J-S02035-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

BIAN LIN, JIE HONG, HONGDAN 

DONG, HUILING LIN, JING LIN, JUAN 

XIAO, KUNFENG CHEN, LIANG HE, 

LILY LIN, LING DAN WU, LING LI, 

BINGJING LIN, LING WANG, MARY 

LIYI MA, MEIFANG CHEN, MEIMEI 

TANG, QI CHEN, QIREN LIANG, 

QIUMEI XU, RONGJIAO YIN, SHAO 

WANG, SYIN HU, CAN HUAN LI, WEI 

GAO, WENQIONG ZHAO, WENYUN 

GAN, XIA LIN, XIAOMEI HE, 

XIAOQING ZHENG, XIAOYAN WEI, 

XIU LI, XIUWEN LIU, XIUYUN ZHAO, 

CUI LIN, XUHONG ZHANG, YAYUN 

ZOU, TEQING TANG, YIJING ZHENG, 

YING XIAO, YING ZHENG, YUHUA 

ZOU, YUN ZOU, HUAN ZHOU, 

DANFENG LIN, DANRONG NI, 

DANTING LU, FENGJUAN YANG, 

GENG CHEN

v.

LI JUN OUYANG, LIVIA DANDAN 

YANG, YANG'S COSMETIC, LLC, YUN 

YE, CHEN YE LLC, JOHN DOE 1-10 

AND DOE ENTITIES 1-10

APPEAL OF: LIVIA DANDAN YANG 

AND YANG'S COSMETIC, LLC

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2147 EDA 2023

Appeal from the Order Entered July 31, 2023

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

No(s): 230202158

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

____________________________________________

* Former Justice specially assigned to the Superior Court.
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MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 13, 2024

Livia Dandan Yang and Yang’s Cosmetic, LLC, (“Defendants/Appellants”)

appeal from the order entered in the Court of Common Pleas of Philadelphia 

County denying without prejudice their motion to stay proceedings in the 

present civil case pending the resolution of a hypothetically possible, but still

non-existent, criminal case that they contend will share issues and facts with 

the present civil case. Discerning no error with the trial court’s six-factor 

analysis leading it to conclude that, on balance, the facts warranted denial of 

their motion despite concerns that civil litigation may implicate their privileges 

against self-incrimination, we affirm. 

On April 12, 2023, Bian Lin, et al, (“Plaintiffs/Appellees”) filed an 

Amended Complaint against Defendants/Appellants alleging, among other 

things,1fraud committed through Defendants/Appellants’ establishment and 

operation of an online Ponzi scheme.

2

 According to the Amended Complaint, 

____________________________________________

1 Plaintiffs/Appellees brought the following claims against 

Defendants/Appellants in their Amended Complaint:

Count I -- Fraud;

Count II -- Civil Conspiracy to Commit Fraud;

Count III -- Breach of Contract;

Count IV -- Unjust Enrichment;

Count V -- Violations of Pennsylvania Unfair Trade Practices & 

Consumer Protection Act; and 

Count VI -- Negligent Misrepresentation.

2

 A Ponzi scheme is defined as: “A fraudulent investment scheme in which 

money contributed by later investors generates artificially high dividends for 

the original investors, whose example attracts even larger investments. 

(Footnote Continued Next Page)
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Defendants/Appellants created and hosted online chat groups on WeChat, a 

social media platform popular with the “Chinese diaspora around the world.” 

Amended Complaint at 6. Defendants/Appellants allegedly enlisted the 

Plaintiffs/Appellees as group members, instructed them to buy merchandise 

online by paying the purchase price plus an additional large monetary deposit 

on the promise that Defendants/Appellants eventually would refund all monies

paid, thus “circuitously providing Plaintiffs/Appellees with ‘free’ merchandise.” 

Id. at 7. 

The Amended Complaint included an example offer instructing 

Plaintiffs/Appellees to pay a $500 deposit in addition to the $179 purchase 

price for a Kindle tablet available on Amazon. In essence, the Amended 

Complaint averred, this was just one of Defendant/Appellants’ many 

fraudulent promises that Plaintiffs/Appellees over time would acquire desirable 

products for free if they initially paid inflated amounts and waited 90 days for 

their full refund. Id. In fact, the Amended Complaint alleged, 

Defendants/Appellants illegally retained many deposits and later directed 

purchasers to pay a portion of their deposits directly to third parties. 

Plaintiffs/Appellees claim they were defrauded more than $535,000 in 

deposits that were never returned. Id. at 8.

____________________________________________

Money from the new investors is used directly to repay or pay interest to 

earlier investors, usu. without any operation or revenue-producing activity 

other than the continual raising of new funds.” Black's Law Dictionary 1198

(8th ed. 2004).
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Against Plaintiffs/Appellees’ Amended Complaint, Defendant/Appellant 

Yang filed preliminary objections, to which Plaintiffs/Appellees filed an Answer. 

Co-Defendants, meanwhile, filed an Answer with New Matter to the Amended 

Complaint, as well as crossclaims against Yang, and counterclaims. 

Defendant/Appellant Yang filed preliminary objections to Co-Defendants’ 

crossclaims. In turn, Defendant/Appellant Yang filed preliminary objections 

to the Co-Defendants’ crossclaims, and Plaintiffs/Appellees filed preliminary 

objections to Co-Defendants’ counter claims. On June 14, 2023, the trial court 

entered an order overruling Defendant/Appellant Yang’s preliminary 

objections to Plaintiffs’/Appellees’ Amended Complaint. 

On July 6, 2023, Defendants/Appellants filed a Motion to Stay civil 

proceedings for a minimum of six months, claiming they were targets of a 

concurrent criminal investigation by the FBI and the U.S. Attorney’s Office for 

the Southern District of New York. In the motion, Defendants/Appellants 

alleged that on or about April 23, 2023, Yang observed and overheard F.B.I. 

agents confront civil co-defendant Yun Ye, a/k/a “Yun”, in a parking lot and 

ask him to cooperate in their investigation into the WeChat sales scheme. The 

Motion to Stay further alleged one of the F.B.I. agents acknowledged Yang as 

she approached and said to her, “We know who you are.” 

Defendants/Appellants’ Motion to Stay, ¶ 10.

Based on this encounter, Yang asserted that as a target of the 

investigation she was entitled to the protections of the Fifth Amendment, 

which not only protects one against compulsion to bear witness against oneself 
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in a criminal prosecution but also privileges one to refuse answering official 

questions asked in any other proceeding, civil or criminal, where the answers 

might incriminate in future criminal proceedings. Defendants/Appellant’s 

Motion to Stay at ¶ 14 (citing Commonwealth v. Brown, 26 A.3d 485, 493-

94 (Pa. Super. 2011). The motion continued, “As such, Defendant, Livia 

Dandan Yang respectfully requests [the trial court] stay this matter until the 

criminal investigation (and any related criminal prosecution) is completed.” 

Motion to Stay at ¶ 19.3

In the trial court’s order of July 31, 2023, it applied the pertinent sixfactor test under Keese v. Dougherty, 230 A.3d 1128 (Pa. Super. 2020), 

discussed infra, to deny the motion to stay without prejudice against 

Defendants/Appellants to re-raise it under changed circumstances.

Specifically, the trial court found that under the Keesee test 

Plaintiffs/Appellees’ interest in an uninterrupted civil proceeding outweighed 

the Defendants/Appellants’ interests in avoiding discovery and cross-

____________________________________________

3 Paragraph 19 thus contradicts Defendants/Appellants’ claim that their Motion 

to Stay sought only a six month stay. While the copy of the 

Defendants/Appellants’ attached proposed order does contain language that 

the matter would be stayed “for a period of six months unless otherwise 

ordered by this Court,” The Defendants/Appellants’ Motion to Stay twice asked 

for a stay of indefinite duration, once in Paragraph 19 and a second time in its 

final, “Wherefore” paragraph, which states: “WHEREFORE, Defendants, Livia 

Dandan Yang and Yang’s Cosmetic LLC, by and through their undersigned 

counsel, respectfully requests this Honorable Court stay this matter pending 

the resolution of the criminal investigation and any prosecutions therefrom.” 

Motion to Stay, at 7. The motion itself, therefore, sought an indefinite stay 

dependent upon both a criminal investigation of uncertain scope and 

application and a prosecution that did not yet exist. See infra. 
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examination that could elicit their invocation of the 5th Amendment’s right

against self-incrimination, for the following reasons: (1) 

Defendants/Appellants failed to demonstrate the existence of an impending,

related criminal case with issues overlapping the current civil case; (2)

Plaintiffs/Appellees’ interests in expeditious civil proceedings and the prejudice 

to the Plaintiffs/Appellees caused by a delay in this civil case weighs in favor 

of denying the stay; (3) denying the stay promotes judicial resource 

efficiency; and, (4) denying the stay promotes the public’s interest. Trial 

Court Opinion, 8/28/23, at 5. This timely appeal followed. 

Appellant raises the following issue for this Court’s review:

1. Did the trial court abuse its discretion by denying Yang’s Motion 

to Stay the civil proceedings for a minimum period of six 

months, thereby endangering Yang’s Constitutional right to 

remain silent and Yang’s ability to present a complete defense 

in favor of Bian Lin, et al.’s interest in expeditious civil 

proceedings, ensuring such civil proceedings will be decided not 

on the merits but on negative inferences arising from Yang’s 

invocation of the Fifth Amendment privilege against selfincrimination?

2. Did the Trial Court abuse its discretion by not crediting the facts 

alleged in Yang’s Motion to stay when Bian Lin, et al. did not 

deny Yang’s interaction with the F.B.I. and in fact admitted that 

a criminal investigation is underway?

Brief of Defendants/Appellants at 7.

Initially, we note that the order currently before us is interlocutory, and 

there is usually no appeal from an order granting or denying a stay unless it 

satisfies the collateral order doctrine. Keesee, 230 A.3d at 1131-32. See

Curry v. Paradox Ltd. Liab. Co., No. 1698 EDA 2022, 2023 WL 1880406, at 
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*1 (non-precedential decision) (Pa. Super. 2023)4 (citing Washington v. 

FedEx Ground Package System, Inc., 995 A.2d 1271, 1275 (Pa. Super. 

2010)); see also Reynolds Metals Co. v. Berger, 223 A.2d 855, 857 (Pa. 

1966) (accord). In Keesee, “this Court recognized an exception to the 

general rule. We held that orders denying stays in civil actions are 

immediately appealable under Rule of Appellate Procedure 313(b), provided 

defendants simultaneously face criminal charges relating to the underlying 

incident.” Curry, supra at *1. Specifically, in Keesee, we found the 

appellants’ rights against self-incrimination would be “irrevocably lost” 

“[w]ithout immediate review, [as] [a]ppellants would either forgo testifying 

on their own behalf in the civil action or risk providing answers that might 

incriminate them in the pending criminal proceedings.” Id. at 1133 (emphasis 

added).

In the case sub judice, we agree with the trial court’s finding that scant 

evidence of record supports Defendants/Appellees’ claim that they face 

imminent or pending criminal charges. Nevertheless, in the exercise of 

caution with respect to Defendants/Appellees’ Fifth Amendment right against 

self-incrimination, we decline to find the present matter unappealable, find 

the collateral order doctrine satisfied, and proceed to the merits of 

Defendants/Appellants’ claim. 

____________________________________________

4 While Curry is an unpublished non-precedential memorandum decision, it 

may still be cited for its persuasive value. See Pa.R.A.P. 126(b) (providing 

that unpublished non-precedential memorandum decisions of the Superior 

Court filed after May 1, 2019, may be cited for their persuasive value).
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This Court has recognized:

The decision to grant or deny a motion to stay is within 

the sound discretion of the trial court, and we will 

review that decision for abuse of discretion. See 

generally In re Upset Sale, Tax Claim Bureau of 

Berks County, 505 Pa. 327, 479 A.2d 940, 946 

(1984). “An abuse of discretion is not merely an error 

of judgment, but if in reaching a conclusion the law is 

overridden or misapplied, or the judgment exercised 

is manifestly unreasonable, or the result of partiality, 

prejudice, bias or ill will, as shown by the evidence or 

the record, discretion is abused.” Cigna Corp. v. 

Executive Risk Indem., Inc., 111 A.3d 204, 211 

(Pa. Super. 2015), appeal denied, 633 Pa. 773, 126 

A.3d 1281 (2015).

Keesee at 1128.

In Keesee, this Court addressed, as a matter of first 

impression, “the appropriate balancing test or factors” a trial 

court should consider when entertaining a motion to stay a civil 

case pending resolution of a related criminal case. Id. at 1133. 

The Court explained:

We are guided by this Court's acknowledgment in 

Spanier[ v. Freeh, 95 A.3d 342 (Pa. Super. 2014)] 

of the six-factor balancing test set forth in In re 

Adelphia Communications Sec. Litig., No. 02-

1781, 2003 WL 22358819 (E.D. Pa. May 13, 2003), 

although we find no adoption of this specific balancing 

test by our Supreme Court. See Spanier, 95 A.3d at 

345.

In Adelphia, the United States District Court for the 

Eastern District of Pennsylvania held,

In deciding whether to stay a civil case 

pending the resolution of a related 

criminal case, courts consider many 

factors, including: (1) the extent to which 

the issues in the civil and criminal cases 

overlap; (2) the status of the criminal 
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proceedings, including whether any 

defendants have been indicted; (3) the 

plaintiff's interests in expeditious civil 

proceedings weighed against the 

prejudice to the plaintiff caused by the 

delay; (4) the burden on the defendants; 

(5) the interests of the court; and (6) the 

public interest.

Adelphia, 2003 WL 22358819 at *3. The Adelphia

court considered all six of the factors in a balancing 

test to determine whether the grant of the stay was 

appropriate. Id. at *3-*7, see also Spanier, 95 A.3d 

at 345 (noting the appropriate test is a six-factor 

balancing test).

Consideration of these six factors in deciding whether 

to grant or deny a motion to stay a civil proceeding 

pending the resolution of a related criminal matter is 

further supported by the four factors our Supreme 

Court considered when determining whether to grant 

or deny a motion to stay a case pending an appeal. 

See Pa. Pub. Util. Comm'n v. Process Gas 

Consumers, 502 Pa. 545, 467 A.2d 805, 809 (1983) 

(stating, “the standards established by the [court in 

Virginia Petroleum Jobbers Ass'n v. Fed. Power 

Comm'n, 259 F.2d 921 (D.C. Cir. 1958)] as refined 

by the [Washington Metro. Area Transit Comm'n 

v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 

1977)] decision provide a rational basis for the 

issuance of a stay pending appeal and are the criteria 

to be followed by the courts of this Commonwealth” 

(emphasis added)). In Process Gas, our Supreme 

Court held the grant of a motion to stay pending 

appeal is warranted if:

1. The petitioner makes a strong showing 

that he is likely to prevail on the merits.

2. The petitioner has shown that without 

the requested relief, he will suffer 

irreparable injury.
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3. The issuance of a stay will not 

substantially harm other interested 

parties in the proceedings.

4. The issuance of a stay will not 

adversely affect the public interest.

Process Gas Consumers, 467 A.2d at 808. The 

Process Gas four-factors test served as a template 

employed by the Adelphia court to assess the 

propriety of staying a civil proceeding pending the 

resolution of a related criminal case. Therefore, the 

factors identified in Process Gas, as augmented by 

the district court in Adelphia, are the appropriate 

factors for a court to consider, at a minimum, when 

deciding to grant or deny such a motion to stay.

Id. at 1133-34.

Zeigler v. Naidu, No. 1125 EDA 2023, 2024 WL 243450, at *4–5 (nonprecedential decision) (Pa. Super. Ct. Jan. 23, 2024).

Defendants/Appellants’ two issues coalesce to challenge the trial court’s 

application of the first two Keesee factors, which in this case are inextricably 

intertwined. The trial court found that Defendants/Appellants’ failure to 

demonstrate the existence of either a criminal investigation targeting them or 

the impending filing of criminal charges precluded their ability to show an 

overlap of issues between the civil case and hypothetical criminal case. 

Plaintiffs/Appellees agree, maintaining that the most Defendant/Appellant 

Yang had alleged was that an F.B.I. agent indicated he knew who she was as 

he was encountering a co-defendant in the civil case. Defendants/Appellants 

counter that because their assertion of the F.B.I. agent’s comment to Ms. Yang 

went unchallenged by Plaintiffs/Appellants, the trial court was bound to accept 
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the existence of a formal criminal investigation and pending indictment against 

Yang. 

Specifically, the trial court aptly noted that, at the time of 

Defendants/Appellants’ motion, Ms. Yang had not been arrested or indicted, 

nor had she shown that an arrest or an indictment was imminent and what 

issues would arise in such a criminal case.5 This procedural history led the 

trial court to cite authority acknowledging that courts generally do not stay 

civil cases absent evidence of, at least, an indictment in an existing criminal 

case. Trial Court Opinion at 2 (citing Adelphia at *1-2) (requiring proof that 

an arrest or indictment is imminent; denying reconsideration of order staying 

civil case where other defendants had been separately but relatedly indicted);

Porat v. Temple Univ. of Commonwealth Sys. of Higher Educ., 296 A.3d 

613 (Pa. Super. 2023) (noting that only after U.S. Attorneys indicted plaintiff 

did the trial court stay the pending and related civil case)). See also, Curry. 

As Defendants/Appellants’ status as possible targets of a criminal 

investigation had not progressed beyond the theoretical or speculative, we 

discern no error with the trial court’s application of the critical first two Keesee

factors to find they could not show significant overlap of issues between the 

civil case and a criminal case where charges had not been filed and there 

____________________________________________

5 The trial court made this determination without prejudice against 

Defendants/Appellants to move for a stay upon new, specific evidence 

demonstrating their status as specified targets of a criminal investigation.
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lacked substantiated evidence that a tangible criminal probe into 

Defendants/Appellants existed at the time their motion to stay was filed. 

With respect to the remaining four Keesee factors, 

Defendants/Appellants’ offer only truncated, superficial arguments, 

unsupported by citations to authority. For example, for the third factor 

requiring the trial court to weigh the plaintiff’s interest in expeditious civil 

proceedings against the prejudice to the plaintiff caused by delay, 

Defendants/Appellants summarily posit that the Plaintiffs’ prejudice would 

have been “minimized”, without explanation as to how this would be so, had 

the trial court adopted their proposed stay of a minimum of six months.

A similar conclusion attends the remainder of the Keesee six-factor 

analysis, which incorporates the Process Gas factors, as augmented by the 

decision in Adelphia. Notably, in that vein, a review of 

Defendants/Appellants’ position under the first two Process Gas factors 

discloses no strong showing that they are likely to prevail on the merits, which, 

under the present facts, impairs their ability to show that without the motion 

to stay they will suffer irreparable injury. Similarly, the fourth Process Gas

factor also militates against Defendants/Appellants’ motion to stay, as the 

underlying facts of the civil matter assert a public interest in expeditious 

proceedings. 

Nothing in Defendants/Appellants’ arguments, therefore, supplies

grounds to upset the trial court’s order and opinion addressing all six Keesee
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factors in accordance with our jurisprudence before denying without prejudice 

Defendants/Appellant’s Motion to Stay. For that reason, we affirm the order 

entered below and, to that extent, adopt the trial court opinion for its 

application of the Keesee analysis to the particular facts of the present case.

Order affirmed.

Date: 3/13/2024