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GONZALES ET AL. v. POLIS ET AL. (02/02/76)

decided: February 2, 1976.

GONZALES ET AL.
v.
POLIS ET AL., APPELLANTS



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1971, No. 2849, in case of Francisco Gonzales, a minor, by his parents and natural guardians, Carmen Gonzales and Juan Gonzales and Carmen Gonzales and Juan Gonzales, in their own right v. Morris Polis and Polis Brothers Real Estate.

COUNSEL

Charles Polis, with him Polis and Polis, for appellants.

No appearance entered nor brief submitted for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J.

Author: Cercone

[ 238 Pa. Super. Page 364]

This appeal involves an action in trespass and assumpsit against Polis Brothers Real Estate, a partnership (Polis Brothers), and Morris Polis. Because different questions are raised as to each defendant they will be separately considered.

Polis Brothers

On January 21, 1972 a complaint was filed against the defendants and on February 2, 1972 the complaint was served on Polis Brothers. Preliminary objections to the complaint, filed by Polis Brothers, were overruled and Polis Brothers were ordered to file an answer to the complaint within twenty days. Polis Brothers filed interrogatories which were answered by the plaintiffs and then nineteen months later, on March 7, 1974, Polis Brothers filed an answer and new matter to the complaint. On March 13, 1974 plaintiffs filed an answer to the new matter. A petition was then filed by Polis Brothers requesting that it be removed as a party defendant because it allegedly was not in existence at the time the cause of action accrued. This petition was dismissed by the lower court on January 31, 1975, and from this order Polis Brothers appeal.

[ 238 Pa. Super. Page 365]

Initially we must determine whether an appeal from this order can be considered on the merits. The petition filed by Polis Brothers contended that, due to the death of one of the partners, the partnership was no longer in existence and should therefore be removed as a party defendant. Plaintiffs, by way of an answer to the petition, denied Polis Brothers' contention. The question raised by the petition and answer is one of fact which must be decided at the trial level. Unless defendant is put out of court by the order in question and is therefore precluded from proving his contention at trial, the appeal is from an interlocutory order. See Piltzer v. Independence Federal Sav. & Loan Ass'n., 456 Pa. 402 (1974); Ventura Page 365} v. Skylark Motel, Inc., 431 Pa. 459 (1968); and 2401 Pennsylvania Ave. Corporation v. The Southland Corporation, 236 Pa. Superior Ct. 102 (1975). In the instant case Polis Brothers will have the opportunity to present the merits of its claims to the lower court at trial. Therefore this appeal is from an interlocutory order and, since the appeal is not expressly authorized by statute, it is improper. See Caplan v. Keystone Weaving Mills, Inc., 431 Pa. 407 (1968); Colvin v. Somat Corp., 230 Pa. Superior Ct. 118 (1974). Therefore the appeal by Polis Brothers is quashed.

Morris Polis

The facts concerning defendant Morris Polis are significantly different. Morris Polis was never personally served with the complaint. Instead he was served pursuant to Pennsylvania Rules of Civil Procedure, Rules 2077 (a)(1)*fn1 and 2079(a),*fn2 which provide for service of non-residents and residents who conceal their whereabouts. On October 21, 1974 a ...


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