J-S15042-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KONDAUR CAPITAL CORPORATION, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARSHALL L. WILLIAMS,

Appellant No. 619 EDA 2015

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.: FILED FEBRUARY 29, 2016

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. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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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 v. Williams, No. 844 EDA 2013, (unpublished 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)).1 

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 

____________________________________________

1 EMC Mortgage Corp. was predecessor in interest to Appellee. 
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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.2 

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 

____________________________________________

2 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. 
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on April 1, 2013 while the sheriff sale appeal was pending 

effective March 11, 2013?

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?

(Appellant’s Brief, at 4). We note that Appellant’s brief, as well as his 

reproduced record, were filed late. 

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.

* * *

[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.

Hopkins v. Erie Ins. Co., 65 A.3d 452, 455-56 (Pa. Super. 2013) (citations 

and internal quotation marks omitted omitted).

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 
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(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).3 

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). 

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 

____________________________________________

3 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).
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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). 
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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. 
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Order denying arbitration affirmed. Case remanded with instructions. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/29/2016
-~-·-- --··-- ......... _...,., ,,.._,-,--,-_ .-.. ,....... ,... r-. ,....,...,..,,_, rvrv rrvrv srvrv.c r1 

1 Following the disposed action docketed at Philadelphia Court of Common Pleas, February Term 2010, No. 0235. 

owner of the premises as "the Sheriff was not authorized to execute or deliver to plaintiff a sheriff's 

On July 19, 2013, Appel.lant filed an Answer to the Complaint, arguing that Appellee was not the 

On July 3, 2013, Appellant's preliminary objections were marked moot. 

On June 17, 2013, Appellee fifed an Amended Complaint. 

On June 10, 2013, Appellant filed Preliminary Objections to Appellee's Complaint. 

On May 24, 2013, Appellee filed an Affidavit of Service by posting the premises on May 9, 2013. 

which was granted May 1, 2013. 

On April 26, 2013, Appellee kondaur Capital Corporation filed a Motion for Alternative Service, 

Sale held on September 11, 2012.1 

Appellant from the premises of 5447 Wyndale Avenue, Philadelphia, Pennsylvania, following a Sheriff's 

This case commenced April 1, 2013, with the filing of a Complaint in Ejectment, seeking to eject 

111111/ 11111/ 111111111 /II/ 111 

FACTUAL AND PROCEDURAL HISTORY 13040010900058 

Stay Proceedings. · Kmdaur Capuat Carporahon Vs Wilr.ams Ela-OPFLD 

Appellant, Marshall Williams, appeals this Court's denial of his Petition to Compel Arbitration and 

OPINION 

- . 

:.,...·. 

MARSHALL L. WILLIAMS 

Civil Division 

April Term 2013, No. 0109 

v. 

SUPERIOR COURT No. 

619 EDA 2015 

KONDAUR CAPITAL CORPORATION 

~ •• l 

( ,' 

::_·) ·' 

IN THE COURT OF COMMON PLEAS 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

Circulated 02/10/2016 12:09 PM
2 

on July 8, 2014, and denied Appellant's Motion for Reconsideration on August 21, 2014. The Superior 

the Superior Court of Pennsylvania affirmed this Court's Order denying Appellant's Motion to Set Aside 

On October 20, 2014, Appellee filed a Motion to Terminate the Stay. The Motion averred that 

docketed at 844 EDA 2013. 

. outcome of Appellant's Motion for Reconsideration in the Superior Court of Pennsylvania on the appeal 

On August 19, 2014, this Court dismissed Appellee's Motion without prejudice pending the 

On August 7, 2014, Appellant filed an Answer in Opposition to Appellant's Motion. 

On July 18, 2014, Appellee filed a Motion to Terminate the Stay. 

Appellant's appeal to the Superior Court of Pennsylvania, docketed at 844 EDA 2013. 

On October 8, 2013, the case was stayed by Order of the Court pending the outcome of 

was not stayed. See Motion to Stay Proceedings Pending Appeal, ~ 1. 

Q 

Appellee's New Matter. The Motion to Stay averred that the mortgage foreclosure action underlying the 

instant ejectment action was on appeal, and that Appellant would suffer irreparable harm if the action 

On October 4, 2013, Appellant filed a Motion to Stay Proceedings, as well as a Reply to 

filed an Answer in Opposition to Appellant's Motion .... 

On October 2, 2013, Appellant filed a Motion for Extraordinary Relief: that same day Appellee 

On September 10, 2013, Appellee flled a Motion for Judgment on the Pleadings. 

were inappropriately advanced in an action in ejectment. 

averments and counterclaims as collateral attacks on a duly entered judgment in foreclosure which 

On August 13, 2013, Appellee filed an Answer to Appellant's Counterclaim, denying Appellant's 

Relationship; and one count of Breach of Contract. 

Protection Act, 73 P.S. § 201-1 et seq.; one count of Tortious Interference with a Contractual 

Matter. As a Counterclaim, Appellant raised one count of violations of the Unfair Trade and Consumer 

deed on December 27, 2012." Appellant raised a number of boilerplate affirmative defenses in his New 
3 

Court of Pennsylvania remitted the record on October 17, 2014, and thus, the appeal had been 

concluded. See Motion to Terminate Stay, ~11 - 11. 

On November 10, 2014, Appellant filed an Answer in Opposition to the Motion to Terminate the 

Stay, arguing that the Motion should be denied as "undu/y prejudicial" to him, and because "the record 

has not been docketed." See Answer in Opposition to Motion to Terminate Stay, ,i 5 - 6. 

On November 18, 2014, this Court granted Appellee's Motion to Terminate the Stay. 

On November 20, 2014, Appellee filed a Motion for Judgment on the Pleadings. 

On December 10, 2014, Appellant filed a Petition to Compel Arbitration, arguing that the loan 

contained an arbitration rider covering "all disputes, claims, or controversies arising from or related to 

the loan evidenced by. the Note" and provided that at the request of the Borrower, judicial proceedinqs 

shall be stayed or dismissed and the matter should proceed to arbitration. See Petition to Compel 

Arbitration, ~ 4. Appellant averred that he had written a letter to Appellee's counsel demanding 

arbitration, but had not received a response. See Petition to Compel Arbitration, ,i 15. 

On December 11, 2014, Appellant filed an Answer in Opposition to Appellant's Motion for 

Judgment on the Pleadings. 

On December 30, 2014, Appellee filed an Answer in Opposition to Appellant's Petition to Compel 

Arbitration. Appellee argued that the sale had been proper, that the ejectment action is collateral to the 

foreclosure case and the foreclosure judgment, and thus not subject to arbitration under the 

mortgage's Rider. See Answer Petition to Compel Arbitration, ,i 12 - 13. Additlonally, Appellee averred 

that it had written to Appellant indicating its willingness to arbitrate, but that Appellant never initiated 

such arbitration. See Petition to Compel Arbitration, ~ 20. 

On January 8, 2015, this Court denied Appellee's Motion for Judgment on the Pleadings. That 

same day, this Court denied Appellant's Motion to Compel Arbitration. 
2 The Arbitration Rider allows for arbitration pursuant to 9 U.S.C. §§ 1-14. 

4 

Appellant challenges, on a number of grounds, this Court's denial of his Petition to Compel 

Arbitration. 

I. PETmON TO COMPEL ARBITRATION 

Appellant argues thatthis Court erred as a matter of law when it denied his motion to compel 

arbitration pursuant to the executed arbitration rider attached to the loan agreement. As a first note, 

an appeal may be taken from a court order denying an application to compel arbitration made under 

section 7304. Callan v. Oxford Land oev; Inc., 2004 PA Super 353, 858 A.2d 1229, 1232 (2004).2 

. DISCUSSION 

On March 3, 2015, Appellant filed his Concise Statement of Matters Complained of on Appeal, 

arguing that: this Court erred when it denied his motion "pursuant to the executed arbitration rider 

attached to their loan agreement;" that this Court abused its discretion when it denied Appellant's 

Motion to Stay Proceedings pending "the completion of arbitration by the parties' [sic] of their dispute 

pursuant to the arbitration rider;" that.this Court "committed an unduly prejudicial error by exerclsino 

subject matter jurisdiction and in personam jurisdiction" over the complaint in ejectment while 

Appellant's appeal was pending; and that Appellant's rights to due process and equal protection were 

infringed upon. · 

On February 9, 2015, Appellant filed a timely Notice of Appeal to the Superior Court of 

Pennsylvania. 

On February 11, 2015, this Court issued its Order pursuant to Pa.R.A.P. 192S(b), directing 

Appellant to file its Concise Statement of Matters Complained of on Appeal within twenty-one (21) 

-days. 
5 

3 Kondaur Capital Corp. v. W!lliam5i 2767 EDA 2011, per curiam order filed January 1.8, 2012. 

4 EMC Mortgage Corporation v. Marshall L. Williams, 844 EDA 20131 memorandum opinion filed July B, 2014. 

Appellant's appeal of the sheriff's sale was pending in the Superior Court. 

subject matter jurisdiction and in personam jurisdiction over the complaint in ejectment when 

Appellant next complains that this Court committed an "unduly prejudicial error" by exercising 

II. SUBJECT MAlTER JURISDICTION 

Consequently, this Court did not err in denying Appellant's petition to compel arbitration. 

third time, in a proceeding collateral to the underlying judgment. 

issues were deemed waived or previously litigated.4 Appellant cannot raise these issues again, for the 

plaintiff's summary judgment motion.' Appellant again attempted to raise the issue of the arbitration 

rider in an appeal from a denial of his Petition to Set Aside Sheriff's Sale, but was unsuccessful as the 

dismissed by the Superior Court of Pennsylvania as he failed to preserve issues by filing a response to 

895 (2002)) and has been previously litigated. Appellant's appeal challenging. the judgment was 

- .... to the mortgage foreclosure, see Dime Sav. Ban~ FSB v .. Greene1 2002 P.A Super 3921 S13 A.2d 893, 

predecessor in interest, which is both inappropriate in an ejectment action (i.e. a collateral proceeding 

In the instant case, Appellant attacks the underlying judgment in favor of Appellee's 

84 (1998). 

opportunity to litigate the issue in the prior action. Rue v. K-Mart Corp., 552 Pa. 131 17, 713 A.2d 821 

to the prior action; and the party against whom collateral estoppel is asserted had a full and fair 

against whom collateral estoppel is asserted was a party to the prior actlon, or is in privity with a party 

one presented in a later action; the prior action resulted in a final judgment on the merits; the party 

preclusion applies when the following prongs are met: an issue decided in a prior action is identical to 

However/ Appellant is collaterally estopped from raising this issue. The doctrine of issue 
6 

5 Order denying Application for Reconsideration docketed in 844 EDA 2013 on August 21, 2014. The st9'y in this case was 

lifted by this Court's Order of November 18, 2014. 

pleadings. Only claims properly presented in the lower court are preserved for appeal, and even 

1317 (1989). Appellant did not raise this issue in preliminary objections nor at any other time in his 

do so by filing preliminary objections. Scoggins v. Scoggins, 382 Pa. Super. 507, 513, 555.A.2d 1314, 

When a defendant wishes to challenge the court's exercise of in personam jurisdiction, he may 

b. In personarn jurisdiction 

affirming the trial Court's Order.5 

the denial of his Motion for Reconsideration of the Order of the Superior Court: of Pennsylvania, 

Stay pending the outcome of his appeal pursuant to Pa.R.A.P. 1732, and said Stay was not lifted until 

original mortgage foreclosure. By way of further response, Appellant applied for and was granted a 

to why this Court did not have subject matter jurisdiction to hear a case as a collateral action to the 

adopted pursuant to section 503. 42 Pa.C.S. § 931. Appellant has provided no authority or arqurnent as 

except where exclusive original jurisdiction of an action or proceeding is by statute or by general rule 

Per .statute, this Court has unlimited original jurisdiction over all actions and proceedings, 

Burgoon, 448 Pa. Super. 616, 619, 672 A.2d 823, 824-25 (1996). 

matter jurisdiction may be raised at any time, by any party, or by the court sua sponte. Grom v. 

matter involved; it lies if the court "had power to enter upon the inquiry." lei: the question of subject 

court has jurisdiction if it is competent to hear and determine controversies of the general nature of the 

force or effect." Bernhard v. Bernhard, 447 Pa. Super. 118, 124, 668 A.2d 546, 548-49 (1995). The trial 

case ... Without such jurisdiction, there is no authority to give judgment and one so entered is without 

court through due process of law. It is the right to adjudicate concerning the subject-matter in a given 

"Jurisdiction is the capacity to pronounce a judgment of the law on an issue brought before the 

a. Subject Matter Jurisdiction 
7 

NINA 

DATE: 

BY THE COURT: 

appeal dismissed. 

For all of the reasons stated above, this Court's decision should beafflrmed and Appellant's 

CONCLUSION 

Appellant's Petition to Set Aside the Sheriff's Sale. 

Court of Pennsylvania has previously held that there was no abuse of discretion in this Court's denial of 

these claims again attack the validity of the sheriff's sale, not the instant ejectrnent, and the Superior 

raise such arguments before this Court in his pleadings. See Coulter, 94 A.3d at 1089. Additionally, 

·Although he now couches his argument in claims of constitutional violations, Appellant did not 

and Sheriff's Sale in the foreclosure proceeding, a collateral action to the instant ejectment. 

barred from litigating this issue. As noted above, Appellant attempts to attack the underlying judgment 

2012, directing the Sheriff not to issue a deed pending further Order of that Court ... " Appellant is 

infringed upon "when the plaintiff and the trial court disregarded the Order docketed on December 16, 

Appellant, finally, avers that his rights to due process and equal protection were unduly 

III. CONSTITUTIONAL CLAIMS 

2014); see also Pa.R.A.P. 302. 

127, 94 A.3d 1080, 1089 (2014), reargument denied(Aug. 4, 2014), appeal denied. (Pa. Dec. 10, 

constitutional issues may not be raised for the first time on appeal. Coulter v. Ramsden, 2014 PA Super