J-A30045-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN L. TATE,                 :                  IN THE SUPERIOR COURT OF
                              :                        PENNSYLVANIA
              Appellant       :
                              :
              v.              :
                              :
SHAWN L. WARNER AND ANGELA R. :
MYERS,                        :
                              :
               Appellees      :                  No. 463 WDA 2018

                Appeal from the Order Entered March 2, 2018
                in the Court of Common Pleas of Blair County
                    Civil Division at No(s): 2015 GN 3002

BEFORE: SHOGAN, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                FILED JANUARY 10, 2019

      John L. Tate appeals from the order entered on March 2, 2018, which

set forth the terms of a settlement agreement between himself and Appellees,

Shawn L. Warner and Angela R. Myers. We quash this appeal.

      The trial court set forth the following factual and procedural history of

this case.

             On September 30, 2015, [Tate] filed a complaint in
      ejectment against [Appellees]. In his complaint, [Tate] alleged,
      inter alia, that he was the record owner of real property located
      at 1000 6th Avenue, Duncansville, Blair County, PA and that on or
      about September 23, 2012, the parties executed a document
      entitled “Rent to Own – Articles of Agreement” (hereinafter
      referred to as “[the] Agreement”). According to the Agreement,
      the sales price was to be $300,000 with an initial payment of
      $50,000, followed by monthly payments of $1,100 at an interest
      rate of 4%. Pursuant to count II of the complaint, [Tate] also


* Retired Senior Judge assigned to the Superior Court.
J-A30045-18

        sought damages for alleged unpaid taxes, insurance and penalty
        fees. [Tate] was initially represented by Attorney Robert W. Lape,
        Jr.

              [After additional procedural history not relevant to this
        appeal, the trial court] referred the matter to Attorney Sean M.
        Burke for a pro bono mediation. [] It was [the trial court’s]
        understanding that the parties were able to reach an amicable
        resolution through mediator, Attorney Burke. [Attorney Lape],
        however, sent a letter dated February 23, 2017 that the proposed
        resolution had failed to date. Therefore, [the trial court] entered
        an order on February 27, 2017 scheduling the matter for a
        telephone status conference with counsel on May 9, 2017. On
        May 8, 2017, [Appellees] filed a petition to enforce settlement
        agreement. On May 17, 2017, [Tate] filed an answer[]. The
        matter came before the [trial] court on June 12, 2017, at which
        time [the trial court was] specifically advised that an agreement
        had been reached by the parties and [the trial court] entered an
        order consistent with such agreement, directing that settlement
        was to occur within two weeks (or at Attorney Lape’s discretion
        since he was scheduled for back surgery), with a sales price of
        $275,000 at 4% interest and setting forth additional terms of
        agreement.

              On October 17, 2017, Attorney Lape filed a praecipe to
        withdraw, along with entry of appearance of Attorney Phillip O.
        Robertson, on behalf of [Tate]. On October 16[, 2017,] Attorney
        Robertson filed a petition to place matter back on trial list. On
        October 26, 2017, [Appellees] filed a response[]. [A hearing was
        scheduled for February 27, 2018.] At the time of [the] February
        27, 2018 hearing, with the parties present and being represented
        by legal counsel,[1] an agreement was, once again, reached and
        the terms of the agreement were placed on the record.[2] The
        terms of said agreement were substantially similar to the
        [a]greement[] entered June 12, 2017.




1 At the hearing, Tate was represented by Attorney Terry W. Despoy, who
explained that he is “not the primary attorney for [] Tate; [he is] once again
substituting for Attorney Robertson.” N.T., 2/27/2018, at 1.

2   The order was filed on March 2, 2018.


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J-A30045-18

Trial Court Opinion, 4/11/2018, at 1-5 (unnecessary capitalization omitted).

        Tate timely filed a notice of appeal, and both Tate and the trial court

complied with Pa.R.A.P. 1925.3

        Before we reach the issues presented by Tate, we must determine

whether we have jurisdiction to entertain this appeal.4 See Roman v.

McGuire Mem’l, 127 A.3d 26, 31 (Pa. Super. 2015) (“[S]ubject matter

jurisdiction is non-waivable and can be raised at any time, by any party, and

by a court sua sponte.”).

        According to Tate, the order entered by the trial court effectively denied

his motion to place this case back on a trial list; thus, it is a final order

pursuant to Pa.R.A.P. 341. Tate is correct that if indeed the trial court’s order

denied his motion to place the case back on a trial list, then it is a final,

appealable order. See Friia v. Friia, 780 A.2d 664, 667 (Pa. Super. 2001)

(holding that “where the circumstances of the case make the remedy of trial

inaccessible,” the order is a final order as contemplated by Pa.R.A.P. 341).

On the other hand, if the parties actually settled the case and the order merely

memorialized a settlement agreement, as is suggested by the trial court, then




3   Appellees have not filed a brief on appeal.

4 On April 13, 2018, this Court issued a rule to show cause on Tate to explain
why this appeal should not be quashed because the order being appealed from
is not an appealable order, or why the appeal should not be dismissed as moot
because the case is settled. Tate, through Attorney Robertson, filed a
response explaining that he did not agree with the trial court that the case
was settled.
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J-A30045-18

the remedy available to Tate is not an appeal, but it is a petition to set aside

the settlement agreement. See Trial Court Opinion, 4/11/2018, at 6 (“Once

again, the terms of the agreement were placed on the record and confirmed

by counsel and the parties.”); Sarsfield v. Sarsfield, 380 A.2d 899 (Pa.

1977) (holding that where parties have entered into a consent order, the

parties must initiate proceedings to abrogate or modify it in the trial court).

      With these principles in mind, we review the proceedings that occurred

on February 27, 2018. There is no question that the action came before the

trial court as a “petition to place the matter back on the trial list.” N.T.,

2/27/2018, at 1.    Attorney Despoy argued on behalf of Tate that it is his

position that “every time [] Tate thinks he has an agreement, [Appellees]

don’t come through with what they’re supposed to do[.]” Id. at 6. The trial

court pointed out that it could either place the case back on the trial list, have

a hearing on whether to enforce the settlement agreement, or have a

contempt hearing. Id. at 10. Counsel for Appellees responded that Appellees

were prepared to go forward with the terms of the July 12, 2017 agreement.

Id. at 11.   Thus, the trial court then asked Attorney Despoy if Tate was

“able and willing to comply with that order.” Id. at 13.       Attorney Despoy

eventually responded, “yes,” Tate “will comply.” 5 Id. at 15. Thus, the trial




5 Although this transcript is not a model of clarity, Attorney Despoy never
argued to the trial court that it was his position that the case should be placed
back on the trial list. Instead, he essentially conceded there was a court order
in effect with which Tate should comply. See N.T., 2/27/2018, at 13-15.
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J-A30045-18

court concluded that as far as the trial court “is concerned [the] order is still

in full force and effect.” Id. In fact, the trial court told the attorneys and

parties that if there are “any future court proceedings,” they are “to be a

contempt [proceeding]” … “if somebody doesn’t honor the court order.” Id. at

17.

      Based on the foregoing, we agree with the trial court that what occurred

on February 27, 2018, was more consistent with the entry of an order

memorializing a settlement agreement than an order denying Tate’s motion

to place the case back on the trial list. Thus, we agree with the trial court that

Tate could not appeal that order; rather, his remedies lie in the trial court

where he could either file a petition to set aside the settlement agreement

based on the position he never agreed to enter into it in the first place, or he

could file a petition for contempt for Appellees’ failure to comply with the terms

of the settlement agreement. In light of the foregoing, because, the order

from which Tate has appealed was not an appealable order, we lack

jurisdiction to entertain this appeal. See Brown v. Com. Dept. of Health,

434 A.2d 1179 (Pa. 1981) (quashing appeal from consent order).

      Appeal quashed. Jurisdiction relinquished.




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J-A30045-18

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/2019




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