J.A13045/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


PECO ENERGY COMPANY,                         :     IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                          Appellee           :
                                             :
                    v.                       :
                                             :
DANIEL P. VERMEYCHUK AND                     :
DORIS E. VERMEYCHUK,                         :
                                             :
                          Appellants         :     No. 3099 EDA 2013

                 Appeal from the Order Entered October 30, 2013
                in the Court of Common Pleas of Delaware County
                     Civil Division at No(s): No. 2013-003745

BEFORE: ALLEN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED NOVEMBER 05, 2014

        Pro se Appellants, Daniel P. Vermeychuk and Doris E. Vermeychuk,

appeal from the order entered in the Delaware County Court of Common

Pleas granting the motion of Appellee, PECO Energy Company, for a writ of

seizure.    Appellants claim the Pennsylvania Public Utility Commission has

jurisdiction, the trial court erred by denying their motion to dismiss

Appellee’s replevin action, residential gas and utility meters should not be

treated as chattel, and the statute of limitations applies. We quash.

        We state the facts as set forth by a prior panel of this Court.

           [Appellants] were behind on their utility bills and worked
           out an agreement for payment which was approved by
           Judge Harry J. Bradley. The agreement provided that if

*
    Former Justice specially assigned to the Superior Court.
J. A13044/14


           [Appellants] defaulted in their agreement, [Appellee] could
           enter judgment in the amount of $36,600.53, less any
           payments made under the agreement. [Appellants] paid
           $8,300 and stopped making payments. Several months
           later [Appellee] certified a default and an Order for
           Judgment was entered for the amount due less the amount
           paid. There is no dispute as to the amount due under the
           Agreement and the amount paid. The Agreement provided
           that [Appellants] “hereby waive any objection of any kind
           to [the order of default] or its terms.”

PECO Energy v. Vermeychuk, 1308 EDA 2006, slip op. at 1 (Pa. Super.

Apr. 6, 2007). In that prior case, Appellants had filed a petition to open the

confessed judgment on April 28, 2006.              Id.      The trial court denied

Appellants’ petition, and the prior panel affirmed on April 6, 2007. Id.

      Subsequently, Appellee filed the underlying complaint raising a claim

for breach of contract for $88,761.80, representing unpaid electric bills, and

a claim for replevin to repossess the meters on Appellants’ property.

Appellee’s Compl. 3/19/13, at 2-3. On May 3, 2013, Appellee filed a motion

for a writ of seizure of the meters. Appellants, on October 18, 2013, filed a

petition to vacate the writ of seizure. The court denied Appellants’ petition

as untimely on October 21, 2013, and granted Appellee’s motion for a writ of

seizure on October 25, 2013.

      On     November    6,   2013,   Appellants    filed    both   a   motion   for

reconsideration of the October 21, 2013 order and a notice of appeal from

the October 25, 2013 order. Appellants did not request permission from this

Court to file an interlocutory appeal. The court denied Appellants’ motion for




                                      -2-
J. A13044/14


reconsideration on December 3, 2013.       Appellants filed an answer to the

instant complaint on January 6, 2014.

      As a prefatory matter, because the instant claims have not been

resolved, we must address whether this Court has jurisdiction to entertain

Appellants’ appeal from an order granting a writ of seizure. In Jerry Davis,

Inc. v. NuFab Corp., 677 A.2d 1256 (Pa. Super. 1996), the plaintiff moved

for a writ of seizure pursuant to a replevin action; the trial court denied the

motion and ordered the plaintiff and NuFab Corp. to pay a third party. Id.

at 1257. Both parties appealed from the trial court’s order, and the Superior

Court examined whether it had appellate jurisdiction:

         [W]e must ascertain whether the trial court’s order is
         nonetheless appealable under [Pa.R.A.P.] 311. . . .

             Proper interpretation of Rule 311 must necessarily
         begin with a review of appellate jurisdiction as conferred
         by the General Assembly. While the General Assembly has
         provided a virtually unfettered right to appeal final orders,
         the right to appeal interlocutory orders has been narrowly
         circumscribed. Interlocutory appeals are thus available
         either by permission or as of right. With regard to the
         latter category, interlocutory appeals as of right exist for
         those limited classes of orders in which permission to
         appeal would be regularly permitted. Such orders are to
         be specified by general rule. Pursuant to this legislative
         directive, the Supreme Court has identified the classes of
         interlocutory orders which are appealable as of right; these
         orders are delineated in [Pa.R.A.P. 311(a)-(f), 313].

            Orders     involving     attachments,     receiverships,
         custodianships or other similar matters affecting the
         possession or control of property, are among the classes of
         interlocutory orders which are appealable as of right.
         Interlocutory orders involving injunctions are likewise
         appealable as of right.      Attachments, custodianships,


                                     -3-
J. A13044/14


       receiverships and injunctions have technical and peculiar
       meanings when applied in the legal context; these terms
       refer to a particular type of action or remedy. Replevin is
       likewise a distinct form of legal action and relief.
       “Replevin” is not a term which can be equated or used
       interchangeably       with     attachment,     receivership,
       custodianship or injunction. Our conclusion is supported
       by the fact that the Supreme Court has enacted specific
       rules governing the practice and procedure applicable to
       each of these types of action or relief.

          The Supreme Court’s adoption of specific rules evinces
       its awareness of the distinctions between these
       proceedings and its desire to treat them differently. The
       Supreme Court has accordingly decided that interlocutory
       orders     relating   to     attachments,     receiverships,
       custodianships and other similar matters affecting
       property, as well as injunctions, are all appealable as of
       right. However, interlocutory replevin orders of the type
       at issue here were not specifically addressed in either Rule
       311(a)(2) or (a)(4). The Court’s failure to specifically
       include such orders therein thus suggests that these orders
       were not intended to be appealable as of right.

           The Court’s omission appears to have been deliberate
       rather than an inadvertent oversight. Prior to the adoption
       of the procedural rules, the appellate courts quashed
       interlocutory appeals of replevin orders unless special
       circumstances justifying immediate appellate review were
       present. Had a change in the law been intended, mention
       of this fact would have appeared in either the rule itself or
       in the commentary thereto.          Neither the rule, the
       comments nor the notes thereto reference this subject.
       The absence of such discussion gives rise to the conclusion
       that interlocutory replevin orders do not fall within the
       existing exceptions set forth in Rules 311(a)(2) and (a)(4)
       and that such orders were not intended to be appealable
       as of right.

          We accordingly do not believe that the Supreme Court
       intended interlocutory orders denying or granting the
       issuance of a writ of seizure in a replevin action to be
       appealable as of right under Rule 311(a)(2) or (a)(4). To
       hold otherwise would result in a significant expansion of


                                   -4-
J. A13044/14


         the limited class of orders for which an interlocutory appeal
         as of right currently exists. If a change of this magnitude is
         to be forthcoming it is a matter for our Supreme Court,
         rather than an intermediate appellate court, to decide.

            Having found that the instant matter does not fall within
         the parameters of either Rule 311(a)(2) or (a)(4), we must
         ascertain whether the order in this case is appealable
         under Rule 313, which permits an interlocutory appeal to
         be taken as of right from a collateral order. A collateral
         order is defined as one which: (1) is separable from and
         collateral to the main cause of action; (2) involves a right
         that is too important to be denied review; and (3) presents
         a question such that if review is postponed until final
         judgment, the claim will be irreparably lost. None of these
         requirements has been met in this case.

Id. at 1258-60 (citations and footnote omitted).

     Instantly, the facts of this case are nearly identical to the facts in

Nufab.   Appellee, identical to the plaintiff in Nufab, moved for a writ of

seizure pursuant to a replevin claim.       See Nufab, 677 A.2d at 1257.

Appellants, identical to the parties in Nufab, appealed from the order

resolving the motion for writ of seizure.     See id.   We are bound by the

rationale of the Nufab Court as Appellee’s claims remain unresolved and

Appellants did not request permission for an interlocutory appeal. See id.

Accordingly, we quash.

     Appeal quashed. Jurisdiction relinquished.




                                     -5-
J. A13044/14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/5/2014




                          -6-
