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NON-PRECEDENTIAL DECISION             - SEE SUPERIOR COURT I.O.P.        65.37
AVON C. QUIERO JR.,                             IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellant

                     v.                              No. 1174 MDA 2016

NICOLAS RIVERA


                 Appeal from the Order Entered June 24, 2016,
                inthe Court of Common Pleas of Lebanon County
                        Civil Division at No. 2014-00808


BEFORE:    FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED APRIL 06, 2017

      Avon C. Quiero, Jr. appeals the June 24, 2016 order of the Court of

Common Pleas of Lebanon County that denied appellant's petition for order

of compliance of law.

      The factual and procedural history of this matter, as recounted by the

trial court ,is as follows:

             In this case, [appellant] has initiated a lawsuit
             seeking to obtain the return of an $800.00 security
             deposit he allegedly paid when he rented an
             apartment.     Unfortunately, [appellant] is now an
             inmate in a state correctional facility. Despite efforts
             made by the Lebanon County Court Administrator,
             the State Bureau of Corrections refuses to allocate
             time in its video and telephone conference centers
             for use by inmates involved in civil litigation.
             Because of this, we entered an order on June 7,
             2016 staying the above -referenced litigation until

* Former Justice specially assigned to the Superior Court.
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          such time as [appellant] is released from prison.
          [Appellant] has appealed.  .   .   .




               The procedural history of this case is
         complicated.       The   file  contains   numerous
         handwritten letters and motions, most of which were
         filed by [appellant]. We have sifted through all of
         the documents in the file and have attempted to
         create a list of pertinent events. That list is as
         follows:

              2/22/13 -- [Appellant] filed     Complaint
                                                   a
              before the Lebanon County Court of
              Common Pleas seeking return of an
              $800.00 security deposit that he alleged
              was unlawfully withheld by Nicolas Rivera
              (hereafter [appellee]). No Notice to Plead
              was included with the Complaint.

              5/24/13 -- [Appellant's] Complaint was
              reinstated. Once again, no Notice to Plead
              was included.

              9/17/13 -- [Appellant] filed        a    Motion for
              Default Judgment and       a   Rule to Show Cause
              was entered.

              9/30/13 -- [Appellee] filed an Answer.

              2/19/14 -- The Court issued an Order
              remanding [appellant's] cause of action to a
              Magisterial District Judge.       The Court
              reasoned that [appellant's] requested relief
              was within the jurisdictional limit applicable
              to Magisterial District Judges. In addition,
              the Court noted that [appellant's] claim
              involved a landlord -tenant dispute, which is
              also the type of claim that is traditionally
              heard by Magisterial District Judges.

              Between 2/19/14 and 5/12/14 -- At some
              point within this time period, the Magisterial


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              District Judge conducted a hearing and
              entered a decision in favor of [appellant] in
              the amount of $1,600.00. Also at some
              point during this time frame, [appellee] filed
              an    Appeal of the M.D.J.'s decision.
              Although we do not have copies of the
              actual papers issued by the M.D.J., both
              parties reference the above and we accept
              that the preceding events occurred.

              5/12/14 -- [Appellant] filed      Complaint
                                                 a
              before this Court asking this Court to affirm
              the decision of the M.D.J.

              6/5/14 -- [Appellant] simultaneously files     a
              Motion for Summary Judgment and                a
              request for a Writ of Execution.

              6/24/14 -- [Appellant] files      a    Motion for
              Default Judgment.

              7/2/14 -- [Appellant] files   a   second Motion
              for Summary Judgment.

              7/7/14 -- [Appellant]     notified by the
                                       is
              Lebanon County Prothonotary's Office that
              he must submit an affirmative request that
              his motions be submitted to the Court for
              disposition.

              7/24/14 -- [Appellant] was notified by the
              Prothonotary's Office that his request for a
              Writ of Execution was being denied as
              premature because no judgment had yet
              been issued.

              7/31/14 -- This Court enters an Order. The
              Order noted that [appellant] did not append
              a  Notice to Plead to his Complaint or
              provide proof that the Complaint had been
              served upon [appellee].      Because due
              process was not afforded to [appellee], the
              Court denied [appellant's] Motion for
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              Summary Judgment and Motion for Default
              Judgment.
              8/8/14 -- [Appellant] files a Notice to Plead
              that is unaccompanied by any pleading.

              10/17/14      -- [Appellant's] request for
              in forma     pa uperis status is denied
              because he failed to provide pertinent
              financial information.

              10/28/14 -- [Appellant's] request for I.F.P.
              status is granted based upon the financial
              information that he did present following
              our 10/17/14 Court Order.

              11/17/14   --    [Appellant] refiles his
              Complaint with an accompanying Notice to
              Plead.

              12/11/14 -- [Appellant's] Complaint was
              served upon [appellee].

              12/15/14 -- [Appellee] files an Answer with
              New Matter and Counterclaim.

              12/26/14 -- [Appellant] filed a Reply to
              [appellee's] New Matter and Counterclaim.

              1/2/15 -- The Court schedules         a   status
              conference.

              2/26/15 -- The Court presides over      a status
              conference. Both parties participated in the
              status conference via telephone. As a result
              of the status conference, we certified the
              above -referenced matter as ready for a trial
              "no earlier than 6/10/15."            We also
              established a process by which [appellant]
              could participate at trial via teleconference.

              Early 2016 -- The Lebanon County Court
              Administrator     attempts     to     make
              arrangements with the State Correctional
              Institution at Dallas for a trial to occur.

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                  After numerous efforts, the Superintendent
                  of S.C.I. Dallas decided that his institution
                  would not permit its video conference
                  center and telephone conference center to
                  be used for more than 15 minutes for a civil
                  proceeding.

                  6/7/16 -- This Court entered an Order
                  staying the above -referenced case until
                  after [appellant] is released from prison.
                  We entered the Order based upon our
                  inability to arrange a video or telephonic
                  conference with S.C.I. Dallas. We stated:
                  "The Court directs that the above -
                  referenced matter be stayed until the
                  [appellant] is released from incarceration.
                  Once the [appellant] is released from
                  incarceration, leave is granted for him to file
                  a motion to establish a bench trial."


                  6/24/16 -- [Appellant] files    a "Petition for
                  Order of Compliance of Law Concerning
                  Escrow Funds."        Because we could not
                  conduct a      factual     hearing   due      to
                  [appellant's]   incarceration, we        denied
                  [appellant's] Petition.

                  7/11/16 - [Appellant] files an Appeal from
                  our Order dated June 24, 2016.

                  In his Statement of Errors Complained of on
            Appeal, [appellant] alleges that our decision to stay
            the above -referenced case was error.        He also
            challenges a decision we made to refuse his request
            to require [appellee] to pay into escrow the sum of
            $1,600.00.

Trial court opinion, 8/16/16 at 2-5.

      On appeal to this court, appellant raises the following issues   for this

court's review:




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            Does     the    stay    order    violate   [appellant's]
            constitutionally protected right to access to courts?

            Is the lower Court's refusal to enforce [68] P.S.
            [§] 250-511(b)(c) an abuse of discretion and
            violation of plaintiff's due process rights?

Appellant's brief at 2-3.

      Before addressing the merits of appellant's argument, this court must

determine whether it has jurisdiction to hear the appeal.

                   Despite the fact that neither side questions the
            jurisdiction of this Court to dispose of the present
            controversy, we are not precluded from reaching the
            appealability of the lower court's order sua sponte,
            Turner v. May Corp., 427 A.2d 203 (Pa.Super.
            1981), for it is axiomatic that neither silence nor
            agreement of the parties can confer jurisdiction
            where it otherwise would not be. T.C.R. Realty,
            Inc. v. Cox, 372 A.2d 721 (Pa. 1977).
                  The appellate court's jurisdiction is defined by
            statute, i.e., 42 Pa.C.S.A. § 742, which grants this
            Court "exclusive appellate jurisdiction of all appeals
            from final orders of the courts of common pleas
                   If




            In deciding if the order appealed is final or not, we
            are guided by the decision of Phi/co Corp. v.
            Sunstein, 429 Pa. 606, 241 A.2d 108 (1968),
            wherein the court held:

                        "Whether or not    a stay order should be
                        considered final for appeal purposes
                        depends to a large extent upon the
                        practical effect and impact the stay order
                        might have on the relief requested by
                        the litigants. If the effect of the stay
                        order is tantamount to a dismissal of the
                        cause of action or amounts to a
                        permanent denial of relief requested, the
                        party aggrieved should undoubtedly be


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                        afforded the opportunity to appeal on the
                        basis that such stay order is a final
                        disposition of some, if not all, of the
                        rights involved.

                        Therefore,    a   consideration of the
                        practical effects of the stay order on
                        appellant's cause of action is an essential
                        prerequisite in determining whether the
                        order appealed from is interlocutory."
                        (Footnote omitted). Id. at 608-610, 241
                        A.2d at 109-110.

Opperman         v.   Opperman,   443 A.2d 313, 315 (Pa.Super. 1982).

         Here,    the trial court stayed the proceedings because the state

correctional institution where appellant was housed did not permit him to

appear in court, even by electronic means.                 While the stay postpones

resolution of the action between appellant and appellee for an indeterminate

time as it       is   not known whether appellant will be paroled before the

expiration of his sentence, the stay does not amount to                  a   dismissal of

appellant's cause of action or, essentially,        a   permanent denial of the relief

requested.       The stay order here is interlocutory and not       a   final appealable

order.

         Accordingly, the appeal    is   quashed.

Judgment Entered.




Joseph D. Seletyn,
Prothonotary

Date: 4/6/2017


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