Opinion
No. 113 C.D. 2012
04-18-2013
Jose R. Cox Jr., and Tomas Leal Jr., Appellants v. Joseph N. Reilly doing business as Joseph N. Reilly Real Estate Inc. and Joseph N. Reilly Real Estate Inc. and Commonwealth of Pennsylvania, State Real Estate Commission Real Estate Recovery Fund
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Jose R. Cox Jr. and Thomas Leal Jr. (Lessors) petition for review of the December 23, 2011 order of the Court of Common Pleas of Philadelphia County (trial court) granting the State Real Estate Commission's (Commission) motion to stay Lessors' proceeding for payment from the Real Estate Recovery Fund (Fund) under section 803 of the Real Estate Licensing and Registration Act (Act) because of the automatic stay provisions of the United States Bankruptcy Code (Bankruptcy Code).
Act of February 19, 1980, P.L. 15, No. 9, as amended, 63 P.S. §455.803. The purpose of the Fund is to compensate victims of fraud, misrepresentation, or deceit who cannot otherwise fulfill an obtained judgment against a licensee involving any transaction under the Act.
See 11 U.S.C. §362(a).
Lessors allegedly entered into a real estate management agreement with their real estate brokers, Joseph N. Reilly (Reilly) and Joseph N. Reilly Real Estate, Inc. (Reilly Real Estate). (Trial court op. at 2.) Lessors then filed a civil action against Reilly and Reilly Real Estate for breach of contract. (Trial court op. at 1, 2.) By order dated March 2, 2011, the trial court issued a default judgment in favor of Lessors against Reilly and Reilly Real Estate. (Reproduced Record (R.R.) at 5a, 6a.) When Lessors failed to recover the judgment from Reilly and Reilly Real Estate, Lessors filed a petition with the trial court seeking payment under the Act to recover from the Fund. (R.R. at 7a.) The Commission petitioned the trial court to stay the Fund proceeding in order to consolidate, coordinate, and join all current and prospective claims against Reilly and Reilly Real Estate pursuant to section 803(e) of the Act. (R.R. at 9a, 10a.) By order dated September 6, 2011, the trial court granted the Commission's motion to stay the Fund proceeding. (R.R. at 10a, 11a.)
Under section 803(a) of the Act, if an aggrieved party cannot fulfill a judgment against a real estate licensee, the aggrieved party may file an application in the court that ordered the judgment for payment from the Fund. 63 P.S. §455.803(a).
The Commission was named as a defendant to this action pursuant to section 803(c) of the Act, 63 P.S. §455.803(c).
63 P.S. §455.803(e). --------
On September 12, 2011, Reilly filed a Chapter 7 bankruptcy petition. (R.R. at 25a.) Reilly Real Estate was not a named debtor in the bankruptcy case. (Id.) The Commission then petitioned the trial court to stay the Fund proceeding because of the automatic stay provisions of the Bankruptcy Code. (R.R. at 18a.) By order dated December 23, 2011, the trial court granted the Commission's motion. (R.R. at 19a.)
On appeal to this Court, Lessors argue that the automatic stay provisions of the Bankruptcy Code do not apply to the Fund proceeding. However, the Commission asserts in its brief that this case is moot because the bankruptcy court discharged Reilly. The Commission also filed a supplemental reproduced record including the bankruptcy court's discharge order. Lessors then filed an application to suppress the Commission's brief and reproduced record, arguing that the Commission included a new matter not raised in the trial court. The Commission counters in its reply to Lessors' application that it properly raised the issue of Reilly's discharge from bankruptcy court.
Before addressing the merits of Lessors' appeal, we consider whether the trial court's December 23, 2011 order granting the Commission's motion to stay is a final order. The appealability of a trial court's order is a question of law subject to our plenary review. In re First Baptist Church of Spring Mill, 22 A.3d 1091, 1094-95 (Pa. Cmwlth. 2011). In Robinson v. City of Philadelphia, 706 A.2d 1295 (Pa. Cmwlth. 1998), we said:
While the parties have not addressed the question of appealability in their briefs, by legislative and judicial mandate this Court is required to determine whether the order appealed from is final. Since the question of appealability implicates the jurisdiction of the appellate court, a non-waivable matter, the failure of the parties to raise the issue does not preclude this Court from doing so sua sponte.Id. at 1297.
Generally, an appellate court's jurisdiction only extends to review of a final order. Pa.R.A.P. 341(a); In re First Baptist Church, 22 A.3d at 1095. A final order is any order that: (1) disposes of all claims and of all parties; (2) is expressly defined as a final order by statute; or (3) is entered as a final order pursuant to Pennsylvania Rule of Appellate Procedure (Pa.R.A.P.) 341(c) (allowing a trial court to enter a final order disposing of less than all claims and all parties). Pa.R.A.P. 341(b). Appellate review is limited to final orders "to prevent piecemeal determinations and the consequent protraction of litigation." Hionis v. Concord Township, 973 A.2d 1030, 1034 (Pa. Cmwlth. 2009).
In the present case, the trial court's order granting the stay does not dispose of all claims and all parties. Further, the trial court's order is not defined as a final order by statute, nor did the trial court ever certify its order as a final order disposing of less than all claims and all parties based upon a determination that such an appeal would facilitate resolution of the entire case. Thus, the trial court's order granting the stay is not a final order.
Instead, the trial court's order is interlocutory. Takacs v. Indian Lake Borough, Zoning Hearing Board, 18 A.3d 354, 357 (Pa. Cmwlth. 2011) ("[A]n 'interlocutory' order is an 'interim or temporary' order that is issued before the final resolution of the controversy."). Nevertheless, certain interlocutory orders are appealable as of right. Pa.R.A.P. 311 permits appeals as of right from the following interlocutory orders:
(1) An order refusing to open, vacate or strike off a judgment;
(2) An order confirming, modifying or dissolving or refusing to confirm, modify or dissolve an attachment,
custodianship, receivership or similar matter affecting the possession or control of property;
(3) An order changing venue or venire in a criminal proceeding;
(4) An order that grants or denies, modifies or refuses to modify, continues or refuses to continue, or dissolves or refuses to dissolve an injunction [order];
(5) An order granting peremptory judgment in mandamus;
(6) An order in a civil action or proceeding awarding a new trial, or an order in a criminal proceeding awarding a new trial where the defendant claims that the proper disposition of the matter would be an absolute discharge or where the Commonwealth claims that the lower court committed an error of law;
(7) An order directing partition;
(8) An order which is made appealable by statute or general rule.
An order granting a stay because of the Bankruptcy Code's automatic stay provisions is not one of the enumerated interlocutory orders appealable as of right.
Pa.R.A.P. 312 also allows for appeals by permission. However, Lessors sought no such permission in this case. Further, Pa.R.A.P. 313 permits appeals from collateral orders. Pa.R.A.P. 313(b) defines a collateral order as "an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost." The trial court's order in this case is not separable from and collateral to the main cause of action herein. Nor does the trial court's order involve a right too important to be denied review or a claim that could be irreparably lost if review is postponed.
Accordingly, the appeal is quashed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 18th day of April, 2013, the appeal of Jose R. Cox Jr. and Tomas Leal Jr. is hereby quashed.
/s/_________
PATRICIA A. McCULLOUGH, Judge