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GRIMME COMBUSTION v. MERGENTIME CORPORATION AND INSURANCE COMPANY NORTH AMERICA (03/20/89)

filed: March 20, 1989.

GRIMME COMBUSTION, INC.
v.
MERGENTIME CORPORATION AND INSURANCE COMPANY OF NORTH AMERICA, APPELLANTS



Appeal from the Order entered in the Court of Common Pleas of Philadelphia County, Civil Division, No. 2907 July 1987.

COUNSEL

Carl H. Hanzelik, Philadelphia, for appellants.

Robert T. Carlton, Jr., Philadelphia, for appellee.

Cirillo, President Judge, and Beck and Tamilia, JJ.

Author: Tamilia

[ 385 Pa. Super. Page 261]

This is an appeal from an Order overruling defendants/appellants' preliminary objections in the nature of a demurrer and a motion for more specific pleading and which directed appellants to answer the complaint.

This action for breach of contract was brought by appellee, a subcontractor on a contract to provide pressure mortar surfacing in a project to improve a section of the Schuylkill Expressway. Appellant Mergentime Corporation is the general contractor on a contract issued by PennDOT and co-appellant Insurance Company of North America issued payment and performance bonds as Mergentime's surety. Appellee seeks damages for alleged delays and interferences to its work on the project. Relying on a section of the subcontract between Mergentime and appellee, appellants filed preliminary objections requesting counts two and four of the complaint be dismissed or stayed until disposition of any action Mergentime might initiate against PennDOT before the Board of Claims, which appellants argue has exclusive jurisdiction over claims against Commonwealth agencies arising out of contracts issued by the Commonwealth. Appellants contend the contract clause on which they are relying, dealing with delays and interference, prohibits the subcontractor from recovering damages for delays or interference from the general contractor unless the general contractor has recovered amounts from the owner, namely PennDOT, and then only to the extent of recovery from PennDOT.

As a preliminary matter we must examine the jurisdictional propriety of this appeal. Appellants claim this is an interlocutory appeal as of right pursuant to Pa.R.A.P. 311(a)(4). They argue the trial court's Order -- overruling

[ 385 Pa. Super. Page 262]

    their preliminary objections requesting either dismissal or a stay of the action until disposition of any future action Mergentime initiates before the Board of Claims -- is the equivalent of an Order denying an injunction request. Appellant contends the effect of an Order granting or denying a stay of an action is the same as an Order granting or denying an injunction and is therefore appealable as a matter of right under Pa.R.A.P. 311(a)(4). We disagree and quash this appeal for the following reasons.

It is well-settled that an appeal will lie only from a final Order unless otherwise permitted by statute or rule. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); Katz v. Katz, 356 Pa. Super. 461, 514 A.2d 1374 (1986), appeal denied, 515 Pa. 581, 527 A.2d 542 (1987); Indiana County Hospital Authority v. McCarl's Plumbing and Heating Company, 344 Pa. Super. 226, 496 A.2d 767 (1985). Pennsylvania Rule of Appellate Procedure 311 implements 42 Pa.C.S. ยง 5105(c), which provides for appeal as of right of certain interlocutory Orders that have a final aspect. Appellant relies upon Pa.R.A.P. 311(a)(4), which provides:

Rule 311. Interlocutory Appeals as of Right

(a) General Rule. Except as otherwise prescribed by general rule, an appeal may be ...


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