No. 145 Harrisburg, 1981, Appeal from Order of the Court of Common Pleas, Civil Division, of Dauphin County, No. 2762 S 1979
Bernadette Barattini, Harrisburg, for appellant.
Robert Louis Walsh, Sunbury, for appellees.
Wickersham, Wieand and Montemuro, JJ. Montemuro, J., files a dissenting opinion.
[ 304 Pa. Super. Page 32]
R. B. Equipment Company, an assignee of a general contractor, filed an eleven count complaint in trespass and assumpsit against various manufacturers and suppliers*fn1 of allegedly defective cement and concrete used in constructing
[ 304 Pa. Super. Page 33]
roads, sidewalks, curbing and stairs in a public school project. The complaint contained alternate theories of recovery including breach of contract, breach of implied warranties, and liability under Section 402A of the Restatement (Second) of Torts. Preliminary objections in the nature of a demurrer were sustained to those three counts of the complaint which relied on Section 402A of the Restatement (Second) of Torts because, the trial court held, there were no injuries or damages to third persons and R. B. Equipment Company's claim, if any, was "not cognizable as a products liability claim." R. B. Equipment Company filed the instant appeal. We quash.
It is well established that an order dismissing fewer than all counts of a multi-count complaint is interlocutory and unappealable because the appellant is not out of court. See: Veno v. Meredith, 295 Pa. Super. 419, 441 A.2d 1302 (1982); Johnson v. National Life and Accident Insurance Co., 293 Pa. Super. 200, 438 A.2d 1004 (1981); Stengena v. Madden, 291 Pa. Super. 364, 435 A.2d 1269 (1981); Tunstall v. Penn Federal Savings and Loan Association, 287 Pa. Super. 511, 430 A.2d 1007 (1981); Mitchell v. Center City Cadillac, 287 Pa. Super. 350, 430 A.2d 321 (1981); Giannini v. Foy, 279 Pa. Super. 553, 421 A.2d 338 (1980).
In the instant case, although preliminary objections were sustained to counts of the complaint setting forth claims under Section 402A of the Restatement, the breach of contract claims for the same damages remain to be determined. It follows that neither appellant nor its damage claim is out of court. Under these circumstances, the order sustaining preliminary objections to the 402A counts of the complaint is clearly interlocutory and unappealable.
MONTEMURO, Judge, dissenting:
The instant case presents a problem of a complaint sounding in both Assumpsit and ...