decided: December 5, 1974.
SAFETY TIRE CORPORATION, PETITIONER,
HOFFMAN TIRE COMPANY, INC.
Petition for Allocatur from order of Superior Court, Oct. T., 1973, No. 1756, affirming order of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1973, No. 3691, in case of Safety Tire Corporation v. Hoffman Tire Company, Inc. and Lee Tire & Rubber Company.
Author: Per Curiam
[ 458 Pa. Page 103]
We have before us a petition by Safety Tire Corporation, plaintiff below, for allowance of appeal from an order of the Superior Court affirming, per curiam, an order of the Court of Common Pleas of Philadelphia. The order of the latter court had sustained preliminary objections of the defendants in the nature of motions to strike portions of the complaint in assumpsit, based on article 2 of the Uniform Commercial Code, 12A P.S. § 1-101 et seq. (1970).*fn* The stricken portions were those which asserted a claim to consequential damages.
To be final, an order of court must terminate the litigation between the parties or effectively deprive the litigant of his day in Court. Ventura v. Skylark Motel. Inc., 431 Pa. 459 (1968). In a case such as this, that has not occurred, for the petitioner must still prove the cause of action it has asserted for breach of contract, and only if he is successful in so doing will the measure
[ 458 Pa. Page 104]
of damages become relevant. Thus the order appealed from is interlocutory, and the appeal should have been quashed. Hudock v. Donegal Mut. Ins. Co., 438 Pa. 272 (1970); Ventura v. Skylark Motel, Inc., supra.
For the reasons indicated, the petition for allocatur is granted, the order of the Superior Court is vacated and the matter is remanded to the trial court for further proceedings.
Order of Superior Court vacated and matter remanded to trial court for further proceedings.