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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SCHWENKSVILLE FARM, LLC                          IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MENDELSON FAMILY TRUST AND
MARK MENDELSON

                            Appellants               No. 3245 EDA 2015


               Appeal from the Order Entered October 21, 2015
             In the Court of Common Pleas of Montgomery County
                       Civil Division at No: 2015-13113


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                      FILED SEPTEMBER 19, 2016

        Appellants, Mendelson Family Trust and Mark Mendelson, appeal from

the October 21, 2015 order granting Appellee, Schwenksville Farm, LLC’s,

emergency motion for possession of property pending appeal. We quash.

        This appeal arises from a landlord/tenant dispute. On June, 2, 2015, a

magisterial district judge (“MDJ”) entered an judgment granting possession

of property located at 833 Camp Wawa Road, Schwenksville, Pennsylvania

(the “Property”), to Appellee, the plaintiff and landlord. The June 2, 2015

judgment did not require Appellant to pay any arrears to Appellee, but it

required Appellant to pay $6,000.00 per month in rent in accordance with

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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the parties’ lease agreement. On June 11, 2015, Appellants appealed from

the MDJ’s decision and filed a praecipe for a rule to require Appellee to file a

complaint in the court of common pleas. On June 26, 2015, Appellee filed a

complaint for possession and eviction in the Montgomery County Court of

Common Pleas. On August 31, 2015, Appellee filed an emergency motion

for possession, alleging Appellant failed to comply with the MDJ rules

governing supersedeas. Appellee argued it was entitled to possession of the

Property because Appellant never paid rent as specified in the MDJ’s June 2,

2015 decision. Appellee relied on Pa.R.C.P.M.D.J. No. 1008(b):

      When an appeal is from a judgment for the possession of real
      property, receipt by the magisterial district judge of the copy of
      the notice of appeal shall operate as a supersedeas only if the
      appellant at the time of filing the notice of appeal, deposits with
      the prothonotary a sum of money (or a bond, with surety
      approved by the prothonotary) equal to the lesser of three (3)
      months’ rent or the rent actually in arrears on the date of the
      filing of the notice of appeal, based upon the magisterial district
      judge’s order of judgment, and, thereafter, deposits cash or
      bond with the prothonotary in a sum equal to the monthly rent
      which becomes due during the period of time the proceedings
      upon appeal are pending in the court of common pleas, such
      additional deposits to be made within thirty (30) days following
      the date of the appeal, and each successive thirty (30) day
      period thereafter.

Pa.R.C.P.M.D.J. No. 1008(B).

      Appellant never deposited any amount of money with the prothonotary

after the June 2, 2015 judgment.           Appellant’s appeal from the MDJ’

judgment therefore did not act as a supersedeas.         Accordingly, the trial

granted Appellee’s October 15, 2015 motion for possession and directed the



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sheriff to remove Appellant from the Property.        Appellant filed a timely

appeal from that order.1

       Before we consider the merits, we sua sponte consider our jurisdiction

over the trial court’s order.      Roman v. McGuire Mem'l, 127 A.3d 26, 31

(Pa. Super. 2015), appeal denied, 134 A.3d 57 (Pa. 2016) (noting that this

Court can raise subject matter jurisdiction sua sponte).      Appellant argues

the October 21 order is final and appealable under Pa.R.A.P. 341(b)(1),2

because it granted Appellee all the relief it sought in its complaint.

Appellant’s Brief at 1. We disagree. To the contrary, the order on appeal

did not dispose of any claim or party, it simply rendered the MDJ order

immediately enforceable because Appellant failed to effect a supersedeas in

accord with Rule 1008(B). The order on appeal does not resolve Appellee’s

complaint for possession and eviction. That complaint is still pending, and it

remains to be determined whether Appellee can prove the facts it alleges

and whether those facts support eviction under the terms of the parties’
____________________________________________


1
   On November 4, 2015, Appellant applied to this Court for a stay of the
order on appeal. On November 19, 2015, we granted Appellant’s application
and stayed the trial court’s order conditioned upon Appellant’s filing of
security in an amount to be determined by the trial court. The trial court
ordered Appellant to file security of $42,000. That amount represented
seven months’ rent—from June 2015 through January 2016, the latter date
representing the end of the 60-day stay period. Appellant failed to post the
required security. On January 15, 2015, this Court entered an order lifting
the stay.
2
  An order is final under Pa.R.A.P. 341(b)(1) if it “disposes of all claims and
of all parties.” Pa.R.A.P. 341(b).



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lease agreement. The order on appeal merely permits Appellee, rather than

Appellant, to be in possession of the Property while the litigation is pending.

      Appellant     also   cites   Pa.R.A.P.   311(a)(4),   which   permits   an

interlocutory appeal from “[a]n order that grants or denies, modifies or

refuses to modify, continues or refuses to continue, or dissolves or refuses

to dissolve an injunction[.]: Pa.R.A.P. 311(a)(4). The order on appeal does

not relate to the grant, denial, modification, continuation, of dissolution of an

injunction. The order on appeal simply recognizes Appellee’s present right

to possession of the Property based on the MDJ’s judgment and the absence

of a supersedeas.

      In summary, Appellant has failed to establish any basis upon which

this Court has jurisdiction over the trial court’s October 21, 2015 order. We

therefore quash the appeal.

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2016




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