PECO Energy Co. v. Vermeychuk, D. ( 2014 )

J.A13045/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PECO ENERGY COMPANY, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DANIEL P. VERMEYCHUK AND :
DORIS E. VERMEYCHUK, :
:
Appellants : No. 3099 EDA 2013
Appeal from the Order Entered October 30, 2013
in the Court of Common Pleas of Delaware County
Civil Division at No(s): No. 2013-003745
BEFORE: ALLEN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 05, 2014
Pro se Appellants, Daniel P. Vermeychuk and Doris E. Vermeychuk,
appeal from the order entered in the Delaware County Court of Common
Pleas granting the motion of Appellee, PECO Energy Company, for a writ of
seizure. Appellants claim the Pennsylvania Public Utility Commission has
jurisdiction, the trial court erred by denying their motion to dismiss
Appellee’s replevin action, residential gas and utility meters should not be
treated as chattel, and the statute of limitations applies. We quash.
We state the facts as set forth by a prior panel of this Court.
[Appellants] were behind on their utility bills and worked
out an agreement for payment which was approved by
Judge Harry J. Bradley. The agreement provided that if
*
Former Justice specially assigned to the Superior Court.
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[Appellants] defaulted in their agreement, [Appellee] could
enter judgment in the amount of $36,600.53, less any
payments made under the agreement. [Appellants] paid
$8,300 and stopped making payments. Several months
later [Appellee] certified a default and an Order for
Judgment was entered for the amount due less the amount
paid. There is no dispute as to the amount due under the
Agreement and the amount paid. The Agreement provided
that [Appellants] “hereby waive any objection of any kind
to [the order of default] or its terms.”
PECO Energy v. Vermeychuk, 1308 EDA 2006, slip op. at 1 (Pa. Super.
Apr. 6, 2007). In that prior case, Appellants had filed a petition to open the
confessed judgment on April 28, 2006. Id. The trial court denied
Appellants’ petition, and the prior panel affirmed on April 6, 2007. Id.
Subsequently, Appellee filed the underlying complaint raising a claim
for breach of contract for $88,761.80, representing unpaid electric bills, and
a claim for replevin to repossess the meters on Appellants’ property.
Appellee’s Compl. 3/19/13, at 2-3. On May 3, 2013, Appellee filed a motion
for a writ of seizure of the meters. Appellants, on October 18, 2013, filed a
petition to vacate the writ of seizure. The court denied Appellants’ petition
as untimely on October 21, 2013, and granted Appellee’s motion for a writ of
seizure on October 25, 2013.
On November 6, 2013, Appellants filed both a motion for
reconsideration of the October 21, 2013 order and a notice of appeal from
the October 25, 2013 order. Appellants did not request permission from this
Court to file an interlocutory appeal. The court denied Appellants’ motion for
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reconsideration on December 3, 2013. Appellants filed an answer to the
instant complaint on January 6, 2014.
As a prefatory matter, because the instant claims have not been
resolved, we must address whether this Court has jurisdiction to entertain
Appellants’ appeal from an order granting a writ of seizure. In Jerry Davis,
Inc. v. NuFab Corp., 677 A.2d 1256 (Pa. Super. 1996), the plaintiff moved
for a writ of seizure pursuant to a replevin action; the trial court denied the
motion and ordered the plaintiff and NuFab Corp. to pay a third party. Id.
at 1257. Both parties appealed from the trial court’s order, and the Superior
Court examined whether it had appellate jurisdiction:
[W]e must ascertain whether the trial court’s order is
nonetheless appealable under [Pa.R.A.P.] 311. . . .
Proper interpretation of Rule 311 must necessarily
begin with a review of appellate jurisdiction as conferred
by the General Assembly. While the General Assembly has
provided a virtually unfettered right to appeal final orders,
the right to appeal interlocutory orders has been narrowly
circumscribed. Interlocutory appeals are thus available
either by permission or as of right. With regard to the
latter category, interlocutory appeals as of right exist for
those limited classes of orders in which permission to
appeal would be regularly permitted. Such orders are to
be specified by general rule. Pursuant to this legislative
directive, the Supreme Court has identified the classes of
interlocutory orders which are appealable as of right; these
orders are delineated in [Pa.R.A.P. 311(a)-(f), 313].
Orders involving attachments, receiverships,
custodianships or other similar matters affecting the
possession or control of property, are among the classes of
interlocutory orders which are appealable as of right.
Interlocutory orders involving injunctions are likewise
appealable as of right. Attachments, custodianships,
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receiverships and injunctions have technical and peculiar
meanings when applied in the legal context; these terms
refer to a particular type of action or remedy. Replevin is
likewise a distinct form of legal action and relief.
“Replevin” is not a term which can be equated or used
interchangeably with attachment, receivership,
custodianship or injunction. Our conclusion is supported
by the fact that the Supreme Court has enacted specific
rules governing the practice and procedure applicable to
each of these types of action or relief.
The Supreme Court’s adoption of specific rules evinces
its awareness of the distinctions between these
proceedings and its desire to treat them differently. The
Supreme Court has accordingly decided that interlocutory
orders relating to attachments, receiverships,
custodianships and other similar matters affecting
property, as well as injunctions, are all appealable as of
right. However, interlocutory replevin orders of the type
at issue here were not specifically addressed in either Rule
311(a)(2) or (a)(4). The Court’s failure to specifically
include such orders therein thus suggests that these orders
were not intended to be appealable as of right.
The Court’s omission appears to have been deliberate
rather than an inadvertent oversight. Prior to the adoption
of the procedural rules, the appellate courts quashed
interlocutory appeals of replevin orders unless special
circumstances justifying immediate appellate review were
present. Had a change in the law been intended, mention
of this fact would have appeared in either the rule itself or
in the commentary thereto. Neither the rule, the
comments nor the notes thereto reference this subject.
The absence of such discussion gives rise to the conclusion
that interlocutory replevin orders do not fall within the
existing exceptions set forth in Rules 311(a)(2) and (a)(4)
and that such orders were not intended to be appealable
as of right.
We accordingly do not believe that the Supreme Court
intended interlocutory orders denying or granting the
issuance of a writ of seizure in a replevin action to be
appealable as of right under Rule 311(a)(2) or (a)(4). To
hold otherwise would result in a significant expansion of
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the limited class of orders for which an interlocutory appeal
as of right currently exists. If a change of this magnitude is
to be forthcoming it is a matter for our Supreme Court,
rather than an intermediate appellate court, to decide.
Having found that the instant matter does not fall within
the parameters of either Rule 311(a)(2) or (a)(4), we must
ascertain whether the order in this case is appealable
under Rule 313, which permits an interlocutory appeal to
be taken as of right from a collateral order. A collateral
order is defined as one which: (1) is separable from and
collateral to the main cause of action; (2) involves a right
that is too important to be denied review; and (3) presents
a question such that if review is postponed until final
judgment, the claim will be irreparably lost. None of these
requirements has been met in this case.
Id. at 1258-60 (citations and footnote omitted).
Instantly, the facts of this case are nearly identical to the facts in
Nufab. Appellee, identical to the plaintiff in Nufab, moved for a writ of
seizure pursuant to a replevin claim. See Nufab, 677 A.2d at 1257.
Appellants, identical to the parties in Nufab, appealed from the order
resolving the motion for writ of seizure. See id. We are bound by the
rationale of the Nufab Court as Appellee’s claims remain unresolved and
Appellants did not request permission for an interlocutory appeal. See id.
Accordingly, we quash.
Appeal quashed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/5/2014
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