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JACK GELLAR AND KATE GELLAR v. ELIZABETH CHAMBERS (08/14/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: August 14, 1981.

JACK GELLAR AND KATE GELLAR, H/W, APPELLANTS
v.
ELIZABETH CHAMBERS, ESQUIRE, MICHAEL GOLDBERG, ESQUIRE, REUBEN MILLER, ESQUIRE, AND MORRIS SLOTSKY AND GLORIA SLOTSKY, H/W

No. 970 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division, of Philadelphia County, at November Term. 1978, No. 810.

COUNSEL

Jeffrey B. Albert, Philadelphia, for appellants.

Mark E. Goldberg, Philadelphia, for appellees.

Price, Watkins and Montgomery, JJ.

Author: Per Curiam

[ 292 Pa. Super. Page 325]

The instant appeal arises from an interlocutory order. The parties submitted the particular issue involved to the lower court for resolution upon an agreed statement of facts. The parties stipulated that the trial court's determination of the interlocutory issue could be the subject of an immediate appeal.

Pursuant to the Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended, 42 Pa.C.S.A. § 702,*fn1 the lower court certified the issue as involving a controlling issue of law as to which there is substantial ground for difference of opinion and stated that an immediate appeal from its order would materially advance the ultimate termination of the matter. The Appellant thereafter filed a notice of appeal with our Court. However, the Appellant has failed to file any petition with our Court seeking permission to appeal the interlocutory order, contrary to Rule 1311 of the Rules of Appellate Procedure.

In accordance with Rule 1311, we have held that an appellant is required to file such a petition and that a § 702 certification by the lower court is not sufficient to establish jurisdiction with our Court in a case. See Commonwealth v. Pfender, 280 Pa. Superior Ct. 417, 421 A.2d 791 (1980). We note that the Appellee has not filed any objection to our Court's assumption of jurisdiction over this appeal. While such circumstances might operate to perfect the appellate

[ 292 Pa. Super. Page 326]

    jurisdiction of our Court in other situations, Rule 741 of the Rules of Appellate Procedure specifically precludes such a result in cases involving interlocutory orders such as the one presented in the instant case.*fn2 We are constrained to quash this appeal. Compare Commonwealth ex rel. Ransom Township v. Mascheska, 429 Pa. 168, 239 A.2d 386 (1968), on remand 213 Pa. Superior Ct. 195, 245 A.2d 721 (1968).

This Appeal is quashed and the case is remanded to the lower court for further proceedings. We do not retain jurisdiction.


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