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KAELIN v. UNIVERSITY PITTSBURGH (04/19/66)

decided: April 19, 1966.

KAELIN
v.
UNIVERSITY OF PITTSBURGH, APPELLANT



Appeal from order of Court of Common Pleas of Allegheny County, Jan. T., 1966, No. 655, in case of Elmer Kaelin v. University of Pittsburgh, William C. Frederick, Dean, and A. C. Van Dusen, Vice Chancellor.

COUNSEL

Charles C. Arensberg, with him John P. Papuga, and Patterson, Crawford, Arensberg & Dunn, for appellants.

Donald E. Rohall, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Roberts concurs in the result. Concurring Opinion by Mr. Justice Cohen.

Author: O'brien

[ 421 Pa. Page 222]

Appellee, plaintiff, filed a complaint in mandamus, alleging that, since 1949, he has from time to time enrolled in various courses at the graduate level at the University of Pittsburgh; that he was in the 48-credit program leading ultimately to a Master's Degree in Business Administration; that over the period of years, he had accumulated in excess of the 48 credits; that the school, however, would not allow him credit for some courses which had been completed outside the time limitation period established by the school. Appellee further alleges that in October of 1963, he and appellants' officials held a conference, at which time it was agreed that appellee should be granted his degree if he completed 9 additional credits of work prior to December 31, 1964. Appellee further alleges that he completed the courses with excellent results, and, at that time, appellant repudiated these latest requirements and insisted upon a comprehensive written examination prior to its conferring a Master's Degree in Business Administration upon him. Appellee further avers that appellants' refusal to confer this degree upon him has

[ 421 Pa. Page 223]

    put him to an extreme financial disadvantage and that he has no adequate remedy at law. Appellee then prayed for a judgment in mandamus and a jury trial.

Appellant filed preliminary objections to the complaint raising the question of jurisdiction and demurrer and further alleged appellee's failure to join necessary parties. Appellee filed answers to these preliminary objections and, after oral argument, the court made its order on December 27, 1965, which it amended on December 29th, 1965, reading as follows: "And Now, to-wit, this 29th day of December, 1965, after oral argument and consideration of briefs, it is hereby ordered, adjudged and decreed that the preliminary objections in the form of a petition, raising a question of jurisdiction and a demurrer, are dismissed. The preliminary objection, alleging the failure to join a necessary party, is sustained, and the Plaintiff is given 15 days in which to amend the Complaint to include the necessary parties."

It is from this order that this appeal was taken.*fn*

Appellee filed a motion to quash the appeal, arguing that the order appealed from is interlocutory and, hence, not appealable. Appellant contends the appeal is not quashable. This is a correct statement of the law in this instance. We said in Com. ex rel. Fox v. Swing, 409 Pa. 241, 243, 186 A.2d 24 (1962): "As we stated in Strank v. Mercy Hospital of Johnstown, 383 Pa. 54, 57, 117 A.2d 697 (1955), 'Plaintiff has moved to quash the appeal on the ground that the court's decree was interlocutory and not a final decree from

[ 421 Pa. Page 224]

    which an appeal may properly be taken. It is true, of course, that the appeal is not from a final decree, but the very purpose of the Act of 1925 was to permit such an appeal in order that the question of jurisdiction might ...


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