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DAMES v. POTTSTOWN BOROUGH (03/21/68)

decided: March 21, 1968.

DAMES
v.
POTTSTOWN BOROUGH, APPELLANT. ALBRIGHT V. POTTSTOWN BOROUGH, APPELLANT



Appeals from order of Court of Common Pleas of Montgomery County, Nos. 66-8462 and 66-8463 of 1966, in case of Gerald W. Dames et ux. v. Borough of Pottstown, and William H. Albright et ux. v. Same.

COUNSEL

Alvin C. Weiss, with him John R. Henry, for appellant.

C. Edmund Wells, with him Wells, Campbell, Reynier & Yohn, for appellees.

Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Ervin, P. J., and Wright, J., absent). Opinion by Jacobs, J. Hoffman, J., concurs in the result. Dissenting Opinion by Montgomery, J.

Author: Jacobs

[ 212 Pa. Super. Page 179]

In July 1966 the appellees in each case petitioned the Common Pleas Court of Montgomery County to appoint

[ 212 Pa. Super. Page 180]

    viewers, pursuant to § 502(e) of the Eminent Domain Code, Act of June 22, 1964, Special Sessions, P. L. 84, 26 P.S. § 1-502. The court appointed viewers and the appellant filed preliminary objections in both cases alleging that the cause of action set forth in the petition was not properly the subject of condemnation proceedings, rather that the cause of action lay in an action of trespass. The Borough appeals from the orders of the court below dismissing its preliminary objections.

The alleged condemnation, which occurred on or about July 1, 1961, was the Borough's action in changing the grade of and paving "a private unordained alley . . . resulting in an unnatural flow of water onto petitioners' property with additional attendant damages." The appellees also pleaded "That prior to and at all times herein referred to the alley in question was used by the public despite the fact that it had not been ordained by the Borough of Pottstown."

Two questions are presented in this appeal, one procedural, the other substantive. Our decision on the procedural issue forecloses discussion on the merits. The orders appealed from are interlocutory and not appealable.

As a general rule an order dismissing preliminary objections is an interlocutory order from which there is no appeal unless a statute allows an appeal from such an order or the appeal raises a question of jurisdiction. Seligsohn Appeal, 410 Pa. 270, 189 A.2d 746 (1963); Miller Estate v. Department of Highways, 424 Pa. 477, 227 A.2d 679 (1967). Appellate jurisdiction of an interlocutory order may not be assumed even with consent of the parties. Sullivan v. Philadelphia, 378 Pa. 648, 107 A.2d 854 (1954).

We know of no statute making this order appealable unless it be the Eminent Domain Code of 1964, hereinafter referred to ...


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