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BENDER'S FLOOR COVERING CO. v. JEFFREY GARDNER AND THERESA GARDNER (04/17/89)

submitted: April 17, 1989.

BENDER'S FLOOR COVERING CO., APPELLEE,
v.
JEFFREY GARDNER AND THERESA GARDNER, APPELLANTS



Appeal from the Order Entered September 21, 1988 in the Court of Common Pleas of Montgomery County, Civil No. 87-16943.

COUNSEL

James J. Auchinleck, Jr., Newtown, for appellants.

Thomas Coval, Willow Grove, for appellee.

Cirillo, President Judge, and Kelly and Hester, JJ.

Author: Kelly

[ 387 Pa. Super. Page 533]

This appeal involves a contention that appellants were denied due process when their petition to amend new matter was denied on the day it was filed without the opportunity to present depositions, briefs, or argument in accordance with Pa.R.C.P. ยง 211. We quash the appeal as the order in question is interlocutory and unappealable at this stage in the proceedings.

The relevant factual and procedural history may be accurately summarized as follows. Appellants, Jeffrey and Theresa Gardner, purchased a newly constructed home in which appellee, Bender's Floor Covering Co., had installed carpets. Included in the price of the house was the basic carpet and the flooring to be installed by appellee at a $5,000.00 value. Appellants however ordered an upgrade of the carpet and flooring of an approximate value of $2,024.00. Subsequently, appellants raised various complaints about the visual appearance and installation of the carpet and flooring. Despite numerous requests, appellee refused to resolve appellants' complaints.

Appellants had charged the cost of their upgrades on credit cards. Appellants notified their credit companies

[ 387 Pa. Super. Page 534]

    that appellee's installation was not satisfactory, and, after investigation, appellants' credit companies reversed the charges and credited the amounts to appellants' account.

Thereafter, on November 20, 1987, appellee filed suit to recover $2,024, the amount of the upgrade. Appellants filed an answer with new matter and discovery was taken. An arbitration hearing was scheduled for September 29, 1988. On September 21, 1988, appellants filed a petition for leave to amend and add counterclaim for $20,000, alleging that the carpet was installed in a "poor, unworkmanlike manner." That same day, an in-chambers conference was held with both parties to discuss appellants' petition and request to stay arbitration. At the conference, the only matter before the trial court was appellants' motion to strike the case from the arbitration list. The trial court did not rule on the motion to strike the case from the arbitration list, but it did dismiss appellants' petition to amend new matter. This timely appeal followed.

On appeal, appellants contend that the trial court improperly denied their petition to amend and add counterclaim without first allowing oral argument in open court. Appellee responds that this appeal is interlocutory, and therefore not properly before this Court. We ...


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