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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PENNLYCO, LTD.                                            IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                             Appellant

                        v.

INTERNATIONAL DEVELOPMENT
CORPORATION

PENNLYCO, LTD.

                        v.
                                                             No. 2114 MDA 2014
SOUTHWESTERN ENERGY PRODUCTION
COMPANY


                  Appeal from the Order Entered April 8, 2014
               In the Court of Common Pleas of Lycoming County
                        Civil Division at No(s): 12-02326
                                                 12-02428



BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                            FILED NOVEMBER 10, 2015

        Pennlyco Ltd. (“Pennlyco”) appeals from an order of the Lycoming

County     Court   of    Common      Pleas     granting    International   Development

Corporation’s (“IDC”) and Southwestern Energy Production Company’s

(“Southwestern”) motions for summary judgment and denying Pennlyco’s




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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motion for summary judgment.1             We quash the appeal because Pennlyco

failed to file a notice of appeal within 30 days of the filing of the praecipe to

withdraw Southwestern’s counterclaim.

       Pennlyco filed a complaint against IDC, docketed at No. CP-41-CV-

02326-2012 (“No. 02326”). It also filed a complaint against Southwestern

at No. CP-41-CV-02428-2012 (“No. 02428”). The actions were consolidated

for purposes of discovery and trial.           On August 5, 2013, Pennlyco filed a

motion for summary judgment. On February 14, 2014, IDC filed a motion

for summary judgment, and, on February 18, 2014, Southwestern filed a

motion for summary judgment. On April 8, 2014, the trial court found the

statute of limitations barred Pennlyco’s claims.            It granted IDC’s and

Southwestern’s motions for summary judgment and denied Pennlyco’s

motion for summary judgment. Judgment was entered against Pennlyco and

in favor of IDC on its quiet title counterclaim at No. 12-02326. Judgment

also was entered against Pennlyco and in favor of Southwestern on its quiet

title counterclaim and counterclaim for declaratory relief at No. 12-02428.

       Pennlyco filed notices of appeal at each docket number.          This Court

quashed the appeals because counterclaims remained pending.




____________________________________________


1
  Contrary to Pennlyco’s contention, it does not appeal from the November
18, 2014 final supplemental order. Rather, it appeals from the April 8, 2014
order disposing of the summary judgment motions.



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       On July 25, 2014, IDC filed a praecipe to discontinue with prejudice its

counterclaim against Pennlyco and a praecipe for final order requesting that

the Prothonotary issue a final judgment in favor of IDC because the court

had granted IDC’s summary judgment motion and IDC had discontinued its

counterclaim.     On August 13, 2014, the trial court held a conference in

chambers to discuss Pennlyco’s desire to appeal. Pennlyco claims all parties

agreed they would work together to stipulate to a discontinuance of

Southwestern’s remaining claims and reach an agreed-upon final order.

Answer to Motion to Quash at 7. On October 3, 2014, Southwestern filed a

praecipe to withdraw its counterclaim without prejudice.         The praecipe

stated: “Defendant, [Southwestern], hereby withdraws only its counterclaim

III for Intentional and Tortious Interference filed to 12-02428 without

prejudice in the above-referenced consolidation action.” On November 12,

2014, the parties filed a stipulation stating:   “The parties by and through

their undersigned counsel, agree to entry of the Order as attached.”2

       On November 18, 2014, the trial court entered an order, which noted

IDC and Southwestern withdrew their pending counterclaims and stated:



____________________________________________


2
  Appellant attached to its answer to IDC’s motion to quash the stipulation it
circulated among the parties, which was signed by the parties.           That
stipulation made clear that Southwestern reserved the right to file an
application pursuant to 42 Pa.C.S. §7538. The stipulation in the certified
record only states: “The parties by and through their undersigned counsel,
agree to entry of the Order as attached.”



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          Because there were no issues remaining to be resolved
          and because the Court has not been presented with any
          reasons to modify it [sic] prior Orders in these two cases,
          this Court affirms its Opinion and Order.

          The Prothonotary shall enter judgment in favor of IDC in
          12-02326 on its quiet title counterclaim against Pennlyco
          and in favor of Southwestern in 12-02428 on its quiet title
          counterclaim and against Pennlyco and its counterclaim for
          declaratory relief against Pennlyco.

          This Supplemental Order constitutes a Final Order which
          disposes of all claims and of all parties pursuant to
          Pa.R.A.P. No. 341(b)(1).

Supplemental Final Order, 11/17/2014.

       On December 12, 2014, Pennlyco filed notices of appeal at both docket

numbers. Pennlyco and the trial court complied with Pennsylvania Rule of

Appellate Procedure 1925.         On May 27, 2014, this Court consolidated the

appeals sua sponte. Order, 5/27/2014.

       Appellant raises the following claims on appeal:

          1. Did the trial Court err when it granted summary
          judgment in favor of [Appellees IDC and Southwestern]?

          2. Did the trial Court err when it denied Pennlyco’s motion
          for summary judgment?

Appellant’s Brief at 5.

       To be timely, Pennlyco was required to file a notice of appeal by

November 3, 2014,3 within thirty days of Southwestern’s October 3, 2014

____________________________________________


3
  Thirty days following October 3, 2014 was Sunday, November 2, 2014.
Pennlyco had until the next business day to file its appeal. See Pa.R.Civ.P.
106(b) (“Whenever the last day of any such period shall fall on Saturday or
Sunday, or on any day made a legal holiday by the laws of this
(Footnote Continued Next Page)


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praecipe to withdraw its counterclaim, which was the last remaining claim in

the consolidated actions.

      In Burkey v. CCX, Inc., 106 A.3d 736 (Pa.Super.2014), the plaintiff

filed a complaint against two defendants and one of the defendants joined

an additional defendant.          On May 25, 2012, the trial court granted the

additional defendant CCX’s motion for summary judgment and, on July 20,

2012, the parties filed a stipulation dismissing with prejudice defendant

Hanover.    On July 26, 2013, a similar stipulation dismissed defendant West

Point with prejudice.4 On August 6, 2013, a second document was entered

entitled “Order to Settle Discontinue and End as To Defendant West Point

Foundry and Machine Company Only.”

      The plaintiff in Burkey filed a notice of appeal on September 3, 2013.

This Court found the time began to elapse on July 26, 2013, the date the

stipulation to dismiss West Point, the sole remaining defendant, was filed.

Burkey, 106 A.3d at 738. This Court first noted that “[i]t is well settled that

the interlocutory orders dismissing various parties piecemeal from a lawsuit

may not be appealed until the case is concluded as to the final remaining
                       _______________________
(Footnote Continued)

Commonwealth or of the United States, such day shall be omitted from the
computation.”)
4
   Although, unlike Burkey, Southwestern’s praecipe withdrew the
counterclaim without prejudice, the distinction does not impact the finality of
the action. See Levitt v. Patrick, 976 A.2d 581, 588 (Pa.Super.2009) (“if
a claim was discontinued prior to trial, we do not inquire whether the
discontinuance was with or without prejudice.”).



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party and the case is therefore resolved as to all parties and all claims.” Id.

Further, this Court reasoned that “a case may be resolved against the final

defendant by other than an order of court, as happens where the case

against the sole remaining defendant is discontinued or settled, and a docket

entry to the effect that the claim was discontinued or settled may serve to

render the prior judgments final and appealable.”       Id. at 739.   The Court

noted “[Pennsylvania Rule of Civil Procedure 2295] requires court approval
____________________________________________


5
    Rule 229 provides:

           (a) A discontinuance shall be the exclusive method of
           voluntary termination of an action, in whole or in part, by
           the plaintiff before commencement of the trial.

           (b)(1) Except as otherwise provided in subdivision (b)(2),
           a discontinuance may not be entered as to less than all
           defendants except upon the written consent of all parties
           or leave of court upon motion of any plaintiff or any
           defendant for whom plaintiff has stipulated in writing to
           the discontinuance.

           ...

           (c) The court, upon petition and after notice, may strike off
           a discontinuance in order to protect the rights of any party
           from unreasonable inconvenience, vexation, harassment,
           expense, or prejudice.

           Note: Court approval of a discontinuance must be obtained
           in any action in which a minor is a party, Rule 2039(a), an
           action for wrongful death in which a minor is beneficially
           interested, Rule 2206(a), an action in which an
           incapacitated person is a party, Rule 2064, and a class
           action, Rule 1714.

           ...
(Footnote Continued Next Page)


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only where fewer than all defendants are being dismissed and there is not

written consent from all parties.” Id. at 741.

      In Burkey, the trial court found the grant of summary judgment as to

the additional defendant CCX became final on July 26, 2013, when there was

a docket entry noting the case against the final remaining defendant was

dismissed. Id.         This Court agreed. It rejected Appellant’s argument that

the time period did not begin on July 26, 2013, when the court order was

entered, noting no order was required to finalize the dismissal. Burkey, 706

A.2d at 740.

      Here, IDC filed a praecipe to withdraw its counterclaims on July 25,

2014. Because the cases against IDC and Southwestern were consolidated

for discovery and trial and because Southwestern’s counterclaims remained

pending when IDC filed its praecipe to withdraw its counterclaims on July 25,

2014, Pennlyco could not appeal at that time.6
                       _______________________
(Footnote Continued)

Pa.R.Civ.P. 229.
6
  IDC filed a motion to quash the appeal, which it withdrew in light of
Malanchuk v. Sivchuk, 106 A.3d 789 (Pa.Super. 2014), which quashed the
appeal in a case consolidated for discovery and trial after concluding the
appeal was from an interlocutory order granting summary judgment in favor
of defendant as to all counts pled in one action, but only granting partial
summary judgment in the other action.

The en banc panel in Malanchuk reasoned:

          Had Malanchuk filed a single complaint naming both
          Sivchuk and Tsimura as defendants, or sought to amend
          his original complaint to name a new party, all allegations
(Footnote Continued Next Page)


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      However, Southwestern filed a praecipe to withdraw its counterclaim

on October 3, 2014. When Southwestern filed the praecipe to withdraw its

counterclaim, the sole remaining claim, the order disposing of the summary

judgment motions became final as to all parties. No court order was needed

to effectuate the withdrawal and, therefore, the November supplemental

order was unnecessary and had no impact on the timeliness of Pennlyco’s

appeal. Accordingly, Pennlyco’s appeal is untimely.7




                       _______________________
(Footnote Continued)

          against all defendants would have been contained in a
          single complaint under a single court term and number and
          there would be no question that the order granting partial
          summary judgment was interlocutory and non-appealable.
          There is no reason to treat the March 26, 2012 order any
          differently simply because the claims against each
          defendant were initially filed separately and then
          consolidated for trial pursuant to Rule 213(a).      It is
          unreasonable to find the otherwise interlocutory order is
          final and appealable based solely on the manner in which
          the claims were originally presented.

Malanchuk, 106 A.3d at 795.
7
  As the timeliness of an appeal goes to our jurisdiction, we may raise the
issue sua sponte. In re Estate of Cella, 12 A.3d 374, 377 (Pa.Super.2010)
(“The appealability of an order directly implicates the jurisdiction of the court
asked to review the order. [T]his Court has the power to inquire at any
time, sua sponte, whether an order is appealable.”).



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     Appeal quashed.

     Judge Platt joins the memorandum.

     Judge Bowes files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2015




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