Jerry Davis, Inc. v. Nufab Corp.

• Decision Date: 05 June 1996
• Citation: 677 A.2d 1256,450 Pa.Super. 696
• Parties: JERRY DAVIS, INC., Appellant v. NUFAB CORPORATION d/b/a Gothum or Gotham Club. JERRY DAVIS, INC. v. NUFAB CORPORATION d/b/a Gothum or Gotham Club, Appellant.
• Court: Pennsylvania Superior Court

Page 1256

677 A.2d 1256

450 Pa.Super. 696

JERRY DAVIS, INC., Appellant v. NUFAB CORPORATION d/b/a Gothum or Gotham Club.

JERRY DAVIS, INC. v. NUFAB CORPORATION d/b/a Gothum or Gotham Club, Appellant.

Superior Court of Pennsylvania.

Argued Feb. 15, 1996.

Decided June 5, 1996.

Steven D. Masters, Philadelphia, for Jerry Davis, Inc.

Beth Schulman, Narberth, for NuFab Corp.

Before McEWEN, President Judge, and TAMILIA and BROSKY, JJ.

BROSKY, Judge.

These appeals are from the interlocutory order of the trial court which denied Jerry Davis, Inc.'s motion for issuance of a writ of seizure and directed the parties to pay a third person, who is not a party to this lawsuit, for the rental value of electrical transformers.

The parties present the following issues for review: (1) whether the trial court's interlocutory order is appealable as of right; (2) whether the trial court erred in refusing to grant the motion for issuance of a writ of seizure; and (3) whether the trial court erred in awarding monetary damages to a third-person who is not a party to this proceeding. For the reasons set forth below, we quash these appeals.

Before addressing the parties' claims, we will briefly recount the pertinent facts of this case. Appellant, Jerry Davis, Inc., is an electrical contractor. During the summer of 1994, appellant entered into a contract with appellee, NuFab Corporation (NuFab), to perform various electrical work in a building leased by NuFab. ¹

The parties' relationship terminated on or around January of 1995 and appellant left the job site. Appellant was only paid for a portion of the goods and services rendered to appellee. Appellee subsequently hired another contractor to complete the remaining work and rectify electrical violations for which appellee had been cited by the City of Philadelphia building inspectors.

Appellant instituted this replevin action in June of 1995 to recover possession of the electrical wiring and equipment which he installed in the building. The complaint further asserted a contractual claim based on appellee's failure to pay the remaining sums owed under the parties' agreement. Appellant subsequently filed a motion for issuance of a writ of seizure of the property which was the subject of the replevin action.

The trial court conducted a hearing on the motion at which both parties were present. During the course of the hearing, the court discovered that appellant had rented electrical transformers from Delaware Valley Electrical Equipment and Sales (DVEES) in order to temporarily provide electrical service to the nightclub while the construction was in progress. ² However, NuFab retained possession of the transformers and had failed to pay the rental value therefor. Following the hearing, the trial court denied appellant's motion for issuance of a writ of seizure. The trial court further directed both parties to pay DVEES for the accrued and future rental payments on the electrical transformers; these payments were evenly apportioned between the parties. The parties respectively filed the appeal and cross-appeal therefrom.

As a preliminary matter, we must first ascertain whether we have jurisdiction to entertain this appeal. It is a fundamental principle of law that an appeal will lie only from a final order unless otherwise permitted by rule or statute. Motheral v. Burkhart, 400 Pa.Super. 408, 414, 583 A.2d 1180, 1183 (1990) (en banc). The order in this case does not constitute a final order as defined by Pa.R.A.P., Rule 341(b), 42 Pa.C.S.A. (providing that a final order is one which either disposes of all claims or parties, is defined as such by statute or is entered as a final order pursuant to Rule 341(c); none of these requirements exist here). The parties do not dispute this assessment, but contend that the order is appealable under Pa.R.A.P., Rule 311(a), 42 Pa.C.S.A., which governs appeals as of right from interlocutory orders.

The parties suggest that the instant order is appealable pursuant to either subsections (a)(2) or (a)(4) of the rule. Rule 311(a)(2) provides for an interlocutory appeal as of right from an order "confirming, modifying or dissolving or refusing to confirm, modify or dissolve an attachment, custodianship, receivership or similar matter affecting the possession or control of property." Rule 311(a)(4), on the other hand, permits an interlocutory appeal to be as of right taken from an order "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions." The parties refer us to Sameric Corp. of Valley Forge v. Valley Forge Center Association, 102 Pa.Commw. 581, 519 A.2d 546 (1986), Triffin v. Interstate Printing Co., 357 Pa.Super. 240, 515 A.2d 956 (1986), appeal dismissed as having been improvidently granted, 517 Pa. 317, 535 A.2d 1054 (1988), Temtex Products, Inc. v. Kramer, 330 Pa.Super. 183, 479 A.2d 500 (1984) and Foulke v. Lavelle, 308 Pa.Super. 131, 454 A.2d 56 (1982) in support of their respective positions.

The parties' reliance on these decisions is misplaced. Triffin and Foulke both addressed the appealability of orders involving an attachment of judgment debtors' property which was held by third-party garnishees. See Triffin, 357 Pa.Super. at 243-244, 515 A.2d at 957-958 (order refusing to grant motion for judgment on the pleadings in garnishment proceeding to attach a debtor's bank accounts) and Foulke, 308 Pa.Super. at 136, 454 A.2d at 58 (order denying motion to set aside writ of attachment). Sameric and Temtex, on the other hand, addressed the appealability of orders granting or denying a request for injunctive relief. Sameric, 102 Pa.Commw. at 588-589, 519 A.2d at 550; Temtex, 330 Pa.Super. at 190, 479 A.2d at 503. The orders in Triffin and Foulke concerned attachments and, thus, clearly fell within the scope of Rule 311(a)(2). Triffin and Foulke, supra. The orders in Sameric and Temtex likewise fell squarely within Rule 311(a)(4), since they involved the grant or denial of injunctive relief. The issue presented here, however, implicates the appealability of an order denying a motion for writ of seizure in a replevin action. Triffin, Foulke, Sameric and Temtex did not involve an order of this type. Nor did these cases consider whether such orders were appealable under Rule 311. Consequently, these decisions are not dispositive.

Although the cases referenced by the parties are not controlling, we must ascertain whether the trial court's order is nonetheless appealable under Rule 311. In construing the rules promulgated by our Supreme Court, we are mindful of the fact that the appellate procedural rules are to be interpreted in accordance with the Statutory Rules of Construction, codified at 1 Pa.C.S.A. §§ 1901-1991, and regarded as if they were enacted by the General Assembly. Pa.R.A.P., Rule 107, 42 Pa.C.S.A. As with the construction of all statutes or procedural rules, our objective is to ascertain and effectuate the intention of the General Assembly and the Supreme Court. See 1 Pa.C.S.A. § 1921(a). Words and phrases must be construed according to rules of grammar and their common and approved usage, but technical words and phrases and such others as have acquired a peculiar and appropriate meaning shall be construed according to such peculiar and appropriate meaning. 1 Pa.C.S.A. § 1903(a). Where the words of the rule are not explicit, we must look to the considerations set forth in 1 Pa.C.S.A. § 1921(c) in order to ascertain the intention of the General Assembly and Supreme Court. Words and phrases necessary to the proper interpretation of a statute may be added in the construction thereof where they do not conflict with a rule's obvious purpose and intent or in any way affect its scope and operation. 1 Pa.C.S.A. § 1923(c). However, it is also a well settled maxim of statutory construction that "expressio unius est exclusio alterius," i.e., "the mention of one thing implies the exclusion of others not expressed." Scott Township Appeal, 388 Pa. 539, 543, 130 A.2d 695, 698 (1957); Henrich v. Harleysville Insurance Companies, 403 Pa.Super. 98, 103-104, 588 A.2d 50, 52 (1991), affirmed, 533 Pa. 181, 620 A.2d 1122 (1993).

Proper interpretation of Rule 311 must necessarily begin with a review of appellate jurisdiction as conferred by the General Assembly. While the General Assembly has provided a virtually unfettered right to appeal final orders, the right to appeal interlocutory orders has been narrowly circumscribed. Interlocutory appeals are thus available either by permission or as of right. 42 Pa.C.S.A. § 5105(c). With regard to the latter category, interlocutory appeals as of right exist for those limited classes of orders in which permission to appeal would be regularly permitted. Id. Such orders are to be specified by general rule. Id. Pursuant to this legislative directive, the Supreme Court has identified the classes of interlocutory orders which are appealable as of right; these orders are delineated in Pa.R.A.P., Rules 311(a-f) and Rule 313, 42 Pa.C.S.A. ³

Orders involving attachments, receiverships, custodianships or other similar matters affecting the possession or control of property, are among the classes of interlocutory orders which are appealable as of right. Rule 311(a)(2), supra. Interlocutory orders involving injunctions are likewise appealable as of right. Rule 311(a)(4), supra. Attachments, custodianships, receiverships and injunctions have technical and peculiar meanings when applied in the legal context; these terms refer to a particular type of action or remedy. Replevin is likewise a distinct form of legal action and relief. "Replevin" is not a term which can be equated or used interchangeably with attachment, receivership, custodianship or injunction. Our conclusion is supported by the fact that the Supreme Court has enacted specific rules governing the practice and procedure applicable to each of these types of...