Opinion
J-S15042-16 No. 619 EDA 2015
02-29-2016
KONDAUR CAPITAL CORPORATION, Appellee v. MARSHALL L. WILLIAMS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order January 8, 2015 in the Court of Common Pleas of Philadelphia County
Civil Division at No.: April Term, 2013 No. 00109 BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Marshall L. Williams, a lawyer, appeals pro se from the order denying his petition to compel arbitration and stay proceedings in this eviction action. Appellant's arguments are waived or previously litigated. We affirm, in part, on the basis of the trial court's opinion. Appellee, Kondaur Capital Corporation, has filed an application for dismissal and for sanctions. We affirm the order denying arbitration, dismiss Appellee's application for dismissal as moot, grant Appellee's application for sanctions, and remand with instructions.
In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them here at length.
For the convenience of the reader we note briefly that although this ejectment action began in 2013, the underlying issues arose in 2010, and have previously been reviewed by a panel of this Court, which affirmed the denial of Appellant's petition to set aside the sheriff's sale of the same property, 5447 Wyndale Avenue, Philadelphia, Pennsylvania. ( See EMC Mortgage Corp. v. Williams , No. 844 EDA 2013, (unpublished memorandum at *8) (Pa. Super. filed July 8, 2014)).
EMC Mortgage Corp. was predecessor in interest to Appellee.
Prior to that, on February 2, 2010, as noted in the previous memorandum decision, EMC had filed a complaint in mortgage foreclosure on the 5447 Wyndale property. ( See id. at *1). After various procedural detours, the trial court ordered foreclosure and the property was sold at sheriff's sale on September 11, 2012. ( See id. at *3).
This Court affirmed the order denying Appellant's petition to set aside the sheriff's sale. ( See id. at *9). Notably, the panel also rejected Appellant's claim that the dispute should have been transferred to arbitration. ( See id. at *5-6). Observing that Appellant failed to preserve any issues by filing a response to a motion for summary judgment, the panel concluded that "[a]ny issues relating to the mortgage foreclosure judgment are deemed waived and/or previously litigated." ( Id. at *6).
Also, as noted by our predecessor panel, this case has a "tortured procedural history." ( Id. at *1). For purposes of our review, it is sufficient to note that after Appellee filed a complaint in ejectment, Appellant eventually again filed a motion to compel arbitration, the third such motion, which the trial court denied. Additionally, Appellant filed a motion to stay proceedings, which the trial court also denied. This timely appeal followed.
Appellant timely filed a court-ordered concise statement of errors, on March 3, 2015. The trial court filed its opinion on March 27, 2015. See Pa.R.A.P. 1925.
On appeal, Appellant raises six questions for our review:
1. Whether the trial court erred as a matter of law by finding that the parties' arbitration agreement did not apply to the disputes, claims and controversies raised in [Appellant's] answer including his denials and new matter (other additional facts, affirmative defenses and counterclaims) to [Appellee's] amended complaint in ejectment?
2. Did [Appellant] waive his constitutional rights under the United States Constitution's Supremacy Clause, the Commerce Clause and the Due Process Clause to directly challenge the validity of [Appellee's] invalid deed that exhibited its amended complaint in ejectment?
3. Should fraud, mistake, illegality or accident invalidate [Appellee's] sheriff sale and [Appellee's] prematurely issued sheriff's deed?
4. Did the trial court lack personal jurisdiction and subject matter jurisdiction over the parties and the ejectment complaint
on April 1, 2013 while the sheriff sale appeal was pending effective March 11, 2013?(Appellant's Brief, at 4). We note that Appellant's brief, as well as his reproduced record, were filed late.
5. Where [Appellee] agrees to arbitration as requested by [Appellant], did the trial court erred [sic] as a matter of law by failing to stay or dismiss the pending proceedings in favor of arbitration?
6. Does a void foreclosure summary judgment remains [sic] invalid for all subsequent actions including an ejectment actions?
We review a trial court's denial of a motion to compel arbitration for an abuse of discretion and to determine whether the trial court's findings are supported by substantial evidence. In doing so, we employ a two-part test to determine whether the trial court should have compelled arbitration. The first determination is whether a valid agreement to arbitrate exists. The second determination is whether the dispute is within the scope of the agreement.Hopkins v. Erie Ins. Co., 65 A.3d 452, 455-56 (Pa. Super. 2013) (citations and internal quotation marks omitted omitted).
* * *
[A] challenge to the trial court's statutory interpretation is a question of law and, as such, our standard of review is de novo and our scope of review is plenary.
Preliminarily, in this appeal, we note that Appellant's Rule 1925(b) statement presents only four issues: (1) denial of the motion to compel arbitration; (2) denial of the motion to stay proceedings, (3) jurisdiction, and (4) alleged infringement of his constitutional right to due process and equal protection. ( See "Statement of Matters Complained Of," 3/03/15, at 1-2). Accordingly, Appellant's third issue (fraud, mistake, illegality or accident) and sixth issue (validity of summary judgment) are waived. See Pa.R.A.P. 1925(b)(vii).
Appellant has failed to include a copy of the statement of errors in his brief, in violation of Pa.R.A.P. 2111(a)(11).
As to the remaining issues, after a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the trial court we conclude that there is no merit to the issues Appellant has raised on appeal. The trial court opinion properly disposes of the questions presented. ( See Trial Court Opinion, dated 3/27/15, at 4-7) (concluding: (1) trial court properly denied third motion to compel arbitration, where issue was previously litigated, Appellant previously failed to preserve issue and this Court dismissed issue in preceding decision; issue is collateral to underlying judgment; (2) trial court properly exercised jurisdiction over the claims presented; Appellant failed to raise claim properly before trial court; (3) trial court properly granted stay while case was on appeal and lifted stay after Superior Court rendered decision; and (4) Appellant failed to make timely claim of constitutional issues with trial court; in any event, constitutional claims, which actually related to petition to set aside sheriff's sale, were moot). Accordingly, we affirm on the basis of the trial court's opinion.
Finally, we address Appellee's application for dismissal and sanctions. Because we have addressed the issues in this appeal, we dismiss the application for dismissal as moot. However, we grant the application for sanctions.
Appellee asserts, and Appellant does not dispute, that the due date for Appellant to file his brief was May 19, 2015. When Appellee filed its motion for sanctions, on September 17, 2015, it still had not received Appellant's brief, although he had apparently filed it with this Court the day before, on September 16, 2015. Nevertheless, this was almost four months later than the original due date. Furthermore, in his response to Appellee's application to dismiss his appeal for failure to file his brief, Appellant concedes that he did not serve his brief and reproduced record on Appellee until after the fact, on September 19, 2015. He apologized.
Appellant's repeated misconduct, and insistence on continuing to raise issues which have already been decided, is transparently derelict. Of equal concern, the only substantive explanation Appellant offers for his conceded failure to conform to our rules of appellate procedure are "regrettable oversight" and a single, generic, unsupported reference to becoming "ill." (Response to Kondour's [sic] Application to Dismiss, 10/01/15, at 1 ¶ 3-4).
Appellant is a lawyer and we presume him to be aware of the requirements of professional conduct. We further note that Appellant conceded in his application for an extension that he was the subject of disciplinary proceedings for violation of legal ethics in an apparently unrelated proceeding. ( See Application for Extension, 6/15/15, at 1).
Appellee's assertion—that Appellant routinely filed documents with the court without properly serving Appellee—finds support in the record and stands substantially unrefuted, with no reasonable explanation supplied. This Court routinely grants reasonable extensions to litigants, in need of a period of grace, for good cause shown. However, Appellant's systematic and continuous disregard for the deadlines required to maintain an orderly process of adjudication, and worse, his recurring failure to serve opposing counsel, appear to come perilously close to expressing disdain, if not contempt, for our rules of procedure.
Therefore, we grant Appellee's application and impose sanctions on Appellant for his continuing disregard of judicial procedure. We remand this case to the trial court for a hearing within thirty days of the date of this decision, to permit Appellee to present evidence in support of its claims for attorney's fees and costs associated with the application for sanctions. The trial court shall limit the hearing to setting the amount of monetary sanctions.
Order denying arbitration affirmed. Case remanded with instructions. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/29/2016
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