Appeal, No. 163, Jan. T., 1962, from order of Court of Common Pleas No. 4 of Philadelphia County, June T., 1961, No. 3230, in case of Reading Company v. Willow Development Company, Inc. Appeal quashed.
C. Laurence Cushmore, Jr., with him White & Williams, for appellant.
John A. Eichman, 3rd, with him Clark, Spahr, Eichman & Yardley, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE EAGEN
This is an action in equity wherein plaintiff appeals from an order in the court below dismissing a motion for judgment upon the pleadings.
The order complained of is interlocutory from which an appeal does not lie. The appeal will, therefore, be quashed.
An interlocutory order is not appealable unless expressly made so by statute. As stated in Stadler v. Mt. Oliver Borough, 373 Pa. 316, 95 A.2d 776 (1953), at 317, 318: "By a veritable multitude of decisions it has been established that, unless a special right to appeal is expressly given by statute, an appeal will lie only from a definitive order, decree, or judgment which finally determines the action. The court cannot assume such appellate jurisdiction even by consent of the parties: [citing cases]. Nor is an order, judgment or decree final unless it terminates the litigation between the parties to the suit by precluding a party from further action in that court: [citing cases]."
Further, the question of the appealability of an order goes to the jurisdiction of the Court and may be raised by the Court itself: McGee v. Singley, 382 Pa. 18, 114 A.2d 141 (1955).
It is patently clear that the order appealed from did not terminate the present proceedings or preclude the plaintiff from further action in the court below. It is, therefore, not a "final order." Also, there is no statute expressly giving the right to appeal.
The Act of April 18, 1874, P.L. 64, § 1, 12 PS § 1097, has no application in the present case. This statute is limited in scope and effect and permits an appeal from an order refusing plaintiff's motion for judgment on the pleadings in actions of assumpsit only, and then only when plaintiff's motion for judgment is refused upon pleadings ...