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04/25/97 VALLEY FORGE CENTER ASSOCIATES v.

April 25, 1997

VALLEY FORGE CENTER ASSOCIATES, APPELLANT
v.
RIB-IT/K.P., INC., APPELLEE



Appeal from the Order Entered August 28, 1995, In the Court of Common Pleas of Dauphin County, Civil, Writ of Execution No. 1154 N 1995. Before LIPSITT, J.

Appeal from the Order entered August 28, 1995, Court of Common Pleas, Dauphin County, Civil Division at No. 1154 N 1995, Writ of Execution. Before LIPSITT, J.

Before: Tamilia, J., Johnson, J. And Montemuro, J.* Opinion BY Montemuro, J.

The opinion of the court was delivered by: Montemuro

OPINION BY MONTEMURO, J.:

FILED APR 25 1997

This is an appeal from the Order of the Dauphin County Court of Common Pleas denying the petition of Appellant, Valley Forge Center Associates ("VFCA"), for reconsideration of the June 23, 1995 Order which granted the petition of Appellee, Rib-It/K.P. Inc. ("Rib-It"), to stay and set aside a pending writ of execution. Because we conclude that this Court does not have jurisdiction, we must quash this appeal.

The facts as gleaned from the record are as follows. On August 16, 1994, VFCA entered judgment against Rib-It in the Court of Common Pleas of Montgomery County for past due rent and rent due pursuant to a sublease executed by Rib-It. On May 15, 1995, VFCA commenced execution proceedings by filing a Writ of Execution in Dauphin County and requesting that the County attach the liquor license owned by Rib-It and held by the Pennsylvania Liquor Control Board in Harrisburg. A sheriff's sale on the writ was scheduled to take place on June 26, 1995. Three days before the sale, however, on June 23, 1995, Rib-It filed a Petition to Intervene, Stay and Set Aside the Writ of Execution, alleging the priority of First Fidelity Bank's ("First Fidelity") perfected security interest in the liquor license. The trial court's Order of June 23, 1995 granting this Petition underlies the instant appeal.

On July 18, 1995, VFCA filed a Petition for Reconsideration of the June 23, 1995 Order. Thereafter, the parties filed briefs and the trial court scheduled the matter for a conference. On July 20, 1995, counsel for First Fidelity entered his appearance on the Bank's behalf, and, on August 8, 1995, filed a brief addressing First Fidelity's right to intervene and the priority of its security interest in Rib-It's liquor license. On August 28, 1995, the trial court entered an Order denying the petition of VFCA for reconsideration, and further ordered "defendant," Rib-It, to file an amended petition in accordance with Pa.R.C.P. 2328(a) controlling the procedure for intervention. *fn1 First Fidelity filed an amended petition on September 6, 1995 to which VFCA filed an answer on September 20, 1995. VFCA subsequently filed a notice of appeal on September 21, 1995.

VFCA ostensibly appeals from the August 28, 1995 Order denying its petition for reconsideration of the June 23, 1995 Order. Before we may address VFCA's challenges to the August 28, 1995 denial, however, as a threshold issue we must determine whether this Court has jurisdiction to hear the appeal. Although the jurisdiction of this Court was not challenged by either party, we note that this Court may raise this issue sua sponte. Rieser v. Glukowsky, 435 Pa. Super. 530, 535, 646 A.2d 1221, 1223 (1994, Accordingly, we must decide whether, under the applicable rules of civil procedure, VFCA properly preserved its right to appeal.

On June 23, 1995 the trial court entered an Order which stated:

AND NOW, this 23 day of June, 1995, upon consideration of Rib It/K.P., Inc.'s Petition to Intervene, Stay and Set Aside Writ of Execution, it is hereby ORDERED and DECREED that said Petition is GRANTED and the Writ of Execution is hereby STAYED and SET ASIDE.

Initially, we note that a court in which execution proceedings are pending has an inherent right to stay or set aside the proceedings where it is necessary to protect the rights of the parties. Pa.R.C.P. 3121; Keystone Savings Ass'n v. Kitsock, 429 Pa. Super. 561, 564, 633 A.2d 165, 167 (1993). The appealability of such orders, i.e., the jurisdiction of this Court, however, depends upon the character of the order, as the Superior Court has appellate jurisdiction of all appeals from final orders of the Court of Common Pleas. 42 Pa.C.S.A. § 742.

Generally, "'a determinative order relating to execution is in character a judgment, which, when of final nature, is appealable.'" Cherry v. Empire Mutual Ins. Co., 417 Pa. 7, 10, 208 A.2d 470, 471 (1965) (quoting In Opening of Parkway, 267 Pa. 219, 225, 110 A. 144, 146 (1920)). Typically, an order staying execution is deemed interlocutory, and, therefore, unappealable because it is granted to maintain the status quo pending the further Disposition of other court proceedings or investigations. Goodrich-Amram § 3121(c):5 at 246. See Cherry, 417 Pa. at 12, 208 A.2d at 472 (holding order staying execution interlocutory as it stayed execution "until further order" to permit interested party to enter appearance before court made final determination); Jenkintown National Bank v. T.L. Fulmor, 124 Pa. 337, 17 A. 2 (1889) (holding interlocutory a stay of execution since it was ordered merely to allow for further investigation of an issue before the court). An order staying execution becomes final and appealable, however, if granted for an indefinite duration. Cherry, 417 Pa. at 11, 208 A.2d at 471; National Council of Junior Order of United American Mechanics of U.S. v. Roberson, 214 Pa. Super. 9, 16, 248 A.2d 861, 865 (1969). Therefore, the finality and appealability of a stay order depends either upon the duration of the order or the reason for which it was entered. Cherry, 417 Pa. at 11, 208 A.2d at 471.

Alternatively, an order setting aside a writ of execution is a permanent remedy and constitutes a more drastic form of relief from execution. Goodrich-Amram § 3121(d):1 at 247. Accordingly, an order setting aside a writ is generally a final order subject to immediate appeal. Goodrich-Amram § 3121(d):6 at 251; Cherry, 417 Pa. at 12, 208 A.2d at 472. Cf. Rodgers v. Yodock, 309 Pa. Super. 154, 454 A.2d 1129 (1983) (holding unappealable order which "set aside" writ of execution since, by its terms, was not meant to be in effect for more than thirty days). Therefore, to determine whether an order ...


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