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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 VELOCITY MAGNETICS, INC., A CORPORATION

v. TERRY J. MARZANO, AN INDIVIDUAL, AND DYNAMIC ATTRACTIONS, INC., A CORPORATION
APPEAL OF: TERRY J. MARZANO : : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 421 WDA 2022
Appeal from the Order Entered March 17, 2022 , i n 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 modif ication of a consent decree that he a nd 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 I n re Est. of Mosk

owitz , 115 A.3d 372, 388 ( Pa. Super. 2015)

. “Jurisdiction is purely a question of law; the appellate standard of review is de novo , and theJ

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scope of review is plenary.” Commonwea lth v. Merced , 265 A.3d 786, 789 ( Pa. Super. 2021)

. Our “ jurisdiction is gene rally 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 r ecord 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 sen t 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
consider ation. This argument does not address how this Court has jurisdiction

o ver 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 acquiesce s to a consent d ecree. 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

a nticipated appeal. See Laird v. Clearfield & Mahoning Ry. Co. , 91 6 A.2d 1091 (Pa. 2007) ( permitting appeal after entry of stipulated orde r where transcript revealed appellants expressed desire to preserve appeal ).
T he consent order the parties entered in September 2019 does not expressly preserve Mr. Marzano’s appellate rights , nor does anything of recordJ

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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 considerati on is immaterial to the question of appellate jurisdiction

. Finally, in responding to our rule to show caus e , 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 Bi anchi v. Bianchi , 859 A.2d 511 (Pa. Super. 2004)

. His reliance is misplaced as those cases do
concern the jurisdiction o f this Court

. In U.S. Steel Corp. , the parties entered a consent decree for the
remediation of air pollut ants 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 assist ing and overseeing the company ’s efforts to com ply
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

- set tlement agreement she and her husband entered during their divorce. At husban d ’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.J

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In both U.S. Steel and Bianchi , appellants sought to enforce consent
decree s 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, n either case i n dicates that a p arty 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 t he 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 choos e to
amend it. ) Mr. Marzano has not persuaded us to abandon the g eneral rule of
Brown , supra , to revisit claims and defenses that may have existed in the underlying litigation before the parties s ettle d

. 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