J-A30001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JOHN THOMA AND JENNIFER                  :   IN THE SUPERIOR COURT OF
 THOMA, HUSBAND AND WIFE                  :        PENNSYLVANIA
                                          :
                                          :
              v.                          :
                                          :
                                          :
 INTERSTATE BUILDERS, RANDOLPH            :
 D. DAHL, SR., INDIVIDUALLY AND           :   No. 1624 WDA 2017
 MERCEDES DAHL, INDIVIDUALLY              :
                                          :
                     Appellants           :

                   Appeal from the Order October 3, 2017
   In the Court of Common Pleas of Butler County Civil Division at No(s):
                             E.D.No. 17-30215


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

MEMORANDUM BY SHOGAN, J.:                       FILED FEBRUARY 21, 2019

     Appellants, Interstate Builders, Randolph D. Dahl, Sr., individually and

Mercedes Dahl, individually, purport to appeal from the October 3, 2017 order

denying their motion for stay of execution of judgment which was filed by

Appellees, John and Jennifer Thoma, husband and wife.         After review, we

affirm the order denying Appellants’ motion for stay of execution of judgment

and remand for the determination of attorneys’ fees and costs pursuant to

Pa.R.A.P. 2744.

     The trial court set forth the relevant facts and procedural history of this

matter as follows:

     This case arises out of the underlying claim for damages and
     ejectment made by Appellees … in their Complaint in Civil Action,
     at Butler County Docket Number 2016-10785. Said claims relate
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     to real estate located at 229-231 Ziegler Avenue, Butler, Butler
     County, Pennsylvania 16001.

           On or about February 23, 2013, the parties entered into a
     Real Estate Sales Agreement for the sale of said real estate.
     Pursuant to the terms of the Real Estate Sales Agreement, the
     Appellants would pay Appellees Seven Hundred Dollars ($700.00)
     a month for thirty-six (36) months, with a balloon payment of
     Sixteen Thousand Seven Hundred Dollars ($16,700.00) due at the
     expiration of said thirty-six (36) months. During this time,
     Appellants were also responsible for the taxes, sewer, garbage,
     and insurance, pursuant to the express language of the Real
     Estate Sales Agreement. Upon the completion of the
     aforementioned terms and conditions, title to the subject real
     estate would then be transferred to Appellants.

           Upon being served with Appellees’ Complaint in Civil Action,
     Appellants filed their Response to [Appellees’] Complaint in Civil
     Action on or about December 19, 2016, wherein they merely
     replied to Appellees’ allegations, but raised no claims of their own.
     By Order of Court under date of January 12, 2017, the matter was
     scheduled for [Compulsory] Arbitration on March 27, 2017. A
     review of the docket in the underlying matter at Butler County
     Docket Number 2016-10785, will show that after the entry of the
     January 12, 2017, Order of Court which scheduled the
     aforementioned Arbitration, the Appellants engaged in what this
     Court can only believe to be numerous stall tactics; including an
     attempt to disqualify Appellees’ counsel, a motion to stay the
     arbitration, and a motion to dismiss the arbitration altogether.
     During this time, this Court heard repeated arguments related to
     the underlying matter concerning title to land. However, counsel
     for the Appellees clearly indicated on numerous occasions, that
     the Appellees only intended to pursue monetary damages at the
     Arbitration.

            On or about May 8, 2017, the matter was once again listed
     for an Arbitration hearing on June 19, 2017. On or about May 11,
     2017, Appellants requested this Court grant them leave to amend
     their Response to [Appellees’] Complaint in Civil Action, which was
     granted. It was in this pleading that the Appellants raised a claim
     for damages in the amount of Thirty-nine Thousand Ninety-Two
     Dollars and Sixty-Seven Cents ($39,092.67).




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           The Arbitration proceeded as scheduled, and by the Award
     of Arbitrators under date of June 19, 2017, an award was entered
     in favor of the Appellees in the amount of Twenty Seven Thousand
     Six Hundred and Forty Dollars ($27,640.00), and against
     Appellants, Interstate Builders and Randolph Dahl, Sr., only.

          On or about August 2, 2017, Appellants filed a Notice of
     Appeal with respect to the Award of Arbitrators under date of June
     19, 2017, which, upon motion of the Appellees, was stricken as
     untimely.

           Subsequently, Judgment was entered in the amount of the
     Arbitrator’s Award, i.e., Twenty Seven Thousand Six Hundred and
     Forty Dollars ($27,640,00), at Butler County Docket Number CP
     2017-21567, as per the Praecipe to Enter Judgment for
     Arbitrator’s Award as filed by the Appellees on or about August
     28, 2017. On the same date, i.e., August 28, 2017, at Butler
     County Execution Docket Number 2017-30215, Appellees filed a
     Praecipe for Writ of Execution in the amount Twenty Seven
     Thousand Six Hundred and Forty Dollars ($27,640.00), which was
     issued in said amount to the Sheriff of Butler County that same
     date, and in accordance therewith.

           On or about September 22, 2017, Appellants filed a Motion
     for Stay of Execution of Judgment, attacking the underlying Award
     of Arbitrators under date of June 19, 2017. Said Motion for Stay
     of Execution of Judgment was denied by Order of Court under date
     of October 3, 2017.

          Appellants subsequently filed a Notice of Appeal on or about
     October 31, 2017, with respect to the Order of Court under date
     of October 3, 2017, denying Appellants’ Motion for Stay of
     Execution of Judgment at the above captioned docket number.

           Upon receipt of said Notice of Appeal, on or about November
     15, 2017, in accordance with Rule 1925(b) of the Pennsylvania
     Rules of Appellate Procedure, this Court entered an Order of Court
     wherein the Appellants were directed to file of record and serve
     upon the undersigned trial judge a Concise Statement of the
     Matters Complained of on Appeal no later than twenty-one (21)
     days from the date of the Order of Court.




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Trial Court Opinion, 1/17/18, at 1-4.            Both the trial court and Appellants

complied with Pa.R.A.P. 1925.

       On appeal, Appellants raise the following issue for this Court’s

consideration:

       1. Did the lower court abuse its discretion when it refused to stay
       execution of a judgment against Interstate Builders when it still
       had outstanding counterclaims about the subject property that
       may make the judgment moot?

Appellants’ Brief at 4.

       The grant of a stay of execution is within the sound discretion of the trial

court, and its decision will not be disturbed absent a clear abuse of that

discretion. In re Upset Sale, Tax Claim Bureau of Berks County, 479

A.2d 940, 946 (Pa. 1984). Although Appellants characterize their appeal as a

challenge to the order denying their motion to stay execution, we agree with

the trial court that Appellants are attempting to collaterally challenge the

underlying arbitration award. Trial Court Opinion, 1/17/18, at 4.

       Initially, we conclude that the June 19, 2017 award of arbitrators

became final once it was entered on the docket and notice was given. 1 See

Stivers Temporary Personnel, Inc. v. Brown, 789 A.2d 292, 294 (Pa.

Super. 2001) (“Once the award in compulsory arbitration is entered on the

docket and notice is given, the award has the force and effect of a final



____________________________________________


1The docket reflects that this award was entered on the docket on June 19,
2017, and notice was given that same day.

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judgment.”). “As this case involves a compulsory arbitration award, neither

party was required to praecipe the prothonotary to enter judgment on the

award.”    Id. (citing 42 Pa.C.S. § 7361(d)).         Accordingly, Appellants were

required to file their appeal for a trial de novo on or before Wednesday, July

19, 2017. 42 Pa.C.S. § 5571(b). Because Appellants failed to file a timely

appeal,    they    failed    to   preserve     any   challenges   concerning   their

counterclaims.2 Consequently, there are no issues relating to the award of

arbitrators or counterclaims that Appellants have preserved on appeal.

       The only issue on its surface that may appear to be a viable challenge

to the award of arbitrators concerns subject matter jurisdiction. Appellants

argue that the arbitrators lacked jurisdiction to hear this case because

Appellants’ counterclaim exceeded the arbitration limits. Appellants’ Brief at

9 n.1.3 Appellants are correct that when the amount in controversy exceeds

the arbitration limits, an arbitration panel is not competent to hear and decide

the counterclaim.      Robert Half Intern., Inc. v. Marlton Technologies,

Inc., 902 A.2d 519, 525 (Pa. Super. 2006).            Controversies exceeding the

arbitration amounts should be referred to the court of common pleas. Id.


____________________________________________


2 Even if we utilized August 28, 2017, the date that Appellees filed the praecipe
for entry of judgment on the award of arbitrators as the date upon which the
appeal period began to run, Appellants still failed to file a timely appeal.

3Appellants’ assertion that this issue concerned real estate and is, therefore,
beyond the purview of the arbitrators pursuant to 42 Pa.C.S. § 7361(b)(1), is
meritless. As noted above, Appellees sought only monetary damages. Trial
Court Opinion, 1/17/18, at 2.

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      We are cognizant that issues of subject matter jurisdiction cannot be

waived and may be raised at any stage of a proceeding by a party, or sua

sponte by the court or agency. Blackwell v. Com., State Ethics Com'n,

567 A.2d 630, 636 (Pa. 1989) (emphasis added). However, as noted above,

Appellants did not file an appeal until after final judgment and the expiration

of the appeal period.     Accordingly, Appellants’ attempt to subvert the

competency and validity of the arbitration award by utilizing a specious

challenge to the amount in controversy and subject matter jurisdiction is also

out of time because final judgment had been entered and the appeal period

passed. See Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567,

571 (2004) (citing Capron v. Van Noorden, 2 Cranch 126, 2 L.Ed. 229

(1804)) (Challenges to subject-matter jurisdiction can be raised at any time

prior to final judgment). Thus, subject matter jurisdiction cannot be raised

after final judgment is entered, and the period in which to challenge that

judgment properly has passed; otherwise, no order would ever be final. See

id.

      For the reasons set forth above, we affirm the trial court’s order denying

Appellants’ motion to stay execution.       Appellant’s appeal was merely an

untimely attack on the arbitration award.

      Finally, we note that on November 26, 2018, Appellees filed a motion to

quash the appeal.    In light of our disposition, we deny the motion to quash

as moot. However, Appellees also requested attorneys’ fees and damages.


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Accordingly, we hereby remand that issue to the trial court for a determination

pursuant to Pa.R.A.P. 2744.

      Order affirmed.     Motion to quash denied, and Appellees’ request for

attorneys’ fees and damages remanded for determination by the trial court.

Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/2019




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