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THOMAS C. SWIFT v. ROBERT MILNER (03/12/82)

filed: March 12, 1982.

THOMAS C. SWIFT
v.
ROBERT MILNER, APPELLANT



No. 543 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Civil Action-Law, of Lancaster County at No. 84 October Term 1978.

COUNSEL

Heywood Eric Becker, New Hope, for appellant.

John Mongiovi, Lancaster, for appellee.

Wickersham, Beck and Popovich, JJ.

Author: Wickersham

[ 296 Pa. Super. Page 464]

Thomas C. Swift, appellee, brought suit in assumpsit against Robert Milner in the Court of Common Pleas of Lancaster County alleging, inter alia, that they had entered into an agreement to purchase properties at the tax sale to be held at the Lancaster County Courthouse on October 16, 1976 and become equal owners of the properties so purchased. Pursuant to such agreement, a certain sixteen acre tract of land was purchased by the said Robert Milner for the purchase price of $128.89. The complaint alleged further that it had been understood and agreed between appellant and appellee (and three other partners in the venture) that property bought at the tax sale of October 16, 1976 could be purchased in the name of one individual, yet at the same time all of the parties would be equal owners of the

[ 296 Pa. Super. Page 465]

    property purchased. It was further alleged in the complaint that contrary to the agreement of the parties, Robert Milner, after the tax sale of October 16, 1976, obtained title in his own name and appropriated the sixteen acre tract of land to his own use and denied the other four partners any use or interest therein. Finally, it was alleged that the value of the purchase was at least $5,000.00 per acre and damages were sought by the said Thomas C. Swift in the amount of one-fifth of the value of the land referred to. Robert Milner filed preliminary objections which were dismissed by the Honorable Wayne G. Hummer, Jr. on July 10, 1980 with leave granted to Robert Milner to file a responsive pleading. Thereafter, defendant filed an answer with new matter, to which a reply was filed. A motion for judgment on the pleadings was thereafter filed by Thomas C. Swift. By order dated February 3, 1981 the Honorable Paul A. Mueller, Jr., entered judgment in favor of plaintiff, Thomas C. Swift, and against defendant, Robert Milner, but ordered that a trial should be held limited to the question of the value of the real estate to determine the value of plaintiff's one-fifth interest. In its order, the court pointed out that defendant's attorney had failed to respond in any way or file an opposing brief within ten days after service of plaintiff's brief following the filing of the motion for entry of judgment. Local Rule 31(B) of the Lancaster Rules of Court provided that under such circumstances, "[a]ny respondent who fails to comply with this rule shall be deemed not to oppose" the request for judgment.

It was from such order of February 3, 1981 of Judge Mueller that this direct appeal was taken. At the same time, Robert Milner filed with the lower court a document entitled petition to open judgment on the pleadings and on February 24, 1981, Judge Mueller denied defendant's petition.

Before we may consider the merits of this appeal, we must determine whether it is properly before us. Although the appellee did not raise this issue, the appealability

[ 296 Pa. Super. Page 466]

    of an order is a question of jurisdiction and may be raised sua sponte. Williams v. Williams, 253 Pa. Super. 444, 385 A.2d 422 (1978); Polascik v. Baldwin, 245 Pa. Super. 1, 369 A.2d 263 (1976); 42 Pa.C.S. § 704(b)(2). Our court's appellate jurisdiction is generally limited to appeals from final orders of courts of common pleas. 42 Pa.C.S. § 742. A final order is generally one which terminates the litigation, disposes of the entire case, or effectively puts the litigant out of court. Adoption of G.M., 484 Pa. 24, 398 A.2d 642 (1979); In the Interest of C.A.M., 264 Pa. Super. 300, 399 A.2d 786 (1979). "The reason for prohibiting appeals from interlocutory orders is 'to preclude piecemeal determinations and the consequent protraction of litigation.'" Piltzer v. Independence Federal Savings and Loan Association of Philadelphia, 456 Pa. 402, 406, 319 A.2d 677, 678 (1974); quoting from Sullivan v. Philadelphia, 378 Pa. 648, 649, 107 A.2d 854, 855 (1954). Orders which do not dispose of the entire case may be deemed final and appealable, however, if ...


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