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JOSEPH PALERMO DEVELOPMENT CORP. v. THOMAS BOWERS (10/11/89)

filed: October 11, 1989.

JOSEPH PALERMO DEVELOPMENT CORP., APPELLANT,
v.
THOMAS BOWERS, APPELLEE



Appeal from the Order entered November 17, 1988 in the Court of Common Pleas of Erie County, Civil Division, at No. 1767-J-1987.

COUNSEL

Dennis V. Williams, Erie, for appellant.

John P. Eppinger, Erie, for appellee.

Cavanaugh, Del Sole and Montgomery, JJ.

Author: Del Sole

[ 388 Pa. Super. Page 51]

This is an appeal from an order granting Appellee, Thomas Bowers' petition to open confessed judgment. Judgment by confession had been entered against Mr. Bowers, in November, 1987. Within thirty (30) days of this judgment, the petition to open was filed. The trial court found that Mr. Bowers had acted promptly and that there existed legitimate factual disputes which required opening the judgment for determination of the issues by a jury.

On appeal, Appellant, Joseph Palermo Development Corp. [Palermo], claims that the trial court erred in finding that Mr. Bowers produced evidence in support of a meritorious defense which raised issues of fact susceptible to jury determination. Pa.R.C.P. No. 2959(e). However, we need not decide this issue because we find that no appeal as of right may be taken from the trial court's order opening the confessed judgment. Pa.R.A.P., Rule 311(a)(1), 42 Pa.C.S.A. Rather, we hold that this appeal should be quashed because it is interlocutory and premature.

Although neither party has raised the issue of the propriety of this appeal, it is well settled that this court may sua sponte raise a question as to its own jurisdiction. Brady Contracting Co., Inc. v. West Manchester Township, 338 Pa. Super. 144, 487 A.2d 894 (1985); Karpe v. Borough of Stroudsburg, 290 Pa. Super. 559, 434 A.2d 1292 (1981). Although prior to the recent amendments to Rule 311(a)(1) an interlocutory appeal as of right was available to a litigant if the trial court had ordered a judgment opened,

[ 388 Pa. Super. Page 52]

    this is no longer the case. Under the new Rule, which became effective July 1, 1989, only an order refusing to open, vacate or strike off a judgment is immediately appealable.

This amended Rule 311 is consistent with the general principle embodied in Pa.R.A.P., Rule 341, 42 Pa.C.S.A., that an appeal may be taken as of right from any final order which ends litigation, or disposes of an entire case, or effectively puts certain parties out of court, or is an issue which if review were postponed would result in the irreparable loss of the claim. See, Hankin v. Hankin, 338 Pa. Super. 442, 487 A.2d 1363; Foukle v. Lavelle, 454 A.2d 56, 308 Pa. Super. 131 (1982)

An order opening judgment, as in the instant case, does not end the litigation, nor preclude participation by certain parties in the litigation, nor result in the irreparable loss of the claim. On the contrary, this order opens up the possibility of further litigation between the parties, while causing neither irreparable loss nor prejudice to Appellant. Review of the correctness of the trial court's action in opening the judgment is merely postponed to a later date. As such, we find that the order opening judgment is not a final order, and it should be quashed because it remains unripe for appeal.

In the instant case the petition to open judgment was filed prior to the effective date of amended Rule 311. We are mindful of the fact that this court has sometimes declined to apply a new or amended procedural rule to actions commenced prior to the effective date of the adoption or amendment of the rule. See, Canter v. Canter, 238 Pa. Super. 347, 357 A.2d 659, 666 n. 9 (1976) (rule of civil procedure pertaining to standards for opening confessed judgment was amended after institution of suit to open, amended rule was held not to apply to case at bar); Giacco v. Pampena, 318 Pa.S. 376, 465 A.2d 3 (1983) (court declined ...


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