 2008, [its] goal was to eventually sell the 

parcels. 

8. In December 2010, Tri-State, as lessor, leased the Premises at 

538 Swedeland to Gleba, as lessee, pursuant to a lease with a 

rider and a subsequent addendum (“the Lease”). David []

Bowe, President, and Jerome [] Combs, Secretary, signed the 

Lease on behalf of Tri-State[,] and Walter C. Gleba, President 

and Secretary, signed on behalf of Gleba. 

9. Counsel for Gleba, including John D. Maida, Esquire (“Attorney 

Maida”), drafted the Lease without speaking to [c]ounsel for 

Tri-State. Specifically, there was no direct communication

[between] Mitchell Russell, Esquire[,] on behalf of Tri-State 

and [Attorney] Maida, [c]ounsel for Gleba. 

10. Counsel for Tri-State, [Attorney] Russell, ... provided 

comments regarding the draft [proposed] to Tri-State, but did 

not participate in the negotiation of the Lease. 

11. The Lease is a fully integrated instrument setting forth all of 

the provisions thereof. 

12. Paragraph (k) of the Rider provides as follows:

The Lessee shall have the right to extend the term of this 

Lease, for two [(2)] additional terms of two (2) additional 

years each by notifying the Lessor of the Lessee’s election 

to exercise such right at least three (3) months prior to the 

expiration of the then current term of this Lease provided 

that at the time of the exercise of such right and at the time 

of such renewal, the Lessee shall not be in default in the 

performance of any of the terms, covenants or conditions 

herein contained, and that this Lease shall not have been 

terminated prior to the commencement of such extended 
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term. Lessee’s minimum annual rent during the option 

terms shall be increased to $1,800.00 per month during the 

first option lease term and to $1,900.00 per month during 

the second option lease term. Notwithstanding the 

foregoing and with respect to the entire term of this Lease 

(initial and renewal), Lessor shall have the right to terminate 

this Lease at any time during any term upon ninety (90) 

days prior written notice of termination to Lessee and 

payment to Lessee of a termination fee of $100,000.00.

13. Paragraph (p) of the Rider provides:

Lessor hereby grants Lessee a right of first refusal[7]to 

purchase the leased [P]remises for the purchase price to be 

determined as herein set forth; such right of first refusal 

shall exist upon the occurrence of either of the following 

events only:

1. Any attempted transfer of Premises, whether 

voluntary or involuntary, by operation of law or 

otherwise, including but not limited to, all executions 

or legal processes attaching Premises and all 

processes affecting the interest of Lessor therein; or 

2. The receipt by Lessor of a bona fide offer from a third 

party legally entitled to purchase[] Premises, which 

offer Lessor desires to accept. 

Immediately upon the occurrence of any of the events 

herein before set forth, the Lessor shall send written notice 

by certified mail to the Lessee of such fact. If Lessor desires 

to sell Premises as a result of a bona fide offer, such written 

notice shall contain the name, address and qualifications of 

the person who made the offer and all of the terms of such 

offer. During the period that shall begin with the occurrence 

of such event and shall end thirty (30) days after such 

written notice is given, the Lessee shall have the right to 

exercise its option to purchase the Premises upon any terms 

and conditions that are more beneficial to the Lessor than 

those set forth in the offer to purchase so presented. If 

Lessee does not exercise its option to purchase Premises or 

waives such right in writing, this option shall terminate and 

____________________________________________

7 The right of first refusal is sometimes referred to herein as the “right of first 

purchase.” 
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be of no further force and effect. If any event occurs 

pursuant to which Lessee may exercise its option to 

purchase Premises and it fails to so exercise its option to 

purchase Premises, within the allocated time, said option to 

purchase Premises shall terminate; provided, however, in 

the event a proposed transfer or sale is not consummated 

in accordance with the price and on the terms set forth in 

the notice sent to Lessee as required hereby, the Lessor 

shall not be entitled to sell Premises unless re-offered to 

Lessee under the terms of this Agreement at any different 

price and/or on any different terms. Moreover, if the 

Premises is not sold pursuant to the notice within six (6) 

months after the notice is given, the Premises may not be 

sold unless re-offered pursuant to this Agreement. 

Any notice required to be given hereunder or any exercise 

of an option granted herein must be made in writing, sent 

by either registered or certified mail, return receipt 

requested and addressed as required by the Lease. 

14. Gleba paid Tri-State a security deposit in the amount of Two 

Thousand Dollars ($2,000.00) upon execution of the Lease. 

15. Even prior to Gleba[’s] expressing an interest in leasing 538 

Swedeland[,] and at all times material hereto, there had been 

a “For Sale” sign located on the Premises and the COBOCO 

parcel (together “the Sale Properties”)[,] as they were jointly 

offered for sale. 

16. At one time, the Sale Properties were offered for sale for the 

sum of $3,750,000.00.

17. Tri-State never offered the Premises for sale as a parcel 

separate and apart from the Sale Properties. 

...

27. Following an exchange of correspondence [between Attorney 

Russell and Attorney Maida, concerning an agreement for the 

purchase of the Sale Properties entered into with a third party 

on April 24, 2014], Tri-State understood Gleba’s position to be 

that a properly constructed offer that would give rise to Gleba’s 

obligation to exercise or waive the right of first refusal would 

need to be limited to the leased Premises alone[,] and that if 

Tri-State attempted to sell the leased Premises in any manner 

outside of that understanding, Gleba would take legal action. 
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28. The April 24, 2014 purchase agreement terminated pursuant 

to its “due diligence” provisions. 

...

30. Tri-State ceased marketing of the Sale Properties at that time. 

31. On advice of counsel, the principals determined that it was 

best to wait until the Lease naturally expired in April of 2016 

to pursue a sale of the Sale Properties. 

32. Although [c]ounsel for Tri-State received two (2) nonbinding 

letters of intent, dated October 2, 2015[,] and November 27, 

2015, respectively, from a broker2 on behalf of [Appellee] Puhl 

and Kristen F. Puhl [(collectively “the Puhls”)], [c]ounsel 

determined that they never amounted to an offer and 

instructed the broker to inform the Puhls that the Sale 

Properties were off the market. Attorney Russell did not 

communicate the existence of these letters or the potential 

interest in the Sale Properties to the principals of Tri-State at 

this time. 

2 The broker, Paul French, did not have a listing 

agreement on the Sale Premises at the time. Mr. 

French subsequently entered into a commission 

agreement for the Sale Properties after February 2, 

2017. 

33. In early 2016, Gleba exercised its option to renew the Lease. 

34. As a result, Tri-State made the economic decision to pay Gleba 

$100,000.00 to terminate the Lease early in order to market 

the Sale Properties as a combined parcel. 

35. On March 9, 2016, [c]ounsel for Tri-State, Michael Clement, 

Esquire (“Attorney Clement”), sent a letter on behalf of [TriState] dated March 8, 2016 (the “[March 8, 2016] Letter”)[,]

by certified mail, return receipt requested, to Walter C. Gleba 

as President of Gleba.... Counsel enclosed a check in the 

amount of $100,000.00 with the March 8, 2016 [L]etter. 

36. The March 8, 2016 Letter and $100,000.00 check to Gleba 

constituted Tri-State’s notice of termination of the Lease 

pursuant to [paragraph] (k) of the Rider. [Tri-State] also 

sought “written adequate assurance” within ten (10) days that 
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Gleba would vacate the leased Premises within ninety (90) 

days. 

37. The term “adequate assurance” is not defined in the Lease. 

38. Attorney Russell explained that the reasons in support of the 

decision to request adequate assurance from Gleba were twofold. The first reason being the very large $100,000.00 

payment made up front in light of a $1,800.00[-]a[-]month 

lease[,] ... before Gleba was required to vacate the [P]remises. 

The second reason being the history of communications with 

Attorney Maida regarding the right of first refusal. 

39. Gleba received the [March 8, 2016 L]etter on March 13, 2016. 

40. Attorney Clement’s office also mailed a copy of the [March 8, 

2016] Letter to [Gleba’s c]ounsel, Attorney Maida, on March 

8, 2016. 

41. Counsel[] for Tri-State sent two (2) emails to [c]ounsel for 

Gleba seeking a response, on March 21, 2016, and March 22, 

2016, respectively. Because Gleba failed to respond with an 

assurance, Tri-State filed [its Declaratory Judgment Action] on 

March 30, 2016.

42. Gleba filed an Answer with New Matter to the Complaint on 

April 22, 2016, and Tri-State filed an Answer to the New Matter 

on May 5, 2016. 

43. In Gleba’s Answer with New Matter, [it] avers “no controversy 

exists as to the provisions of an integrated Lease” and “[b]y 

the terms of the Lease, Gleba’s right of first refusal is binding 

upon [Tri-State] until the actual termination of the Lease.” 

44. On May 13, 2016, [Tri-State’s c]ounsel sent a letter to [Gleba’s 

c]ounsel [(“May 13 Letter”)], which provided a modification of 

the notice and granted Gleba until June 13, 2016, to vacate 

the Premises. 

45. The May 13, 2016 [L]etter also informed Gleba that Tri-State 

would declare Gleba in breach of the Lease and seek monetary 

and exemplary damages[,] including recovery of the 

$100,000.00 it had paid to Gleba[,] should Gleba not vacate 

on or before June 13, 2016. 

46. Gleba paid, and Tri-State accepted, all base rent due up to and 

including April 30, 2016. 
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47. On June 9, 2016, Gleba deposited the $100,000.00 check 

enclosed with the March 8, 2016 Letter from Attorney 

Clement. 

48. On June 13, 2016, Attorney Maida, on behalf of Gleba[,] wrote 

to Attorney Clement, as counsel for Tri-State, to state, inter 

alia, that Gleba rejected the March 8, 2016 [L]etter as being 

of no force and/or effect; the Lease, as an integrated 

instrument, speaks for itself; Attorney Clement’s May 13, 

2016 [L]etter was accepted as adequate notice to exercise the 

option to terminate the Lease ninety (90) days hence and 

Gleba has accepted payment of $100,000.00 in consideration 

of the Lease termination on August 11, 2016. 

49. Gleba did not vacate the Premises by June 13, 2016, nor did 

Gleba vacate the Premises by August 11, 2016, as represented 

in Attorney Maida’s June 13, 2016 letter. 

50. Tri-State obtained possession of the [Premises] through a writ 

of possession served on July 12, 2016, with possession taken 

on October 13, 2016.[8] However, Gleba did not vacate the 

Premises until October 28, 2016. 

51. Gleba tendered payment of base rent to Tri-State from May 

2016 through September 2016. 

52. Tri-State did not cash any of the checks Gleba tendered to TriState for base rent from May 2016 to September 2016.

53. By letter from Attorney Maida dated September 20, 2016, 

Gleba informed Tri-State that it was stopping payment on the 

rent checks previously tendered.[9] 

...

____________________________________________

8 See Tri-State Auto Auction, Inc. v. Gleba, Inc., No. 2016-13334 (Pa. Ct. 

Com. Pl., Montgomery County filed June 24, 2016), consolidated at Tri-State

Auto Auction, Inc., No. 2016-06133.

9 Tri-State confessed judgment against Gleba on December 9, 2016, in the 

amount of $19,801.70, for unpaid rent and taxes, plus fees and costs. See 

Tri-State Auto Auction, Inc. v. Gleba, Inc., No. 2016-29319 (Pa. Ct. Com. 

Pl., Montgomery County filed Dec. 9, 2016), consolidated at Tri-State Auto 

Auction, Inc., No. 2016-06133. 
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55. Tri-State and COBOCO entered into a purchase agreement for 

the Sale Properties with the Puhls dated February 2, 2017, for 

the purchase price of $3,900,000.00. 

56. Gleba has never made an offer for any portion of the Sale 

Properties, large or small....

Tri-State Auto Action, Inc., No. 2016-06133, unpublished memorandum at 

1-12 (Pa. Ct. Com. Pl. filed Aug. 14, 2018) (“Amended Decision”) (citations to 

record omitted). 

A two-day bench trial was held regarding the Declaratory Judgment 

Action on August 14, 2017, and April 19, 2018, during which, 

[t]he [trial judge] found Attorney Russell’s testimony on direct and 

cross[-]examination highly credible. After Tri-State rested its 

case, [c]ounsel moved for a partial directed verdict on the 

termination of the [L]ease being proper, including the termination 

of the right of first refusal. Counsel for Gleba did not object 

procedurally to the oral motion and instead moved to dismiss the 

case or direct the addition of the potential buyer, Thomas Puhl[,] 

as an indispensable party. The court reiterated what had been 

discussed in conference earlier in the day, that after the testimony 

was transcribed, the court would issue an order for [c]ounsel to 

file their submissions. 

Counsel filed briefs on their respective motions, and the 

[c]ourt entered its [d]ecision on January 24, 2018. Gleba filed 

post-trial motions on February 2, 2018, arguing that it had not 

had the opportunity to present its witnesses. Although the court 

disagreed with Gleba’s position as presented, the [court] entered 

an order on March 2, 2018, opening the record in the interest of 

justice to proceed with Gleba’s witnesses.4 

4 Also on March 2, 2018, the court entered its order denying 

Gleba’s motion in limine alleging the failure to join an 

indispensable party and oral motion to dismiss. 

On April 19, 2018, the undersigned presided over a second 

day of trial. Attorney Maida started his argument in support of a 

motion for nonsuit by stating that at the first day of trial, [as well 

as pleadings filed since then and the stipulated facts,] the case 

went beyond what he had filed in his pretrial statement.... 
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Referring to the document entitled “Joint Stipulation of Facts—

Declaratory Judgment Action Only[,”] [c]ounsel then went on to 

state[:] “But the stipulated facts were predicated on the 

consolidation of all the cases.” He continued[,] “it was stipulated 

as to all the cases, these are the facts which—because it was a

consolidated matter.” 

In response, Attorney Clement argued[:] “[W]e’re here 

today because there is a dispute between the parties related to a 

[L]ease and a right of first refusal contained within the [L]ease. 

And, as Mr. Maida indicated, this is a fully integrated document. 

My client believes the [L]ease was properly terminated. They 

came to this [c]ourt to have the [c]ourt confirm for them that the 

[L]ease was properly terminated.” 

The [c]ourt denied Gleba’s motion for compulsory nonsuit. 

Gleba then presented witnesses[:] Jerome Combs and David 

Bowe of Tri-State, broker Paul French[,] and Attorney Russell. 

While the court found all of these witnesses credible, the court 

specifically found ... Mr. French’s testimony highly credible. 

TCO at 11-12 (quoting Tri-State Auto Auction, Inc., 2679 EDA 2018, 

unpublished memorandum (Pa. Super. filed Nov. 19, 2019) (some internal 

brackets omitted)).

After considering all of the evidence presented at trial, the lower court

issued its Amended Decision on August 14, 2018, which contained the 

following determinations: 

18. In this action, [Tri-State] seeks a declaration that 1) TriState properly terminated the Lease; 2) Gleba’s right of first 

refusal set forth in the Lease terminated contemporaneously with 

the Lease; 3) a repudiation of the Lease by Gleba occurred[;] and 

4) an anticipatory breach of the Lease by Gleba occurred. 

19. This court opines that the Lease is unambiguous. 

20. Both [p]arties concede that the Lease contains an 

integration clause that is binding. 

21. A fair reading of the complaint in combination with the 

evidence admitted at trial results in the court[’s] determining that 
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[Tri-State] properly terminated the Lease pursuant to paragraph 

(k) of the Lease [R]ider[,] as of Monday, June 13, 2016, by mailing 

the written March 8, 2016 Letter with the enclosed check in the 

amount of $100,000.00 by certified mail on March 9, 2016, and 

as admittedly received by [Gleba] on March 13, 2016.[10] 

22. The right of first refusal contained within paragraph (p) of 

the Lease [R]ider also terminated as part of the Lease on or before 

June 13, 2016.

23. The court concludes that Gleba’s actions and failure to 

provide what [Tri-State] terms “adequate assurance[,”] while no

doubt frustrating, did not constitute an “absolute and unequivocal 

refusal to perform[.”] 

24. Therefore, the court finds for Gleba and against [Tri-State] 

on the claims of repudiation and anticipatory breach. 

25. The court also concludes that Gleba did not vacate the 

Premises pursuant to the terms of the Lease, which failure 

constituted a breach of that Lease. The court will issue a separate 

order scheduling argument and a hearing, if necessary, to hear 

Gleba’s petition to open the judgment and to assess damages 

including, inter alia, Gleba’s failure to pay rent and taxes, together 

with costs, interest[,] and an attorney’s commission, in a 

subsequent proceeding under docket [No.] 2016-29319, now 

consolidated [at No. 2016-06133].

[11]

 

26. [Tri-State’s c]omplaint in [c]onfession for [j]udgment for 

possession filed under docket [No.] 2016-13334, now 

consolidated [at No. 2016-06133], is moot. 

____________________________________________

10 “The [p]arties had raised [these] issues at pretrial conferences, in their 

pretrial statements, at trial[,] and in their post-trial submissions.” TCO at 13. 

11 Paragraph 25 of the Amended Decision was amended by order dated 

September 1, 2020, to omit the first sentence regarding the trial court’s 

determination that Gleba’s failure to vacate the Premises constituted a breach 

of the Lease. See Tri-State Auto Auction, Inc., No. 2016-06133 (order 

granting in part and denying in part motion for post-trial relief). 
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Amended Decision at 16-17. Gleba filed a timely post-trial motion on August 

21, 2018.12 Tri-State filed its response on September 10, 2018. Before the 

court could issue an order scheduling argument on Gleba’s motion, [c]ounsel 

for Gleba filed a notice of appeal on September 10, 2018.13 The appeal was 

subsequently quashed. 

On August 9, 2017, while the Declaratory Judgment Action was still 

pending and awaiting trial, Gleba initiated the present action with the filing of 

its complaint against Tri-State and Appellee Puhl. Gleba amended its 

complaint on October 23, 2017, naming David Bowe and Jerome Combs as 

additional defendants. In its amended complaint, Gleba averred that Tri-State 

never offered it the right to first purchase of the Premises upon receiving the 

Puhls’ November 2, 2015 letter of intent, as required under the terms of the 

Lease. See Amended Complaint, 10/23/17, at 2-3. Gleba further alleged that

during the period of October 2015 through May of 2016, Tri-State and its 

counsel purposefully engaged in a course of conduct that enabled Tri-State to 

deny knowledge of the Puhls’ offer to purchase the Premises. Id. at 4. Gleba 

contended that it executed the Lease in reliance on Tri-State’s representations 

that it would offer Gleba the right of first refusal upon the receipt of any bona 

fide offer that it wished to accept, and that this agreement would extend 

____________________________________________

12 The trial court noted that “Gleba did not challenge [its] decision to deny 

Gleba’s motion in limine alleging the failure to join Mr. Puhl as an indispensable 

party.” TCO at 12 n.5. 

13 See Tri-State Auto Auction, Inc. v. Gleba, Inc., 2679 EDA 2018 (Pa. 

Super. Sept. 25, 2018), quashed.
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throughout the entire duration of the Lease, including any periods of renewal. 

Id. at 5. Gleba averred that it only learned on July 12, 2016, that Tri-State 

had effectively denied it the right of first refusal by jointly listing 504 

Swedeland and the Premises for sale. Id. at 6. 

On January 26, 2018, Tri-State Appellees filed an answer, new matter, 

and counterclaim. Appellee Puhl separately filed an answer and new matter 

on the same date. Each of the appellees raised the affirmative defenses of

prior pending action or lis pendens, collateral estoppel, res judicata, and gist 

of the action, inter alia, in their respective new matters, based on the assertion 

that Gleba is attempting to raise the same claims in the instant matter that it 

has already raised in the Declaratory Judgment Action. On February 15, 2018, 

Gleba filed replies to the new matters. 

The trial court further provided: 

On August 8, 2020, Gleba filed a partial motion for summary 

judgment[,] arguing that [it] was entitled to judgment as a matter 

of law based on the purported expert testimony of Attorney 

Russell that Gleba’s right of first refusal would survive a 

termination by Tri-State and survive for the entire stated term of 

the [L]ease. (Gleba’s Memorandum of Law in Support of its 

Motion for Summary Judgment, ... 8/8/18, at 2).7 Gleba’s motion 

relied extensively on the testimony and other evidence presented 

in the [Declaratory Judgment Action]. [Tri-State Appellees] filed 

an answer to [Gleba’s] motion as well as a cross[-]motion for 

summary judgment on September 7, 2018. Appellee Puhl 

followed suit on September 10, 2018. The [trial court] heard oral 

argument by [c]ounsel on the three motions on November 8, 

2018. 

7 Gleba’s memorandum of law misstates the evidence of 

record. For example, contrary to Gleba’s assertions, 

Attorney Russell never “revised the [L]ease[,”] nor did 
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Gleba have a “right of first purchase[.”] Moreover, at trial 

in the 2016 matter, Attorney Russell specifically testified as 

follows:

The right of first refusal is a clause within a lease. 

When that lease terminated, the right of first refusal 

terminated. There was no separate filed instrument 

of right of first refusal[,] which you sometimes see in 

a commercial transaction that might have terms 

outside of the lease. When the lease goes away, the 

right of first refusal goes away. It would be 

preposterous to think that the right of first refusal 

extends out beyond the term of the lease. 

To imply that Attorney Russell opined that the right of first 

refusal survived the termination of the [L]ease in 2016 is 

disingenuous at best. 

On May 10, 2019, this court entered three companion orders 

denying [Gleba’s] motion for partial summary judgment; denying 

[Tri-State] Appellees’ motions for summary judgment on their 

counterclaims, but granting [Tri-State Appellees’] cross[-]motion 

for summary judgment, and granting Appellee Puhl’s cross[-

]motion for summary judgment[,] dismissing Gleba’s amended 

complaint in its entirety, with prejudice....

8

 

8 Although the [court] denied [Tri-State] Appellees’ 

counterclaims as also having been previously litigated, in 

hindsight, the court should also have dismissed the 

counterclaims as was its intention.[14] 

____________________________________________

14 We direct the trial court to modify its order denying summary judgment on 

Tri-State Appellees’ counterclaims to reflect a dismissal of the counterclaims, 

as the court intended. See Commonwealth v. Thompson, 106 A.3d 742, 

766 (Pa. Super. 2014) (recognizing the trial court’s inherent, common-law 

authority to correct clear clerical errors in its orders, even after the 30-day 

time limitation for the modification of order expires) (citing 42 Pa.C.S. § 

5505)). See also Commonwealth v. Holmes, 933 A.2d 57, 66 (Pa. 2007) 

(noting that the court’s inherent power to correct obvious errors is not limited 

to those errors evident on the face of the order, but extends to the trial court’s 

correction of a mistake that was only made apparent by viewing the record).
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Gleba filed two notices of appeal, one on May 17, 2019, [from]

the order in favor of [Tri-State Appellees], and one on June 28, 

2019, regarding the order in favor of Appellee Puhl. The Superior 

Court quashed the notice regarding the order in favor of Appellee 

Puhl[,] but later reinstated the appeal under docket number 3200 

EDA 2019. 

TCO at 15-17 (citations to record and unnecessary capitalization omitted).

Following its timely notices of appeal, Gleba filed timely, court-ordered 

Pa.R.A.P. 1925(b) concise statements of errors complained of on appeal.15 As 

the issues raised in both statements were essentially the same, the trial court 

noted that it addressed the statements jointly in its Rule 1925(a) opinion. See

TCO at 17 n.9. 

Gleba now presents the following issues for our review: 

1. Did the lower court commit reversible error by dismissing the 

action upon the doctrine of res judicata when[:] (1) the 

identity of the thing sued upon or for were [sic] not the same; 

(2) the identity of the causes of action is totally different, the 

former being a declaratory judgment action4 and the latter for 

____________________________________________

15 We note with disapproval Gleba’s failure to conform its concise statements 

to the dictates of Rule 1925(b). Rule 1925(b)(4) provides that the statement 

“shall concisely identify each error that the appellant intends to challenge” and 

“should not be redundant or provide lengthy explanations as to any error.” 

Pa.R.A.P. 1925(b)(4)(ii), (iv) (emphasis added). Gleba’s Rule 1925(b) 

statements are anything but concise, consisting of 40 paragraphs and 46 

paragraphs, respectively, with subparts and footnotes. The statements are 

lengthy, rambling, and contain unnecessary procedural history, as well as the 

development of legal argument and citations to case law, making it difficult to 

ascertain the basis for Gleba’s appeal. Nevertheless, we do not deem the 

issues waived, as Gleba’s summary of the questions it intended to present on 

appeal in paragraph 40 of each of its Rule 1925(b) statements aided in the 

trial court’s addressing of the appropriate issues. See Karn v. Quick & Reilly 

Inc., 912 A.2d 329, 335 (Pa. Super. 2006) (stating that the failure to comply 

with Rule 1925(b)(4) may result in waiver of all issues, particularly where the 

trial court is impeded in its preparation of a legal analysis of the issues) (citing 

Pa.R.A.P. 1925(b)(4)(vii)). 
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alternatively specific performance and/or tort and assumpsit 

damages; (3) the identity of the persons or parties to the 

actions are [sic] different as herein three of the four defendants 

were not party [sic] to the prior action; and (4) the identity of 

the quality or capacity of one party being sued so differed 

herein because that party, i.e.[,] [Appellee] Puhl, was not 

joined in the former action, whereby [his] absence in [the 

Declaratory Judgment A]ction rendered that case void for lack 

of subject matter jurisdiction?

4 Although in [its o]pinion, the lower court for the first 

time is suggesting that the former action sought more 

that [sic] declaratory judgment on two very specific 

controversies, which it did not. The court entered a 

verdict in Gleba’s favor on both controversies. 

2. Did the lower court commit reversible error by deciding that 

the ultimate and controlling issues presented in the instant 

action had theretofore been decided in the [D]eclaratory 

[J]udgment [A]ction, when neither of the two following and 

only “controversies” set forth as counts 1 and 2 in the 

[Declaratory Judgment A]ction were presented in the instant 

action on appeal:

Count 1: “An actual controversy exists among the parties since 

Gleba has refused to accept Tri-State’s tender of the 

$100,000.00 termination fee under subparagraph (k) of the 

Rider to [the] Lease, and since Gleba has refused to provide 

assurance that it will comply with Tri-State’s Notice of 

Termination and vacate the Premises by June 7, 2016, thereby 

repudiating the Lease contract.” 

And:

Count 2: “Gleba’s failure and/or refusal to accept Tri[]State’s 

termination fee in the amount of $100,000.00 pursuant to 

subparagraph (k) of the [R]ider, and failure and/or refusal to 

provide assurance that it will comply with Tri-State’s Notice of 

Termination by vacating on or before June 7, 2016, are a

repudiation and breach of material terms of the Lease entered 

into by Gleba and Tri[]State.”

3. Did the lower court commit reversible error by deciding that 

Gleba had the opportunity to appear and assert its rights in the 

[Declaratory Judgment A]ction from which a final judgment on 

the merits has not been entered, when the issues in the 
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[Declaratory Judgment A]ction are[:] (1) neither identical to or 

presented in the action on appeal; (2) the verdict on the 

controversies rendered in the [Declaratory Judgment A]ction 

were in Gleba’s favor; (3) three of the four parties in the instant 

action for whom collateral estoppel is to benefit[] were not 

parties to the [Declaratory Judgment A]ction nor in privy with 

Tri[-]State;6 and[] (4) Gleba, the party against whom collateral 

estoppel is to be imposed a) was upon order of the lower court 

precluded from a full and fair opportunity to litigate the facts 

Judge Rogers[] seeks to collaterally estopped [sic] against 

Gleba’[s] interest; b) the issues raised in the instant action had 

yet to occur when the [Declaratory Judgment A]ction7

commenced; and c) the findings of the lower court on the 

merits in the [Declaratory Judgment A]ction were in Gleba’s 

favor?

6 Of note is that the lower court determined [Appellee] 

Puhl to be indispensable as a party to the [Declaratory 

Judgment A]ction, but in the action on appeal by 

bestowing benefits to [Appellee] Puhl arising [from] the 

[Declaratory Judgment A]ction admits the court lacked 

subject matter jurisdiction in the [Declaratory Judgment 

A]ction. 

7 The complaint in the [Declaratory Judgment A]ction was 

never amended to include any issues that were first 

discovered after the proceeding came to issue by all 

parties or actually occurred post[-]filing thereof. 

4. By [the trial court’s granting of] separate summary judgment 

for [Appellee] Puhl[,] did the lower court commit reversible 

error by so ruling because [Appellee] Puhl’s judgment 

established that [his] absence in the [Declaratory Judgment

A]ction (by implication of the summary judgment8), proved 

that the lower court lacked subject matter jurisdiction in his 

absence, resulting in [the court’s] inability to enter any 

judgment, summary or otherwise, predicated upon the 

amended decisions of the [Declaratory Judgment A]ction?

8 And was incorporated into and [was] the basis of the 

orders entered in this appeal and also entered in ... 3200 

EDA 2019.
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Gleba’s Brief at xiv–xvii (unnecessary capitalization omitted; emphasis in 

original; some footnotes omitted). 

Before delving into the merits of these issues, we again admonish Gleba 

for its lack of compliance with our Rules of Appellate Procedure. Although it

sets forth four questions for our review, the argument section of its brief 

contains only one section, in violation of Rule 2119(a). See Pa.R.A.P. 2119(a)

(“The argument shall be divided into as many parts as there are questions to 

be argued; and shall have at the head of each part—in distinctive type or in 

type distinctively displayed—the particular point treated therein....”). 

Additionally, Gleba’s statement of the questions, which spans four pages, fails 

to “state concisely the issues to be resolved,” and contains “unnecessary 

detail[,]” in violation of Rule 2116(a). See Pa.R.A.P. 2116(a). 

Moreover, Gleba’s prolix statement of questions makes it challenging to 

discern the issues being raised. After careful review of its brief, however, we

deduce the following issues posed by Gleba for our review: (1) whether 

Gleba’s amended complaint was properly dismissed under the doctrine of res 

judicata; (2) whether the controlling issues presented here have already been 

decided in the Declaratory Judgment Action; (3) whether Gleba had a full and 

fair opportunity to litigate the instant controlling issues in the Declaratory 

Judgment Action; and (4) whether the fact that Appellee Puhl was not a party 

to the Declaratory Judgment Action renders the Amended Decision void for 

lack of subject matter jurisdiction. Despite Gleba’s clear violations of the 

Rules, we consider the questions presented, as we do not deem the violations 
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an impediment to our ability to undertake a meaningful review of the issues 

at hand. See Long v. Ostroff, 854 A.2d 524, 527 (Pa. Super. 2004) (citations 

omitted). We address Gleba’s first three issues together herein, as each of 

these claims relates to whether res judicata was properly applied in the instant 

matter. 

Applying the doctrine of res judicata presents an issue of law for which 

our standard of review is de novo and our scope of review is plenary. Gregg 

v. Ameriprise Financial, Inc., 195 A.3d 930, 935 (Pa. Super. 2018). 

“[T]he doctrine of res judicata holds that a final valid judgment 

upon the merits by a court of competent jurisdiction bars any 

future suit between the same parties or their privies on the same 

cause of action.” Dempsey v. Cessna Aircraft Co., ... 653 A.2d 

679, 680-81 ([Pa. Super.] 1995) (en banc). “A judgment is 

deemed final for purposes of res judicata or collateral estoppel 

unless or until it is reversed on appeal.” Shaffer v. Smith, ... 673 

A.2d 872, 874 ([Pa.] 1996) (citation omitted). 

Khalil v. Cole, 240 A.3d 996, 1000 (Pa. Super. 2020). “The purpose of the 

doctrine is to minimize the judicial energy devoted to individual cases, 

establish certainty and respect for court judgments, and protect the party 

relying on the prior adjudication from vexatious litigation.” Dempsey, 653 

A.2d at 681 (internal quotation marks and citations omitted). 

This Court recently explained:

The doctrine of res judicata subsumes the doctrine of issue 

preclusion, also known as collateral estoppel.[16] Chada v. 

____________________________________________

16 Collateral estoppel applies where these four elements are present:
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Chada, 756 A.2d 39, 42 (Pa. Super. 2000). Thus, res judicata in 

Pennsylvania encompasses issue preclusion and claim preclusion. 

Res judicata “bars the relitigation of issues that either were raised 

or could have been raised in the prior proceeding.” McArdle v. 

Tronetti, ... 627 A.2d 1219, 1222 ([Pa. Super.] 1993) (citations 

omitted; emphasis added). This has long been the case.” In our 

opinion, the doctrine of res judicata ... covers all matters which 

could have been raised or presented in the former action as well 

as those actually litigated.” Miller v. Dierken, ... 41 A.2d 438, 

439 ([Pa. Super.] 1945) (citations omitted; emphasis added). 

For res judicata to apply, there must be four common elements 

between the two actions: “(1) identity of the thing sued upon; (2) 

identity of the cause of action; (3) identity of the parties; (4) 

identity of the capacity of the parties.” Dempsey, 653[] A.2d at 

681. When examining these elements, “a court may consider 

whether the factual allegations of both actions are the same, 

whether the same evidence is necessary to prove each action and 

whether both actions seek compensation for the same damages.” 

Id. (citation omitted). “Res judicata may bar a second action 

based upon the same transaction even if additional grounds for 

relief are presented.” Id. at 682. 

Khalil, 240 A.3d at 1001-02. 

First, Gleba argues that res judicata cannot be applied to the instant 

matter because a “final judgment has not been entered” in the Declaratory 

Judgment Action. Gleba’s Brief at 4 (citing Cellucci v. Laurel 

Homewowners Association, 142 A.3d 1032, 1049 (Pa. Cmwlth. 2016) 

____________________________________________

(1) An issue decided in a prior action is identical to the one 

presented in a later action; (2) The prior action resulted in a final 

judgment on the merits; (3) The party against whom collateral 

estoppel is asserted was a party to the prior action, or is in privity 

with a party to the prior action; and (4) The party against whom 

collateral estoppel is asserted had a full and fair opportunity to 

litigate the issue in the prior action. 

Columbia Medical Group, Inc. v. Herring & Roll, P.C., 829 A.2d 1184, 

1190 (Pa. Super. 2003). 
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(providing that where a final judgment exists, technical res judicata precludes 

a future lawsuit on the same cause of action)). Contrary to its assertion, 

however, a final decision was entered in the Declaratory Judgment Action on 

August 14, 2018. See Amended Decision at 16-17. Pursuant to 42 Pa.C.S. § 

7532, declarations made by a court in a declaratory judgment action “shall 

have the force and effect of a final judgment or decree.” Moreover, a 

judgment remains final for the purpose of res judicata “unless or until it is 

reversed on appeal.” Shaffer, 673 A.2d at 874. Despite Gleba’s insinuation 

that its pending motion for reconsideration in the Declaratory Judgment Action 

would materially jeopardize the “erroneous declarations” made by the trial 

court, as of this writing, the Amended Decision has not been reversed.17 

Instantly, the record clearly supports the trial court’s conclusion that the 

present action is barred by res judicata. There is no question that the claims 

raised in both Gleba’s amended complaint and Tri-State’s Declaratory 

Judgment Action arise from the same Lease. The crux of the claims in both

____________________________________________

17 At the time Gleba filed its brief, it had a pending motion for reconsideration 

regarding the Amended Decision issued in the Declaratory Judgment Action. 

On September 1, 2020, the trial court granted Gleba’s motion only to the 

extent that it amended Paragraph 25 of the Amended Claim to omit the 

determination that Gleba’s failure to vacate the Premises constituted a breach 

of the Lease. All remaining claims in Gleba’s motion for post-trial relief were 

denied. See discussion and order cited supra n.12. To the extent that Gleba 

continues to assert that the trial court erred regarding its declarations in the 

Amended Decision, any such claims should be raised on direct appeal in the 

Declaratory Judgment Action. In fact, Gleba did file a notice of appeal on 

September 10, 2020, from the denial of post-trial relief, which currently 

remains pending before this Court at 1846 EDA 2020.
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matters is the termination of the Lease and the right of first refusal contained 

within the terms of the Lease.18 Moreover, the facts averred here in the 

amended complaint are the same facts presented in the Declaratory Judgment 

Action. In fact, Gleba even admits in its own words that “[t]he facts and laws 

addressed in the instant appeals did not arise in the underlying action.... 

Rather, they are found in the Amended Decision[] entered in [the Declaratory 

Judgment Action].” Gleba’s Brief at 1 (emphasis added). 

Next, the trial court concluded that, whether applying res judicata or 

collateral estoppel, “the ‘same parties’ element is satisfied[,] because David 

[] Bowe, President, and Jerome [] Combs, Secretary, signed the Lease on 

behalf of Tri-State, just as Walter C. Gleba, President and Secretary, signed 

on behalf of Gleba. Hence[,] they are the same parties or in privity.” TCO at 

41. It is well-established that the parties are considered to meet the identical 

____________________________________________

18 Gleba attempts to argue that the trial court “could not and did not” make a 

determination in the Declaratory Judgment Action regarding whether the

Lease terminated, as this issue was not before the court. Gleba’s Brief at 7. 

Its assertion relies, however, on its misleading claim that Tri-State sought to 

resolve only two controversies in the Declaratory Judgment Action—whether 

Gleba committed repudiation or anticipatory breach of the Lease—and 

“nothing more.” Id. at 5. Contrarily, the trial court expressly found that in 

addition to its claims of repudiation and anticipatory breach, Tri-State also 

sought declarations that it “properly terminated the Lease,” and that “Gleba’s 

right of first refusal set forth in the Lease terminated contemporaneously with 

the Lease[.]” See Amended Decision at 16 ¶ 18. After a two-day trial on the 

matter, the trial court found, inter alia, that the Lease was properly terminated 

as of June 13, 2016, and that the right of first refusal terminated as part of 

the Lease on the same date. See id. at 16-17 ¶¶ 21, 22. 
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parties requirement of res judicata “if the party against whom the plea is 

asserted was a party or in privity with a party to the prior adjudication.” 

Khalil, 240 A.3d at 1002-03 (quoting Safeguard Mut. Ins. Co. v. Williams, 

345 A.2d 664, 668 (Pa. 1975) (internal quotation marks omitted; emphasis 

added)). Generally, parties are in privity if one is vicariously responsible for 

the conduct of another, such as principal and agent. See Day v. 

Volkwagenwerk Aktiengesellschaft, 464 A.2d 1313, 1317 (Pa. Super. 

1983) (citing Restatement (Second) of Judgments § 51). David Bowe and 

Jerome Combs clearly signed the Lease as the principal’s (Gleba) agents;19

thus, we agree with the trial court’s determination regarding Tri-State 

Appellees. 

As for Appellee Puhl, we note that only count I of the amended complaint 

is directed towards him.

20 In count I, Gleba seeks a decree nisi directing Tri-

____________________________________________

19 In Yocabet v. UPMC Presbyterian, 119 A.3d 1012 (Pa. Super. 2015), this 

Court stated:

A corporation is a creature of legal fiction, which can act or “speak” 

only through its officers, directors, or other agents. Where a 

representative for a corporation acts within the scope of his or her 

employment or agency, the representative and the corporation 

are one and the same entity, and the acts performed are binding 

on the corporate principal. 

Id. at 1028. 

20 Count II is a breach of contract claim solely against Tri-State, in which Gleba 

seeks a determination that Tri-State breached the terms of the Lease by failing 

to offer Gleba its right of first refusal regarding the purchase of the Premises. 

Amended Complaint at 18-19. Count III is a contractual and tortious fraud 
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State and Appellee Puhl to comply with the terms of the Lease, the entry of 

an order stating the fair market value of the Premises is $835,033.60, and a 

decree nisi directing Tri-State to sell Gleba the Premises upon its exercising 

its right to first purchase under the terms of the Lease. Amended Complaint 

at 18. In light of the trial court’s finding in the Declaratory Judgment Action 

that the Lease terminated on June 13, 2016, we agree with the lower court 

that Gleba is estopped from making a claim for specific performance of said 

Lease. See McNeil v. Owens-Corning Fiberglas Corp., 680 A.2d 1145, 

1147-48 (Pa. 1996) (providing that “when an issue of fact or of law is actually 

litigated and determined by a valid final judgment, and determination of the 

issue was essential to judgment, the determination on that issue is conclusive 

in a subsequent action between the parties, whether on the same or a different 

claim”) (footnote and citation omitted). 

The trial court further opined:

All parties agree that the [L]ease was fully integrated. The 

two lawsuits are sufficiently similar as to constitute the same 

“cause of action” and “rights asserted” to invoke lis pendens

because the “ultimate issues” in this case are and always have 

been whether ... Tri-State properly terminated the [L]ease, when 

[the Lease was terminated], and whether Gleba’s right of first 

refusal contemporaneously terminated with the [L]ease. The 

____________________________________________

claim against Tri-State Appellees, in which Gleba seeks damages for lost 

income, tortious damage to its reputation, and attorneys’ fees and costs. Id.

at 19-20. In count IV, a claim for fraud in the inducement against Tri-State 

Appellees, Gleba seeks unliquidated, compensatory, and punitive damages in 

excess of $2,000,000.00, as a result of the failure to inform Gleba in 2010 

that Tri-State allegedly never had any intention of selling the Premises 

separate and apart from 504 Swedeland, while knowing that Gleba’s right of 

first refusal and interest was only in the leased Premises. Id. at 20-23. 
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court answered those questions in the affirmative. Because the 

court previously determined that ... Tri-State properly terminated 

the [L]ease before Appellee Puhl submitted a new offer for the 

purchase of the [Sale Properties], Gleba is estopped from making 

a claim for specific performance pursuant to the right of first 

refusal as set forth in count I[,] or breach of contract as set forth 

in count II of its amended complaint. Gleba’s claims of fraud in 

counts III and IV of the amended complaint could have been 

litigated in the prior action. Counsel for Gleba raised the issues 

and elicited testimony in the prior action but made the tactical 

decision not to pursue those assertions when Gleba had the 

opportunity by moving to amend its answer and new matter in the 

prior action. 

TCO at 41 (emphasis added; unnecessary capitalization omitted). 

Nevertheless, Gleba attempts to differentiate the issues raised in the 

instant action from those litigated—or which could have been litigated—in the 

Declaratory Judgment Action. The claims raised in the present matter are all 

premised on Gleba’s assertions that Tri-State never intended to sell the 

Premises separately, that it had intended to deny Gleba its right of first refusal 

at the time the Lease was executed, and that David Bowe and Jerome Combs 

intentionally orchestrated plausible deniability on the part of Tri-State 

regarding the offer received from the Puhls. Gleba argues that none of the 

claims raised in the instant action can be estopped because none of the events 

giving rise to its amended complaint occurred before the filing of Tri-State’s 

Declaratory Judgment Action.21 This claim is completely without merit. 

____________________________________________

21 Gleba emphasizes that it did not learn of Tri-State’s fraudulent 

representations or the alleged scheme to provide Tri-State with plausible 

deniability until July 12, 2016. We acknowledge that this occurred after the 

commencement of Tri-State’s action; however, we note that Gleba became 
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We are perplexed by Gleba’s insistence that it did not have the 

opportunity to litigate the issues raised herein during the Declaratory 

Judgment Action. The record indicates that Gleba expressly raised its theory 

of fraudulent misrepresentation on the part of Tri-State, as well as its 

allegations regarding an intentionally orchestrated scheme of plausible

deniability, in its pretrial statement,22 motion in limine,

23 and trial brief,24 all 

____________________________________________

aware of the relevant facts well before the trial, which took place on August 

14, 2017, and April 19, 2018. 

22 Gleba provided in its Declaratory Judgment Action pre-trial statement that 

it would produce evidence at trial that “Tri[-]State breached the Lease by 

fraudulently orchestrating a plot via it[s] agent and attorney, Paul French and 

[Attorney] Russell[,] to purposely conceal from Tri[-]State the identity of 

[b]uyers ... while they addressed with unscrupulous means to terminate 

Gleba’s right of [first p]urchase[.]” Gleba’s Reply Brief, Exhibit A, at 2 ¶ 

3(B)(b). 

23 See Gleba’s Reply Brief, Exhibit B, at 2 (stating that Tri-State “engaged in 

a scheme with its agent and lawyer that commenced on May 2, 2015, to 

defraud Gleba of its rights to purchase the Premises”). 

24 In its trial brief filed in the Declaratory Judgment Action, Gleba argued:

Tri-State’s reasons to unilaterally attempt to amend the Lease, for 

reasons Gleba now knows was [sic] specifically to defraud Gleba 

of its right of first refusal, was [sic] vexatious and a breach of the 

Lease by Tri[-]State. The fraud was first discovered by Gleba

during discovery of Mr. French when Gleba first learned ... that 

there were multiple buyers trying to purchase the Premises 

(including [Appellee] Puhl, as early as October 2015, then 

negotiating with French). Gleba also by discovery learned that 

the buyers’ identities and even their very existence was 

intentionally hidden from Tri[-]State by its counsel and agent, 

enabling Tri[-]State to plausibly deny the existence of such 

[b]uyers as of March 8, 2016. 

Gleba’s Reply Brief, Exhibit C, at 6 (emphasis omitted). 
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filed in the Declaratory Judgment Action, and all of which Gleba attaches to 

its Reply Brief in the present matter. Moreover, Gleba notes that it also pled 

fraudulent representation as an affirmative defense in its new matter. See

Gleba’s Reply Brief, Exhibit C, at 6. Accordingly, we deem Gleba’s present 

action to be a complete waste of judicial resources and a clear attempt by

Gleba for a second bite at the apple. 

As the trial court so aptly concluded:

This court has already decided the rights and responsibilities 

under the [L]ease in a prior action now on appeal, which involves 

the same parties or those in privity. Gleba fully litigated or had 

the opportunity to fully litigate those rights and responsibilities in 

the prior lawsuit. The [p]arties, including Gleba, argued these 

facts and issues at the prior action’s pretrial conferences, in their 

pretrial submissions, at trial[,] and in their post-trial findings of 

fact and conclusions of law. This court properly ruled that the 

doctrines of lis pendens and estoppel bar Gleba from proceeding 

with this lawsuit. 

TCO at 42. We discern no abuse of discretion or error of law by the trial court. 

Lastly, to the extent that Gleba avers that the failure to join Appellee 

Puhl in the Declaratory Judgment Action as an indispensable party renders the 

Amended Decision void due to a lack of subject matter jurisdiction, we deem 

this issue to be waived due to Gleba’s failure to develop its argument. See

Pa.R.A.P. 2119(b). Despite several references to this issue in its statement 

of questions, the only mention Gleba makes of the subject in the entire 

argument section of its brief is the following single, nonsensical statement: 

“[B]y granting [s]ummary [j]udgment for [Appellee] Puhl, supposedly reliant 

upon the Amended Decision, the lower court implicitly found him to be an 
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indispensable party; whereby the lower court presently lacks subject matter 

jurisdiction ab initio and the [Declaratory Judgment A]ction must be dismissed 

as such.” Gleba’s Brief at 4. Gleba provides no further discussion and fails to 

cite to any legal authority whatsoever in support of its argument. “The Rules 

of Appellate Procedure state unequivocally that each question an appellant 

raises is to be supported by discussion and analysis of pertinent authority.” 

Estate of Haiko v. McGinely, 799 A.2d 155, 161 (Pa. Super. 2002) (citing, 

inter alia, Pa.R.A.P. 2119(b)). “Without a reasoned discussion of the law ... 

our ability to provide appellate review is hampered. It is not this Court’s 

function or duty to become an advocate for [the appellant].” Id. (internal 

citations and quotation marks omitted).25 

Accordingly, we affirm the orders granting summary judgment in favor 

of Tri-State Appellees and Appellee Puhl, and dismissing Gleba’s amended 

complaint, in its entirety, with prejudice. 

Orders affirmed. Case remanded for the correction of a clerical error. 

Jurisdiction relinquished. 

____________________________________________

25 Moreover, as the trial court opined, “it is insincere on Gleba’s part” to 

suggest that it did not have a full and fair opportunity to litigate whether the 

trial court lacked subject matter jurisdiction due to the absence of Appellee 

Puhl as an indispensable party, because this claim could have been pursued 

in the prior litigation. TCO at 42. “In fact, Gleba did raise the absence of 

[Appellee] Puhl in the Declaratory Judgment [A]ction in a motion in limine, 

which the court denied.” Id. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/21