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MARGARET JONAS v. WIESMETH CONSTRUCTION COMPANY (01/15/87)

filed: January 15, 1987.

MARGARET JONAS, JAY ASPER AND ROMAIN WHITTACKER, SUPERVISORS OF DELAWARE TOWNSHIP
v.
WIESMETH CONSTRUCTION COMPANY, APPELLANT, V. POCONO CONSTRUCTION COMPANY, INC., NATIONAL STEEL PRODUCTS COMPANY AND STRAND BUILDING CORPORATION



Appeal from the Order of April 9, 1986 in the Court of Common Pleas of Pike County, Civil Division, No. 315-1984 .

COUNSEL

Salvatore Vito, Milford, for appellant.

John H. Klemeyer, Milford, for Jonas, Asper and Whittacker, appellees.

Matthew D. Blumberg, Milford, for Pocono, appellees.

Wieand, Olszewski and Cercone, JJ.

Author: Cercone

[ 360 Pa. Super. Page 175]

In this appeal we are asked to determine whether the sixty day period of limitations within which to join an additional party pursuant to Pa.R.C.P. 2253 is tolled where the original defendant files preliminary objections, in the nature of a demurrer, to the plaintiff's complaint which if granted would result in dismissal of the cause of action against the defendant.

On July 16, 1984 Delaware Township brought an action in trespass and assumpsit against appellant, Wiesmeth Construction Company for faulty construction of the roof on its municipal building. Subsequently, appellant filed preliminary objections in the nature of a demurrer to the complaint which were denied by the lower court on December 27, 1984. Thereafter on January 25, 1985 appellant filed a praecipe to join Pocono Construction Co. (Pocono) as an

[ 360 Pa. Super. Page 176]

    additional defendant. Pocono responded by filing preliminary objections to its purported joinder and by order of court dated June 25, 1985, the court below granted Pocono's preliminary objections in the nature of a motion to strike stating, inter alia, "The original defendant's praecipe for joinder is hereby dismissed without prejudice."*fn1 The order was supported by an opinion giving as its reason for denial the untimeliness of appellant's petition. Nevertheless, appellant attempted to have a rule entered upon Pocono to show cause why joinder should not be granted. On April 9, 1986 the lower court denied appellant's petition for rule to join Pocono as an additional defendant as "moot" in light of its order of June 25, 1986.*fn2 This appeal followed.

While neither party has questioned the appealability of the lower court's order of April 9, 1986, it is an issue we may raise sua sponte. Tate v. MacFarland, 303 Pa. Superior Ct. 182, 449 A.2d 639 (1982). At first blush this order seems to be interlocutory and accordingly not appealable. It is also well settled law that Superior Court can only entertain an appeal if the order appealed from is final. 42 Pa.C.S.A. ยง 742; Temtex Products Inc. v. Kramer, 330 Pa. Superior Ct. 183, 479 A.2d 500 (1984); Commercial Banking Corp. v. Culp, 297 Pa. Superior Ct. 344, 443 A.2d 1154 (1982).

In the case sub judice appellant filed a praecipe to join an additional party to which the ...


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