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CITY PHILADELPHIA v. FRANKLIN SMELTING AND REFINING COMPANY (08/20/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: August 20, 1982.

CITY OF PHILADELPHIA
v.
FRANKLIN SMELTING AND REFINING COMPANY, APPELLANT. BRIDESBURG CIVIC COUNCIL V. FRANKLIN SMELTING AND REFINING COMPANY, APPELLANT

No. 582 Philadelphia, 1981, No. 583 Philadelphia, 1981, Appeal from the Orders of the Court of Common Pleas of Philadelphia County, Trial Division, at Nos. 1868 October Term, 1979 and 3821, January Term, 1980.

COUNSEL

Carl N. Weiner and Louis W. Fryman, Philadelphia, for appellant.

Kenneth S. Cooper, Philadelphia, for City of Philadelphia, appellee.

Jerome Balter, Philadelphia, for Bridesburg, appellee.

Wickersham, McEwen and Lipez, JJ.

Author: Lipez

[ 303 Pa. Super. Page 394]

Defendant Franklin Smelting and Refining Company has filed two appeals, which have been consolidated here, from orders denying Franklin Smelting's preliminary objections to complaints by plaintiff City of Philadelphia and plaintiff Bridesburg Civic Council. These orders are interlocutory and non-appealable, and the appeal must therefore be quashed.

In its "statement of jurisdiction," Pa.R.A.P. 2114, Franklin Smelting relies on Rule of Appellate Procedure

[ 303 Pa. Super. Page 395341]

, which deals only with final orders. An order dismissing a defendant's preliminary objections, however, is clearly interlocutory. Balter v. Balter, 284 Pa. Super.Ct. 350, 355, 425 A.2d 1138, 1140 (1981); see Martino v. Transport Workers Union of Philadelphia -- Local 234, 301 Pa. Super.Ct. 161, 169, 447 A.2d 292, 296 (1982). Under the Act of March 5, 1925, P.L. 23, § 1, 12 P.S. § 672, such an order was nevertheless appealable if it dealt with a question of jurisdiction, Balter v. Balter, supra, but that statute was repealed effective June 27, 1980. See generally Gallardy v. Ashcraft, 288 Pa. Super.Ct. 37, 39-40, n.3, 430 A.2d 1201, 1202, n.3 (1981), appeal dismissed as improvidently granted, 497 Pa. 587, 442 A.2d 693 (1982).*fn1 Thus it is inapplicable to these appeals, which were filed on March 5, 1981.

Since section 672 is inapplicable, we need only consider whether the jurisdictional issues raised by Franklin Smelting meet the requirements of Pennsylvania Rule of Appellate Procedure 311(b), effective April 22, 1979. 8 Pa.Bull. 3636, 3637 (1978). The only jurisdictional issues covered by Rule 311(b)*fn2 are questions of personal or in rem jurisdiction.

In its appeal with respect to the Bridesburg Civic Council's complaint, Franklin Smelting claims the court below

[ 303 Pa. Super. Page 396]

    had no jurisdiction of the cause of action under the federal Clean Air Act because of failure to meet the notice requirement of the Act. Assuming such notice is a prerequisite to jurisdiction, it certainly does not raise an issue of personal or in rem jurisdiction under Rule 311(b).

Franklin Smelting also claims that the court below lacked "equity jurisdiction" of the complaints of both the City of Philadelphia and the Bridesburg Civic Council. These challenges to so-called "equity jurisdiction" do not pose a true question of jurisdiction at all. Balter v. Balter, supra, 284 Pa. Super.Ct. at 355-56, 425 A.2d at 1140-41. The orders involved here would thus not have been appealable even if section 672 were still in effect, and they are certainly not appealable under Rule 311(b), which is narrower in its coverage than section 672. None of the orders here are appealable on any basis, and the entire consolidated appeal must therefore be quashed.

Appeal quashed.


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