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AMELIA L. FREE ET AL. v. EDWIN R. LEBOWITZ ET AL. APPEAL CATRANEL (10/03/75)

decided: October 3, 1975.

AMELIA L. FREE ET AL.
v.
EDWIN R. LEBOWITZ ET AL. APPEAL OF CATRANEL, INC. AND BRIARIDGE APARTMENTS



COUNSEL

Richard A. Zappala, Zappala & Zappala, N. T. Cohen, Pittsburgh, for appellant.

Richard D. Klaber, Dickie, McCamey & Chilcote, Samuel B. Roth, E. F. Scanlon, Eugene F. Scanlon, Jr., John M. Means, Pittsburgh, for appellee, the Township of Wilkins.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Manderino

[ 463 Pa. Page 389]

OPINION OF THE COURT

In 1971, a complaint in equity was filed by Amelia L. Free, Bertha Free and Tillie F. Sterner, Trustees under the Will of Amelia Free (plaintiffs) against Edwin R. Lebowitz and Donna S. Lebowitz, his wife, individually and trading and doing business as Merit Drug Store (original defendants). Plaintiffs subsequently amended their complaint to include other defendants including both the appellants in this appeal, Cantranel, Inc., and Briaridge Apartments, and the appellee in this appeal, the Township of Wilkins. Plaintiffs alleged

[ 463 Pa. Page 390]

    that their property had suffered harm as the result of the change in a natural water drainage course which occurred during the construction of the building -- housing the Merit Drug Store. Plaintiffs claimed that the various defendants were all involved in changing the natural water drainage course which caused the plaintiffs harm. Plaintiffs requested injunctive and other equitable relief.

The appellants filed an answer and New Matter. This New Matter asserted a cause of action against both the original defendants and the new party defendant, the Township of Wilkins. This New Matter alleged that the original defendants and the Township were liable to plaintiffs, and further, that they were additionally liable to the appellants for harm caused the appellants by the changes made in the natural water drainage course. The defendant Township of Wilkins, filed preliminary objections alleging, among other things, improper joinder. The original defendant responded to this New Matter by way of an Answer to the Complaint alleged in appellants' New Matter. The trial court sustained the preliminary objections of the Township of Wilkins to the New Matter filed by the appellants, and dismissed the complaint filed in the New Matter as to both the Township and the original defendant. This appeal followed.

Initially, we note that the order sustaining the preliminary objections and dismissing appellants' complaint is a final and thus appealable order. Zakian v. Liljestrand, 438 Pa. 249, 254, 264 A.2d 638 (1970); Brandywine Area Joint School Authority v. Van Cor, Inc., 426 Pa. 448, 233 A.2d 240 (1967); cf. Rau v. Manko, 341 Pa. 17, 17 A.2d 422 (1941); and Cummings v. Rees, Inc., 126 Pa. Super. 117, 190 A. 416 (1937). We, therefore, deny the Township's motion to quash this appeal.

We also conclude that the trial court erred in dismissing the complaint contained in appellants' New Matter.

[ 463 Pa. Page 391]

Rule 2252 of the Pennsylvania Rules of Civil Procedure ...


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