Opinion
November 17, 1964.
January 5, 1965.
Appeals — Appealable order — Order certifying equity action to law side of court — Order dismissing preliminary objections — Jurisdictional question — Act of March 5, 1925, P. L. 23.
1. An order certifying an action in equity to the law side of the court is a nonappealable interlocutory order. [279]
2. A preliminary objection to a complaint in the nature of a demurrer which superficially raises a jurisdictional question but basically goes to the right of the plaintiff to recover, and not to his right to have the cause heard and determined, does not raise a jurisdictional question within the meaning of the Act of March 5, 1925, P. L. 23, § 1; and an order overruling such an objection is a nonappealable interlocutory order. [279-80]
3. Appeals under the Act of March 5, 1925, P. L. 23, are permitted only where the question raised involves jurisdiction over the person of the defendant or jurisdiction over the cause of action. [279]
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeals, Nos. 34 and 52, Jan. T., 1965, from order of Court of Common Pleas of Chester County, No. 1631 of 1963, in case of Charles McFarland v. Weiland Packing Co., Inc. Appeals quashed.
Equity.
Order entered sustaining defendant's preliminary objections in part and dismissing them in part and case certified to law side of court for trial, opinion by KURTZ, JR., J. Plaintiff and defendant, respectively, appealed.
Joseph P. Phelps, Jr., for plaintiff.
Bayard M. Graf, with him J. Willison Smith, Jr., G. Clinton Fogwell, Jr., and Reilly Fogwell, for defendant.
Plaintiff claims damages from the defendant-corporation for an alleged breach of contract. In this equity action, plaintiff seeks payment of the claim and an order enjoining the defendant from liquidating its assets, and winding up its corporate affairs, or, in the alternative, an order directing that sufficient assets be set aside to satisfy the claim.
Preliminary objections to the complaint were filed, which, inter alia, challenged the jurisdiction of the court, basically bottomed upon the contention that the defendant was not a party to the contract involved, and that the real party thereto, a foreign corporation, should have been named the party-defendant. The court below overruled the jurisdictional and other objections, but entered an order certifying the action to the law side of the court under Pa. R. C. P. 1509(c). Both parties appealed.
Plaintiff's Appeal No. 52
An order certifying an equity action to the law side of the court is an interlocutory order which has not been made appealable by statute: Nachod v. Nachod, 402 Pa. 60, 166 A.2d 18 (1960), and White v. Young, 402 Pa. 61, 166 A.2d 663 (1960). This appeal is, therefore, quashed. Costs to be paid by appellant.
Defendant's Appeal No. 34
Appellant contends herein that the order of the court below overruling its objection to the court's jurisdiction is appealable under the Act of March 5, 1925, P. L. 23, § 1, 12 Pa.C.S.A. § 672. We do not agree.
Appeals, under the Act of 1925, are permitted only where the question raised involves jurisdiction over the person of the defendant or jurisdiction over the cause of action (P.L. 23, § 1, 12 Pa.C.S.A. § 672). Since the appellant (Weiland) was properly served with process and the court of common pleas has the power to determine actions in assumpsit involving breach of contract, it is clear that jurisdiction exists both over the person and the cause. The jurisdictional attack, therefore, is without merit.
Moreover, the real substance of appellant's objection is directed to the merits of the action, and is in fact an appeal from the lower court's refusal to sustain defendant's preliminary objection in the nature of a demurrer to the complaint. This goes to the right of the plaintiff to recover and not to his right to have the cause heard and determined. An order overruling such an objection is not within the scope of appeals allowed under the Act of 1925, and is not an appealable order. See, University Square No. 1, Inc. v. Marhoefer, 407 Pa. 257, 180 A.2d 427 (1962), and Zerbe Twp. School Dist. v. Thomas, 353 Pa. 162, 44 A.2d 566 (1945).
Appeal quashed. Costs to be paid by appellant.