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HAUSER v. GOLDSTEIN (ET AL. (04/23/69)

SUPREME COURT OF PENNSYLVANIA


decided: April 23, 1969.

HAUSER
v.
GOLDSTEIN (ET AL., APPELLANTS)

Appeal from order of Court of Common Pleas of Delaware County, No. 2400 of 1967, in case of L. A. Hauser et al. v. Frank Goldstein, First Camden National Bank and Trust Company et al.

COUNSEL

Milton A. Feldman, with him Donald M. McCurdy, and Townsend, Elliott & Munson, and Fox & McCurdy, for appellant.

Guy G. deFuria, with him deFuria and Larkin, for appellees.

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

Author: Bell

[ 434 Pa. Page 85]

This is an appeal from the Order of the Court of Common Pleas dismissing preliminary objections filed by one of three defendants to plaintiffs' bill in Equity. We agree with the plaintiffs that the instant appeal must be quashed because (1) it is interlocutory and (2) it does not require an account.

Plaintiffs are building contractors who entered into a written agreement (a) with several defendants providing for the construction of a building in Radnor

[ 434 Pa. Page 86]

Township and (b) with the bank which agreed to finance the construction.

The law is well established that an Order which sustains preliminary objections to a suit in Equity or to an action at law without dismissing the bill or terminating the action is interlocutory and not appealable unless expressly made so by statute, or exceptional circumstances existed. Basalyga v. Hohensee, 431 Pa. 191, 245 A.2d 255; Sullivan v. Philadelphia, 378 Pa. 648, 107 A.2d 854; Ahrens v. Goldstein, 376 Pa. 114, 102 A.2d 164.

The Act of June 24, 1895, P. L. 243, § 1, as amended by the Act of March 30, 1921, § 1, P. L. 60, 12 P.S. § 1104, relevantly provides: "In all cases at law or in equity . . . wherein the complainant or plaintiff prays or sues for an account from the defendant or defendants, . . . and on the part of the defendant there is a denial of liability to account, if, upon this preliminary question of liability, the decision or decree, order or judgment, of the court is in favor of the plaintiff and requires an account,*fn* then an appeal to the Supreme Court or Superior Court . . . shall be allowed. . . ."

The Order of the Court below does not require an accounting and does not dismiss the bill or terminate the action, and consequently an appeal will not lie.

Appeal quashed.

Disposition

Appeal quashed.


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