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filed: June 23, 1986.


Appeal from the Order entered in the Court of Common Pleas of Clinton County, Orphans Division, No. 164-1984


Charles R. Rosamilia, Jr., Lock Haven, for appellants.

Marc S. Drier, Pittsburgh, for appellee.

Cirillo, President Judge, and Tamilia and Hester, JJ.

Author: Tamilia

[ 354 Pa. Super. Page 125]

Eugene Rossi died October 15, 1984, survived by his wife, Gladys L. Wenrik Rossi.

The surviving spouse was granted Letters of Administration on October 26, 1984. Subsequently on December 20, 1984, a Petition to Determine Forfeiture was filed by two sisters of the decedent on behalf of themselves and their other sister and brother. A citation was issued on December 26, 1984 and served along with the petition on Gladys Rossi the next day. Gladys Rossi filed an Answer and New Matter along with a Motion to Dismiss Petition and Rescind Citation on January 28, 1985. The court then issued a Rule to Show Cause why the petition and citation should not be dismissed. At a hearing on February 5, 1985, the court extended the time during which Mrs. Rossi could file preliminary objections.

Preliminary objections in the nature of a demurrer were filed February 21, 1985 and following submission of briefs and oral argument the demurrer was granted and appellant's petition dismissed by Order of May 7, 1985.

The petitioners filed exceptions to this Order which were denied by an Order dated August 1, 1985 and the appeal presently before us was taken from the August 1, Order.

Because the notice of appeal was not taken from the Order of May 7, 1985, we must quash this appeal.

The Pennsylvania Supreme Court, in U.S. National Bank in Johnstown v. Johnson, 506 Pa. 622, 629, 487 A.2d 809, 813 (1985), noted it has long been the law that the sustaining

[ 354 Pa. Super. Page 126]

    of a preliminary objection in the nature of a demurrer and dismissal of the complaint in an equity action, is a final appealable Order, citing Otto v. American Mutual Insurance Co., 482 Pa. 202, 393 A.2d 450 (1978); J.A. and W.A. Hess, Inc. v. Hazle Township, 465 Pa. 465, 350 A.2d 858 (1976); Hudock v. Donegal Mutual Insurance Company, 438 Pa. 272, 264 A.2d 668 (1970); Ahrens v. Goldstein, 376 Pa. 114, 102 A.2d 164 (1954); Smith v. Philadelphia v. Reading Railroad, 286 Pa. 55, 132 A. 804 (1926); other citations omitted.

Although special rules govern actions in Orphans' Court, pleadings and practice conform to equity practice through Orphans' Court Rule 3.1 which provides:

3.1 Conformity To Equity Practice in General

Except where otherwise provided by a rule adopted by the Supreme Court, or by an Act of Assembly, or by general rule or special order of the local Orphans' Court, and except for the Notice to Defend required by Rule of Civil Procedure 1018.1, which form of notice shall be required only if directed by general rule or special order of the local Orphans' Court, the pleading and practice shall conform to the pleading and practice in equity in the local Court of Common Pleas.

Amended Nov. 24, 1975, effective Jan. 1, 1976.

Preliminary objections are proper in an equity action and are specifically provided for in Pa.R.C.P. 1509*fn1 which incorporates the pleading practice set forth in Pa.R.C.P. 1017(b).*fn2

[ 354 Pa. Super. Page 127]

Having established that the use of preliminary objections was proper, the rule established in Johnson, supra, leads us to the determination that the Order of May 7, 1985 was final and appealable as of right under Pa.R.A.P. 341(a).*fn3 This is reinforced by the fact that the Order terminated the litigation as far as appellants were concerned, putting them out of court. See Praisner v. Stocker, 313 Pa. Super. 332, 459 A.2d 1255 (1983); Dash v. Wilap Corp., 343 Pa. Super. 584, 495 A.2d 950 (1985).

The filing of exceptions to the May 7, 1985 Order was improper. Under the equity rules, post-trial relief is sought by filing motions under Pa.R.C.P. 227.1.*fn4 These requirements are applicable when an adjudication under Pa.R.C.P. 1517(a)*fn5 is made by the court in the form of a

[ 354 Pa. Super. Page 128]

    proposed final disposition of a complaint or Decree Nisi. The ruling on the preliminary objections was not an adjudication as contemplated by Rule 1517. It was pre-trial in nature and not the type to which the rules governing post-trial motions were meant to apply. "No where in our rules are exceptions permitted from the disposition of preliminary objections and such practice is expressly disapproved." Johnson, supra, 506 Pa. at 630, 487 A.2d at 813.

Once the preliminary objections were sustained and the complaint dismissed by the Order of May 7, 1985, appellants had thirty days under Pa.R.A.P. 903(a) to file a notice of appeal. The fact that the lower court ruled on the merits of the exceptions filed does not alter our determination, for untimely appeals present a question of jurisdiction and must be quashed. Swidzinski v. Schultz, 342 Pa. Super. 422, 493 A.2d 93 (1985); Murphy v. Brong, 321 Pa. Super. 340, 468 A.2d 509 (1983).

Appeal quashed.


Appeal quashed.

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