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SANDRA M. TURNER v. MAY CORPORATION (03/13/81)

filed: March 13, 1981.

SANDRA M. TURNER
v.
THE MAY CORPORATION, T/D/B/A KAUFMANN'S DEPARTMENT STORE, APPELLANT



No. 80 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. 7126 of 1979.

COUNSEL

Robert G. Simasek, Pittsburgh, for appellant.

Max A. Levine, Pittsburgh, for appellee.

Spaeth, Johnson and Popovich, JJ.

Author: Popovich

[ 285 Pa. Super. Page 244]

This is an appeal from an Order denying appellant's Motion to Quash appellee's appeal from an arbitration panel's award.

On November 8, 1979, a panel of arbitrators heard the appellee's Complaint in Trespass and issued an award in favor of appellant. On December 7, 1979, the appellee filed an appeal to the Court of Common Pleas of Allegheny County requesting a trial de novo. Appellant, thereafter, filed a Motion to Quash the appeal on the grounds that it was untimely, having been filed more than twenty days after the entry of the arbitrators' award.*fn1 The lower court, per Judge R. Stanton Wettick, denied the appellant's Motion on December 28, 1979. We agree and, accordingly, affirm the lower court's Order.

[ 285 Pa. Super. Page 245]

Before discussing the merits of appellant's claim, we must determine whether the Order appealed from here is final. Although neither party has specifically questioned the jurisdiction of this Court on this matter,*fn2 the mere agreement of the parties will not vest jurisdiction where it otherwise should not be. T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977). On this subject, our Supreme Court in T.C.R. Realty, supra, stated:

"It is fundamental law in this Commonwealth that an appeal will lie only from final orders, unless otherwise expressly permitted by statute. In ascertaining what is a 'final order,' we have looked beyond the technical effect of the adjudication to its practical ramifications. We have variously defined a final order as one which ends the litigation, or alternatively disposes of the entire case. Conversely phrased, an order is interlocutory and not final unless it effectively puts the litigant 'out of court.' [Also,] . . . an order is not interlocutory if it precludes a party from presenting the merits of his claim to the lower court." Id., 472 Pa. at 337, 372 A.2d at 724. (Citations omitted)

Absent a specific statutory provision authorizing the instant appeal, it is clear that it is interlocutory. A litigant who has had denied a motion to quash an appeal from the award of a board of arbitrators is not "out of court;" he may still proceed on the merits in the court below. See Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); T.C.R. Realty, supra; Lower Paxton Township v. Fieseler Neon Signs, 37 Pa. Commw. 506, 391 A.2d 720 (1978). However, the lower court's ruling on the timeliness of the appeal constituted a ruling on the subject matter jurisdiction. See, e. g., James F. Oakley, Inc. v. School District of Philadelphia, 464 Pa. 330, 346 A.2d 765 (1975) (statutory requirements for

[ 285 Pa. Super. Page 246]

    the perfecting of an appeal from the award of arbitrators are jurisdictional); Commonwealth v. Molyneaux, 277 Pa. Super. 264, 419 A.2d 763 (1980) (timeliness of an appeal is a jurisdictional question); Drozdowski v. Keystone Truck Leasing, 277 Pa. Super. 55, 419 A.2d 657 (1980) (SPAETH, J.) (statutory requirements for perfecting an appeal from a board of arbitrators are jurisdictional); Commonwealth v. Dorman, 272 Pa. Super. 149, 414 A.2d 713 (1979) (same); see also Department of Transportation, Bureau of Traffic Safety v. Bower, 48 Pa. Commw. 379, 410 A.2d 91 (1980); Board of Public Education of the School District of Pittsburgh v. Goldstein, 43 Pa. Commw. 643, 403 A.2d 176 (1979). As such, the "trial court's ruling on a preliminary objection raising the question of jurisdiction, although interlocutory, is subject to the Act of March 5, 1925, P.L. 23, § 1, 12 P.S. § 672, repealed, Act of April 28, 1978, P.L. 202, § 2(a)[1069] (effective June 27, 1980), which provides for an immediate appeal of such rulings."*fn3 Visscher v. O'Brien, 274 Pa. Super. 375, 381, 418 A.2d 454, 457 (1980). Thus, we find that the Order of the court below is appealable.

The issue to be resolved by this Court is the determination of exactly which statute of limitations governs the appeal provision found in Section 7361, the Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978; 42 ...


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