Appeal from order of Court of Common Pleas No. 2 of Philadelphia County, March T., 1965, No. 6479, in case of Reynolds Metals Company and New Eastwick Corporation v. Henry A. Berger and Samuel A. Berger, individually and as partners trading as Berger Brothers.
Theodore Voorhees, with him Dechert, Price & Rhoads, for appellants.
Nathan L. Posner, with him Norman Leibovitz, and Fox, Rothschild, O'Brien & Frankel, for appellees.
Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Roberts concurs in the result.
This is an appeal from an order of the Court of Common Pleas No. 2 of Philadelphia County, staying prosecution of plaintiffs' equity action in that court pending the determination of a related action previously instituted in the United States District Court for the Eastern District of Pennsylvania.
Plaintiff Reynolds Metals Company is the assignee of a joint venture agreement with defendants Henry A. and Samuel A. Berger, which agreement provided for the redevelopment of the Eastwick section of Philadelphia. Pursuant to the terms of that contract the parties organized and became the sole shareholders of plaintiff New Eastwick Corporation to serve as the agency to redevelop Eastwick. Because of differences which arose between Reynolds and the Bergers, a shareholder's derivative action was initiated in the federal district court by Henry A. Berger. Thereafter Reynolds and New Eastwick filed suit in the court of
common pleas against Henry A. and Samuel A. Berger, individually and as partners trading as Berger Brothers, and one day thereafter, filed a compulsory counterclaim in the federal action, naming as additional parties Samuel A. Berger and Berger Brothers. In the common pleas action, defendants Bergers filed preliminary objections alleging, inter alia, under Pennsylvania Rule of Civil Procedure 1017(b)(5), the pendency of a prior action. The lower court sustained the preliminary objection and this appeal followed.
The order of the court below is clearly interlocutory, for it does not finally dispose of the parties' rights. Indeed, the lower court ordered the stay "pending the determination" of the federal action. In Keasbey's Trust Estate, 342 Pa. 439, 20 A.2d 281 (1941), this Court held that an order by the Orphans' Court of Philadelphia County staying the proceedings before it "'to await the termination of the [related] proceedings in Montgomery County . . .'" was not an appealable order. "A suspension of proceedings for a temporary period is not an appealable order," the Court stated. 342 Pa. at 445, 20 A.2d 283. We can see no meaningful distinction between a stay of proceedings pending the determination of another state court action and one pending the determination of a federal court action. In either situation, the plaintiff in the court where the later action was begun has not been deprived of any rights because if the first court dismisses an issue without prejudice or otherwise declines to decide an issue, the doctrine of res judicata will not prevent him from having those issues resolved by the second court. See also Sgarlat Estate, 421 Pa. 591, 220 A.2d 804 (1966), where we quashed an appeal from an order of the Orphans' Court of Luzerne County, deferring determination of the propriety of certain risk distributions made by the executors of an estate, until a trespass action, brought in the court of common pleas
of that county, in which action the estate was a defendant, was decided.
The order below, being interlocutory, is appealable only if made so by statute. Alexander Estate, 414 Pa. 474, 476, 200 A.2d 865, 866 (1964). No such statute has been cited to us, nor has independent research ...