Appeal, No. 63, Jan. T., 1955, from judgment of Court of Common Pleas of Schuylkill County, Sept. T., 1953, No. 393, in case of Cleo M. McGee v. Maurice Singley and Joseph J. McGee. Appeal quashed.
Calvin J. Friedberg, with him Penrose Hertzler and Hicks, Williamson, Friedberg & Jones, for appellant.
Cletus C. Kilker, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
Joseph J. McGee and his wife instituted an action in trespass against Maurice Singley to recover for personal injuries and property damage sustained by them in an automobile collision allegedly brought about by the defendant's negligence. Singley caused the wife's action to be severed from that of her husband and then joined the husband as an additional defendant in the wife's action, filing, at the same time, a complaint charging the husband with sole or, at least, joint responsibility for his wife's injuries. In his answer to the original defendant's complaint, McGee denied that he had been negligent in the premises and, by way of new matter, averred that, in any event, he had been fully released from the payment of any damages, due to the accident, by reason of two writings executed by Singley. To the additional defendant's new matter, Singley filed a reply wherein he admitted his execution of the releases but asserted that their effect was limited to damages sustained by him in the accident and that they did not relieve McGee of liability for his wife's injuries. McGee moved for judgment on the pleadings and, from the order of the court refusing the motion, he took this appeal.
The order appealed from is interlocutory and the appeal must, therefore, be quashed.
An interlocutory order or decree is not appealable unless expressly made so by statute: see, e.g., Sullivan v. Philadelphia, 378 Pa. 648, 649, 107 A.2d 854; Epstein v. Kramer, 374 Pa. 112, 119, 96 A.2d 912; and Stadler v. Mt. Oliver Borough, 373 Pa. 316, 317-318,
A.2d 776, where our present Chief Justice said that the principle is supported by "a veritable multitude of decisions." An order of court which does not terminate the litigation by precluding one of the parties thereto from proceeding further with the action in that court is not final and, consequently, not appealable: Stadler v. Mt. Oliver Borough, supra. Stated affirmatively, it is an order or decree which "puts a party out of court" that is final. It is plain enough that an order refusing a party's motion for judgment on the pleadings does not preclude him from further action in the proceeding. Such an order does no more than compel the unsuccessful movant to proceed to a trial of the issues on their merits. We have heretofore recognized the interlocutory character of such an order: Wark & Company v. Twelfth & Sansom Corporation, 378 Pa. 578, 580, 107 A.2d 856; Epstein v. Kramer, supra.
There is no statute authorizing an appeal from an order refusing a motion for judgment on the pleadings in the circumstances here obtaining. It is true that the refusal of a plaintiff's motion for judgment on the pleadings is appealable by adaptation of the Act of April 18, 1874, P.L. 64, 12 PS § 1097, which made appealable the refusal of the analogous motion, under prior practice, for judgment for want of a sufficient affidavit of defense: Wark & Company v. Twelfth & Sansom Corporation, supra, and Rohm & Haas Co. v. Lessner, 168 Pa. Superior Ct. 242, 244-245, 77 A.2d 675. But, the Act of 1874 is not presently germane. The limited scope and effect of that Act were analyzed at length in Epstein v. Kramer, supra. In that case an appeal had been ...