Cunningham, B. v. Cunningham, A.

• Court: Superior Court of Pennsylvania
• Decided: February 27, 2015
• Docket: 336 WDA 2014
• Status: Unpublished

Opinion

J. A01012/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

BEVERLY CUNNINGHAM, : IN THE SUPERIOR COURT OF INDIVIDUALLY, : PENNSYLVANIA AND AS TRUST BENEFICIARY : : v. : : ALVIN D. CUNNINGHAM, : INDIVIDUALLY, : ALVIN D. CUNNINGHAM AS TRUSTEE, : AND ALVIN D. CUNNINGHAM TRUST, : No. 336 WDA 2014 : Appellant :

Appeal from the Order, January 22, 2014, in the Court of Common Pleas of Somerset County Civil Division at No. 68 Civil 2007

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND ALLEN, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 27, 2015

Appellant, Alvin D. Cunningham, individually, Alvin D. Cunningham as

trustee, and Alvin D. Cunningham Trust appeals the order of the Court of

Common Pleas of Somerset County which entered judgment in favor of

Beverly Cunningham, appellee. We quash this appeal.

This case involves the enforcement of a post-nuptial agreement

(“PNA”) along with a family trust agreement (“FTA”) that were executed on

November 1, 1996, by the parties who were formerly husband and wife.

Appellee is the donee and primary beneficiary as to the FTA, and appellant is

the settlor and trustee of the same. On May 12, 1998, the parties executed J. A01012/15

an amendment to the FTA; and both trust agreements recite that the trusts

are formed for the purpose of securing certain financial obligations incurred

by appellant under the provisions of the PNA.

This current action was commenced by complaint on January 26,

2007. Appellant filed an answer, new matter, and counter-claim on May 22,

2007, which was answered by appellee on May 28, 2008. Appellee filed a

second amended complaint on July 6, 2011. Appellant filed an answer, new

matter, and counter-claim to the second amended complaint on February 3,

2012. A motion for contempt was filed on April 4, 2012, followed by an

amended motion for contempt/motion to enforce filed on November 6, 2012.

Appellant filed an answer to the amended motion for contempt/motion to

enforce on November 21, 2012. As a result of the filings, the trial court

issued its January 19, 2014 order, subsequently filed on January 22, 2014,

which entered judgment in favor of appellee and against appellant in the

amount of $23,333.33 and further ordered appellant to recommence

monthly installment payments in the amount of $1,666.66 each forthwith

pending a resolution of all disputed factual and legal matters.

This court has jurisdiction only over final orders. 42 Pa.C.S.A. § 742.

Pennsylvania Rule of Appellate Procedure 341(b) defines final orders as

those that resolve all issues as to all parties, are defined by statute as final,

or are entered as final under Pa.R.A.P. 341(c). The order in question is not

final. In its order, the trial court directed “the parties may complete

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discovery as needed and praecipe the matter for hearing on disputed factual

issues.” (Order, 1/19/14.) Clearly, this matter is unfinished and additional

litigation is anticipated. See Continental Bank v. Andrew Building Co.,

648 A.2d 551, 554 (Pa.Super. 1994) (“A final order is any order that

dismisses all claims or all parties.”). Because this is not an appeal from a

final order, or from any of the non-final order “exceptions” that would form a

basis for an appeal, we lack jurisdiction to hear this appeal. Id. at 553 (an

appellate court may, sua sponte, determine whether an appeal is properly

before this court). Accordingly, we must quash.

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/27/2015

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