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MILLER v. KELLY. (06/29/60)

THE SUPREME COURT OF PENNSYLVANIA


June 29, 1960

MILLER, APPELLANT,
v.
KELLY.

Appeal, No. 173, March T., 1960, from order of Court of Common Pleas of Indiana County, Dec. T., 1958, No. 219, in case of Charles A. Miller, Jr. v. Raymond H. Kelly, also known as Raymond Howard Kelly et al. Appeal quashed.

COUNSEL

Gilbert S. Parnell, Sr., with him Gilbert S. Parnell, Jr., and Parnell & Parnell, for appellant.

James L. Jack, Jr., for appellee.

R. Carlyle Fee, with him Peelor, Serene & Fee, for appellees.

Joseph N. Mack, for appellee.

Thomas S. Barbor, for appellees.

Donald H. Miller, for appellees.

Robert C. Earley, for appellee.

J. M. Frye, for appellee.

Earl R. Handler, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

[ 400 Pa. Page 325]

OPINION PER CURIAM.

The plaintiff has appealed from an order of the court below sustaining preliminary objections to his second amended complaint on the ground that it contained

[ 400 Pa. Page 326]

    scandalous and impertinent matter and that it pleaded evidence in extenso. Respective counsel for the various defendants filed separate motions to quash the appeal as being from an interlocutory order which did not adjudicate any rights of the plaintiff and permitted appropriate amendment. On the appellant's allegation, in his answer to the motions to quash, that the effect of the order of the court below was to put him out of court with respect to certain of the defendants, we postponed action on the motions to quash until the appeal would come on for argument on the merits. In order not to delay ultimate disposition of the issue, if the order below should prove to be unappealable, we advanced argument of the appeal on the plaintiff's petition.

Having heard counsel for all parties fully in the premises, we are of opinion that the order appealed from did not put the plaintiff out of court with respect to any of the defendants. On the contrary, we agree with the court below that the complaint can be, and should be, amended still further in order to eliminate matter that has no proper place in a mere pleading. The order appealed from is obviously interlocutory. The appeal must, therefore, be quashed; the record will be remanded forthwith for further proceedings.

Disposition

Appeal quashed.

19600629

© 1998 VersusLaw Inc.



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