April 21, 1964
BRANNA CONSTRUCTION CORPORATION
WEST ALLEGHENY JOINT SCHOOL AUTHORITY, APPELLANT.
Appeals, Nos. 70 and 75, March T., 1964, from order of Court of Common Pleas of Allegheny County, Jan. T., 1963, No. 2591, in case of Branna Construction Corporation v. West Allegheny Joint School Authority and Celli-Flynn Architects and Engineers. Appeals quashed.
Louis Vaira, with him John M. Shane, H. A. Robinson, and Dickie, McCamey, Chilcote & Robinson, for appellants.
John A. Metz, Jr., with him Jacob A. Markel, and Metz, Cook, Hanna & Kelly, and Markel, Markel, Levenson & Fischer, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
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OPINION BY MR. JUSTICE EAGEN
These are appeals by two defendants from an order below, refusing their motion for judgment on the pleadings in an action of assumpsit, in which each filed an answer and new matter to which the plaintiff filed a reply. The motion for judgment is based on the alleged inadequacy of the reply to an affirmative
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defense set forth under new matter in the answers.
The order below is interlocutory and as such is not appealable, unless expressly made so by statute. See, Stadler v. Mt. Oliver Borough, 373 Pa. 316, 95 A.2d 776 (1953); Reading Co. v. Willow Dev. Co., Inc., 407 Pa. 469, 181 A.2d 288 (1962); Nosal v. Nosal, 410 Pa. 304, 189 A.2d 262 (1963). There is no statute which expressly makes appealable an order refusing a defendant's motion for want of a sufficient reply to new matter. The Act of April 18, 1874, P.L. 64, 12 P.S. § 1097, does not apply to the circumstances here obtaining, Epstein v. Kramer, 374 Pa. 112, 96 A.2d 912 (1953), and McGee v. Singley, 382 Pa. 18, 114 A.2d 141 (1955).
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