J-A29035-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ALBERT DAVID SLAFMAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NEISHA P. CULBRETH, :
:
Appellant : No. 3333 EDA 2017
Appeal from the Order July 26, 2017
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): December Term, 2015 No. 0111
BEFORE: OTT, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 12, 2019
Appellant, Neisha P. Culbreth, appeals from the order entered on July
26, 2017, in which the Court of Common Pleas of Philadelphia County sought
to enforce a prior order directing Appellant to perform under a contract she
had entered with Appellee, Albert David Slafman. For the reasons that follow,
we quash the present appeal.
On August 14, 2015, Appellant and Appellee executed a contract
whereby Appellant agreed to sell real property “free and clear of all liens,
encumbrances and easements” for $60,000.00. Settlement was to be reached
on or before September 14, 2015, plus 30 days, if needed.
A title search, however, revealed a $27,000.00 mortgage on the
property. Appellant therefore refused to sell because she would not receive
her expected benefit.
____________________________________
* Former Justice specially assigned to the Superior Court.
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On December 9, 2015, Appellee filed an action raising claims of specific
performance of the contract and, in the alternative, monetary damages for
breach of contract. Subsequently, Appellee filed a motion for judgment on
the pleadings, seeking specific performance on the contract. Appellant filed
an Answer averring that she did not have to sell under the contract as written
because she was unable to meet the term and condition that she produce clear
title to the property by the required date, making the agreement “null and
void.”
On June 20, 2016, the court determined Appellant had raised no
disputed issues of fact, as it interpreted the written agreement between the
parties to require Appellant to deliver the real property in question
unencumbered to Appellee in exchange for $60,000.00. Finding Appellant’s
refusal to sell constituted a breach of contract, the court granted Appellee’s
motion on the pleadings and entered an order mandating Appellant’s specific
performance under the agreement. Appellant’s damages claim remained
unresolved.
On July 28, 2016, Appellant appealed from the court’s June 20, 2016
specific performance order. This Court, however, quashed Appellant’s appeal
because she filed it beyond 30 days from the order in violation of Pa.R.A.P.
903(a).
In August 2016, Appellant had yet to perform under the contract,
prompting Appellee to file a contempt petition against Appellant. For reasons
unexplained, the trial court denied the petition.
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In January 2017, with Appellant remaining noncompliant with the
court’s order, Appellee filed a second contempt petition. The court conducted
a contempt hearing on April 28, 2017, where Appellant informed the court she
would not close on the sale, as the total lien was actually $41,500 and she
disagreed with the court’s requirement that $41,500 of the purchase money
be placed in escrow to satisfy the lien against the property. The court
reminded Appellant of its prior holding with respect to her obligations under
the contract, ordered the parties to meet and complete the purchase/sale of
the real property in question, and set a date on which it would conduct a
follow-up hearing.
At the follow-up hearing of May 26, 2017, the court was again advised
the parties had not closed on the sale. In response, the court directed the
parties to complete the sale and set a new hearing date of June 18, 2017.
On June 19, 2017, the court learned Appellant still refused to close on
the deal. Therefore, the court entered its order of July 26, 2017, in which it
appointed a master to effect the sale and transfer the title in accordance with
its previous order and to place $41,500 of the purchase money into escrow
with the court, as satisfaction of its contempt judgment against Appellant.
On October 10, 2017, Appellant filed the present notice of appeal from
the court’s order of July 26, 2017. In her appeal, she not only assailed the
contempt judgment entered against her but also raised challenges to the
underlying merits of the court’s 2016 order granting Appellee’s specific
performance claim.
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Prior to conducting a merits review of Appellant’s numerous issues, we
consider whether we have jurisdiction to review her present appeal filed 77
days after the July 26, 2017 order from which it was taken. Appellee has not
filed an appellate brief and has not, therefore, raised a question regarding our
jurisdiction over the trial court's interlocutory order. We may, however, raise
the issue of jurisdiction sua sponte. Commonwealth v. Blystone, 632 Pa.
260, 269, 119 A.3d 306, 311 (2015).
On this issue, Appellant contends the court’s contempt order was an
immediately appealable collateral order, separable from and collateral to the
main cause of action pertaining to the court’s underlying judgment in favor of
Appellee’s specific performance claim. “An appeal may be taken as of right
from a collateral order of [a]...lower court.” Pa.R.A.P. 313(a). “A collateral
order is an order [1] separable from and collateral to the main cause of action
where [2] the right involved is too important to be denied review and [3] the
question presented is such that if review is postponed until final judgment in
the case, the claim will be irreparably lost.” Pa.R.A.P. 313(b). “[A]n order is
‘separable’ from the main cause of action if it is capable of review without
consideration of the main issue in the case.” Commonwealth v. Minich, 4
A.3d 1063, 1067 (Pa. Super. 2010).
Even if we were to assume, arguendo, that Appellant is correct in this
regard, we would find we lack jurisdiction to consider her challenge because
she failed to appeal from such an appealable order within 30 days of the
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order’s entry. See Pa.R.A.P. 903(a) (requiring an appeal be filed within 30
days after entry of the order from which it is taken).
Similarly, if we were to understand the court’s July 26, 2017, order
instead as an interlocutory order because the court has not resolved Appellee’s
alternate claim seeking breach of contract damages, we would deem the
present appeal prematurely filed pursuant to Pa.R.A.P. 341 (barring
exceptions not present in the case sub judice, any order adjudicating fewer
than all claims shall not constitute a final order) so as to divest us of
jurisdiction.1 For either of these reasons, therefore, we must conclude we are
without jurisdiction to review Appellant’s appeal on the merits.
____________________________________________
1 In this regard, we note that only after Appellant filed the present appeal did
Appellee withdraw his only outstanding claim for breach of contract damages.
While this withdrawal did make the court’s July 26, 2017 order a final and
appealable order as of the October 27, 2017 date on which it occurred, it does
not make Appellant’s present appeal reviewable. First, as noted above,
Appellant waited 77 days to file her appeal from the order in question,
divesting us of jurisdiction under Rule 903(a) (appeal must be filed within 30
days of order).
Moreover, Pennsylvania Rule of Appellate Procedure 905(a)(5) does not apply
to the present facts. Specifically, Rule 905(a)(5) provides for the “legal
fiction” of treating a notice of appeal which is prematurely filed after
announcement by the court of its determination but before the entry of an
appealable order as not being prematurely filed but “as filed after such entry
[of an appealable order] and on the day thereof.” Pa.R.A.P. 905(a)(5). Rule
905(a)(5) was “necessary to overcome a persistent problem concerning the
premature filing of notice of appeal . . . [occurring] after announcement by
the trial court of its determination, but before the actual entry on the docket
of an appealable order.” 20 Pa.PRAC § 905:3 “Filing of Notice of Appeal with
Clerk of Trial Court—Premature Filing.”
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Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/19
____________________________________________
The present facts do not involve a good faith, diligent appellant who filed her
appeal in response to the court’s initial announcement of determination but
before the actual entry of the appealable order. Instead, they involve an
appellant who waited 77 days to appeal from the order of which she now
complains. Moreover, her case does not involve a scenario in which the court
was to make, as a matter of course, an “actual entry of an appealable order.”
Principles of equity and judicial economy sought to be advanced by Rule
905(a)(5), therefore, are not implicated in the present case. For these
reasons, we deem Rule 905(a)(5) inapplicable to the present matter.
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