IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jose R. Cox Jr., and Tomas Leal Jr., :

Appellants :
: No. 113 C.D. 2012
v. :
: Submitted: December 7, 2012
Joseph N. Reilly doing business as :
Joseph N. Reilly Real Estate Inc. and :
Joseph N. Reilly Real Estate Inc. and :
Commonwealth of Pennsylvania, :
State Real Estate Commission :
Real Estate Recovery Fund :



BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPI NI ON NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: April 18, 2013

Jose R. Cox Jr. and Thomas Leal Jr. (Lessors) petition for review of the
December 23, 2011 order of the Court of Common Pleas of Philadelphia County (trial
court) granting the State Real Estate Commissions (Commission) motion to stay
Lessors proceeding for payment from the Real Estate Recovery Fund (Fund) under
section 803 of the Real Estate Licensing and Registration Act (Act)
1
because of the

1
Act of February 19, 1980, P.L. 15, No. 9, as amended, 63 P.S. 455.803. The purpose of
the Fund is to compensate victims of fraud, misrepresentation, or deceit who cannot otherwise
fulfill an obtained judgment against a licensee involving any transaction under the Act.

2
automatic stay provisions of the United States Bankruptcy Code (Bankruptcy Code).
2

Lessors allegedly entered into a real estate management agreement with
their real estate brokers, Joseph N. Reilly (Reilly) and Joseph N. Reilly Real Estate,
Inc. (Reilly Real Estate). (Trial court op. at 2.) Lessors then filed a civil action
against Reilly and Reilly Real Estate for breach of contract. (Trial court op. at 1, 2.)
By order dated March 2, 2011, the trial court issued a default judgment in favor of
Lessors against Reilly and Reilly Real Estate. (Reproduced Record (R.R.) at 5a, 6a.)
When Lessors failed to recover the judgment from Reilly and Reilly Real Estate,
Lessors filed a petition with the trial court seeking payment under the Act to recover
from the Fund.
3
(R.R. at 7a.) The Commission
4
petitioned the trial court to stay the
Fund proceeding in order to consolidate, coordinate, and join all current and
prospective claims against Reilly and Reilly Real Estate pursuant to section 803(e) of
the Act.
5
(R.R. at 9a, 10a.) By order dated September 6, 2011, the trial court granted
the Commissions motion to stay the Fund proceeding. (R.R. at 10a, 11a.)
On September 12, 2011, Reilly filed a Chapter 7 bankruptcy petition.
(R.R. at 25a.) Reilly Real Estate was not a named debtor in the bankruptcy case.
(Id.) The Commission then petitioned the trial court to stay the Fund proceeding

2
See 11 U.S.C. 362(a).

3
Under section 803(a) of the Act, if an aggrieved party cannot fulfill a judgment against a
real estate licensee, the aggrieved party may file an application in the court that ordered the
judgment for payment from the Fund. 63 P.S. 455.803(a).

4
The Commission was named as a defendant to this action pursuant to section 803(c) of the
Act, 63 P.S. 455.803(c).

5
63 P.S. 455.803(e).

3
because of the automatic stay provisions of the Bankruptcy Code. (R.R. at 18a.) By
order dated December 23, 2011, the trial court granted the Commissions motion.
(R.R. at 19a.)
On appeal to this Court, Lessors argue that the automatic stay provisions
of the Bankruptcy Code do not apply to the Fund proceeding. However, the
Commission asserts in its brief that this case is moot because the bankruptcy court
discharged Reilly. The Commission also filed a supplemental reproduced record
including the bankruptcy courts discharge order. Lessors then filed an application to
suppress the Commissions brief and reproduced record, arguing that the Commission
included a new matter not raised in the trial court. The Commission counters in its
reply to Lessors application that it properly raised the issue of Reillys discharge
from bankruptcy court.
Before addressing the merits of Lessors appeal, we consider whether the
trial courts December 23, 2011 order granting the Commissions motion to stay is a
final order. The appealability of a trial court's order is a question of law subject to
our plenary review. In re First Baptist Church of Spring Mill, 22 A.3d 1091, 1094-95
(Pa. Cmwlth. 2011). In Robinson v. City of Philadelphia, 706 A.2d 1295 (Pa.
Cmwlth. 1998), we said:

While the parties have not addressed the question of
appealability in their briefs, by legislative and judicial
mandate this Court is required to determine whether the
order appealed from is final. Since the question of
appealability implicates the jurisdiction of the appellate
court, a non-waivable matter, the failure of the parties to
raise the issue does not preclude this Court from doing so
sua sponte.

Id. at 1297.
4
Generally, an appellate courts jurisdiction only extends to review of a
final order. Pa.R.A.P. 341(a); In re First Baptist Church, 22 A.3d at 1095. A final
order is 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
Pennsylvania Rule of Appellate Procedure (Pa.R.A.P.) 341(c) (allowing a trial court
to enter a final order disposing of less than all claims and all parties). Pa.R.A.P.
341(b). Appellate review is limited to final orders to prevent piecemeal
determinations and the consequent protraction of litigation. Hionis v. Concord
Township, 973 A.2d 1030, 1034 (Pa. Cmwlth. 2009).
In the present case, the trial courts order granting the stay does not
dispose of all claims and all parties. Further, the trial courts order is not defined as a
final order by statute, nor did the trial court ever certify its order as a final order
disposing of less than all claims and all parties based upon a determination that such
an appeal would facilitate resolution of the entire case. Thus, the trial courts order
granting the stay is not a final order.
Instead, the trial courts order is interlocutory. Takacs v. Indian Lake
Borough, Zoning Hearing Board, 18 A.3d 354, 357 (Pa. Cmwlth. 2011) ([A]n
interlocutory order is an interim or temporary order that is issued before the final
resolution of the controversy.). Nevertheless, certain interlocutory orders are
appealable as of right. Pa.R.A.P. 311 permits appeals as of right from the following
interlocutory orders:

(1) An order refusing to open, vacate or strike off a
judgment;

(2) An order confirming, modifying or dissolving or
refusing to confirm, modify or dissolve an attachment,
5
custodianship, receivership or similar matter affecting the
possession or control of property;

(3) An order changing venue or venire in a criminal
proceeding;

(4) An order that grants or denies, modifies or refuses to
modify, continues or refuses to continue, or dissolves or
refuses to dissolve an injunction [order];

(5) An order granting peremptory judgment in
mandamus;

(6) An order in a civil action or proceeding awarding a
new trial, or an order in a criminal proceeding awarding a
new trial where the defendant claims that the proper
disposition of the matter would be an absolute discharge or
where the Commonwealth claims that the lower court
committed an error of law;

(7) An order directing partition;

(8) An order which is made appealable by statute or
general rule.

An order granting a stay because of the Bankruptcy Codes automatic
stay provisions is not one of the enumerated interlocutory orders appealable as of
right.
Pa.R.A.P. 312 also allows for appeals by permission. However, Lessors
sought no such permission in this case. Further, Pa.R.A.P. 313 permits appeals from
collateral orders. Pa.R.A.P. 313(b) defines a collateral order as an order separable
from and collateral to the main cause of action where the right involved is too
important to be denied review and the question presented is such that if review is
postponed until final judgment in the case, the claim will be irreparably lost. The
trial courts order in this case is not separable from and collateral to the main cause of
6
action herein. Nor does the trial courts order involve a right too important to be
denied review or a claim that could be irreparably lost if review is postponed.
Accordingly, the appeal is quashed.


________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jose R. Cox Jr., and Tomas Leal Jr., :
Appellants :
: No. 113 C.D. 2012
v. :
:
Joseph N. Reilly doing business as :
Joseph N. Reilly Real Estate Inc. and :
Joseph N. Reilly Real Estate Inc. and :
Commonwealth of Pennsylvania, :
State Real Estate Commission :
Real Estate Recovery Fund :


ORDER

AND NOW, this 18
th
day of April, 2013, the appeal of Jose R. Cox Jr.
and Tomas Leal Jr. is hereby quashed.


________________________________
PATRICIA A. McCULLOUGH, Judge