Cherry v. Empire Mut. Ins. Co.

• Decision Date: 16 March 1965
• Citation: 417 Pa. 7,208 A.2d 470
• Parties: Herbert H. CHERRY and Albert Cherry, Individually and Trading as Cherry & Company, Appellants, v. EMPIRE MUTUAL INSURANCE COMPANY, Defendant, and Insurance Company of North America, Garnishee, Appellee.
• Court: Pennsylvania Supreme Court

Page 470

208 A.2d 470

417 Pa. 7

Herbert H. CHERRY and Albert Cherry, Individually and Trading as Cherry & Company, Appellants, v. EMPIRE MUTUAL INSURANCE COMPANY, Defendant and Insurance Company of North America, Garnishee, Appellee.

Supreme Court of Pennsylvania.

March 16, 1965.

Rehearing Denied April 12, 1965.

John A. McMenamin and Charles A. Lord, Richter, Lord, Toll & Cavanaugh, Philadelphia, for plaintiffs.

Cecil P. Harvey, Philadelphia, Sp. Asst. Atty. Gen., for Audry R. Kelly, Montrose, Insurance Commissioner of the Commonwealth of Pennsylvania, Statutory Liquidator of Empire Mutual Insurance Co.

Barrett G. Tawresey and Robert B. Ely, III, Philadelphia, for Insurance Co. of North America.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

COHEN, Justice.

This is an appeal from the order of the lower court sustaining a garnishee's preliminary objection to interrogatories in aid of attachment execution to enforce a money judgment and staying execution until further order. The appeal, being interlocutory, must be quashed.

On December 31, 1963, plaintiffs-appellants obtained a money judgment against Empire Mutual Insurance Company. On January 29, 1964, a writ of execution issued directing the sheriff to levy upon and sell the property of Empire and to attach property of Empire in the possession of appellee, Insurance Company of North America, as garnishee of debts that it may owe to Empire and to notify garnishee that it 'is * * * enjoined from paying any debt to or for the account of the defendant(s) and from delivering any property of the defendant(s) or otherwise disposing thereof * * *.' On March 24, 1964 plaintiffs filed interrogatories to garnishee-appellee.

Subsequently, without leave of court, the Insurance Commissioner of the Commonwealth of Pennsylvania entered an appearance in behalf of Empire, and, thereafter, on April 8, 1964, filed a petition to abate the attachment execution alleging, inter alia, that the Commonwealth Court of Dauphin County, on January 31, 1964, entered an order to dissolve Empire, directing liquidation by the Insurance Commissioner and restraining all persons 'from instituting or prosecuting any action at law or in equity or any attachment or execution against the said company.' On April 13, 1964, garnishee-appellee filed preliminary objections to plaintiffs' interrogatories on the ground that, by virtue of the Commonwealth Court's dissolution order, (a) plaintiffs were deprived of the capacity to sue or (b) the lower court lacked jurisdiction or (c) the property in possession of the garnishee was immune or exempt from execution. In their answers to the Commissioner's petition and garnishee's preliminary objections plaintiffs admitted the Commonwealth Court's order dissolving Empire but denied that said order prevented them from prosecuting their attachment or execution against garnishee.

The lower court denied 'without prejudice' the Insurance Commissioner's petition to abate and gave leave for the Commissioner to intervene and apply for appropriate relief. By supplemental order the Commissioner was given leave to become a successor defendant to Empire by filing of record the material facts on which the right to substitution was based, in compliance with Pa.R.C.P. 2352(a), 12 P.S.Appendix. Further, the lower court overruled garnishee-appellee's preliminary objections '(a)' and '(b)', sustained objection '(c)', and stayed execution until further order. Appeals were taken by the Insurance Commissioner and by plaintiffs but the former was discontinued. Accordingly, the only matter before us is an appeal from the order sustaining the garnishee's preliminary objection and staying execution.

The mere sustaining of preliminary objections to a complaint without dismissing the complaint is an interlocutory order and therefore not appealable. Sullivan v. City and County of Philadelphia, 378 Pa. 648, 108 A.2d 854 (1954), Ahrens v. Goldstein, 376 Pa. 114, 102 A.2d 164 (1954). Similarly, the mere sustaining of preliminary objections to interrogatories is an interlocutory order which is not appealable. ¹ But here the lower court not only sustained the objection but also stayed execution, and, therefore, the question remains whether this made the order appealable. In Opening of Parkway, etc., 267 Pa. 219, 225, 110 A. 144, 146 (1920), we said that 'a determinative order relating to execution is in character a judgment, which, when of a final nature, is appealable * * *.' Our cases demonstrate that whether or not a stay of execution is 'final' and, therefore, appealable depends upon the reason for which it was ordered.

When execution has been stayed because the defendant alleged that other litigation was pending in which he might establish a countervailing property right against plaintiff it has been held that the execution was stayed 'indefinitely' and was, therefore, appealable. Foster v. Rubenstein, 383 Pa. 236, 118 A.2d 195 (1955); Patterson v. Patterson, 27 Pa. 40 (1856); Lietka v. Hambersky, 167 Pa.Super. 304, 74 A.2d 698 (1950). And Cf. Stofflett v. Kress, 342 Pa. 332, 21 A.2d 31 (1941) where the court stayed execution on one of defendant's parcels of property because it was of the opinion that the other was sufficient and in 'fairness' should be executed upon first.

On the other hand, in Jenkintown Nat. Bank v. T. L. Fulmor, 124 Pa. 337, 17 A. 2 (1889), the stay of execution was not appealable. There defendant moved to open judgment and stay execution. The lower court did not open judgment but did stay execution. We said:

'It is sufficient to say in regard to the appeal that the court did not open the judgment as a preliminary step; it...