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ESTATE JOSEPH F. GEORGIANA (03/31/83)

filed: March 31, 1983.

IN RE ESTATE OF JOSEPH F. GEORGIANA, DECEASED. APPEAL OF JOSEPH F. GEORGIANA, JR., AND LAWRENCE S. GEORGIANA


No. 874 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas, Orphans Court Division, Fayette County, at No. 37 of 1977.

COUNSEL

Roslyn M. Litman, Pittsburgh, for appellants.

Ira B. Coldren, Jr., Uniontown, for Gallatin Bank, participating party.

Carl W. Brueck, Jr., Pittsburgh, for Campbell, participating party.

Rowley, Montemuro and Van der Voort, JJ.

Author: Montemuro

[ 312 Pa. Super. Page 340]

On August 11, 1981, the Orphans Court of Fayette County (per the Honorable Charles G. Sweet, President Judge, sitting by special designation) entered an order dismissing exceptions to a previous order denying a petition for removal of executor and appointment of a successor. The petition had been filed by Joseph F. Georgiana, Jr. and Lawrence S. Georgiana, residual legatees and the appellants herein, seeking removal of Gallatin National Bank as executor of the estate of their deceased father, Joseph F. Georgiana, Sr. The appellants contended that the executor bank should be removed because of multiple breaches of its fiduciary duty, including: (1) loss, waste and mismanagement of estate assets; (2) refusal to collect estate assets; (3) engaging in profitable self-dealing; (4) hostility to certain of the residual legatees; and (5) general incompetence. The lower court found there was insufficient "misconduct or ineptitude or hostility to justify the severe action of removing the corporate fiduciary."

Before addressing the merits of the appeal we find it necessary to resolve a preliminary question of jurisdiction raised by appellee, Gallatin National Bank [Bank]. The Bank contends that the present appeal should be quashed as interlocutory because the order of the court below was not a final order.

[ 312 Pa. Super. Page 341]

In Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978), our Supreme Court succinctly set forth the standard by which Pennsylvania appellate courts determine whether or not an appeal is from a final order.

It is, of course, well settled that an appeal will lie only from a final order unless otherwise permitted by statute. See, e.g., T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977); Caplan v. Keystone Weaving Mill, 431 Pa. 407, 246 A.2d 384 (1968); Stadler v. Mt. Oliver Borough, 373 Pa. 316, 95 A.2d 776 (1953).*fn7 A final order is one which usually ends the litigation, or alternatively, disposes of the entire case. Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 404, 319 A.2d 677, 678 (1974). In determining what constitutes a final order we have followed the approach of Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), in that we look to "a practical rather than technical construction" of an order. In Cohen, the Supreme Court of the United States carved out an exception to the final judgment rule for situations where postponement of appeal until after final judgment might result in irreparable loss of the right asserted. Under Cohen, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Id. at 546, 59 S.Ct. at 1226, 93 L.Ed. at 536.

Id., 483 Pa. at 72-73, 394 A.2d 544-545.

In the present case, the order of the court below did not "[end] the litigation, or alternatively, [dispose] of the entire

[ 312 Pa. Super. Page 342]

    case." There has been no final account of distribution of the estate. If we were required to be strictly technical we would have to find that the lower court's order was not final. However, Pugar recognizes the exception carved out by the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corporation, supra, for that small class of decisions "which fully determines claims of rights separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be ...


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