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UNITED STATES NATIONAL BANK JOHNSTOWN v. CHARLES P. JOHNSON (11/25/83)

SUPERIOR COURT OF PENNSYLVANIA


filed: November 25, 1983.

UNITED STATES NATIONAL BANK IN JOHNSTOWN, APPELLANT,
v.
CHARLES P. JOHNSON, JR.; MARTHA JANE JOHNSON; PENNSYLVANIA ENERGY COMPANY; LINDA STRICK; CPJ, INC.; HAWS REFRACTORIES, INC.; BANTAM FOUR CINEMAS, INC.; SHERIDAN TRUCKING COMPANY; SHERIDAN TRUCKING COMPANY, INC.; CHARJIM CORPORATION; PENNSYLVANIA ENERGY CORPORATION; G. GRAY GARLAND; AND SHERIDAN COAL COMPANY, INC.

No. 1222 Pittsburgh, 1982, Appeal from the Order of the Court of Common Pleas of Cambria County, Civil No. 1982-72.

COUNSEL

David J. Kaltenbaugh, Assistant Public Defender, Johnstown, for appellant.

Lawrence L. Davis, Ebensburg, for Johnson, et al., appellees.

James Gerard Gordon, Pittsburgh, PA Energy, appellees.

Gary Lee Costlow, Johnstown, for Strick, etc., appellees.

Cavanaugh, Rowley and Cirillo, JJ.

Author: Per Curiam

[ 321 Pa. Super. Page 353]

On January 11, 1982, Appellant United States National Bank in Johnstown commenced an action in equity against various individuals, partnerships and corporations by filing a complaint containing averments of fact alleging violations of the Uniform Fraudulent Conveyance Act, Act of May 21, 1921, P.L. 1045, No. 379, § 1, 39 P.S. §§ 351 et seq. Counts Two and Four of the complaint contained allegations as to the involvement of Appellee G. Gray Garland, Pennsylvania

[ 321 Pa. Super. Page 354]

Energy Company, a partnership, and Pennsylvania Energy Corporation, a corporation, all of whom purportedly took part in the transactions of which appellant complains. On February 2, 1982, Appellee Garland, Pennsylvania Energy Company and Pennsylvania Energy Corporation filed preliminary objections. In his preliminary objection in the nature of a demurrer, Appellee Garland specifically stated that "Plaintiff's [Bank's] Complaint fails to allege any material facts sufficient to support a cause of action against Defendant Garland."*fn1 Appellee asked that the trial court "dismiss[] him as a party Defendant . . . ."

By order dated May 5, 1982, the trial judge, the Honorable Eugene A. Creany, sustained Garland's preliminary objection in the nature of a demurrer and dismissed him as a party defendant. On May 12, 1982, the Bank filed "Exceptions" to the order of May 5. These exceptions were heard by the court en banc which, by an opinion and order dated August 2, 1982,*fn2 upheld the trial judge's ruling of May 5, 1982. Upon praecipe of Garland, judgment was entered in his favor on the docket on October 5, 1982. Bank filed its notice of appeal on October 28, 1982.

This appeal is untimely and will be quashed. Although the order of May 5, 1982, sustaining appellee's preliminary objection in the nature of a demurrer applied to only one of the numerous parties, the order was final and appealable. Love v. Temple University, 422 Pa. 30, 220 A.2d 838 (1970); Fred Lowenschuss Associates v. DePallo, 274 Pa. Super. 290, 418 A.2d 411 (1980). The trial court's order "should have made it clear to plaintiff[] that [it was] put out of

[ 321 Pa. Super. Page 355]

    court as to that defendant." Fred Lowenschuss Associates v. DePallo, 274 Pa. Super. at 295, 418 A.2d at 413. "[S]uch action rendered definitive and final the order and an appeal therefrom would have been from a final order." Love v. Temple University, 422 Pa. at 33, 220 A.2d at 840. Appellant "could and should have taken an appeal from the previous order: the failure to do so renders the doctrine of res judicata applicable and precludes vacation of the order after the time of appeal has passed." Id. By continuing to seek redress before the trial court, using a procedure neither authorized nor supported by the Rules of Civil Procedure, appellant permitted the appeal period to run. See Brown v. Kleinfelter, 267 Pa. Super. 144, 406 A.2d 560 (1979). Consideration of appellant's substantive contentions with respect to the dismissal of G. Gray Garland as a party to the action is foreclosed.

Appeal quashed.


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