T. C. R. Realty, Inc. v. Cox

• Decision Date: 04 May 1977
• Citation: 372 A.2d 721,472 Pa. 331
• Parties: T.C.R. REALTY, INC., Appellant, v. J. Samuel COX and Rose Cox, his wife.
• Court: Pennsylvania Supreme Court

Page 721

372 A.2d 721

472 Pa. 331

T.C.R. REALTY, INC., Appellant, v. J. Samuel COX and Rose Cox, his wife.

Supreme Court of Pennsylvania.

Argued July 2, 1975.

Decided April 28, 1977.

Dissenting Opinion May 4, 1977.

[472 Pa. 334] David M. Priselac, McKeesport, for appellant.

Richard S. Crone, Crone & Zittrain, Pittsburgh, for appellees.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

NIX, Justice.

This is an appeal from a decree of the Chancellor dismissing a complaint in equity filed by appellant, T.C.R. Realty, Inc., seeking specific performance of a written option agreement for the sale of a parcel of land and damages for an alleged breach thereof. The dismissal of the complaint was precipitated by appellant's refusal to supply certain information to appellees in response to their (appellees') depositions of appellant as directed by the Chancellor. Although the lawsuit has been unnecessarily complicated by a long and involved procedural and factual history, the immediate precise issue raised rests upon a determination of the propriety of permitting a counterclaim seeking injunctive relief and damages under the theories of malicious use and abuse of process in response to appellant's complaint in equity. For reasons which will be set forth hereinafter, we hold that the Chancellor erred in dismissing appellant's complaint and order that the complaint be reinstated and that the cause be remanded to the court below for further proceedings consistent herewith.

This action was commenced on January 11, 1974, by the filing of a praecipe for a writ of summons in equity by appellant against J. Samuel and Rose Cox, his wife, requesting specific performance of, and damages for an alleged breach of, a written option agreement for the sale of a parcel of real estate located in McCandless Township, Allegheny County. Subsequently, an amended complaint ¹ was filed alleging that on or about June 16, 1972, appellees gave to a Herbert Willis a written option to purchase the land in question. It was further averred that the aforesaid option was assigned to the instant appellant by a written agreement dated August 15, 1972.

In response to the amended complaint, appellees filed an answer, new matter and a counterclaim. On March 21, 1974, appellant filed preliminary objections to the appellees' new matter and counterclaim which were subsequently dismissed by a court en banc with leave to appellant to file a reply to appellees' new matter and counterclaim within 20 days from the date of that order. A reply was timely filed and the issue raised by the pleadings, excluding the counterclaim, centered around the question as to whether Clause 9 of the option agreement of June 16, 1972, had been complied with. ²

Following the filing of the reply by appellant, the appellees aggressively pursued a course of discovery in an effort to establish the averments set forth in their counterclaim. In essence the counterclaim asserted that appellant and his agents had engaged in a series of vexatious lawsuits against appellees in a deliberate effort to so 'harass' and 'badger' them as to force the sale of the property in question to appellant at a price far below its true value. During the discovery process, appellees' filed a motion with the court for sanctions because of appellant's failure to supply certain requested information. On November 4, 1974, in response to this motion, the Chancellor entered the following order:

'. . . that plaintiff file with this Court and serve upon defendants' counsel copies of all documents and written responses to all information specifically set forth in the foregoing Motion, all within ten days from the date hereof; in default of which plaintiff's action will be dismissed with prejudice, leaving only defendants' counterclaim to be tried.'

This order was subsequently amended 'to require compliance on or before November 25, 1974.' On November 26, 1974, after concluding that appellant could or would not comply with its earlier order, the Chancellor dismissed appellant's action with prejudice and ordered the cause to trial on appellees' counterclaim. It is this action from which appellant now seeks relief. ³

Before addressing the merits of the instant appeal we must first determine whether the appeal from the decree of November 26, 1974, is properly before us at this time. Restated, the issue is whether a sanction order dismissing plaintiff-appellant's entire case with prejudice imposed under Rule 4019 effectively 'puts him out of court,' even though the defendant's counterclaim remains to be tried. Although neither party has specifically questioned the jurisdiction of this Court in this matter, the mere agreement of the parties will not vest jurisdiction where it otherwise would not be. Stadler v. Mt. Oliver Borough, 373 Pa. 316, 318, 95 A.2d 776, 777 (1953); Monnia's Estate, 270 Pa. 367, 369, 113 A. 550, 551 (1921).

It is fundamental law in this Commonwealth that an appeal will lie only from final orders, unless otherwise expressly permitted by statute. Caplan v. Keystone Weaving Mill, 431 Pa. 407, 246 A.2d 384 (1968); Stadler v. Mt. Oliver Borough, supra. Prior to July 1, 1976, the Appellate Court Jurisdiction Act of 1970, July 31, P.L. 673, No. 223, art. II, § 202, 17 P.S. § 211.202(4) (Supp.1976--77) provided for exclusive jurisdiction in this Court from 'final orders of the courts of common pleas' in actions or proceedings in equity, with various enumerated exceptions. ⁴ In ascertaining what is a 'final order,' we have looked beyond the technical effect of the adjudication to its practical ramifications. Bell v. Consumer Discount Company, 465 Pa. 225, 348 A.2d 734 (1975). We have variously defined a final order as one which ends the litigation, or alternatively disposes of the entire case. Pitzer v. Independence Savings and Loan Association, 456 Pa. 402, 404, 319 A.2d 677, 678 (1974); James Banda Inc. v. Virginia Manor Apartments, Inc., 451 Pa. 408, 409, 303 A.2d 925, 926 (1973). Conversely phrased, an order is interlocutory and not final unless it effectively puts the litigant 'out of court.' Ventura v. Skylark Motel, Inc., 431 Pa. 459, 463, 246 A.2d 353, 355 (1968). In Marino Estate, 440 Pa. 492, 494, 269 A.2d 645, 646 (1969), we said that an order is not interlocutory if it precludes a party from presenting the merits of his claim to the lower court. As a result of the dismissal with prejudice of appellant's claim, appellant is precluded from doing precisely that. Although he is technically not 'out of court' since he is obliged to remain to defend against the counterclaim, the practical ramification of the decree is to completely deprive the litigant of his day in court so far as his claim is concerned. See Safety T. Corp. v. Hoffman T. Co., Inc., 458 Pa. 102, 329 A.2d 834 (1974). We have often held that an order dismissing certain aspects of an action is final even though certain other aspects may survive the order. In Bell v. Beneficial Consumer Discount, supra, we held that an order denying class action status possessed sufficiently practical aspects of finality to make it appealable even though the named plaintiffs in the case could further pursue the action and the ousted members could bring separate individual actions. See also, Lee v. Child Care Services, 461 Pa. 641, 337 A.2d 586 (1975). In Brandywine Joint Area School Authority v. Van Corp., Inc., 426 Pa. 448, 451, 233 A.2d 240, 241 (1967), we permitted an appeal from an order sustaining preliminary objections which dismissed a third party complaint.

'We conclude that while an order overruling preliminary objections to an additional party complaint is interlocutory, an order granting such objections and dismissing the complaint is final and appealable. Although the plaintiff in the additional party complaint may have a further cause of action against the defendant in the additional party complaint subsequent to the resolution of the basic litigation, He is precluded in the basic litigation from determining his rights vis-a-vis the additional defendant in the litigation.' (emphasis added)

In Goldman v. McShain, 432 Pa. 61, 247 A.2d 455 (1967), we agreed that an order transferring an action from equity to the law side which effectively puts the litigant 'out of court' as to his equitable cause of action is appealable even though the 'litigant so affected can carry his banner into another court on another theory.' Id. at 65, 247 A.2d at 457.

In this posture it cannot be questioned that the decree imposing the sanction of November 26, 1974, effectively terminated the action instituted by appellant in its complaint in equity and is therefore final for the purposes of appellate review. While appellant is still obliged to defend against a counterclaim the issues raised by it in its complaint have now been finally determined by the court below.

Turning to the merits of this appeal we must address the question of whether the learned Chancellor abused his discretion in dismissing appellant's complaint with prejudice for its failure to respond to the questions propounded. ⁵ Since we believe that a resolution ultimately turns upon the propriety of the area of inquiry these questions were designed to pursue, we need not consider the other objections raised by appellant to the decree. ⁶

It is axiomatic that an order of discovery to be valid must relate to the eliciting of information relevant to the pending lawsuit. As stated by this Court in O'Brien v. O'Brien, 362 Pa. 66, 70, 66 A.2d 309, 311 (1949):

It is axiomatic that a bill for discovery in aid of an action or a defense at law cannot be maintained if the action or the defense itself cannot be maintained; this is because a bill for discovery in aid of a claim at law is wholly an ancillary proceeding, and if the asserted claim is itself invalid a bill for discovery in support of it must necessarily fall on demurrer: Holland v. Hallahan, ...