No. 1833 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Trial Division-Law, of Philadelphia County at No. 5753 June Term 1980.
Elizabeth M. Iannelli, Philadelphia, for appellant.
Manfred Farber, Philadelphia, for White, appellee.
Edward T. Connelly, Philadelphia, for Continental-Emsco, appellee.
Wickersham, Cirillo and Lipez, JJ.
[ 302 Pa. Super. Page 277]
This is an appeal from an order dated December 12, 1980 which dismissed preliminary objections and allowed an immediate appeal because the lower court believed that the order involved a substantial ground for difference of opinion and that such immediate appeal would materially advance the ultimate termination of the matter. We quash the instant appeal because a subsequent order of the lower court vacated the order appealed from.
Procedurally, appellee Charles Davis filed a complaint in trespass on July 3, 1980 against appellee J. J. White, Inc. (hereinafter White) alleging that he had been seriously injured while working for appellant Atlantic Richfield Company (hereinafter ARCO) by an improperly designed and maintained loading arm manufactured by White. On July 31, 1980, White joined ARCO as a co-defendant. ARCO then filed preliminary objections in the form of a demurrer alleging that Davis was an ARCO employee at the time of his injury and that the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq., barred ARCO's joinder as a party. ARCO's preliminary objections were overruled by Judge James T. McDermott in an order dated November 13, 1980, however, Judge McDermott entered an amended order, dated December 12, 1980 which, while still overruling ARCO's preliminary
[ 302 Pa. Super. Page 278]
objections, certified the matter for interlocutory appeal. On December 22, 1980, White filed a petition for a rule to show cause why the amended order of December 12, 1980 permitting appeal should not be vacated. Oral argument was heard on the matter in the lower court and on February 19, 1981, Judge McDermott vacated his amended order permitting interlocutory appeal, thus leaving the original order of November 13, 1980 in effect. On July 21, 1981 the superior court granted ARCO's petition to appeal and directed that, in addition to the substantive issues raised by ARCO, the issue of the vacated order of February 19, 1981 should also be briefed by the parties.
Instantly, after ARCO's preliminary objections were overruled in Judge McDermott's order of November 13, 1980, ARCO's counsel communicated with employees of the lower court in an effort to have Judge McDermott certify that his order involved a controlling question of law and that an interlocutory appeal should be allowed. Reproduced Record at 99a. In the order dated December 12, 1980, Judge McDermott did certify the matter for interlocutory appeal. After receiving the amended order permitting interlocutory appeal, appellee Emsco filed a brief opposing the amended order with the lower court. Appellee White also sought to have the amended order permitting interlocutory appeal vacated. On February 19, 1981, after oral argument and supplemental briefing, Judge McDermott vacated the amended order of December 12, 1980, thereby rescinding the previously granted permission for interlocutory appeal.
Appellant ARCO frames its issue concerning the appealability of the instant matter as follows:
Whether the Order of the Judge of the Court of Common Pleas of Philadelphia County dated February 19, 1981 is void because it was issued seventy-seven (77) days after the Petition for Permission ...