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COMMONWEALTH PENNSYLVANIA v. GEORGE J. KMETZ AND VICTORIA S. KMETZ (10/05/89)

decided: October 5, 1989.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT,
v.
GEORGE J. KMETZ AND VICTORIA S. KMETZ, CITY OF NANTICOKE AND WYOMING VALLEY SANITARY AUTHORITY, APPELLEES



PETITION FOR PERMISSION TO APPEAL AN INTERLOCUTORY ORDER OF THE COURT OF COMMON PLEAS OF LUZERNE COUNTY, Honorable Bernard J. Brominski, Judge.

COUNSEL

Thomas M. Devlin, Deputy Atty. Gen., Torts Litigation Section, Office of Atty. Gen., Harrisburg, for appellant.

Maurice A. Cardone, Wilkes-Barre, Richard G. Fine, Scranton, George A. Spohrer, Joseph F. Iracki, Wilkes-Barre, for appellees.

Barry and Palladino, (p.), JJ., and Barbieri, Senior Judge.

Author: Barry

Appellees,*fn1 George and Victoria Kmetz, instituted this action against the Commonwealth of Pennsylvania, Department of Transportation (Department), to recover damages resulting from the continual collapse of the roadway in front of the appellees' home. The action was commenced by writ of summons on March 17, 1988, and, after being ruled to do so, appellees served and filed their complaint on May 23, 1988. Appellees' complaint was endorsed with a notice to defend pursuant to Pa.R.C.P. 1018.1. The Department's answer and new matter to the complaint was filed on June 27, 1988, fourteen days after that pleading was due. The new matter raised, inter alia, immunity from suit and the statute of limitations as affirmative defenses to this action.

On July 13, 1988, the appellees filed preliminary objections requesting that the trial court strike the Department's new matter on the grounds that it was not filed within twenty days of the service of the complaint as required by Pa.R.C.P. 1026.*fn2 By order dated September 15, 1988, and entered September 19, 1988, the trial court granted appellees' preliminary objections and dismissed the Department's

[ 129 Pa. Commw. Page 99]

    new matter. Believing that the order entered on September 19, 1988 was interlocutory, counsel for the Department requested the trial court to amend its order to include the statement prescribed by 42 Pa.C.S. § 702(b)*fn3 so that the Department could request our permission to prosecute an appeal from the trial court's order. The amended order was entered on October 14, 1988, and the Department filed its "petition for review" in this court on November 10, 1988. On December 1, 1988, we ordered that the Department's "petition for review" be deemed a petition for permission to appeal pursuant to Pa.R.A.P. 1311, granted said petition and stayed all trial court proceedings.

Without addressing any other aspect of this appeal, the Pennsylvania Supreme Court's opinions in Grota v. LaBoccetta, 425 Pa. 620, 230 A.2d 206 (1967), and Posternack v. American Casualty Company of Reading, 421 Pa. 21, 218 A.2d 350 (1966), require us to hold that the order of the trial court entered on September 19, 1988 was final and appealable. Because that order was not appealed by the Department within thirty days of its entry, we are constrained to quash*fn4 the Department's appeal as untimely.

Discussion

This Court has jurisdiction to hear appeals from final orders of the courts of common pleas, 42 Pa.C.S. § 762(a)(1);

[ 129 Pa. Commw. Page 100]

Pa.R.A.P. 341, interlocutory appeals as of right, 42 Pa.C.S. § 702(a); Pa.R.A.P. 311, and interlocutory appeals by permission, 42 Pa.C.S. § 702(b); Pa.R.A.P. 312. This is not one of the seven specified interlocutory orders which is appealable as of right under 42 Pa.C.S. § 702(a) and Pa.R.A.P. 311. For that reason, our analysis concerns only whether this is a timely*fn5 interlocutory appeal by permission ...


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