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decided: April 28, 1977.



David M. Priselac, McKeesport, for appellant.

Richard S. Crone, Crone & Zittrain, Pittsburgh, for appellees.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Former Chief Justice Jones did not participate in the decision of this case. Eagen, C. J., and Roberts, J., dissent.

Author: Nix

[ 472 Pa. Page 334]


This is an appeal from a decree of the Chancellor dismissing a complaint in equity filed by appellant, T. C. R. Realty, Inc., seeking specific performance of a written option agreement for the sale of a parcel of land and damages for an alleged breach thereof. The dismissal of the complaint was precipitated by appellant's refusal to supply certain information to appellees in response to their [appellees'] depositions of appellant as directed by the Chancellor. Although the lawsuit has been unnecessarily complicated by a long and involved procedural and factual history, the immediate precise issue raised rests upon a determination of the propriety of permitting a counterclaim seeking injunctive relief and damages under the theories of malicious use and abuse of process in response to appellant's complaint in equity. For reasons which will be set forth hereinafter, we hold that the Chancellor erred in dismissing appellant's complaint and order that the complaint be reinstated and that the cause be remanded to the court below for further proceedings consistent herewith.

This action was commenced on January 11, 1974, by the filing of a praecipe for a writ of summons in equity by appellant against J. Samuel and Rose Cox, his wife, requesting specific performance of, and damages for an alleged breach of, a written option agreement for the sale of a parcel of real estate located in McCandless Township, Allegheny County. Subsequently, an amended

[ 472 Pa. Page 335]

    complaint*fn1 was filed alleging that on or about June 16, 1972, appellees gave to a Herbert Willis a written option to purchase the land in question. It was further averred that the aforesaid option was assigned to the instant appellant by a written agreement dated August 15, 1972.

In response to the amended complaint, appellees filed an answer, new matter and a counterclaim. On March 21, 1974, appellant filed preliminary objections to the appellees' new matter and counterclaim which were subsequently dismissed by a court en banc with leave to appellant to file a reply to appellees' new matter and counterclaim within 20 days from the date of that order. A reply was timely filed and the issue raised by the pleadings, excluding the counterclaim, centered around the question as to whether Clause 9 of the option agreement of June 16, 1972, had been complied with.*fn2

Following the filing of the reply by appellant, the appellees aggressively pursued a course of discovery in an effort to establish the averments set forth in their counterclaim. In essence the counterclaim asserted that appellant and his agents had engaged in a series of vexatious lawsuits against appellees in a deliberate effort to so "harass" and "badger" them as to force the sale of the property in question to appellant at a price far below its true value. During the discovery process, appellees' filed a motion with the court for sanctions because of appellant's failure to supply certain requested information.

[ 472 Pa. Page 336]

On November 4, 1974, in response to this motion, the Chancellor entered the following order:

". . . that plaintiff file with this Court and serve upon defendants' counsel copies of all documents and written responses to all information specifically set forth in the foregoing Motion, all within ten days from the date hereof; in default of which plaintiff's action will be dismissed with prejudice, leaving only defendants' counterclaim to be tried."

This order was subsequently amended "to require compliance on or before November 25, 1974." On November 26, 1974, after concluding that appellant could or would not comply with its earlier order, the Chancellor dismissed appellant's action with prejudice and ordered the cause to trial on appellees' counterclaim. It is this action from which appellant now seeks relief.*fn3

Before addressing the merits of the instant appeal we must first determine whether the appeal from the decree of November 26, 1974, is properly before us at this time. Restated, the issue is whether a sanction order dismissing plaintiff-appellant's entire case with prejudice imposed under Rule 4019 effectively "puts him out of court," even though the defendant's counterclaim remains to be tried. Although neither party has specifically questioned the jurisdiction of this Court in this matter, the mere agreement of the parties will not vest jurisdiction where it otherwise would not be. Stadler v. Mt. Oliver Borough, 373 Pa. 316, 318, 95 A.2d 776, 777

[ 472 Pa. Page 337]

(1953); Monnia's Estate, 270 Pa. 367, 369, 113 A. 550, 551 (1921).

[ 472 Pa. Page 338]

It is fundamental law in this Commonwealth that an appeal will lie only from final orders, unless otherwise expressly permitted by statute. Caplan v. Keystone Weaving Mill, 431 Pa. 407, 246 A.2d 384 (1968); Stadler v. Mt. Oliver Borough, supra. Prior to July 1, 1976, the Appellate Court Jurisdiction Act of 1970, July 31, P.L. 673, No. 223, art. II, § 202, 17 P.S. § 211.202(4) (Supp.1976-77) provided for exclusive jurisdiction in this Court from "final orders of the courts of common pleas" in actions or proceedings in equity, with various enumerated exceptions.*fn4 In ascertaining what is a "final order," we have looked beyond the technical effect of the adjudication to its practical ramifications. Bell v. Consumer Discount Company, 465 Pa. 225, 348 A.2d 734 (1975). We have variously defined a final order as one which ends the litigation, or alternatively disposes of the entire case. Piltzer v. Independence Savings and Loan Association, 456 Pa. 402, 404, 319 A.2d 677, 678 (1974); James Banda Inc. v. Virginia Manor Apartments, Inc., 451 Pa. 408, 409, 303 A.2d 925, 926 (1973). Conversely phrased, an order is interlocutory and not final unless it effectively puts the litigant "out of court." Ventura v. Skylark Motel, Inc., 431 Pa. 459, 463, 246 A.2d 353, 355 (1968). In Marino Estate, 440 Pa. 492, 494, 269 A.2d 645, 646 (1969), we said that an order is not interlocutory if it precludes a party from presenting the merits of his claim to the lower court. As a result of the dismissal with prejudice of appellant's claim, appellant is precluded from doing precisely that. Although he is technically not "out of court" since he is obliged to remain to defend against the counterclaim, the practical ramification of the decree is to completely deprive the litigant of his day in court so far as his claim is concerned. See Safety T. Page 338} Corp. v. Hoffman T. Co., Inc., 458 Pa. 102, 329 A.2d 834 (1974). We have often held that an order dismissing certain aspects of an action is final even though certain other aspects may survive the order. In Bell v. Beneficial Consumer Discount, supra, we held that an order ...

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