J-A14022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 THOMAS MCCLOSKEY                         :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 MICHAEL THOMAS,                          :
                                          :
                    Appellant             :   No. 1496 WDA 2018


          Appeal from the Judgment Entered, November 21, 2018,
           in the Court of Common Pleas of Washington County,
                    Civil Division at No(s): 2016-1897.


BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                           FILED JULY 26, 2019

      Michael Thomas seemingly appeals from a judgment entered following

the trial court’s denial of his post-trial motions. Due a procedural oversight

by the trial court, we lack appellate jurisdiction and must quash this appeal.

      This case, a business-entity dispute between Mr. Thomas and his

associate, Thomas McCloskey, began when Mr. McCloskey sued Mr. Thomas.

The complaint originated in arbitration and alleged that Mr. Thomas violated

their unwritten partnership agreement. Mr. Thomas then filed an answer, new

matter, and counterclaim. His counterclaim stripped the arbitrator of subject-

matter jurisdiction, because it alleged that he and Mr. McCloskey had

converted the partnership into a corporation and demanded an accounting of

the corporate assets, a claim based in equity.
J-A14022-19



       Following a bench trial, the court delivered no decision on Mr. Thomas’

counterclaim and, instead, only rendered a judgment on the complaint. As

such, the counterclaim, seeking an equitable accounting from Mr. McCloskey,

still sits undecided in the trial court’s original jurisdiction.   By mistakenly

delivering only a half decision, the trial court deprived us of appellate

jurisdiction under Pennsylvania Rule of Appellate Procedure 341.1

       Our appellate jurisdiction only extends to “(1) a final order or an order

certified by the trial court as a final order; (2) an interlocutory order as of

right; (3) an interlocutory order by permission; (4) or a collateral order.”

Chase Manhattan Mortg. Corp. v. Hodes, 784 A.2d 144, 144 (Pa. Super.

2001). “If any claim remains outstanding and has not been disposed of by

the trial court, then it does not matter whether the claim is classified as a

counterclaim or a bifurcated claim, for the result is the same: this Court lacks

jurisdiction to entertain the appeal unless the appeal is interlocutory or we

grant permission to appeal.” Levitt v. Patrick, 976 A.2d 581, 588 (Pa. Super.

2009).

       The only possible appealable order from the above list that could be

present here would be a “final order,” because the prothonotary entered
____________________________________________


1  “The establishment of jurisdiction is of equal importance as the
establishment of a meritorious claim for relief.” Robinson v. Pennsylvania
Bd. of Prob. & Parole, 582 A.2d 857, 860 (Pa. 1990). This Court “may
always consider that question on our own motion.” Kapcsos v. Benshoff,
194 A.3d 139, 141 (Pa. Super. 2018) (en banc). A jurisdictional issue presents
us with “a question of law; the appellate standard of review is de novo, and
the scope of review plenary.” Id.


                                           -2-
J-A14022-19



judgment following denial of post-trial motions. Rule 341 defines final orders

as those that, among other things, “dispose of all claims . . . .” Pa.R.A.P.

341(b)(1) (emphasis added). Specifically, the Notes to the Rule explain that

the term “final order” excludes one adjudicating “a complaint but leaving

pending a counterclaim.” Pa.R.A.P. 341, Note.

         Mr. Thomas filed a counterclaim for an accounting, but the trial court’s

decision mentions it only tangentially. Memorandum and Non-Jury Decision,

8/29/18, at 5. The court neither analyzed that counterclaim nor entered a

decision on it. Instead, the trial court found “in favor of the plaintiff, Thomas

McCloskey, and against the defendant, Michael Thomas.” Id. at 7.

         But Mr. Thomas is not just the defendant. He is also the counterclaim-

plaintiff, and the decision fails to address his counterclaim.

         Mr. McCloskey argues Mr. Thomas waived this issue, because he did not

raise it in post-trial motions.    See McCloskey Brief at 10. Mr. McCloskey’s

attempt at waiver is unavailing. As we have explained, the non-adjudication

of the counterclaim deprives this Court of appellate jurisdiction, which we may

raise sua sponte. See Kapcsos v. Benshoff, 194 A.3d 139, 141 (Pa. Super.

2018) (en banc); see also Nicoletti v. Allegheny Cty. Airport Auth., 841

A.2d 156, 164 n.17 (Pa. Cmwlth. 2004) (noting that “[i]t is well settled that

questions of jurisdiction can never be waived, and they may be raised at any

time by the parties or sua sponte by an appellate court.”)        Thus, the trial

court’s procedural misstep rises to the level of a non-waivable, jurisdictional

issue.

                                       -3-
J-A14022-19



      In sum, the trial court did not “dispose of all claims.”       Pa.R.A.P.

341(b)(1). The order denying post-trial motions is therefore not a final order:

this appeal is premature.

      Appeal quashed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2019




                                     -4-
