J-A23031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BARBARA LEONHARDT, EXECUTRIX OF                 IN THE SUPERIOR COURT OF
THE ESTATE OF RAYMOND E.                              PENNSYLVANIA
MCQUISTON, INDIVIDUALLY AND IN HER
OWN RIGHT

                            Appellant

                       v.

CHRIS MLEY AND HELGA MLEY, HIS
WIFE

                            Appellee                No. 1657 WDA 2014


              Appeal from the Order Entered September 22, 2014
               In the Court of Common Pleas of Lawrence County
                  Civil Division at No(s): 20570 of 2012, D.S.B.


BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                           FILED JULY 14, 2015

       Appellant, Barbara Leonhardt (“Ms. Leonhardt”), executrix of the

estate of Raymond E. McQuiston, individually and in her own right, purports

to appeal from the order entered in the Lawrence County Court of Common

Pleas, striking the confession of judgment against Appellees, Chris Mley and

Helga Mley, his wife (collectively, “the Mleys”).1 We quash the appeal.


____________________________________________


1
  Specifically, the court granted the Mleys’ petition to strike and/or open the
confession of judgment, and dismissed Ms. Leonhardt’s motion to dismiss
the Mleys’ petition to strike and/or open the confession of judgment. The
court’s order also denied Ms. Leonhardt’s motion for partial summary
judgment; and dismissed as moot Ms. Leonhardt’s motion to sever.
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        The relevant facts and procedural history of this case are as follows.

On November 4, 1999, the Mleys entered into an installment land contract

for the purpose of purchasing a farm property from Raymond McQuiston and

his wife for $111,500.00. The contract required the Mleys to make monthly

payments in 180 installments beginning November 1, 1999 and ending

October 1, 2014.2 The contract also provided that the Mleys would use the

land for agricultural purposes and maintain the land in an equal or similar

condition as the property was when sold.         Pursuant to the contract, the

Mleys had the right to use the barn, garage, and other buildings on the

property.     The Mleys lived in the farmhouse on the property with their

children.

        Mr. McQuiston died in April 2010.3 Prior to his death, Mr. McQuiston

appointed Ms. Leonhardt as the executrix of his will.       In May 2011, Ms.

Leonhardt informed the Mleys that she was the sole beneficiary of the

McQuistons’ revocable trust, which contained a property interest on the land.

At that point, the Mleys began making monthly installment payments to Ms.

Leonhardt. In October 2011, the Mleys secured a loan to pay off the balance

owed on the contract and sought to pre-pay the balance.         Ms. Leonhardt

refused the Mleys’ offer of prepayment. On February 23, 2012, the Mleys
____________________________________________


2
  The contract provided for a 7% interest rate. Additionally, the contract
required the Mleys to pay off the McQuistons’ home equity loan in full.
3
    Mrs. McQuiston predeceased Mr. McQuiston.



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filed a declaratory judgment action at docket No. 10217-2012, seeking a

declaration of their rights under the contract and, specifically, to pre-pay the

balance owed. Ms. Leonhardt filed preliminary objections on March 2, 2012.

       On May 25, 2012, Ms. Leonhardt filed a complaint in confession of

judgment at docket No. 20570-2012, alleging the Mleys were in default of

the contract because they failed to utilize the property for agricultural

purposes, failed to maintain the barn on the property, and interfered with

Ms. Leonhardt’s access to the property; the court entered judgment by

confession against the Mleys that day for possession of the property.

       On June 27, 2012, the Mleys filed a petition to strike and/or open the

judgment by confession.         On or about August 7, 2012, the Mleys filed a

motion to consolidate the declaratory judgment action with the confession of

judgment action.       Ms. Leonhardt subsequently filed a motion to stay the

declaratory judgment action pending disposition of the confession of

judgment action.

       On September 18, 2012, the court granted the Mleys’ motion to

consolidate, denied Ms. Leonhardt’s motion to stay, and overruled Ms.

Leonhardt’s preliminary objections to the declaratory judgment complaint.4

Ms. Leonhardt filed an answer and new matter to the declaratory judgment

complaint on October 9, 2012. On October 29, 2012, the Mleys filed a reply.
____________________________________________


4
 The court heard oral argument on Ms. Leonhardt’s preliminary objections
on May 29, 2012.



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On July 30, 2013, Ms. Leonhardt filed a motion for partial summary

judgment relative to the confession of judgment action.        Ms. Leonhardt

argued that the contract at issue did not constitute a “consumer credit

transaction” which would prohibit entry of judgment by confession.       The

Mleys filed an answer to Ms. Leonhardt’s motion on August 7, 2013.        On

August 19, 2013, Ms. Leonhardt filed a motion to dismiss the Mleys’ petition

to strike and/or open or to order a briefing schedule and argument.       On

August 20, 2013, Ms. Leonhardt also filed a motion to sever the declaratory

judgment action from the confession of judgment action.

        The court heard oral argument on all outstanding motions on April 28,

2014.     On September 22, 2014, the court entered an order which (1)

granted the Mleys’ petition to strike the confession of judgment; (2) struck

the confession of judgment; (3) dismissed Ms. Leonhardt’s motion to dismiss

the Mleys’ petition to open and/or strike the confession of judgment; (4)

denied Ms. Leonhardt’s motion for partial summary judgment; and (5)

dismissed as moot Ms. Leonhardt’s motion to sever.          The court did not

resolve the Mleys’ consolidated declaratory judgment action. Ms. Leonhardt

filed a notice of appeal on October 9, 2014. On October 14, 2014, the court

ordered Ms. Leonhardt to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).        Ms. Leonhardt filed her concise

statement on October 28, 2014.

        Ms. Leonhardt raises three issues for our review:


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         DID THE TRIAL COURT ERR IN CHARACTERIZING THE
         INSTALLMENT LAND CONTRACT AS AN INSTALLMENT
         LAND CONTRACT INVOLVING A RESIDENCE WHEN INDEED
         THE FACTS SUPPORT THE CONCLUSION THAT THE
         AFOREMENTIONED AGREEMENT WAS PRIMARILY FOR
         AGRICULTURAL PURPOSES AND NOT FOR RESIDENTIAL
         PURPOSES WHEN THE SUBJECT MATTER INSTALLMENT
         LAND CONTRACT CANNOT BE CHARACTERIZED AS A
         RESIDENTIAL MORTGAGE BASED UPON ALL OF THE
         EVIDENCE PRESENTED, A SUBSTANTIAL PORTION OF
         WHICH WAS IGNORED BY THE [TRIAL] COURT JUDGE IN
         HIS DECISION?

         DID THE TRIAL COURT ERR IN FINDING THREE REQUISITE
         ELEMENTS PRESENT TO [STRIKE] A CONFESSION OF
         JUDGMENT AND WENT EVEN FURTHER BY DISMISSING
         THE CONFESSION OF JUDGMENT OF THE MOVING PARTY
         ON ITS FACE WHEN THE…CONFESSION OF JUDGMENT,
         THE SUBJECT MATTER OF THE INSTANT CASE, WAS NOT A
         CONSUMER CREDIT TRANSACTION AS HELD BY THE
         COURT, NOR IS THE PROPERTY THE SUBJECT MATTER
         RESIDENTIAL REAL PROPERTY?

         DID THE TRIAL COURT ERR IN HOLDING THAT THE
         INSTALLMENT   LAND    CONTRACT     REFERRED   TO
         HEREINABOVE,   WHICH   WAS    NOT   A  CONSUMER
         TRANSACTION, WAS NOT IN A STATE OF DEFAULT BASED
         UPON THE LACK OF ACTIVITY IN THE CONCEALMENT OF
         DAMAGE TO THE PROPERTY BY THE [MLEYS]?

(Ms. Leonhardt’s Brief at 3).

      Preliminarily, we observe:

         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. Pennsylvania law makes
         clear:

            [A]n appeal may be taken from: (1) a final order or
            an order certified as a final order (Pa.R.A.P. 341);
            (2) an interlocutory order as of right (Pa.R.A.P. 311);
            (3) an interlocutory order by permission (Pa.R.A.P.

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          312, 1311, 42 Pa.C.S.A. § 702(b)); or (4) a
          collateral order (Pa.R.A.P. 313).

       Pennsylvania Rule of Appellate Procedure 341 defines “final
       orders” and states:

          Rule 341. Final Orders; Generally

          (a) General rule. Except as prescribed in
          subdivisions (d), and (e) of this rule, an appeal may
          be taken as of right from any final order of an
          administrative agency or lower court.

          (b) Definition of final order. A final order is any
          order that:

              (1) disposes of all claims and of all parties; or

              (2) is expressly defined as a final order by statute;
              or

              (3) is entered as a final        order   pursuant   to
              subdivision (c) of this rule.

          (c) Determination of finality. When more than
          one claim for relief is presented in an action, whether
          as a claim, counterclaim, cross-claim, or third-party
          claim…the trial court…may enter a final order as to
          one or more but fewer than all of the claims…only
          upon an express determination that an immediate
          appeal would facilitate resolution of the entire case.
          Such an order becomes appealable when entered.
          In the absence of such a determination and entry of
          a final order, any order…that adjudicates fewer than
          all the claims…shall not constitute a final order. …

       Pa.R.A.P. 341(a)–(c). [Thus, u]nder Rule 341, a final
       order can be one that disposes of all the parties and all the
       claims, is expressly defined as a final order by statute, or
       is entered as a final order pursuant to the trial court’s
       determination under Rule 341(c).

In re Estate of Cella, 12 A.3d 374, 377-78 (Pa.Super. 2010) (some


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internal citations and quotation marks omitted).         See also Stewart v.

Nicosia, 946 A.2d 1103 (Pa.Super. 2008) (quashing appeal from trial

court’s entry of declaratory judgment in favor of appellee as not final and

appealable, where trial court had consolidated appellee’s complaints in law

and equity, but ruled only on declaratory judgment action; at time of appeal,

trial court had not decided claims asserted in appellee’s complaint in law;

trial court did not issue certification that immediate appeal would facilitate

resolution of entire case; absent final order as defined either by statute or

rule, this Court is without jurisdiction to entertain appeal).

      Instantly, on or around August 7, 2012, the Mleys filed a motion to

consolidate the declaratory judgment action and the confession of judgment

action.   The court explained that the separate cases involved the same

parties, same counsel, same parcel of land and installment land contract,

and that consolidation would reduce expenses for the parties and streamline

the ligation process.    The court also rejected Ms. Leonhardt’s claims of

prejudice and stated that the benefits of consolidation outweigh any

potential prejudice to either party.    The court suggested that if prejudice

were to occur in the future, the court could sever the cases at that point.

Consequently, the court granted the Mleys’ motion to consolidate on

September 18, 2012.

      Significantly, at the time the court entered the order now on appeal

the declaratory judgment action and the confession of judgment action were


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still consolidated.    The court’s September 22, 2014 order (1) granted the

Mleys’ petition to strike the confession of judgment; (2) struck the

confession of judgment; (3) dismissed Ms. Leonhardt’s motion to dismiss the

Mleys’ petition to open and/or strike the confession of judgment; (4) denied

Ms. Leonhardt’s motion for partial summary judgment; and (5) dismissed as

moot Ms. Leonhardt’s motion to sever.            Nevertheless, the court did not

resolve the Mleys’ claims related to prepayment raised in the declaratory

judgment action. Thus, the order on appeal is not a final order as defined in

Rule 341. See Pa.R.A.P. 341(b); Estate of Cella, supra; Stewart, supra.

Additionally, the trial court did not certify the order appealed from as final

pursuant to Rule 341(c).         See Pa.R.A.P. 341(c); Estate of Cella, supra;

Stewart, supra. Further, Ms. Leonhardt makes no argument that the order

appealed from constitutes an appealable order as of right (see Pa.R.A.P.

311)5 or a collateral order (see Pa.R.A.P. 313), or that she sought

permission to appeal (see Pa.R.A.P. 1311). Under these circumstances, the

court’s September 22, 2014 order was not final when entered and Ms.

____________________________________________


5
  Notably, Rule 311(a)(1) states that an appeal may be taken as of right and
without reference to Rule 341(c) from “[a]n order refusing to open, vacate
or strike off a judgment. If orders opening, vacating or striking off a
judgment are sought in the alternative, no appeal may be filed until the
court has disposed of each claim for relief.” Pa.R.A.P. 311(a)(1). See also
Pa.R.A.P. 311, Note (stating: “The 1989 amendment to paragraph (a)(1)
eliminated interlocutory appeals of right from orders opening, vacating, or
striking off a judgment while retaining the right of appeal from an order
refusing to take any such action”).



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Leonhardt’s appeal is interlocutory and unappealable. See Estate of Cella,

supra; Stewart, supra. Accordingly, we quash the appeal.

     Appeal quashed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2015




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