Danko Development Corp. v. Econocast Corp.

• Decision Date: 27 November 1987
• Docket Number: No. 00336,00336
• Parties: DANKO DEVELOPMENT CORPORATION Successor to A. Nobile Enterprises Inc. A Corporation, Appellee, v. ECONOCAST CORPORATION A Corporation, Appellant. Pitts. 1987.
• Court: Pennsylvania Superior Court

Page 1108

534 A.2d 1108

369 Pa.Super. 120

DANKO DEVELOPMENT CORPORATION Successor to A. Nobile Enterprises Inc. A Corporation, Appellee, v. ECONOCAST CORPORATION A Corporation, Appellant.

No. 00336 Pitts. 1987.

Superior Court of Pennsylvania.

Submitted July 13, 1987.

Filed Nov. 27, 1987.

John M. O'Connell, Jr., Greensburg, for appellant.

George A. Conti, Jr., Greensburg, for appellee.

Before CAVANAUGH, BECK and MONTGOMERY, JJ.

CAVANAUGH, Judge:

A civil action was commenced by Danko Development Corporation, the appellee herein, against the appellant, Econocast Corporation, for breach of a written lease agreement. The landlord, the plaintiff below, sought possession of the demised premises, unpaid rent and other relief. The appellant filed New Matter and Counterclaim. The appellee filed preliminary objections to the New Matter and Counterclaim and the appellant filed an Amended New Matter and Counterclaim. Preliminary objections were filed to the Amended New Matter and Counterclaim and on February 7, 1987, the court below entered the following order from which an appeal has been taken to this court. ¹

AND NOW, this 9th day of February, 1987, the Preliminary Objection of the Plaintiff in the nature of a demurrer to the counterclaim of Defendant is granted, and the counterclaim insofar as it asserts a cause of action for breach of an implied warranty of habitability is dismissed; Defendant may, if it so desires, file an amended counterclaim asserting causes of action grounded upon negligence. Any amended counterclaim must be filed within twenty (20) [sic] of this date.

The appellant filed a Second Amended New Matter and Counterclaim and added Counts IV and V alleging negligence.

In order to put our appellate review in focus, it is necessary to consider the three counts in detail. The three counts in the amended counterclaim are not precisely drawn, but basically the defendant's counterclaim is based on a commercial lease between the landlord (appellee) and the tenant (appellant) entered into on April 27, 1981. The landlord, according to the counterclaim, was to provide heating and air conditioning, but the tenant experienced serious heating and air conditioning problems. The tenant alleged that it entered into an addendum to the lease and the landlord assured and guaranteed to the tenant that the problems with the heating and air conditioning would be corrected and that a separate heating and air conditioning system would be provided for the tenant with a separate thermostatic control to be used only by the tenant. The tenant also contended that it was fraudulently induced to enter the addendum to the lease and that the landlord breached the lease by failing to supply proper heat and air conditioning and that the premises were therefore uninhabitable by the tenant. It also alleged that repetitive work was required by the tenant because of excessive heat, humidity and temperature variations on the premises. Count I also alleged that the premises were uninhabitable because the landlord failed to provide proper and adequate heating, air conditioning and security and failed to keep the premises clean. Count II alleged that the tenant expended large sums of money for improvements and furnishings on the demised premises. It further alleged that "Due to the actions of the Plaintiff, the Defendant may be required to find safe and adequate premises to which to remove its office and may, therefore, suffer the loss of the useful life of the above mentioned improvements and furnishings, and claim, therefore, for the remaining useful life of the same is made herein." Count III alleged, as it was alleged in Count I, that the employees had to do repetitive work because of equipment failure due to excessive heat, humidity and temperature variations. It further alleged that the landlord did not provide adequate security and failed to keep the demised premises clean. Count III stated with respect to these allegations that "all are breaches of the lease by the Plaintiff and are actions which make the premises leased to the Defendant uninhabitable and untenantable." Count III also alleges that "the above mentioned breaches of contract by the defendant have made the premises unsafe and uninhabitable for the defendant."

We must initially determine whether the order of February 9, 1987 is appealable, considering the nature of the multi-count complaint before us. It is incumbent upon this court to consider the propriety of each appeal and the appealability of an order may be raised sua sponte. Capanna v. Travelers Insurance Company, 355 Pa.Super. 219, 513 A.2d 397 (1986). An appeal to this court must be quashed if it is from an interlocutory order unless a right to appeal is expressly granted by statute or rule of court. See Pa.R.A.P. 311, 1311; T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977).

Generally, an order is not final unless it puts the litigant out of court. We have variously defined a final order as one which ends the litigation or alternatively disposes of the entire case. Piltzer v. Independence Federal Savings & Loan Association, 456 Pa. 402, 319 A.2d 677 (1974); Bagshaw v. Vickers, 286 Pa.Super. 246, 428 A.2d 664 (1981); Parker v. MacDonald, 344 Pa.Super. 552, 496 A.2d 1244 (1986). The salutary reason for this is to preclude piecemeal appeals to this court and the consequent protraction of litigation. Stevenson v. General Motors Corp., 513 Pa. 411, 521 A.2d 413 (1987); Beers v. Raub, 363 Pa.Super. 521, 526 A.2d 801 (1987). Where there are multi-count complaints and the court dismisses some of of the counts, but not all, an appeal from the dismissal of some of the counts is interlocutory as the plaintiff is not out of court and the suit continues. Esh v. Awglis, 291 Pa.Super. 528, 436 A.2d 242 (1981). See also Stengena v. Madden, 291 Pa.Super. 364, 435 A.2d 1269 (1981) where preliminary objections as to second and fourth counts of a complaint were sustained, but the action continued as to counts one and three. We held the order was interlocutory and not appealable relying on Bagshaw v. Vickers, supra. Counts one and three were based on negligence and counts two and four sought punitive damages. The general rule is that "an order dismissing less than all counts of a multi-count complaint is interlocutory ..." Gasper v. Gasper, 288 Pa.Super. 478, 483, 432 A.2d 613, 615 (1981). To the same effect see Bracken v. Bracken, 294 Pa.Super. 371, 439 A.2d 1247 (1982).

An example of our unwillingness to accept piecemeal appeals is found in Evans v. Government Employees Insurance Company, 291 Pa.Super. 342, 435 A.2d 1258 (1981). In that case we quashed an appeal from an order sustaining preliminary objections and dismissing the second and third counts of a three count complaint. The first count was in assumpsit and sought payments allegedly due under a no-fault motor vehicle insurance policy. The second and third counts were in trespass and alleged that appellee's failure to pay was a wilful, wanton and malicious breach of contract done with the intent to harass and frustrate the appellant. The complaint set forth separate causes of action, but we determined the appeal was clearly interlocutory.

It has long been recognized that in ascertaining whether an order is final we must look beyond the technical effect of the adjudication to its practical ramifications. Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 348 A.2d 734 (1975). While we must review the record to determine the practical effect of an order, prior to this court's decision in Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983) which we will discuss hereafter, we were disposed to find any order which dismissed some counts of a complaint, but allowed the action to continue, to be interlocutory. This served very well to carry out the policy against piecemeal appeals to this court. See Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). The case of Kaiser v. Meinzer, 272 Pa.Super. 207, 414 A.2d 1080 (1979) involved a complicated action dealing with various defendants. The complaint contained three counts. The first count alleged a conspiracy between a company and a bank. The second count was against a bank and a title company seeking payment of an escrow fund. The third count alleged default on a promissory note. The court below in effect terminated the plaintiff's claim as to count three and the plaintiff appealed. We quashed the appeal on the basis that the order appealed from was interlocutory stating at 272 Pa.Super. 218, 414 A.2d 1086:

If [plaintiff's] action on the promissory note was the only claim for recovery that had been pleaded, we would have no problem in concluding that Judge Greenberg's decision on that claim was final as it put Kaiser out of court and precluded its recovery on the note. However, Kaiser's action on the promissory note was only one phase of the entire proceedings against the defendants. Moreover, to characterize the May 15 order as "final" and permit an immediate appeal would permit the type of severance and piecemeal resolution of issues that has heretofore been condemned. (Emphasis added.)

In Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983) (Cavanaugh, J. concurring), we again recognized the general rule that an order dismissing some, but not all counts, of a multi-count complaint is interlocutory and not appealable. We added at 313 Pa.Super. 338, 459 A.2d 1258-59:

However, the general rule is not without exceptions. Certain orders which have not put a litigant literally "out of court" or completely terminated the litigation have nevertheless been held to possess sufficient aspects of finality to be appealable immediately because the effect of the order has been to preclude the litigant from asserting the cause of action alleged.

This court concluded that where separate causes of action have been joined, the entry of a summary judgment as to one cause of action is...