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WILKES-BARRE CLAY PRODUCTS CO. v. STEVE KORONEOS (05/24/85)

filed: May 24, 1985.

WILKES-BARRE CLAY PRODUCTS CO., APPELLANT,
v.
STEVE KORONEOS, APPELLEE



Appeal from the Order entered July 28, 1984, in the Court of Common Pleas of Luzerne County, Civil Division, at No. 5-C of 1984.

COUNSEL

Charles A. Shea, III, Wilkes-Barre, for appellant.

Beck, Popovich and Trommer,*fn* JJ.

Author: Beck

[ 342 Pa. Super. Page 584]

On December 1, 1983, appellant Wilkes-Barre Clay Products Co. commenced an action before a district magistrate seeking to recover for certain brick and building materials purchased by appellee Steve Koroneos. A hearing on the matter was scheduled for December 19, 1983. By letter dated December 16, 1983, appellee's counsel informed the district magistrate that appellee would agree to the entry of a default judgment with the intention of taking an immediate appeal. Appellee did not appear at the hearing on December 19, 1983, and the district magistrate accordingly entered judgment in favor of appellant in the amount of $2,482.68.

On January 3, 1984, appellee filed a notice of appeal and praecipe for rule to file a complaint pursuant to Pa.R.C.P.D.J. 1002 and 1004 with the court of common pleas. However, neither the notice nor the praecipe and rule were served upon the district magistrate and appellant as required by Pa.R.C.P.D.J. 1005. Thereafter, on February 14, 1984, appellant filed a praecipe to strike the appeal pursuant to Pa.R.C.P.D.J. 1006. Simultaneously with the striking of the appeal, appellant entered its judgment against appellee in the court of common pleas and issued an execution thereon.

On February 22, 1984, appellee filed a petition to reinstate its appeal from the district magistrate's award. Appellee's petition averred that both opposing counsel and the district justice had actual notice of the appeal and that the

[ 342 Pa. Super. Page 585]

    failure to serve notice in a form complying with the rules was due to the inadvertence of counsel. After the filing of an answer by appellant and oral argument, the trial court granted the petition on July 28, 1984. This appeal followed.

We are unable to reach the merits of this issue because the appeal must be quashed. The order appealed from does not end the litigation or effectively put appellant out of court. In fact, the effect of the order is to bring appellant into court for a de novo hearing on the merits. Hence, the order reinstating appellee's appeal is not a final order appealable under 42 Pa.C.S. § 742 and Pa.R.A.P. 341. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); Foulke v. Lavelle, 308 Pa. Super. 131, 454 A.2d 56 (1982).

Evidently recognizing this lack of finality, appellant contends in his statement of jurisdiction that jurisdiction is vested in this court by virtue of 42 Pa.C.S. § 5105(c) and Pa.R.A.P. 311(a)(1). Rule 311 lists those interlocutory orders which are appealable as of right; subsection (a)(1) specifically provides that an appeal may be taken from "[a]n order opening, vacating or striking off a judgment, or refusing to open, vacate or strike off a judgment."

Plaintiff/appellant obtained a default judgment in the district court. He is now attempting to equate the court's order reinstating defendant/appellee's appeal to an order opening a default judgment.

We hold that the order of the court of common pleas is not appealable under Rule 311. An appeal of a judgment as of right to a trial de novo in a higher tribunal is simply not the same, procedurally or substantively, as a petition asking the tribunal which entered a default judgment to exercise its equitable powers to open that judgment. A party aggrieved by the judgment of a district justice may appeal that judgment as of right to a court of common pleas under Pa.R.C.P.D.J. 1002. ...


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