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ELDERKIN v. GERALD J. SEDNEY AND MARK C. POLINEK (06/23/86)

filed: June 23, 1986.

ELDERKIN, MARTIN, KELLY, MESSINA & ZAMBOLDI
v.
GERALD J. SEDNEY AND MARK C. POLINEK, JOINTLY T/D/B/A BAYSHORE MARINE, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Erie County, Civil No. 98A of 1982 February 5, 1985.

COUNSEL

M. Richard Mellon, Erie, for appellants.

James H. Richardson, Jr., Erie, for appellee.

Wieand, Del Sole and Johnson, JJ. Wieand, J., files a dissenting opinion.

Author: Del Sole

[ 354 Pa. Super. Page 254]

We are asked to decide whether the trial court erred in entering an order imposing sanctions, authorized by a local rule, against the defendant who failed to appear for the pre-trial conference. We find that the appeal is premature and that it must be quashed.

The facts are that several times during 1981, Appellants, defendants below, consulted with attorneys from United Financial Services, plaintiff, regarding expansion of their marine business. Appellants were presented with a bill for legal services, and a dispute arose over payment. Appellants claimed that they were never informed that the consultations were not part of the lending institution's services. The dispute continued, and the plaintiff filed suit in arbitration in the Erie County Court of Common Pleas. When the case was called into arbitration, Gerald Sedney did not appear. He had apparently recently suffered a heart attack and had left the Erie area in order to recuperate. A verdict

[ 354 Pa. Super. Page 255]

    for the plaintiff was granted, and a timely appeal was taken. A de novo trial was scheduled. Counsel for defendant was to be in Pittsburgh during the time for the pre-trial conference and requested to be permitted to phone the court in order to appear for the conference. Although the court claimed it never had the opportunity to approve of this procedure, it awaited the call from defendants. The call was to take place at 10:00 a.m. At 10:20 a.m., the trial court granted plaintiff's motions for sanctions, which precluded the defendants from entering any evidence in their own defense or from opposing the claims of the plaintiff. Appellants assert that counsel's father became ill suddenly and that he finally contacted the court at 10:30 and was informed of the court's order.

Before this Court can address the merits of an appeal, our jurisdiction to decide those claims must be established. In order to avoid piecemeal litigation, no appeal will be permitted from an interlocutory order, unless specifically provided for by statute. See: Pa.R.App.P. 311, Caplan v. Keystone Weaving Mill, 431 Pa. 407, 246 A.2d 384 (1968). Otherwise, an appeal must be taken from a final order. Pa.R.App.P. 702(a); Sechler v. Ensign-Beckford Co., 322 Pa. Super. 162, 469 A.2d 233 (1983).

The Supreme Court of Pennsylvania in Commonwealth v. Wheeling Pittsburgh Steel, 473 Pa. 432, 375 A.2d 320, (1977), considered whether an order precluding Appellant from presenting its affirmative defenses was final and appealable. The court stated: "The refusal to allow evidence of a possibly meritorious defense effectively puts Wheeling out of court and, therefore, the order is 'final' for appeal purposes". Id. 473 Pa. at 40, 375 A.2d at 323.

More recently, however, the Supreme Court has addressed the question of the appealability of an order and the test to be applied in making such a determination. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985). The order at issue in Fried related to alimony pendete lite, counsel fees, and expenses. In concluding that the order was interlocutory and not reviewable until final disposition of the case, the

[ 354 Pa. Super. Page 256]

Court utilized the test announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The Court in Fried noted that it was "persuaded by the wisdom of the approach" of the Cohen decision and therefore adopted it as part of the law of Pennsylvania in Bell v. Consumer Discount Company, 465 Pa. 225, 348 A.2d 734, 735 (1975). Fried v. Fried, supra., 509 Pa. at 94, 501 A.2d at 214. In Fried the Supreme Court "affirmed the adoption of Cohen" and stated:

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 ...


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