Appeal from order of Court of Common Pleas of Mercer County, Sept. T., 1967, No. 63, in case of Ervin J. Stanford v. Anthony Ralph Casasanta, executor of estate of John Casasanta, deceased.
Raymond G. Hasley, with him Michael Halliday, Stuart A. Culbertson, Daniel B. Winters, and Rose, Schmidt and Dixon, and Stein and Winters, for appellant.
Geo. Hardy Rowley, with him Voorhies, Dilley, Keck, Rowley & Wallace, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen.
On August 26, 1965, an automobile operated by John Casasanta collided in Mercer County with an automobile operated by Ervin J. Stanford. Stanford suffered injuries in the accident, but survived. Casasanta suffered injuries which caused his death. On September 13, 1965, letters testamentary were issued by the Register of Wills to Sullivan Cicerone as Executor of Casasanta's Estate.
On June 26, 1967, Stanford instituted this action in trespass by summons seeking damages for loss resulting from the accident. The defendant named in the action was Anthony Ralph Casasanta, Executor of the Estate of John Casasanta, deceased. On December 15, 1967, Stanford filed a petition in the court below for
a rule to show cause why "the proceedings . . . should not be amended to show the name of the defendant as follows: Sullivan Cicerone, Executor of the Estate of John Casasanta, deceased." After argument, the court discharged the rule. Later, this order was vacated and Stanford, with the court's permission, filed an amended petition requesting a rule to show cause why the caption of the case should not be amended to read as follows: "Ervin J. Stanford v. Anthony Ralph Casasanta, also known as Sullivan Cicerone, Executor of the Estate of John Casasanta, deceased."*fn1 The court then conducted an evidentiary hearing. After finding that Anthony Ralph Casasanta and Sullivan Cicerone were two distinct and different persons, it entered an order refusing to permit the caption of the case to be amended, but granting Stanford a period of twenty days to "file a complaint naming Sullivan Cicerone as Executor of the Estate of John Casasanta." Instead of filing such a complaint, Stanford filed this appeal.*fn2 We will quash. The order is interlocutory and unappealable.
As we stated in Stadler v. Mt. Oliver Borough, supra n. 2, at 317-318, 95 A.2d at 776-777: "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: (citing cases). 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)." (Emphasis supplied.) See also, Peterson v. Phila. Transportation Company, 435 Pa. 232, 255 A.2d 577 (1969).
Herein the order appealed from clearly did not terminate the litigation, but rather left the way open for Stanford to pursue his action against the proper party by filing a ...