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decided: November 18, 1978.


No. 12 March Term, 1978, Appeal from the Order of the Superior Court of Pennsylvania at No. 535 April Term, 1977, entered March 28, 1977, dismissing an appeal from the order of the Court of Common Pleas of Allegheny County at No. 7356 of 1976, entered January 28, 1977, Civil Division.


Allen N. Brunwasser, Pittsburgh, for appellants.

John M. Silvestri, Pittsburgh, for appellee.

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

Author: Pomeroy

[ 483 Pa. Page 70]


Appellants, Ina Brunwasser (Brunwasser) and Barbara Pugar (Pugar), seek to appeal an award by a Board of Arbitrators to the Court of Common Pleas of Allegheny County without first having to pay the costs of arbitration as required by a local rule of court.*fn1 Their motion for permission so to proceed was denied by the court of common pleas, and the Superior Court quashed as interlocutory their appeal from that order of denial. We granted permission to appeal from the order of the Superior Court,*fn2 and will affirm that order.

[ 483 Pa. Page 71]

Like most counties in Pennsylvania, Allegheny County has availed itself of the Act of 1836, as amended,*fn3 by providing through local rules of court for compulsory arbitration of disputes in which the amount in controversy does not exceed a stipulated sum ($10,000 in counties of the second class).*fn4 Appeals from arbitration are provided for in Rule 306 of the Court of Common Pleas of Allegheny County, reproduced in part in the margin.*fn5 Under the terms of this rule, Brunwasser

[ 483 Pa. Page 72]

    and Pugar, in order to perfect their appeal to the court of common pleas, were required to pay $135.55 to the prothonotary of that court, being the sum of all record costs to date and $60 on account of the fees of the arbitrators, the latter item being nonrefundable under the terms of paragraph 3 of local Rule 306. As stated at the outset, the court of common pleas denied the motion*fn6 of Brunwasser and Pugar for leave to appeal without payment of the arbitration fee and court costs on the ground that the matter was covered by Rule 306, and the Superior Court quashed their appeal to that court. We agree with that action.

It is, of course, well settled that an appeal will lie only from a final order unless otherwise permitted by statute. See, e. g., T. C. R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977); Caplan v. Keystone Weaving Mill, 431 Pa. 407, 246 A.2d 384 (1968); Stadler v. Mt. Oliver Borough, 373 Pa. 316,

[ 483 Pa. Page 7395]

A.2d 776 (1953).*fn7 A final order is one which usually ends the litigation, or alternatively, disposes of the entire case. Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 404, 319 A.2d 677, 678 (1974). In determining what constitutes a final order we have followed the approach of Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), in that we look to "a practical rather than technical construction" of an order. In Cohen, the Supreme Court of the United States carved out an exception to the final judgment rule for situations where postponement of appeal until after final judgment might result in irreparable loss of the right asserted. Under Cohen, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Id. at 546, 59 S.Ct. at 1226, 93 L.Ed. at 536.

We applied Cohen in Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 228, 348 A.2d 734, 735 (1975), where we said: "Whether an order is final and appealable cannot necessarily be ascertained from the face of a decree alone, nor simply from the technical effect of the adjudication. The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications." We have also said that if the practical consequence of the order by the trial court is effectively to put an appellant "out of court" the order will be treated as final. Ventura v. Skylark Motel, Inc., 431 Pa. 459, 463, 246

[ 483 Pa. Page 74]

A.2d 353, 355 (1968). Similarly, an order is "final" if it precludes a party from presenting the merits of his claim to the lower court. Marino Estate, 440 Pa. 492, 494, 269 A.2d 645, 646 (1970).

Application of the criteria of Cohen to the case at bar demonstrates its interlocutory nature. The order of the trial court is, indeed, collateral to the basic liability question, and it does involve a right too important to be denied review. The order does not, however, adversely affect a claimed right which will be irreparably lost if review is postponed. Although appellants must in the first instance pay the required amount of costs and fees*fn8 they do not thereby lose their right to question the validity of the fee payment as a condition to their right to trial de novo either at the termination of this proceeding or in a collateral action. The issue is neither waived nor mooted by the inability of appellants to appeal at this stage. Appellants are not "out of court", either on the merits of the automobile accident claim or on the right to jury trial question. Upon payment of the fee and costs appellants' appeal from the adverse arbitrators' award will proceed in the customary manner. If they or either of them should not succeed in that de novo trial, the alleged error in requiring the payment of the $60 fee as a condition of the ability to have a jury trial can be raised on appeal in the normal course, along with any other assignments of error. If, however, either appellant or both should prevail in their trial de novo, they will not be precluded from seeking the return of the fee from the court, for the ruling on the fee payment will have become a final adverse ruling from which an appeal would then lie. Alternatively, they might choose to proceed by a collateral action. While either method may be more cumbersome for them than it would be if this court were to reach and decide the merits on this present appeal, each alternative would comport with our

[ 483 Pa. Page 75]

    policy of discouraging a multiplicity of appeals in a single case, or, as it has sometimes been put, the policy of precluding "piecemeal determinations and the consequent protraction of litigation." McGee v. Singley, 382 Pa. 18, 22, 114 A.2d 141, 143 (1955); Sullivan v. Philadelphia, 378 Pa. 648, 649, 107 A.2d 854, 855 (1954).

We have long held that, whenever possible, review must await the determination of a suit notwithstanding any resulting inconvenience to a party. Keysbey's Trust Estate, 342 Pa. 439, 444, 20 A.2d 281, 283 (1941); Miller Paper Co. v. Keystone Coal & Coke Co., 275 Pa. 40, 44, 118 A. 565, 567 (1922). Given the fact that appellants' claim is based upon their unwillingness to pay costs and fees, and not upon their inability to pay them, appellants must litigate the negligence claim before pursuing appellate review of their contention that their right to trial by jury has been unjustifiably impaired.

The order of the Superior Court quashing the appeal as interlocutory is affirmed.

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