Appeal from order of Court of Common Pleas of Dauphin County, Commonwealth Docket No. 387 of 1963, in case of Commonwealth of Pennsylvania v. Orsatti, Inc. and Arnold Orsatti.
A. A. Guarino, for appellants.
Thomas J. Oravetz, Deputy Attorney General, with him Lawrence T. Hoyle, Jr., Deputy Attorney General, and J. Shane Creamer, Attorney General, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Jones concurs in the result. Mr. Justice Roberts took no part in the consideration or decision of this case.
In July of 1963, in the Court of Common Pleas of Dauphin County, the Commonwealth of Pennsylvania filed a complaint against the appellants, Orsatti, Inc., and Arnold Orsatti, hereinafter referred to collectively as Orsatti, alleging the breach of a number of leases and seeking payment of $15,183.19 in damages. On August 5, 1963, Orsatti filed preliminary objections to the complaint. Nothing happened for five years, until October 14, 1968, when Orsatti filed a complaint against the Commonwealth with the Board of Arbitration of Claims, seeking damages in the amount of $48,393.25, for alleged breach of the same leases. Preliminary objections to that complaint were filed by the Commonwealth, raising the defense of the statute of limitations because the claim was not filed within six months after it had accrued as is required by § 6 of the Act of June 26, 1939, P. L. 1081, 72 P.S. § 4651-6. On November 14, 1968, the Board issued an order dismissing the complaint as being out of time. Orsatti did not appeal the Board's order.
On December 19, 1968, Orsatti withdrew the preliminary objections, which had been filed in 1963, to the Commonwealth's complaint, and filed an answer, new matter and counterclaim in Dauphin County Common Pleas Court. The counterclaim was identical to the
claim previously filed with and dismissed by the Board of Arbitration of Claims. On January 8, 1969, the Commonwealth filed preliminary objections to Orsatti's new matter and counterclaim alleging, inter alia, that the November 14, 1968, order of the Board of Arbitration of Claims made Orsatti's counterclaim res judicata. On January 17, 1969, Orsatti filed preliminary objections to the Commonwealth's preliminary objections. All of the objections were briefed and argued before the court en banc on April 7, 1969. On January 2, 1970, the court, by Judge R. Dixon Herman, issued an order dismissing Orsatti's preliminary objections and sustaining the Commonwealth's preliminary objections to Orsatti's new matter and counterclaim, citing Commonwealth v. Berks County, 364 Pa. 447, 72 A.2d 129 (1950). The parties were granted twenty days to plead over.
Orsatti made no effort to amend the pleadings. Instead, on March 11, 1970, an appeal to our Court was filed.
The Commonwealth urges that the order sustaining its preliminary objections to Orsatti's counterclaim is interlocutory and, therefore, not appealable.
In arguing that the appeal should not be quashed, Orsatti relies on Broido v. Kinneman, 375 Pa. 568, 569-70, 101 A.2d 647 (1954), where we held that an order sustaining preliminary objections to defendants' counterclaim is appealable, explaining: "Its intendment and effect was to put the defendants out of court so far as their counterclaim was concerned. To that extent the order was final and would, no doubt, have impeded the defendants if unreversed before trial of the plaintiffs' claim. In so saying, we do not mean to suggest that a final judgment on ...