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MACK TRUCKS v. PERFORMANCE ASSOCIATES CORP. (01/03/89)

filed: January 3, 1989.

MACK TRUCKS, INC., A CORPORATION, APPELLEE,
v.
PERFORMANCE ASSOCIATES CORP., A CORPORATION, APPELLANT



Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil at No. GD 87-22049.

COUNSEL

Michael J. Boyle, Pittsburgh, for appellant.

Walter A. Bunt, Pittsburgh, for appellee.

Brosky, Rowley and Montemuro, JJ.

Author: Montemuro

[ 381 Pa. Super. Page 174]

Appellant, Performance Associates Corporation ("PAC"), has filed this appeal from the March 2, 1988, Order of the

[ 381 Pa. Super. Page 175]

Court of Common Pleas of Allegheny, dismissing appellant's counterclaim with prejudice. We affirm.

The appellee in the present case, Mack Trucks, Inc. ("Mack"), engaged PAC in April of 1986 to develop and implement a computer software system for use in Mack's truck sales operations. In order to assist PAC in the designing of the software system, Mack provided PAC with a computer modem (the "modem"), access to Mack's automated Distribution Center Operations system (the "DCO"),*fn1 and Mack's accounting and operations manual (the "manual"). PAC worked on the development of the computer system in 1986 and 1987, although the parties experienced delays and disagreements concerning, inter alia, payments for various costs incurred by PAC. In October of 1987, PAC stopped working on the software project and Mack subsequently notified PAC, in a letter dated October 26, 1987, that it was terminating the contractual relationship between them. In Mack's contract termination letter, it requested that PAC return the modem, the DCO, and the manual. Additionally, Mack requested that PAC provide it with the most current software modules and related documentation that PAC had developed for Mack's use. PAC refused to deliver any of this property to Mack, claiming that Mack owed it for in-process work totaling $149,903.00. R.R. at 51a.

On December 23, 1987, Mack filed a complaint in Replevin against PAC, seeking to obtain the modem, the DCO, the manual, and the software modules and related documentation. PAC filed its answer on January 12, 1988, and, by way of a counterclaim, PAC asserted that it held a common law artisan's lien in the property which Mack sought to replevy.*fn2 Mack subsequently filed preliminary objections in

[ 381 Pa. Super. Page 176]

    the nature of a demurrer to PAC's counterclaim and, following oral argument, the Honorable Ralph J. Cappy sustained Mack's preliminary objections, thereby dismissing PAC's counterclaim with prejudice.

Initially, we recognize that an order sustaining preliminary objections and dismissing a counterclaim is an appealable, final order because it puts the defendant out of court so far as the counterclaim is concerned, even though the plaintiff's claim is still pending. See Danko Development Corp. v. Econocast Corp., 369 Pa. Super. 120, 122 n. 1, 534 A.2d 1108, 1109 n. 1 (1987); Zivitz v. Centennial Road Properties, Inc., 328 Pa. Super. 79, 81 n. 1, 476 A.2d 462, 463 n. 1 (1984). See also Fidelity Bank v. Duden, 361 Pa. Super. 124, 521 A.2d 958 (1987) (en banc) (order summarily dismissing counterclaim is final and immediately ...


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