Velocity Magnetics v. Marzano, T.

• Court: Superior Court of Pennsylvania
• Decided: October 7, 2022
• Docket: 421 WDA 2022
• Status: Unpublished

Opinion

J-A25004-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

VELOCITY MAGNETICS, INC., A : IN THE SUPERIOR COURT OF CORPORATION : PENNSYLVANIA : v. : : TERRY J. MARZANO, AN : INDIVIDUAL, AND DYNAMIC : ATTRACTIONS, INC., A : CORPORATION : : APPEAL OF: TERRY J. MARZANO : No. 421 WDA 2022

Appeal from the Order Entered March 17, 2022, in the Court of Common Pleas of Lawrence County, Civil Division at No(s): 2019-10911.

BEFORE: KUNSELMAN, J., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY KUNSELMAN, J.: FILED: October 7, 2022

Terry J. Marzano appeals from the order denying modification of a

consent decree that he and Velocity Magnetics, Inc. entered on September

18, 2019. Upon receiving his notice of appeal, we issued a rule to show cause

questioning our appellate jurisdiction. Mr. Marzano filed a response, and the

matter was deferred to this panel. After review, we quash.

“The question of the appealability of an order goes the jurisdiction of the

Court . . . review[ing] the order.” Beltran v. Piersody, 748 A.2d 715, 717

(Pa. Super. 2000). Hence, we may raise this issue sua sponte. See In re

Est. of Moskowitz, 115 A.3d 372, 388 (Pa. Super. 2015). “Jurisdiction is

purely a question of law; the appellate standard of review is de novo, and the J-A25004-22

scope of review is plenary.” Commonwealth v. Merced, 265 A.3d 786, 789

(Pa. Super. 2021).

Our “jurisdiction is generally limited to appeals from final orders of

courts of common pleas, unless a statute provides otherwise.” Williams v.

Williams, 385 A.2d 422, 422 (Pa. Super. 1978). The record reveals that a

contempt petition is still pending before the trial court, wherein Velocity

Magnetics alleges Mr. Marzano breached the consent decree. Thus, the March

17, 2022 order is not an appealable, final order, because it does not dispose

of all claims and all parties. See Pa.R.A.P. 341(b).

When this Court sent a rule to show cause why the instant appeal should

not be quashed for lack of jurisdiction, Mr. Marzano responded by saying that

the relevant non-compete agreement between the parties lacked

consideration. This argument does not address how this Court has jurisdiction

over the appealed from order. Critically, a party who consents to a judgment

or order typically waives an appeal on the underlying merits of the case once

he acquiesces to a consent decree. See Brown v. Com., Dept of Health,

434 A.2d 1179, 1181 (Pa. 1981). An appeal is permitted only if (1) the

consent order explicitly permits it or (2) the record reveals the parties

anticipated appeal. See Laird v. Clearfield & Mahoning Ry. Co., 916 A.2d

1091 (Pa. 2007) (permitting appeal after entry of stipulated order where

transcript revealed appellants expressed desire to preserve appeal).

The consent order the parties entered in September 2019 does not

expressly preserve Mr. Marzano’s appellate rights, nor does anything of record

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indicate that the parties anticipated future appeals of any underlying contract

claims. Thus, the consent order is not reviewable under Laird. Additionally,

any claim regarding a lack of consideration is immaterial to the question of

appellate jurisdiction.

Finally, in responding to our rule to show cause, Mr. Marzano also

claimed his appeal could proceed based upon two cases: Commonwealth v.

U.S. Steel Corp., 325 A.2d 324 (Pa. Cmwlth. 1974), and Bianchi v. Bianchi,

859 A.2d 511 (Pa. Super. 2004). His reliance is misplaced as those cases do

concern the jurisdiction of this Court.

In U.S. Steel Corp., the parties entered a consent decree for the

remediation of air pollutants from the company’s plant. When the

Commonwealth and county petitioned for contempt of the consent decree

against the company, the chancellor failed to rule on the contempt issue.

Instead, he began assisting and overseeing the company’s efforts to comply

with the consent decree. The Commonwealth and county appealed.

Commonwealth Court vacated, remanded, and instructed the chancellor to

rule on the contempt petition and to enforce the consent decree.

Similarly, in Bianchi, a wife sought to enforce a property-settlement

agreement she and her husband entered during their divorce. At husband’s

behest, the trial court ignored the agreement and awarded the property based

upon another formula. On appeal, we reversed; the agreement was a consent

decree that could not be modified after the parties entered it.

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In both U.S. Steel and Bianchi, appellants sought to enforce consent

decrees as written, not to modify them. Neither case stands for the

proposition that an order denying modification of a consent decree can be

appealed. Additionally, neither case indicates that a party can petition to

modify a consent decree and thereby revive appellate rights that were waived

upon entering a settlement. The parties can only modify a consent decree by

subsequent agreement. See, e.g., Penn Twp. v. Watts, 618 A.2d 1244,

1247 (Pa. Cmwlth. 1992) (noting that the rule in Pennsylvania

regarding modification of a consent decree is that where a decree is entered

by consent of the parties, it is binding upon the parties until they choose to

amend it.)

Mr. Marzano has not persuaded us to abandon the general rule of

Brown, supra, to revisit claims and defenses that may have existed in the

underlying litigation before the parties settled. Nor has he convinced us that

we have jurisdiction over this appeal.

Appeal quashed. Oral argument cancelled. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/7/2022

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