J-S15042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KONDAUR CAPITAL CORPORATION,                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARSHALL L. WILLIAMS,

                            Appellant                 No. 619 EDA 2015


                      Appeal from the Order January 8, 2015
              in the Court of Common Pleas of Philadelphia County
                Civil Division at No.: April Term, 2013 No. 00109


BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 29, 2016

        Appellant, Marshall L. Williams, a lawyer, appeals pro se from the

order denying his petition to compel arbitration and stay proceedings in this

eviction action.     Appellant’s arguments are waived or previously litigated.

We affirm, in part, on the basis of the trial court’s opinion.       Appellee,

Kondaur Capital Corporation, has filed an application for dismissal and for

sanctions.     We affirm the order denying arbitration, dismiss Appellee’s

application for dismissal as moot, grant Appellee’s application for sanctions,

and remand with instructions.




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S15042-16


        In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them here at length.

        For the convenience of the reader we note briefly that although this

ejectment action began in 2013, the underlying issues arose in 2010, and

have previously been reviewed by a panel of this Court, which affirmed the

denial of Appellant’s petition to set aside the sheriff’s sale of the same

property, 5447 Wyndale Avenue, Philadelphia, Pennsylvania.                 (See EMC

Mortgage       Corp.     v.   Williams,        No.    844   EDA   2013,   (unpublished

memorandum at *8) (Pa. Super. filed July 8, 2014)).1

        Prior to that, on February 2, 2010, as noted in the previous

memorandum decision, EMC had filed a complaint in mortgage foreclosure

on the 5447 Wyndale property. (See id. at *1). After various procedural

detours, the trial court ordered foreclosure and the property was sold at

sheriff’s sale on September 11, 2012. (See id. at *3).

        This Court affirmed the order denying Appellant’s petition to set aside

the sheriff’s sale.      (See id. at *9).            Notably, the panel also rejected

Appellant’s claim that the dispute should have been transferred to

arbitration. (See id. at *5-6). Observing that Appellant failed to preserve

any issues by filing a response to a motion for summary judgment, the panel

____________________________________________


1
    EMC Mortgage Corp. was predecessor in interest to Appellee.



                                           -2-
J-S15042-16


concluded that “[a]ny issues relating to the mortgage foreclosure judgment

are deemed waived and/or previously litigated.” (Id. at *6).

       Also, as noted by our predecessor panel, this case has a “tortured

procedural history.” (Id. at *1). For purposes of our review, it is sufficient

to note that after Appellee filed a complaint in ejectment, Appellant

eventually again filed a motion to compel arbitration, the third such motion,

which the trial court denied.        Additionally, Appellant filed a motion to stay

proceedings, which the trial court also denied. This timely appeal followed.2

       On appeal, Appellant raises six questions for our review:

             1. Whether the trial court erred as a matter of law by
       finding that the parties’ arbitration agreement did not apply to
       the disputes, claims and controversies raised in [Appellant’s]
       answer including his denials and new matter (other additional
       facts, affirmative defenses and counterclaims) to [Appellee’s]
       amended complaint in ejectment?

              2. Did [Appellant] waive his constitutional rights under the
       United States Constitution’s Supremacy Clause, the Commerce
       Clause and the Due Process Clause to directly challenge the
       validity of [Appellee’s] invalid deed that exhibited its amended
       complaint in ejectment?

              3. Should fraud, mistake, illegality or accident invalidate
       [Appellee’s] sheriff sale and [Appellee’s] prematurely issued
       sheriff’s deed?

            4. Did the trial court lack personal jurisdiction and subject
       matter jurisdiction over the parties and the ejectment complaint

____________________________________________


2
  Appellant timely filed a court-ordered concise statement of errors, on
March 3, 2015. The trial court filed its opinion on March 27, 2015. See
Pa.R.A.P. 1925.



                                           -3-
J-S15042-16


      on April 1, 2013 while the sheriff sale appeal was pending
      effective March 11, 2013?

             5. Where [Appellee] agrees to arbitration as requested by
      [Appellant], did the trial court erred [sic] as a matter of law by
      failing to stay or dismiss the pending proceedings in favor of
      arbitration?

             6. Does a void foreclosure summary judgment remains
      [sic] invalid for all subsequent actions including an ejectment
      actions?

(Appellant’s Brief, at 4).   We note that Appellant’s brief, as well as his

reproduced record, were filed late.

      We review a trial court’s denial of a motion to compel arbitration
      for an abuse of discretion and to determine whether the trial
      court’s findings are supported by substantial evidence. In doing
      so, we employ a two-part test to determine whether the trial
      court should have compelled arbitration. The first determination
      is whether a valid agreement to arbitrate exists. The second
      determination is whether the dispute is within the scope of the
      agreement.

                                  *    *    *

      [A] challenge to the trial court’s statutory interpretation is a
      question of law and, as such, our standard of review is de novo
      and our scope of review is plenary.

Hopkins v. Erie Ins. Co., 65 A.3d 452, 455-56 (Pa. Super. 2013) (citations

and internal quotation marks omitted omitted).

      Preliminarily, in this appeal, we note that Appellant’s Rule 1925(b)

statement presents only four issues: (1) denial of the motion to compel

arbitration; (2) denial of the motion to stay proceedings, (3) jurisdiction, and




                                      -4-
J-S15042-16


(4) alleged infringement of his constitutional right to due process and equal

protection. (See “Statement of Matters Complained Of,” 3/03/15, at 1-2).3

Accordingly, Appellant’s third issue (fraud, mistake, illegality or accident)

and sixth issue (validity of summary judgment) are waived. See Pa.R.A.P.

1925(b)(vii).

       As to the remaining issues, after a thorough review of the record, the

briefs of the parties, the applicable law, and the well-reasoned opinion of the

trial court we conclude that there is no merit to the issues Appellant has

raised on appeal. The trial court opinion properly disposes of the questions

presented.     (See Trial Court Opinion, dated 3/27/15, at 4-7) (concluding:

(1) trial court properly denied third motion to compel arbitration, where

issue was previously litigated, Appellant previously failed to preserve issue

and this Court dismissed issue in preceding decision; issue is collateral to

underlying judgment; (2) trial court properly exercised jurisdiction over the

claims presented; Appellant failed to raise claim properly before trial court;

(3) trial court properly granted stay while case was on appeal and lifted stay

after Superior Court rendered decision; and (4) Appellant failed to make

timely claim of constitutional issues with trial court; in any event,

constitutional claims, which actually related to petition to set aside sheriff’s


____________________________________________


3
  Appellant has failed to include a copy of the statement of errors in his brief,
in violation of Pa.R.A.P. 2111(a)(11).



                                           -5-
J-S15042-16


sale, were moot).   Accordingly, we affirm on the basis of the trial court’s

opinion.

      Finally, we address Appellee’s application for dismissal and sanctions.

Because we have addressed the issues in this appeal, we dismiss the

application for dismissal as moot.    However, we grant the application for

sanctions.

      Appellee asserts, and Appellant does not dispute, that the due date for

Appellant to file his brief was May 19, 2015. When Appellee filed its motion

for sanctions, on September 17, 2015, it still had not received Appellant’s

brief, although he had apparently filed it with this Court the day before, on

September 16, 2015. Nevertheless, this was almost four months later than

the original due date. Furthermore, in his response to Appellee’s application

to dismiss his appeal for failure to file his brief, Appellant concedes that he

did not serve his brief and reproduced record on Appellee until after the fact,

on September 19, 2015. He apologized.

      Appellant’s repeated misconduct, and insistence on continuing to raise

issues which have already been decided, is transparently derelict. Of equal

concern, the only substantive explanation Appellant offers for his conceded

failure to conform to our rules of appellate procedure are “regrettable

oversight” and a single, generic, unsupported reference to becoming “ill.”

(Response to Kondour’s [sic] Application to Dismiss, 10/01/15, at 1 ¶ 3-4).




                                     -6-
J-S15042-16


     Appellant is a lawyer and we presume him to be aware of the

requirements of professional conduct.      We further note that Appellant

conceded in his application for an extension that he was the subject of

disciplinary proceedings for violation of legal ethics in an apparently

unrelated proceeding. (See Application for Extension, 6/15/15, at 1).

     Appellee’s assertion─that Appellant routinely filed documents with the

court without properly serving Appellee─finds support in the record and

stands substantially unrefuted, with no reasonable explanation supplied.

This Court routinely grants reasonable extensions to litigants, in need of a

period of grace, for good cause shown. However, Appellant’s systematic and

continuous disregard for the deadlines required to maintain an orderly

process of adjudication, and worse, his recurring failure to serve opposing

counsel, appear to come perilously close to expressing disdain, if not

contempt, for our rules of procedure.

     Therefore, we grant Appellee’s application and impose sanctions on

Appellant for his continuing disregard of judicial procedure. We remand this

case to the trial court for a hearing within thirty days of the date of this

decision, to permit Appellee to present evidence in support of its claims for

attorney’s fees and costs associated with the application for sanctions. The

trial court shall limit the hearing to setting the amount of monetary

sanctions.




                                    -7-
J-S15042-16


      Order denying arbitration affirmed. Case remanded with instructions.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/29/2016




                                   -8-
                                                                                                                                                                           Circulated 02/10/2016 12:09 PM




                                                                                                        IN THE COURT OF COMMON PLEAS
                                                                                                  FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
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                      KONDAUR CAPITAL CORPORATION                                                                                                        SUPERIOR COURT No.
                                                                                                                                                         619 EDA 2015
                                                              v.
                                                                                                                                                         Civil Division
                                                                                                                                                         April Term 2013, No. 0109
                      MARSHALL L. WILLIAMS
                                                                                                                                                                                                  -.
                                                                                                                                                                                                  :.,...·.

                                                                                                                                               OPINION


                                             Appellant, Marshall Williams, appeals this Court's denial of his Petition to Compel Arbitration and

                      Stay Proceedings.                                                                                                                                     · Kmdaur Capuat Carporahon Vs Wilr.ams Ela-OPFLD




                                                                                                                                                                              111111/ 11111/ 111111111 /II/ 111
                                                                                                                FACTUAL AND PROCEDURAL HISTORY                                          13040010900058

                                             This case commenced April 1, 2013, with the filing of a Complaint in Ejectment, seeking to eject

                      Appellant from the premises of 5447 Wyndale Avenue, Philadelphia, Pennsylvania, following a Sheriff's

                      Sale held on September 11, 2012.1

                                             On April 26, 2013, Appellee kondaur Capital Corporation                                                         filed a Motion for Alternative Service,

                      which was granted May 1, 2013.

                                             On May 24, 2013, Appellee filed an Affidavit of Service by posting the premises on May 9, 2013.

                                             On June 10, 2013, Appellant filed Preliminary Objections to Appellee's Complaint.

                                             On June 17, 2013, Appellee fifed an Amended Complaint.

                                         On July 3, 2013, Appellant's preliminary objections were marked moot.

                                         On July 19, 2013, Appel.lant filed an Answer to the Complaint, arguing that Appellee was not the

                  owner of the premises as "the Sheriff was not authorized to execute or deliver to plaintiff a sheriff's




                  1
                      Following the disposed action docketed at Philadelphia Court of Common Pleas, February Term 2010, No. 0235.

                                                                                                                                                 1
-~-·--   --··--        .........   _...,.,    ,,.._,-,--,-_        .-..   ,.......   ,...   r-.   ,....,...,..,,_,   rvrv rrvrv srvrv.c   r-
  deed on December 27,    2012." Appellant raised a number of boilerplate affirmative defenses in his New

  Matter. As a Counterclaim, Appellant raised one count of violations of the Unfair Trade and Consumer

  Protection Act, 73 P.S. § 201-1 et seq.; one count of Tortious Interference with a Contractual

  Relationship; and one count of Breach of Contract.

         On August 13, 2013, Appellee filed an Answer to Appellant's Counterclaim, denying Appellant's

 averments and counterclaims as collateral attacks on a duly entered judgment in foreclosure which

 were inappropriately advanced in an action in ejectment.

        On September 10, 2013, Appellee flled a Motion for Judgment on the Pleadings.

        On October 2, 2013, Appellant filed a Motion for Extraordinary Relief: that same day Appellee

 filed an Answer in Opposition to Appellant's Motion....

        On October 4, 2013, Appellant filed a Motion to Stay Proceedings, as well as a Reply to
                                                                        Q

 Appellee's New Matter. The Motion to Stay averred that the mortgage foreclosure action underlying the

 instant ejectment action was on appeal, and that Appellant would suffer irreparable harm if the action

 was not stayed. See Motion to Stay ProceedingsPending Appeal, ~ 1.

        On October 8, 2013, the case was stayed by Order of the Court pending the outcome of

 Appellant's appeal to the Superior Court of Pennsylvania,docketed at 844 EDA 2013.

        On July 18, 2014, Appellee filed a Motion to Terminate the Stay.

        On August 7, 2014, Appellant filed an Answer in Opposition to Appellant's Motion.

        On August 19, 2014, this Court dismissed Appellee's Motion without prejudice pending the

. outcome of Appellant's Motion for Reconsiderationin the Superior Court of Pennsylvania on the appeal

docketed at 844 EDA 2013.

       On October 20, 2014, Appellee filed a Motion to Terminate the Stay. The Motion averred that

the Superior Court of Pennsylvania affirmed this Court's Order denying Appellant's Motion to Set Aside

on July 8, 2014, and denied Appellant's Motion for Reconsideration on August 21, 2014. The Superior



                                                      2
 Court of Pennsylvania   remitted the record on October 17, 2014, and thus, the appeal had been

 concluded. See Motion to Terminate Stay, ~11 - 11.

         On November 10, 2014, Appellant filed an Answer in Opposition to the Motion to Terminate the

 Stay, arguing that the Motion should be denied as "undu/y prejudicial" to him, and because"the record

 has not been docketed." See Answer in Opposition to Motion to Terminate Stay, ,i 5 - 6.

        On November 18, 2014, this Court granted Appellee's Motion to Terminate the Stay.

        On November 20, 2014, Appellee filed a Motion for Judgment on the Pleadings.

        On December 10, 2014, Appellant filed a Petition to Compel Arbitration, arguing that the loan

 contained an arbitration rider covering "all disputes, claims, or controversies arising from or related to

 the loan evidenced by. the Note" and provided that at the request of the Borrower, judicial proceedinqs

 shall be stayed or dismissed and the matter should proceed to arbitration. See Petition to Compel

Arbitration, ~ 4. Appellant averred that he had written a letter to Appellee's counsel demanding

 arbitration, but had not received a response. See Petition to Compel Arbitration, ,i 15.

        On December 11, 2014, Appellant filed an Answer in Opposition to Appellant's Motion for

Judgment on the Pleadings.

        On December 30, 2014, Appellee filed an Answer in Opposition to Appellant's Petition to Compel

Arbitration. Appellee argued that the sale had been proper, that the ejectment action is collateral to the

foreclosure case and the foreclosure judgment, and thus not subject to arbitration under the

mortgage's Rider. See Answer Petition to Compel Arbitration, ,i 12 - 13. Additlonally, Appellee averred

that it had written to Appellant indicating its willingness to arbitrate, but that Appellant never initiated

such arbitration. See Petition to Compel Arbitration, ~ 20.

       On January 8, 2015, this Court denied Appellee's Motion for Judgment on the Pleadings.That

same day, this Court denied Appellant's Motion to Compel Arbitration.




                                                     3
             On February 9, 2015, Appellant filed a timely Notice of Appeal to the Superior Court of

     Pennsylvania.

             On February 11, 2015, this Court issued its Order pursuant to Pa.R.A.P. 192S(b), directing

    Appellant to file its Concise Statement of Matters Complained of on Appeal within twenty-one (21)

-days.

             On March 3, 2015, Appellant filed his Concise Statement of Matters Complained of on Appeal,

    arguing that: this Court erred when it denied his motion "pursuant to the executed arbitration rider

    attached to their loan agreement;" that this Court abused its discretion when it denied Appellant's

    Motion to Stay Proceedings pending "the completion of arbitration by the parties' [sic] of their dispute

    pursuant to the arbitration rider;" that.this Court "committed an unduly prejudicial error by exerclsino

    subject matter jurisdiction and in personam jurisdiction"      over the complaint in ejectment while

    Appellant's appeal was pending; and that Appellant's rights to due process and equal protection were

    infringed upon. ·




                                                  .   DISCUSSION


            Appellant challenges, on a number of grounds, this Court's denial of his Petition to Compel

    Arbitration.

            I.       PETmON TO COMPEL ARBITRATION

            Appellant argues thatthis Court erred as a matter of law when it denied his motion to compel

arbitration pursuant to the executed arbitration rider attached to the loan agreement. As a first note,

an appeal may be taken from a court order denying an application to compel arbitration made under

section 7304. Callan v. Oxford Land oev; Inc., 2004 PA Super 353, 858 A.2d 1229, 1232 (2004).2




2
    The Arbitration Rider allows for arbitration pursuant to 9 U.S.C. §§ 1-14.

                                                            4
             However/ Appellant is collaterally estopped from raising this issue. The doctrine of issue

     preclusion applies when the following prongs are met: an issue decided in a prior action is identical to

     one presented in a later action; the prior action resulted in a final judgment     on the merits; the party

     against whom collateral estoppel is asserted was a party to the prior actlon, or is in privity with a party

     to the prior action; and the party against whom collateral estoppel is asserted had a full and fair

     opportunity to litigate the issue in the prior action. Rue v. K-Mart Corp., 552 Pa. 131 17, 713 A.2d 821

     84 (1998).

             In the instant case, Appellant attacks the underlying judgment in favor of Appellee's

     predecessorin interest, which is both inappropriate in an ejectment action (i.e. a collateral proceeding

- . .. to the mortgage foreclosure, see Dime Sav. Ban~ FSB v.. Greene1 2002        P.A Super 392 1   S13 A.2d 893,

     895 (2002)) and has been previously litigated. Appellant's appeal challenging. the judgment was

     dismissed by the Superior Court of Pennsylvaniaas he failed to preserve issues by filing a response to

     plaintiff's summary judgment motion.' Appellant again attempted to raise the issue of the arbitration

     rider in an appeal from a denial of his Petition to Set Aside Sheriff's Sale, but was unsuccessful as the

     issues were deemed waived or previously litigated.4 Appellant cannot raise these issues again, for the

     third time, in a proceeding collateral to the underlying judgment.

            Consequently, this Court did not err in denying Appellant's petition to compel arbitration.

            II.    SUBJECT MAlTER JURISDICTION

            Appellant next complains that this Court committed an "unduly prejudicial error" by exercising

  subject matter jurisdiction and in personam jurisdiction over the complaint in ejectment when

  Appellant's appeal of the sheriff's sale was pending in the Superior Court.




 3
     Kondaur Capital Corp. v. W!lliam5i 2767 EDA 2011, per     curiam order filed January 1.8, 2012.
 4
     EMC Mortgage Corporation   v.   Marshall L. Williams, 844 EDA 20131 memorandum opinion filed July B, 2014.

                                                             5
            a.   Subject Matter Jurisdiction

            "Jurisdiction is the capacity to pronounce a judgment of the law on an issue brought before the

    court through due process of law. It is the right to adjudicate concerning the subject-matter in a given

    case ... Without such jurisdiction, there is no authority to give judgment and one so entered is without

    force or effect." Bernhard v. Bernhard, 447 Pa. Super. 118, 124, 668 A.2d 546, 548-49 (1995). The trial

    court has jurisdiction if it is competent to hear and determine controversies of the general nature of the

    matter involved; it lies if the court "had power to enter upon the inquiry." lei: the question of subject

    matter jurisdiction may be raised at any time, by any party, or by the court sua sponte. Grom v.

    Burgoon, 448 Pa. Super. 616, 619, 672 A.2d 823, 824-25 (1996).

             Per .statute, this Court has unlimited original jurisdiction over all actions and proceedings,

    except where exclusive original jurisdiction of an action or proceeding is by statute or by general rule

    adopted pursuant to section 503. 42 Pa.C.S. § 931. Appellant has provided no authority or arqurnent as

    to why this Court did not have subject matter jurisdiction to hear a case as a collateral action to the

    original mortgage foreclosure. By way of further response, Appellant applied for and was granted a

    Stay pending the outcome of his appeal pursuant to Pa.R.A.P. 1732, and said Stay was not lifted until

    the denial of his Motion for Reconsideration of the Order of the Superior Court: of Pennsylvania,

    affirming the trial Court's Order.5

           b. In personarn jurisdiction

           When a defendant wishes to challenge the court's exercise of in personam jurisdiction, he may

do so by filing preliminary objections. Scoggins v. Scoggins, 382 Pa. Super. 507, 513, 555.A.2d 1314,

1317 (1989). Appellant did not raise this issue in preliminary objections nor at any other time in his

pleadings. Only claims properly presented in the lower court are preserved for appeal, and even




5
   Order denying Application for Reconsideration docketed in 844 EDA 2013 on August 21, 2014. The st9'y in this case was
lifted by this Court's Order of November 18, 2014.

                                                             6
constitutional issues may not be raised for the first time on appeal.   Coulter v. Ramsden, 2014 PA Super

127, 94 A.3d 1080, 1089 (2014), reargument denied(Aug. 4, 2014), appeal denied. (Pa. Dec. 10,

2014); see also Pa.R.A.P. 302.

        III.    CONSTITUTIONAL CLAIMS

        Appellant, finally, avers that his rights to due process and equal protection were unduly

infringed upon "when the plaintiff and the trial court disregarded the Order docketed on December 16,

2012, directing the Sheriff not to issue a deed pending further Order of that Court... " Appellant is

barred from litigating this issue. As noted above, Appellant attempts to attack the underlying judgment

and Sheriff's Sale in the foreclosure proceeding, a collateral action to the instant ejectment.

        ·Although he now couches his argument in claims of constitutional violations, Appellant did not

raise such arguments before this Court in his pleadings. See Coulter, 94 A.3d at 1089. Additionally,

these claims again attack the validity of the sheriff's sale, not the instant ejectrnent, and the Superior

Court of Pennsylvaniahas previously held that there was no abuse of discretion in this Court's denial of

Appellant's Petition to Set Aside the Sheriff's Sale.



                                               CONCLUSION

        For all of the reasons stated above, this Court's decision should beafflrmed and Appellant's

appeal dismissed.




                                                             BY THE COURT:



DATE:
                                                             NINA




                                                        7
