April 24, 1962
UNIVERSITY SQUARE NO. 1, INC.
MARHOEFER (ET AL., APPELLANT).
Appeals, Nos. 96 and 97, March T., 1962, from order of Court of Common Pleas of Allegheny County, Oct. T., 1957, No. 342, in case of University Square No. 1, Inc. v. Louis Marhoefer et al. Order affirmed.
James C. Larrimer, with him Edward P. Good, and Kountz, Fry & Meyer, and Dougherty, Larrimer & Lee, for appellants.
Harold R. Schmidt, with him Raymond G. Hasley, and Rose, Houston, Cooper and Schmidt, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
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OPINION BY MR. CHIEF JUSTICE BELL
On July 10, 1957, plaintiff instituted suit in assumpsit against defendant, Louis Marhoefer, for breach
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of a building contract. Marhoefer answered and also filed a complaint joining Seisel Construction Company as additional defendant. Seisel Construction Company answered Marhoefer's complaint and also joined Steel City Piping Company and Hale-Devlin, Inc., as additional defendants. In April, 1958, both Steel City and Hale-Devlin filed preliminary objections in the nature of a demurrer to Seisel Company's complaint on the ground that the cause of action on which they were joined was separate and distinct from the cause of action sued on by plaintiff; they also objected to the jurisdiction of the Court on the ground that the contract between each of them and Seisel Company contained a provision to arbitrate.
After the completion of discovery procedures by plaintiff and original defendant, the case was set down for trial at the second jury term in the fall of 1961. During this 3 1/2 years no action was taken by anyone with respect to the aforesaid preliminary objections until the same were praeciped for argument by Steel City and Hale-Devlin in October, 1961. The lower Court dismissed the preliminary objections and declared that in the instant case there is a strong presumption that a delay of 3 1/2 years by additional defendants in praeciping their preliminary objections to argument was prejudicial to plaintiff. Steel City and Hale-Devlin appealed from the Order which dismissed their preliminary objections.
It is well settled that no appeal lies from an Order overruling a preliminary objection, other than one attacking jurisdiction: Dozor v. Agercy v. Rosenberg, 403 Pa. 237, 169 A.2d 771; Grosso v. Englert, 381 Pa. 351, 113 A.2d 250; Stank v. Mercy Hospital of Johnstown, 383 Pa. 54, 117 A.2d 697. More specifically, a preliminary objection raising the question of the validity of joining an additional defendant is interlocutory and no appeal lies therefrom: Magaro v. Metropolitan
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statutory arbitration - does not affect the jurisdiction of the lower Court: Witney v. Lebanon City, 369 Pa. 308, 85 A.2d 106. In that case the Court said (pp. 311, 312, 313): "It is clear, this being a suit in assumpsit on a contract, that the court had jurisdiction of the subject matter. Even if it should ultimately be decided that plaintiff's action cannot be maintained because the final estimate of the engineer was, under the terms of the contract, to be conclusive, the question of jurisdiction would not be affected thereby. In Zerbe Township School District v. Thomas, 353 Pa. 162, 44 A.2d 566, we stated principles which are here applicable, namely that even though a plaintiff have no standing to bring his action, even though his complaint be demurrable, even though he fail to establish its allegations, even though the court should finally conclude that the relief he seeks should not be granted, not any or all of these circumstances would enter into, much less determine, the question whether the court had jurisdiction of the litigation. We there pointed out that the test of jurisdiction was the competency of the court to determine controversies of the general class to which the case presented for its consideration belonged, - whether the court had power to enter upon the inquiry, not whether it might ultimately decide that it was unable to grant the relief sought in the particular case; that the Act of 1925 was not intended to furnish a short cut to a determination of the issues of law or fact raised by the pleadings and that it was not concerned with matters going to the right of the plaintiff to recover on his cause of action but only with his right to have his cause of action heard and determined. ...
"... Defendant suggests that possibly plaintiff's remedy, if it wishes to challenge the engineer's award, it to proceed under the Arbitration Act of April 25, 1927, P.L. 381; (citing Seaboard Surety Co. v. Commonwealth,
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Pa. 147, 27 A.2d 27). Even were that so, however, and the present action were to be dismissed, such a decision would not bear upon the jurisdiction of the court." Accord: Dozor Agency v. Rosenberg, 403 Pa., supra; Drummond v. Drummond, 402 Pa. 534, 167 A.2d 287; Dauphin Deposit Trust Co. v. Myers, 388 Pa. 444, 461, 130 A.2d 686.
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