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SULLIVAN v. PHILADELPHIA (09/27/54)

September 27, 1954

SULLIVAN, APPELLANT,
v.
PHILADELPHIA



Appeal, No. 152, Jan. T., 1954, from judgment of Court of Common Pleas No. 5 of Philadelphia County, June T., 1953, No. 2628, in case of Ward Sullivan and Curtin Sullivan, Exrs., v. City and County of Philadelphia et al. Appeal quashed. Assumpsit. Order entered sustaining defendants' preliminary objections, opinion by SMITH, P.J. Plaintiffs appealed.

COUNSEL

Samuel B. Fortenbaugh, Jr., with him G. Selden Pitt and Clark, Ladner, Fortenbaugh & Young, for appellants.

Jerome J. Shestack, First Deputy City Solicitor, with him Herman L. Mash, Karl I. Schofield, Assistant City Solicitors and Abraham L. Freedman, City Solicitor, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Jones

[ 378 Pa. Page 648]

OPINION BY MR. JUSTICE JONES

This appeal is from an order sustaining defendants' preliminary objections to a complaint in assumpsit brought by the personal representatives of a decedent

[ 378 Pa. Page 649]

    to recover personal property taxes alleged to have been erroneously and inadvertently paid the defendant municipalities by the decedent individually and as trustee under the will of her father and by her personal representatives: see Act of May 21, 1943, P.L. 349, 72 PS ยง 5566 b. The order is obviously interlocutory; the appeal must, therefore, be quashed.

We have reiterated many times that an interlocutory order or decree is not appealable unless expressly made so by statute: Epstein v. Kramer, 374 Pa. 112, 119, 96 A.2d 912; Stadler v. Mt. Oliver Borough, 373 Pa. 316, 317-318, 95 A.2d 776, and cases there cited. No such enabling statute is presently applicable. Even with the consent of all interested parties, appellate jurisdiction of an interlocutory order or decree may not be assumed: Stadler v. Mt. Oliver Borough, supra. The evident policy of the law in such regard is to preclude piecemeal determinations and the consequent protraction of litigation.

Where, as here, preliminary objections in the nature of a demurrer to a complaint are sustained without further action of the court, there is neither a final nor definitive order from which an appeal may be taken. As Mr. Justice CHIDSEY recently stated for this court in Ahrens v. Goldstein, 376 Pa. 114, 121, 102 A.2d 164, -- "Our decisions leave no doubt that a decree which sustains a preliminary objection without dismissing the bill is interlocutory." However, an order sustaining preliminary objections to a complaint is definitive, and therefore appealable, where it so restricts the pleader in respect of further amendments as, virtually, to put him out of court on the cause of action which he seeks to litigate: cf. Ciletti v. City of Washington, 378 Pa. 641, 107 A.2d 871.

In the present instance, the order of the court below did no more than sustain the ...


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