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DAVID G. LEACH v. H.D. HOUGH AND ROBERT W. LAMBERT (04/01/86)

filed: April 1, 1986.

DAVID G. LEACH, AND FREDERICK J. CLOSE, T/A BOYD & SHRIVER, APPELLANTS
v.
H.D. HOUGH AND ROBERT W. LAMBERT, INDIVIDUALLY AND D/B/A THE VAN LIEU OIL COMPANY, A PARTNERSHIP, THE DENTON CORPORATION, DONALD C. FREDERICK, CLYDE E. FREDERICK, WILLIAM FREDERICK, RICHARD FREDERICK, AND DONALD C. FREDERICK, JR., INDIVIDUALLY AND D/B/A FF & R OIL AND GAS, A PARTNERSHIP, ROBERT W. LAMBERT



Appeal from the Order of the Court of Common Pleas, Civil Division, of Indiana County at No. 13 Eq., 1984

COUNSEL

William T. Jorden, Meadville, for appellants.

James R. Schadel, Pittsburgh, for Lambert, appellee.

Olszewski, Popovich and Montgomery, JJ.

Author: Popovich

[ 352 Pa. Super. Page 215]

This is an appeal from the order, later reduced to judgment, of the Court of Common Pleas of Indiana County granting the preliminary objections in the nature of a demurrer of the defendant/appellee, Robert W. Lambert. We reverse and remand.

At the threshold of our consideration on this appeal is whether the order is appealable.

As a general rule, an order which sustains preliminary objections in the nature of a demurrer without dismissing the complaint or otherwise terminating the action between the parties is interlocutory, and, therefore, lacks the requisite finality to be an appealable order. Hudock v. Donegal Mutual Insurance Co., 438 Pa. 272, 264 A.2d 668 (1970). Where, however, the order does, in effect, terminate the action as to certain members of the lawsuit, e.g., the plaintiff's action against one of the defendants in a multi-defendant complaint, it is a definitive and final order, and, thus, is appealable. United States National Bank in Johnstown v. Johnson, 506 Pa. 622, 487 A.2d 809 (1985); Dash v. Wilap Corp., 343 Pa. Super. 584, 495 A.2d 950 (1985). The latter situation is reflective of the case instantly.

As an appellate court reviewing the approval of a demurrer, we must accept as true all well-pleaded material facts in the complaint as well as all inferences reasonably deducible therefrom. Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983). But, conclusions of law or unjustified inferences are not to be drawn from the face of the complaint. Buchanan v. Brentwood Federal Savings and Loan Association, 457 Pa. 135, 320 A.2d 117 (1974). Further,

[ 352 Pa. Super. Page 216]

    in ruling on a demurrer, the court may consider only such matters as arise out of the complaint; it cannot supply a fact missing in the document under scrutiny. Linda Coal and Supply Co. v. Tasa Coal Co., 416 Pa. 97, 204 A.2d 451 (1964). Lastly, if there is any doubt as to whether the preliminary objections should be granted, this should be resolved in favor of overruling the demurrer. Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970).

With the preceding in mind, we will now examine the five-count complaint in equity filed by the plaintiffs/appellants, David G. Leach and Frederick J. Close, t/a Boyd & Shriver.

In Count I of the complaint, the plaintiffs alleged that H.D. Hough, a co-defendant in the suit, was hired as general manager of their Pennsylvania-based partnership, which was engaged in the production, leasing and drilling of oil and gas wells. In his capacity as general manager, Hough employed the services of Lambert, an attorney, "to represent the interests of Boyd & Shriver in preparing limited partnership agreements, contracts, ...


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