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LADD E. HOOVER AND BARBER NELL HOOVER v. BUCKS COUNTY TAX CLAIM BUREAU AND ROBERT D. CULP. ROBERT D. CULP (07/30/79)

decided: July 30, 1979.

LADD E. HOOVER AND BARBER NELL HOOVER
v.
BUCKS COUNTY TAX CLAIM BUREAU AND ROBERT D. CULP. ROBERT D. CULP, APPELLANT



Appeal from the Order of the Court of Common Pleas of Bucks County in case of Ladd E. Hoover and Barber Nell Hoover v. Bucks County Tax Claim Bureau and Robert D. Culp, No. 76-10745-08-5.

COUNSEL

Robert D. Culp, appellant, for himself.

John P. Koopman, for appellees.

Judges Mencer, Rogers and Craig, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 44 Pa. Commw. Page 530]

Ladd E. Hoover and Barber Nell Hoover filed a complaint in equity with the Court of Common Pleas of Bucks County, seeking to set aside the tax sale of their mobile home to Robert D. Culp. The Hoovers alleged a failure to give notice of the sale in accordance with the requirements of the Real Estate Tax Sale Law (Tax Sale Law), Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. § 5860.101 et seq. Culp filed preliminary objections to the complaint, alleging improper service and the existence of an adequate statutory remedy. These objections were overruled by the Court of Common Pleas, and Culp then filed an appeal with this Court.

[ 44 Pa. Commw. Page 531]

In general, this Court has appellate jurisdiction only over final orders of a court of common pleas. Section 402 of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, formerly 17 P.S. § 211.402, repealed by Section 2(a) [1443] of the Judiciary Act Repealer Act (JARA), Act of April 28, 1978, P.L. 202. A similar provision is now found in the Judicial Code, 42 Pa. C.S. § 762(a). Since an order dismissing preliminary objections is not final in nature, this Court has no jurisdiction over appeals from such orders unless a right of appeal is expressly provided by statute. See, e.g., Haddington Leadership Organization, Inc. v. Sherman, 8 Pa. Commonwealth Ct. 309, 312, 302 A.2d 919, 921 (1973). Culp claims that this Court has jurisdiction over his appeal by virtue of Section 1 of the Act of March 5, 1925, P.L. 23, as amended (Act of 1925), formerly 12 P.S. § 672, repealed (effective June 27, 1980) by Section 2(a) [1069] of JARA. Section 1 permits interlocutory appeals "[w]herever . . . the question of jurisdiction over the defendant or of the cause of action . . . is raised." Under this act, if an appeal does not involve a question of jurisdiction, the appeal must be quashed; if it does involve such a question, the appeal is limited to a determination of whether the court below had jurisdiction. Seligsohn Appeal, 410 Pa. 270, 273-74, 189 A.2d 746, 748 (1963); see also Studio Theaters, Inc. v. Washington, 418 Pa. 73, 78, 209 A.2d 802, 805 (1965); Fox v. Pennsylvania Securities Commission, 17 Pa. Commonwealth Ct. 72, 75, 328 A.2d 573, 575 (1974).

"Jurisdiction," as used in the Act of 1925, refers only to the power of the lower court to enter upon the inquiry. Studio Theaters, supra, 418 Pa. at 77, 209 A.2d at 804; Haddington Leadership Organization, Inc. v. Sherman, supra, 8 Pa. Commonwealth Ct. at 312-13, 302 A.2d at 921; Kramer v. Kramer, Pa. Superior Ct. , ,

[ 44 Pa. Commw. Page 532394]

A.2d 577, 581 (1978) (allocatur denied). The term does not encompass what is often loosely referred to as "equity jurisdiction," since the latter phrase relates only to whether or not the particular case is one which calls for the extraordinary remedies available on the equity "side" of the court. See, e.g., West Homestead Borough School District v. Allegheny County Board of School Directors, 440 Pa. 113, 117-18, 269 A.2d 904, 906-07 (1970); Studio Theaters, supra. Specifically, the power of a court to hear and decide a controversy is not involved where it is alleged that equitable relief should not be granted because of the existence of an adequate remedy at law. See, e.g., West Homestead Borough, supra; Studio Theaters, supra; Kramer v. Kramer, supra.

There is a distinction, however, between the defense of "adequate remedy at law" and that of "exclusive statutory remedy." West Homestead Borough, supra; Studio Theaters, supra, 418 Pa. at 80-82, 209 A.2d at 806-07 (Cohen, J., dissenting). Where the legislature has provided an exclusive method for disposing of a case or controversy, it has in fact deprived the courts of common pleas of the power to inquire into the matter in any other fashion. Therefore, preliminary objections alleging the existence of an exclusive statutory remedy raise a true question of jurisdiction which is appealable by virtue of the Act of 1925. West Homestead Borough, supra. But see Studio Theaters, supra.

Turning to the jurisdictional issue in the case at hand, does the court below have the power to hear and decide a suit in equity raising the adequacy of notice under the Tax Sale Law? It is true that Section 607 of the Tax Sale Law, 72 P.S. § 5860.607, provides a statutory procedure whereby the adequacy of the notice can be ...


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