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PHILADELPHIA v. WILLIAM PENN BUSINESS INSTITUTE (ET AL. (11/15/66)

decided: November 15, 1966.

PHILADELPHIA
v.
WILLIAM PENN BUSINESS INSTITUTE (ET AL., APPELLANT)



Appeal from order of County Court of Philadelphia, Dec. T., 1965, No. 7817-B, in case of City of Philadelphia v. William Penn Business Institute, Inc., Charles W. Maxwell and Bernice Viccillian.

COUNSEL

Cassandra Maxwell Birnie, for appellant.

Matthew W. Bullock, Jr., Second Deputy City Solicitor, with him Edward G. Bauer, Jr., City Solicitor, for City of Philadelphia, appellee.

Bell, C. J., Musmanno, Cohen, Eagen, O'Brien and Roberts, JJ. Concurring Opinion by Mr. Justice Cohen.

Author: Per Curiam

[ 423 Pa. Page 491]

Appeal quashed. Appellant attempts to appeal from the dismissal of preliminary objections, filed in her behalf and in behalf of the corporate defendant. The court below properly refused to entertain the corporate preliminary objections since there is no indication the appellant had any authority to file objections in its behalf. As to her own preliminary objections, no appeal is allowable from their dismissal. As stated by this court in Wandzilak v. Huss, 419 Pa. 541: "We

[ 423 Pa. Page 492]

    stated in Dozor Agency v. Rosenberg, 403 Pa. 237: 'However, generally speaking, an Order overruling preliminary objections is interlocutory and not appealable: Grosso v. Englert, 381 Pa. 351, 113 A.2d 250. That general rule is, however, subject to the exception that if a question of jurisdiction is involved that question is appealable under the Act of March 5, 1925; Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491; Powell v. Shepard, 381 Pa. 405, 113 A.2d 261.'"

In this case, the preliminary objections as to the appellant did not concern the question of jurisdiction, and as the court below made clear: "There is no question of jurisdiction of the subject matter and jurisdiction of the person was obtained by personal service. As to her, the case is now at issue on the basis of the complaint, the answer and new matter, and the reply to new matter."

This order was therefore not final within this court's definition of the term as set forth in Stadler v. Mt. Oliver Borough, 373 Pa. 316: "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)."

Appeal quashed.

Disposit ...


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