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FIDELITY BANK v. MARY G. DUDEN (03/06/87)

filed: March 6, 1987.

THE FIDELITY BANK, APPELLEE,
v.
MARY G. DUDEN, APPELLANT



Appeal from Orders of the Court of Common Pleas, Civil Division, of Montgomery County, No. 82-4619.

COUNSEL

Alison M. Benders, Philadelphia, for appellant (at 2878) and appellee (at 3321).

Paul Logan, Norristown, for appellant (at 3321) and appellee (at 2878).

Cirillo, President Judge, and Cavanaugh, Wickersham, Wieand, McEwen, Del Sole, Tamilia, Kelly and Johnson, JJ. Del Sole, J., files a dissenting opinion.

Author: Per Curiam

[ 361 Pa. Super. Page 126]

This appeal is from an order summarily dismissing a counterclaim which had been filed without leave of court more than ten months after the pleadings had been closed. A panel of this Court assigned to hear argument certified the appeal to a court en banc so that further consideration might be given to the appealability of an order summarily dismissing a counterclaim. After careful consideration, we have determined that an order summarily dismissing a counterclaim is final and immediately appealable. Having made an independent review of the order appealed from, however, we find no abuse of discretion and affirm the order of the trial court.

The Supreme Court of Pennsylvania has repeatedly and consistently held that an order summarily dismissing a counterclaim is an appealable order. See: Commonwealth v. Orsatti, Inc., 448 Pa. 72, 75-76, 292 A.2d 313, 315 (1972); Broido v. Kinneman, 375 Pa. 568, 569-570, 101 A.2d 647, 648 (1954). This Court has followed the precedent established by the Supreme Court and has also held such orders appealable. See: Duquesne Light Co. v. United States Industrial Fabricators, Inc., 334 Pa. Super. 444, 446 n. 1, 483 A.2d 534, 535 n. 1 (1984); Zivitz v. Centennial Road Properties, Inc., 328 Pa. Super. 79, 81 n. 1, 476 A.2d 462, 463 n. 1 (1984). Nevertheless, it has been suggested that an appeal from an order summarily dismissing a counterclaim should be quashed on the basis of the "collateral order" test for appealability which was announced by the Supreme Court of the United States in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed.2d 1528 (1949) and later adopted by the Supreme Court of Pennsylvania in Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). See also: Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975). This argument, we conclude, misapprehends the Cohen "collateral order" test of appealability.

An order summarily dismissing a counterclaim puts a party out of court on his or her counterclaim. Such an

[ 361 Pa. Super. Page 127]

    order, the Supreme Court has held, is final and appealable. The Cohen test has nothing to do with determining "finality." If an order adjudicates an action finally, it is appealable. Conversely, if the order does not determine the action finally, it is interlocutory and generally non-appealable. See: Rossi v. Pennsylvania State University, 340 Pa. Super. 39, 43-44, 489 A.2d 828, 830 (1985); Sanderbeck v. Sanderbeck, 327 Pa. Super. 461, 463-464, 476 A.2d 44, 45 (1984).

Cohen created an exception to the rule allowing appeals solely from final orders. See: Pugar v. Greco, supra 483 Pa. at 73, 394 A.2d at 545. It has application only to orders which are interlocutory. Cohen holds that an interlocutory order is 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 final judgment in the case, the claimed right will be irreparably lost." Cohen v. Beneficial Consumer Discount Co., supra 337 U.S. at 546, 69 S.Ct. at 1226, 93 L.Ed.2d at 1536 (emphasis added).

The Cohen rule, by its express terms, can have application solely to orders which are interlocutory. Interlocutory orders are appealable where they are "separable from and collateral to the main cause of action" and where an important right will be lost if an immediate appeal is not allowed. See: Praisner v. Stocker, 313 Pa. Super. 332, 342, 459 A.2d 1255, 1260-1261 (1983). Thus, in the Cohen case, the Supreme Court of the United States applied the test to an order denying a request that security be posted for an opponent's counsel fees and expenses before the case proceeded. And in Katz v. Katz, 356 Pa. Super. 461, 514 A.2d 1374 (1986), this Court applied the "collateral order" test to an order requiring that divorce proceedings before a master be open to the public. And finally, in Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985), the Pennsylvania Supreme Court applied the "collateral order" test to determine the appealability of an order awarding interim counsel fees and

[ 361 Pa. Super. Page 128]

    expenses in a divorce action. In all of these cases the orders from which appeals had been taken were interlocutory "collateral orders" which were separable from the main cause of action. To such orders the Cohen test properly had application.

The suggestion made in Elderkin, Martin, Kelly, Massina & Zamboldi v. Sedney, 354 Pa. Super. 253, 256, 511 A.2d 858, 859 (1986) that because of Fried, "the appropriate test to be applied in determining finality is the three prong Cohen test," is disapproved. According to longstanding precedent, an order is final where it puts a litigant out of court or otherwise terminates the litigation by precluding a party from presenting the merits of a claim or defense to the trial court. Temtex Products, Inc. v. Kramer, 330 Pa. Super. 183, 189, 479 A.2d 500, 503 (1984). See: Pugar v. Greco, supra; Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977); T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977); Safety Tire Corp. v. Hoffman Tire Co., 458 Pa. 102, 329 A.2d 834 (1974); Myers v. Travelers Insurance Co., 353 Pa. 523, 46 A.2d 224 (1946); Appeal of Washington Union Trust Co., 350 Pa. 363, 39 A.2d 137 (1944); In re ...


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