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Estate of Considine v. Bank

February 4, 2009

ESTATE OF MATTHEW CONSIDINE APPELLANT
v.
WACHOVIA BANK AND ROBERT E. ROZINSKI APPELLEE



Appeal from the Order entered November 7, 2007 In the Court of Common Pleas of Montgomery County. Civil No. 05-15251.

The opinion of the court was delivered by: Kelly, J.

BEFORE: SHOGAN, KELLY, JJ. & McEWEN, P.J.E.

OPINION

¶ 1 The estate of Matthew Considine, Appellant, has filed an appeal from the order entered by the Court of Common Pleas of Montgomery County granting Appellee Robert Rozinski's motion for summary judgment. We quash, finding that we do not have jurisdiction to hear the appeal.

¶ 2 Matthew Considine died on May 23, 2000. On June 2, 2005, the administrator of his estate*fn1 filed a civil action in the Montgomery County Court of Common Pleas naming Wachovia Bank*fn2 and Appellee Robert E. Rozinski defendants. The complaint alleged that Appellee was unjustly enriched when his mother misappropriated funds from Considine's accounts in First Union Bank and deposited them into an account she jointly held with Appellee, and that Wachovia Bank, as successor in interest to First Union, was liable to the estate for the fraudulent withdrawals.

¶ 3 Wachovia was served with the complaint on June 16, 2005. On July 7th, Appellant notified Wachovia of his intention to seek a default judgment for the bank's failure to file a responsive pleading to the complaint. On August 2, 2005, a default judgment was entered and damages were awarded in the amount of $58,000. On August 11, 2005, Wachovia filed a petition to open the default judgment, to which Appellant filed a response on August 31st. No further action concerning Wachovia's petition occurred for almost two years.

¶ 4 Meanwhile, on July 15, 2005, Appellee filed preliminary objections to Appellant's original complaint for failure to name the proper party and for more specific pleading, which objections were both sustained. Thereafter, Appellant filed an amended complaint in which he corrected the caption and reiterated the allegations in the original complaint. After being served with the amended complaint, Appellee filed an answer in which he denied the allegations and raised new matter, asserting that the account he jointly held with his mother had not been opened until two years after the alleged misappropriation occurred. On January 26, 2007, Appellee filed a motion for summary judgment, arguing that Appellant's amended complaint failed to state a cognizable claim against him, and that Appellant could not produce any evidence which would raise a genuine issue of material fact.

¶ 5 On August 13, 2007, while Appellee's motion for summary judgment and Wachovia's petition to open the default judgment were still pending, Appellant filed a praecipe for writ of execution against Wachovia. On August 28, 2007, apparently in response to the praecipe for writ of execution, Wachovia filed a praecipe for argument on its petition to open. Argument was scheduled for December 13, 2007.

¶ 6 On November 7, 2007, while Wachovia's petition was still pending, the trial court granted Appellee's motion for summary judgment.*fn3 Thereafter, on December 4, 2007, Appellant filed a notice of appeal from the trial court's order.

¶ 7 Because counsel for Wachovia had never entered his appearance, he was not informed that an argument on the petition to open had been scheduled, and did not appear at the scheduled hearing on December 13, 2007. His oversight was immediately brought to his attention, and he entered his appearance on December 14th. On April 1, 2008, the trial court finally ruled on Wachovia's petition to open, granting the petition to open the default judgment and ordering Wachovia to file an answer to the amended complaint.

¶ 8 Before we can address the merits of Appellant's appeal from the trial court's order granting summary judgment in favor of Appellee, we must determine whether we have jurisdiction. "[T]he appealability of an order directly implicates the jurisdiction of the court asked to review the order." Mother's Rest., Inc. v. Krystkiewicz, 861 A.2d 327, 331 (Pa. Super. 2004). Accordingly, this Court has the power to inquire at any time, sua sponte, whether an order is appealable. See Kulp v. Hrivnak, 765 A.2d 796, 797 (Pa. Super. 2000). "In this Commonwealth, an appeal may only be taken from: 1) a final order or one certified by the trial court as final; 2) an interlocutory order as of right; 3) an interlocutory order by permission; or 4) a collateral order." Mother's Rest., supra, at 331.Because neither party has raised the issue of jurisdiction and thus offered no explanation of whether or not the order is appealable, we will address each class of appealable orders to determine whether we have jurisdiction.

¶ 9 Under Pa.R.A.P. 341, parties have the right to file an appeal from a final order, defined as any order that: "(1) disposes of all claims and of all parties; (2) is expressly defined as a final order by statute; or (3) is entered as a final order pursuant to subdivision (c) of this rule." Pa.R.A.P. 341(a), (b)(1)-(3). Subdivision (c) provides in pertinent part: when multiple parties are involved, the trial court or other governmental unit may enter a final order as to one or more but fewer than all of the claims and parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case. Such an order becomes appealable when entered. In the absence of such a determination and entry of a final order, any order or other form of decision that adjudicates fewer than all the claims and parties shall not constitute a final order.

Pa.R.A.P. 341(c). The note to Pa.R.A.P. 341 explains that "an order dismissing an action as to less than all plaintiffs or as to less than all defendants but leaving pending the action as to other plaintiffs and other defendants" is not "appealable as of right unless the trial court [ ] makes an express determination that an immediate appeal would facilitate resolution of the entire case and expressly enters a final order pursuant to Rule 341(c)[.]" Pa.R.A.P. 341, Note.

ΒΆ 10 No statute defines an order granting summary judgment in favor of fewer than all defendants as final, and the trial court here did not expressly identify as final its November 7, 2007 order granting Appellee's motion for summary judgment. Accordingly, neither Pa.R.A.P. 341(b)(2) or (3) provides us with jurisdiction. We therefore must determine whether the trial court's order disposed "of all claims and of all parties," and thus whether Pa.R.A.P. 341(b)(1) provides us with jurisdiction, given that the order was entered after a default judgment had been entered against Wachovia ...


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