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DANKO DEVELOPMENT CORPORATION SUCCESSOR TO A. NOBILE ENTERPRISES INC. A CORPORATION v. ECONOCAST CORPORATION A CORPORATION (07/13/87)

submitted: July 13, 1987.

DANKO DEVELOPMENT CORPORATION SUCCESSOR TO A. NOBILE ENTERPRISES INC. A CORPORATION, APPELLEE,
v.
ECONOCAST CORPORATION A CORPORATION, APPELLANT



Appeal From Order Entered February 09, 1987, Court of Common Pleas, Civil Division Westmoreland County, No. 4261 of 1986.

COUNSEL

John M. O'Connell, Jr., Greensburg, for appellant.

George A. Conti, Jr., Greensburg, for appellee.

Cavanaugh, Beck and Montgomery, JJ.

Author: Cavanaugh

[ 369 Pa. Super. Page 122]

A civil action was commenced by Danko Development Corporation, the appellee herein, against the appellant, Econocast Corporation, for breach of a written lease agreement. The landlord, the plaintiff below, sought possession of the demised premises, unpaid rent and other relief. The appellant filed New Matter and Counterclaim. The appellee filed preliminary objections to the New Matter and Counterclaim and the appellant filed an Amended New Matter and Counterclaim. Preliminary objections were filed to the Amended New Matter and Counterclaim and on February 7, 1987, the court below entered the following order from which an appeal has been taken to this court.*fn1

AND NOW, this 9th day of February, 1987, the Preliminary Objection of the Plaintiff in the nature of a demurrer to the counterclaim of Defendant is granted, and the counterclaim insofar as it asserts a cause of action for breach of an implied warranty of habitability is dismissed; Defendant may, if it so desires, file an amended counterclaim asserting causes of action grounded upon negligence. Any amended counterclaim must be filed within twenty (20) [sic] of this date.

[ 369 Pa. Super. Page 123]

The appellant filed a Second Amended New Matter and Counterclaim and added Counts IV and V alleging negligence.

In order to put our appellate review in focus, it is necessary to consider the three counts in detail. The three counts in the amended counterclaim are not precisely drawn, but basically the defendant's counterclaim is based on a commercial lease between the landlord (appellee) and the tenant (appellant) entered into on April 27, 1981. The landlord, according to the counterclaim, was to provide heating and air conditioning, but the tenant experienced serious heating and air conditioning problems. The tenant alleged that it entered into an addendum to the lease and the landlord assured and guaranteed to the tenant that the problems with the heating and air conditioning would be corrected and that a separate heating and air conditioning system would be provided for the tenant with a separate thermostatic control to be used only by the tenant. The tenant also contended that it was fraudulently induced to enter the addendum to the lease and that the landlord breached the lease by failing to supply proper heat and air conditioning and that the premises were therefore uninhabitable by the tenant. It also alleged that repetitive work was required by the tenant because of excessive heat, humidity and temperature variations on the premises. Count I also alleged that the premises were uninhabitable because the landlord failed to provide proper and adequate heating, air conditioning and security and failed to keep the premises clean. Count II alleged that the tenant expended large sums of money for improvements and furnishings on the demised premises. It further alleged that "Due to the actions of the Plaintiff, the Defendant may be required to find safe and adequate premises to which to remove its office and may, therefore, suffer the loss of the useful life of the above mentioned improvements and furnishings, and claim, therefore, for the remaining useful life of the same is made herein." Count III alleged, as it was alleged in Count I, that the employees had to do repetitive work because of equipment failure due to excessive heat, humidity and temperature

[ 369 Pa. Super. Page 124]

    variations. It further alleged that the landlord did not provide adequate security and failed to keep the demised premises clean. Count III stated with respect to these allegations that "all are breaches of the lease by the Plaintiff and are actions which make the premises leased to the Defendant uninhabitable and untenantable." Count III also alleges that "the above mentioned breaches of contract by the defendant have made the premises unsafe and uninhabitable for the defendant."

We must initially determine whether the order of February 9, 1987 is appealable, considering the nature of the multi-count complaint before us. It is incumbent upon this court to consider the propriety of each appeal and the appealability of an order may be raised sua sponte. Capanna v. Travelers Insurance Company, 355 Pa. Super. 219, 513 A.2d 397 (1986). An appeal to this court must be quashed if it is from an interlocutory order unless a right to appeal is expressly granted by statute or rule of court. See Pa.R.A.P. 311, 1311; T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977).

Generally, an order is not final unless it puts the litigant out of court. We have variously defined a final order as one which ends the litigation or alternatively disposes of the entire case. Piltzer v. Independence Federal Savings & Loan Association, 456 Pa. 402, 319 A.2d 677 (1974); Bagshaw v. Vickers, 286 Pa. Super. 246, 428 A.2d 664 (1981); Parker v. MacDonald, 344 Pa. Super. 552, 496 A.2d 1244 (1986). The salutary reason for this is to preclude piecemeal appeals to this court and the consequent protraction of litigation. Stevenson v. General Motors Corp., 513 Pa. 411, 521 A.2d 413 (1987); Beers v. Raub, 363 Pa. Super. 521, 526 A.2d 801 (1987). Where there are multicount complaints and the court dismisses some of of the counts, but not all, an appeal from the dismissal of some of the counts is ...


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