Sullivan v. City & County of Philadelphia

• Decision Date: 27 September 1954
• Citation: 378 Pa. 648,107 A.2d 854
• Parties: Ward SULLIVAN and Curtin Sullivan, Executors U/W Agnes Keogh, Deceased, Appellants, v. The CITY AND COUNTY OF PHILADELPHIA, School District of Philadelphia, The Board of Revision of Taxes of Philadelphia.
• Court: Pennsylvania Supreme Court

107 A.2d 854

378 Pa. 648

Ward SULLIVAN and Curtin Sullivan, Executors U/W Agnes Keogh, Deceased, Appellants, v. The CITY AND COUNTY OF PHILADELPHIA, School District of Philadelphia, The Board of Revision of Taxes of Philadelphia.

Supreme Court of Pennsylvania.

September 27, 1954

Action brought by personal representative of a decedent to recover personal property taxes allegedly eroneously paid to defendant municipalities by decedent. The Court of Common Pleas, No. 5, Philadelphia County, at No. 2628, June Term 1953, Smith, President Judge, entered order sustaining defendant's preliminary objections to complaint and representatives appealed. The Supreme Court, No. 152, January Term, 1954, Jones, J., held that order was neither final nor definitive but was interlocutory, and in absence of enabling statute was not appealable.

Appeal quashed.

G Selden Pitt, Samuel B. Fortenbaugh, Jr., and Clark, Ladner Fortenbaugh & Young, Philadelphia, for appellants.

Karl I. Schofield, Asst. City Sol., Herman L. Mash, Asst. City Sol., Jerome J. Shestack, First Deputy City Sol., Abraham L Freedman, City Sol., Philadelphia, for appellee.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

JONES Judge.

This appeal is from an order sustaining defendants' preliminary objections to a complaint in assumpsit brought by the personal representatives of a decedent to recover personal property taxes alleged to have been erroneously and inadvertently paid the defendant municipalities by the decedent individually and as trustee under the will of her father and by her personal representatives: see Act of May 21, 1943, P.L. 349, 72 P.S. § 5566b. The order is obviously interlocutory; the appeal must, therefore, be quashed.

We have reiterated many times that an interlocutory order or decree is not appealable unless expressly made so by statute: Epstein v. Kramer, 374 Pa. 112, 119, 96 A.2d 912; Stadler v. Mt. Oliver Borough, 373 Pa. 316, 317-318, 95 A.2d 776, and cases there cited. No such enabling statute is presently applicable. Even with the consent of all interested parties, appellate jurisdiction of an interlocutory order or decree may not be assumed: Stadler v. Mt. Oliver Borough, supra. The evident policy of the law in such regard is to preclude piecemeal determinations and the consequent protraction of litigation.

Where, as here, preliminary objections in the nature of a demurrer to a complaint are sustained without further action of the court, there is neither a final nor definitive order from which an appeal may be taken. As Mr. Justice Chidsey recently stated for this court in Ahrens v. Goldstein, 376 Pa. 114, 121, 102 A.2d 164, 167,-‘ Our decisions leave no doubt that a decree which sustains a preliminary objection without dismissing the bill is interlocutory.’ However, an order sustaining preliminary objections to a complaint is definitive, and therefore appealable, where it so restricts the pleader in respect of further amendment as, virtually, to put him out of court on the cause of action which he seeks to litigate: cf. Ciletti v. City of Washington, Pa., 107 A.2d 871.

In the present instance, the order of the court below did no more than sustain the defendants' preliminary objections. It did not dismiss the complaint or otherwise put an end to the action. The fact that the court below did not enter a final order cannot be...