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VOLKER v. MALLON (01/17/66)

SUPREME COURT OF PENNSYLVANIA


decided: January 17, 1966.

VOLKER
v.
MALLON, APPELLANT

Appeal from order of County Court of Philadelphia, June T., 1964, No. 20670-E, in case of Robert J. Volker et ux. v. Joseph M. Mallon et al.

COUNSEL

Paul Leo McSorley, and McSorley, Purcell & McSorley, for appellant.

Marvin H. Levin, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ.

Author: Per Curiam

[ 420 Pa. Page 41]

Plaintiff-appellees instituted an action in equity by the issuance of a complaint which the sheriff was unable to serve upon the defendant-appellants. Thereafter, to the same number and term, the plaintiff-appellees

[ 420 Pa. Page 42]

    filed an amended complaint which the sheriff was able to serve on the defendant-appellants.*fn1

The defendant-appellants then filed preliminary objections to the amended complaint on the ground that such complaint violated Pa. R. C. P. 1033, in that consent to file such amended pleading had not been with the written consent of defendant-appellants or by leave of court.*fn2 The court below dismissed the preliminary objections and from the dismissal thereof this appeal was taken.

An examination of the record clearly shows that the real thrust of the preliminary objections was to the amendment of the complaint and that the court below permitted the amendment.

An appeal from the dismissal of preliminary objections under such circumstances does not lie 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. See: Stadler v. Mt. Oliver Borough, 373 Pa. 316, 317, 318, 95 A.2d 776, 777.

The instant order merely has the effect of permitting the amendment to the complaint and in no manner finally determines the action. The order being an interlocutory order not made appealable by statute, an appeal therefrom will not lie.

Appeal quashed.*fn3

Disposition

Appeal quashed.


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