filed: March 19, 1982.
ATWOOD HOME BUILDERS, INC.,
MAMIE ZANAKIS, APPEAL OF IRENE G. STRAKA
No. 347 Pittsburgh, 1980, Appeal from the Order dated March 17, 1980, Court of Common Pleas, Washington County, Civil Division at No. 120 May Term, 1978, A.D.
Damon J. Faldowski, Washington, for appellant.
W. Thomas Laffey, Pittsburgh, for Atwood.
Anthony J. Seneca, Washington, for Zanakis.
Cavanaugh, Johnson and Shertz, JJ. Cavanaugh, J., concurs in the result. Shertz, J., did not participate in the consideration or review of this case.
Author: Per Curiam
[ 297 Pa. Super. Page 189]
Judge GLADDEN of the Washington County Court of Common Pleas entered an order staying, pending disposition of another case,*fn1 a Sheriff's sale of certain real estate. The stay was conditioned on the appellant depositing $12,500.00 with the Prothonotary of Washington County. Judge SWEET of the same court ordered that the stay be vacated and that the Prothonotary of Washington County pay over the funds deposited by Irene G. Straka to Atwood Home Builders Inc., [Atwood]. It is this order vacating the stay from which Irene G. Straka appeals.
This case is one of three cases, now consolidated before this court. It was filed in May 1978 by a home improvement company, Atwood, against a customer, Zanakis, as a Complaint in Assumpsit alleging breach of a contract to pay $14,000.00 for work done, pursuant to contract, to Ms. Zanakis' home. Subsequently, the action came before an Arbitrator, the outcome of which procedure was a consent judgment against Zanakis for $11,000.00.*fn2 This sum not having been paid, Atwood filed a praecipe for a default judgment in
[ 297 Pa. Super. Page 190]
the amount of $11,000.00, which was entered on November 27, 1978. Zanakis' motion to open and strike that judgment was denied.*fn3 Zanakis' exceptions to the order were denied.*fn4 Execution on the judgment was stayed by the order of Judge GLADDEN.*fn5
Irene G. Straka, Appellant, [Straka] is the daughter of Zanakis. A few days after the work by Atwood was completed, Zanakis conveyed the real estate in question to Straka. Twelve days before the stay, Straka filed an action in Equity*fn6 against Atwood alleging that she was the legal and rightful owner of the premises, and that therefore the judgment against Zanakis could not be recovered by execution on that property.
Atwood asserts that Straka has no standing to appeal Judge SWEET's order vacating Judge GLADDEN's order granting a stay, because she was not a party to the proceedings, and had not petitioned to intervene.
Pa.R.A.P. 501 provides that an aggrieved party may appeal from an appealable order.*fn7 This has been interpreted to mean that the harm to his/her interest must be direct, immediate, substantial and pecuniary in nature. See In the Matter of Harrison Square, Inc., 263 Pa. Super.Ct. 324, 397 A.2d 1230 (1979). The question of Straka's standing, however, arises prior to this appeal.
Pa.R.C.P. 3121(a) provides in relevant part:
[ 297 Pa. Super. Page 191]
(a) Execution shall be stayed as to all or any part of the property of the defendant
(2) upon the entry of bond with the prothonotary, by any person or party in interest, with security approved by the prothonotary, in the amount of plaintiff's judgment, including probable interest and costs, or in such lesser amount as the court may direct, naming the Commonwealth of Pennsylvania as obligee, and conditioned to pay the amount due within ninety (90) days of the entry of the bond, unless the time for payment be further extended by the court[.]
(Emphasis supplied). This seems to require that it be a party in interest who files the bond to obtain a stay of execution.
From the record it is not possible for us to determine whether or not the lower court considered and decided that Straka was a party in interest.*fn8 By his action, however, in granting the stay for a permissible reason, namely the pending action filed by Straka, and in ordering a sufficient bond to be posted, Judge GLADDEN issued an order which is proper on its face. For purposes of this case we shall therefore treat it as such.
We are thus faced with the question of the propriety of Judge SWEET's order overturning the stay. Appellant
[ 297 Pa. Super. Page 192]
urges in her brief that Judge SWEET overruled an interlocutory order by a colleague in the same case and that this is improper. We agree with appellant's assertion that such an action is improper. See Sherman v. Yoder, 59 Pa. Commw.Ct. 430, 430 A.2d 347 (1981), and cases cited therein. But in a situation such as this, where the stay is ordered pending disposition of another lawsuit, the law is quite clear that the order is not interlocutory, but final. See Cherry v. Empire Mutual Insurance Co., 417 Pa. 7, 10, 208 A.2d 470, 471 (1965).
The question still remains, though, whether Judge SWEET properly vacated the stay. The stay was ordered pending disposition of another case. There is no information in the record as to the disposition of that other case. We see, therefore, no reason why the stay should have been vacated, inasmuch as Atwood was protected by the posting of the bond.
Atwood's Motion to Dismiss the Order Staying Execution contains both statements of fact and conclusions of law. Yet the motion was granted without a hearing. Without testimony as to Atwood's allegations, and without reasons from the lower court as to why the judge vacated the stay order, we have no information by which to review the matter. We therefore vacate the order of the lower court and remand the case for a hearing on the Motion to Dismiss the Order Staying Execution and for Payment of a Cash Bond.