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filed: March 4, 1987.


Appeal from the Order entered in the Court of Common Pleas of Philadelphia County, Civil Division, No. 5045 November 1981


Jerome Lipman, Philadelphia, for appellant.

Michael R. Needle, Philadelphia, for Vedatsky, appellee.

McEwen, Del Sole and Tamilia, JJ. Del Sole, J., files a dissenting opinion.

Author: Tamilia

[ 362 Pa. Super. Page 570]

In May of 1981, appellee instituted two separate actions against her former husband/appellant. One action in the U.S. District Court for the Eastern District of Pennsylvania alleged claims for rape, assault, burglary, theft, fraud, breach of fiduciary duty, intentional infliction of emotional distress and breach of a settlement agreement. The other action in the Superior Court of New Jersey sought to set aside a settlement agreement.

In August of 1981, the federal court denied a motion to dismiss the tort claims and on November 9, 1981, granted appellee's motion for a voluntary non-suit dismissing the claims without prejudice to appellee's right to renew them in the New Jersey action.

Appellant, in December of 1981, brought an action alleging wrongful use of civil proceedings. Preliminary objections were granted on November 29, 1982 with the court dismissing the claim while holding that the voluntary non-suit "neither constituted a judgment in favor of [appellant] nor represented a termination of the Federal Court action consistent with his innocence." Robinson v. Robinson, 28 D & C3d 54, 58 (1982). The court went on to state:

Indeed the federal court's specific refusal to dismiss the claims with prejudice reflects that these claims have not been determined and are subject to further adjudication in an appropriate forum. The instant action therefore, is

[ 362 Pa. Super. Page 571]

    premature, pending final resolution of the claims in the New Jersey action.

Robinson, supra at 58.

The New Jersey action concluded on January 22, 1985 with the decision rendered by the trial judge on April 30, 1985. The claims formerly made by appellee in her federal action were not discussed by the court because the pleadings were never amended to raise those issues.

Appellant, in August 1985, filed a petition seeking to amend his complaint to include a count for malicious use of civil proceedings, contending the New Jersey action resulted in the federal action being terminated in his favor. The court denied the petition finding the proceedings at issue did not terminate in favor of appellant as required under 42 Pa.C.S.A. §§ 8351-8354. We do not agree and reverse the holding of the lower court.

Appellees contend that appellant should have appealed from the November 29, 1982 Order granting appellees' preliminary objections and dismissing the claim for wrongful use of civil proceedings and failure to do so precludes bringing this appeal. Alternatively, appellees maintain the Order presently appealed from is interlocutory and thus this Court lacks jurisdiction to hear this appeal.

Both issues raised involve an analysis of what constitutes a final appealable Order. Initially, we agree with the court in the present action which stated that the Order and Opinion of November 29, 1982 "did not foreclose plaintiff [appellant] from filing a petition to amend after the conclusion of the New Jersey action." (Slip Op. White, J., 12/17/85, p. 2). This conclusion is supported by a reading of the Opinion in Robinson, supra, where the court specifically states that the action was premature. The accompanying Order did not dismiss the wrongful prosecution claim with prejudice so as to put appellant entirely out of court on the cause of action and appellant's subsequent attempt to amend the pleading, following the conclusion of the New Jersey litigation, was proper.

[ 362 Pa. Super. Page 572]

The question of whether the present Order denying the petition to amend the complaint is interlocutory is completely governed by the findings in Cloverleaf Development v. Horizon Financial, 347 Pa. Super. 75, 80-81, 500 A.2d 163, 166-67 (1985). The pertinent portions of that Opinion are quoted verbatim:

The first issue to be resolved is whether appellants are properly before this Court. An appeal will lie only from a final order unless otherwise permitted by statute. "A final order is usually one which ends the litigation or, alternatively, disposes of the entire case. . . . 'Conversely, an order is interlocutory and not final unless it effectively puts the litigant "out of court."'" Praisner v. Stocker, 313 Pa. Super. 332, 336-337, 459 A.2d 1255, 1258 (1983) (citations omitted), quoting Giannini v. Foy, 279 Pa. Super. 553, 556, 421 A.2d 338, 339 (1980). See also: Pugar v. Greco, 483 Pa. 68, 72-73, 394 A.2d 542, 544-545 (1978); 42 Pa.C.S.A § 742. 'As a general rule, an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable.' Prainser v. Stocker, supra, 313 Pa. Super. at 337, 459 A.2d at 1258. This is so because in most such instances 'the plaintiff is not out of court and is not precluded from presenting the merits of his cause of action.' Id., 313 Pa. Superior Ct. at 338, 459 A.2d at 1258. However, the general rule is not without exceptions. Where the dismissal of one count or several counts of a multi-count complaint has the effect of precluding the plaintiff from pursuing the merits of separate and distinct causes of action, the order sustaining preliminary objections is then final, not interlocutory, with respect to those causes of action dismissed. The plaintiff is 'out of court' with respect thereto. Id., 313 Pa. Superior Ct. at 339, 459 A.2d at 1258-1259. This is to be distinguished from the situation in which separate counts have been used to state alternate theories to support recovery on the same cause of action. In such cases, the dismissal of one count does not prevent the plaintiff from proceeding to a determination of the underlying cause of action. Id., 313 Pa. Superior Ct. at 341, 459 A.2d at 1260.

[ 362 Pa. Super. Page 573]

. . . .

The dismissal of Count No. 3 was final. Appellants are out of court on their claim for damages because of Century's alleged interferences with Cloverleaf's negotiations with third party, potential buyers. Therefore, we will review the averments in Count No. 3 to determine whether they are sufficient to state a cause of action.

The existing counts in the complaint are for conversion and defamation, each separate causes of action and independent from wrongful use of civil proceedings. Unlike the situation following the dismissal of the complaint in 1982, where the pending New Jersey decision prompted the court to characterize the action as premature, here, the court concluded that even upon resolution of the New Jersey action, appellant did not have the litigation terminated in his favor as required by the statute. Appellant is thus precluded from pursuing the merits of this claim and the Order is properly appealable.

The merits of the court's decision must thus be addressed and we conclude that the court improperly determined that the prior litigation did not terminate in appellant's favor as required by the statute.

42 Pa.C.S.A. § 8351 provides:

§ 8351. Wrongful use of civil ...

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