NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

Transcription

1 J.S43037/13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P RETAINED REALTY, INC., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DORIS DELORME AND ZAKI BEY, Appellant No. 263 EDA 2013 Appeal from the Order Entered December 19, 2012 In the Court of Common Pleas of Philadelphia County Civil Division No(s) Jan. Term 2012 BEFORE BOWES, MUNDY, and FITZGERALD, * JJ. MEMORANDUM BY FITZGERALD, J. FILED AUGUST 05, 2013 Pro se Appellants, Doris Delorme and Zaki Bey, appeal from the order entered in the Philadelphia County Court of Common Pleas denying their motion for reconsideration of the order denying their motion to quash the default judgment entered in favor of Appellee, Retained Realty, Inc. Appellants contend that Appellee lacked standing to bring the claim and that the trial court lacked subject matter jurisdiction. We quash this appeal due to an untimely notice of appeal. The trial court set forth the factual and procedural background * Former Justice specially assigned to the Superior Court.

2 On January 13, 2012, [Appellee] filed a Complaint in Ejectment for a property located in Philadelphia, PA in the Philadelphia County Court of Common Pleas. In its Complaint in Ejectment, Appellee stated that it purchased the subject property at [a] Sheriff s Sale on May 3, 2011 pursuant to a Writ of Execution issued on the suit of Emigrant Mortgage Company v. Doris Delorme, Court & Term No Appellee attached a Sheriff s Deed and City of Philadelphia Tax Certification to the Complaint in Ejectment to this effect. After obtaining leave of Court to serve Appellants by posting on the subject property, Appellee filed a Praecipe to Reinstate the Complaint in Ejectment. On April 30, 2012[,] Appellee entered default judgment against Appellants for failure to file an Answer to its Complaint in Ejectment. Appellee also filed a Suggestion of Bankruptcy on August 22, 2012, wherein a Bankruptcy Stay was terminated by the United States Bankruptcy Court for the Eastern District of Pennsylvania, thereby allowing Appellee to exercise its state law rights, if any, for possession of [the subject property]. On August 29, 2012, Appellants filed a Motion to Quash the entry of the default judgment, to which Appellee filed an Answer. The Court denied Appellants Motion to Quash on October 2, On November 1, 2012, Appellants filed a Motion for Reconsideration to Quash and/or to Strike Default Judgment. The next day, Appellants filed an Emergency Motion to Stay Writ of Execution; a Rule was issued on the Emergency Motion, which was subsequently rescheduled for November 27, On November 27, 2012, the Court denied Appellants Motion to Stay Writ of Execution. Appellee filed another Praecipe for Writ of Possession on December 10, On December 19, 2012, the Court denied Appellants Motion for Reconsideration to Quash and/or to Strike Default Judgment. [In both their Motion to Quash and their Motion for Reconsideration, Appellants argued that Appellee lacked standing and the trial court lacked jurisdiction.] On January 18, 2013, Appellants filed the instant appeal; the Court ordered Appellants to file of record a - 2 -

3 Concise Statement of Matters Complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellants filed their 1925(b) Statement on March 1, Trial Ct. Op., 3/19/13, at 1-3 (citations and italics omitted). Appellants raise the following questions 1. Whether [Appellee s] ejectment [sic] is properly before the court despite [Appellee s] lack of possession of the promissory note Whether [Appellee] establish [sic] itself as real party of interest by merely recording sheriff deed and failing to attach assignment of mortgage/note Whether [Appellee s] assignment of a bid on the property at the sheriff s is sufficient as a recorded assignment in order to have standing in an ejectment without the note holder.... Appellants Brief at 3. a. Whether [Appellee s] counsel s certification of the purported assignment of bid can substitute for the requirement of the note holder and owner of the mortgage. As a prefatory matter, we address whether we have jurisdiction over this appeal. As a general rule, an appellate court s jurisdiction extends only to review of final orders. Rae v. Pa. Funeral Directors Ass n, 977 A.2d 1121, (Pa. 2008); see Pa.R.A.P. 341(a). An order denying a motion for reconsideration is not a final order and, thus, not appealable. See Cheathem v. Temple Univ. Hosp., 743 A.2d 518, 521 (Pa. Super. 1999). Except as otherwise prescribed by this rule, the notice of appeal... shall be filed within 30 days after the entry of the order from which the - 3 -

4 appeal is taken. Pa.R.A.P. 903(a). It is well settled that filing a motion for reconsideration does not stay the appeal period. Pa.R.A.P. 1701(b)(3). In Valley Forge Center Assoc. v. Rib It/K.P., Inc., 693 A.2d 242 (Pa. Super. 1997), the appellant filed a motion for reconsideration of an order granting the appellee s petition to intervene. Id. at 243. The trial court denied the appellant s motion for reconsideration and the appellant filed a notice of appeal within thirty days of the order denying the motion for reconsideration. Id. The notice of appeal, however, was filed more than three months after the order denying the petition to intervene. Id. This Court quashed the appeal as untimely, reasoning that the mere filing of a motion for reconsideration... is insufficient to toll the appeal period. Id. at 245. The Court noted that, to preserve appellate rights, petitioners should file a notice of appeal simultaneously with the motion for reconsideration. Id. Appellants motion for reconsideration sought the same relief as their motion to quash, specifically that the default judgment be stricken. Appellants Mot. for Recons. to Quash and/or to Strike Default J., 11/1/12, at 5. Moreover, both motions argued that Appellee lacked standing to bring the claim in ejectment and that the trial court lacked subject matter jurisdiction. Because the instant order denied a motion for reconsideration, it is not a final order and, thus, not appealable. See Rae, 977 A.2d at ; Cheathem, 743 A.2d at 521; see also Pa.R.A.P. 341(a)

5 Therefore, we consider the timeliness of the appeal as taken from the court s order denying Appellant s motion to quash. See Valley Forge, 693 A.2d at 245. The trial court denied Appellant s motion to quash on October 2, Appellant filed the instant notice of appeal on January 18, 2013, more than thirty days after the denial of the motion to quash. Just as in Valley Forge, Appellant s filing of a motion for reconsideration did not toll the appeal period. See id. at Accordingly, because Appellant s appeal is untimely, we quash the appeal. See Cheathem, 743 A.2d at 521. Appeal quashed. Judgment Entered. Prothonotary Date 8/5/