Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

KIRK FOULKE v. WILLIAM A. LAVELLE (12/10/82)

filed: December 10, 1982.

KIRK FOULKE
v.
WILLIAM A. LAVELLE, DEFT. AND ROBERT A. ROSIN, ESQ., APPELLANTS



No. 2106 PHILADELPHIA, 1981, Appeal from the Order of July 22, 1981, in the Court of Common Pleas of Philadelphia County, Trial Divisions, at No. 4494 January Term, 1981.

COUNSEL

Geri H. Gallagher, Norristown, for appellants.

Jerome B. Nulty, Souderton, submitted a brief on behalf of appellee.

Spaeth, Brosky and Beck, JJ. Spaeth, J., concurs in result.

Author: Beck

[ 308 Pa. Super. Page 134]

This appeal from a denial of a motion to set aside a Writ of Execution raises a jurisdictional question which must be resolved before considering the merits of the case.

Appellant William Lavelle was a creditor of a bankrupt company, Harris, Henry, & Potter, Inc., and appellant Robert Rosin was Trustee in Bankruptcy. In January 1981, the Bankruptcy Court issued its Final Order, directing the distribution of the debtor's assets, including $10,000 which Lavelle had loaned to the Receiver. After the Final Order, but before payment was made, the Court of Common Pleas of Philadelphia issued a Writ of Execution based on a judgment which appellee Kirk Foulke had against Lavelle, and interrogatories were served on Trustee Rosin to determine whether he held Lavelle's funds. Rosin then filed Preliminary Objections to the Writ of Attachment, and Lavelle moved to set aside the Writ, both claiming that the funds in question and the Trustee were immune from state action by reason of 11 U.S.C. § 362(a), which operates to impose an Automatic Stay on the property of a bankrupt's estate. The interrogatories have since been answered.

Appellants Lavelle and Rosin now seek to appeal the order of the lower court which denied Rosin's Preliminary

[ 308 Pa. Super. Page 135]

Objections and dismissed Lavelle's motion. Foulke challenges the appealability of the order, and the applicability of 11 U.S.C. § 362.*fn1

Appellate jurisdiction of this Court extends to review of final orders, 42 Pa.C.S. § 742, and interlocutory orders authorized in law or by permission at the discretion of the Court, 42 Pa.C.S. 702(a)(b). A final order ends litigation or disposes of the entire case. An order is interlocutory, and not final, unless it effectively puts the litigant out of court. Tunstall v. Penn Federal Savings and Loan Association, 287 Pa. Super. 511, 430 A.2d 1007 (1981), Giannini v. Foy, 279 Pa. Super. 553, 421 A.2d 338 (1980).

In determining what constitutes a final order, the Court looks to a practical rather than a technical construction. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542. An order will be viewed as final if it precludes a party from presenting the merits of his claim to the lower court.

This Court, relying on Commonwealth v. Orsatti, 448 Pa. 72, 292 A.2d 313 (1972), has recently explained that "out of court" is not to be interpreted literally. Gordon v. Gordon, 293 Pa. Super. 491, 439 A.2d 683 (1981). One must ask whether, even if appellant is still in court, the order in its practical aspects is sufficiently final to make it appealable. The general rule is that an order dismissing a party's Preliminary Objections is interlocutory and therefore not appealable. Urbano v. Meneses, 288 Pa. Super. 103, 431 A.2d 308 (1981). An appeal from such an order will be quashed unless it falls within the scope of a statute or special rule which obviates ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.