University Square No. 1, Inc. v. Marhoefer

• Decision Date: 24 April 1962
• Citation: 407 Pa. 257,180 A.2d 427
• Parties: UNIVERSITY SQUARE NO. 1, INC., a Corporation v. Louis MARHOEFER and Seaboard Surety Company, a Corporation, Original Defendants, Seisel Construction Co., a Corporation, Additional Defendant, and John M. Cuddyre, John M. Cuddyre, Jr., and John O'Farrell, Trading and Doing Business as Steel City Piping Co., a Partnership, and Hale-Devlin, Inc., a Corporation, Additional Defendants. Appeal of HALE-DEVLIN, INC. Appeal of John M. CUDDYRE, John M. Cuddyre, Jr., and John O'Farrell, Trading and Doing Business as Steel City Piping Co., a Partnership.
• Court: Pennsylvania Supreme Court

180 A.2d 427

407 Pa. 257

UNIVERSITY SQUARE NO. 1, INC., a Corporation v. Louis MARHOEFER and Seaboard Surety Company, a Corporation, Original Defendants, Seisel Construction Co., a Corporation, Additional Defendant, and John M. Cuddyre, John M. Cuddyre, Jr., and John O'Farrell, Trading and Doing Business as Steel City Piping Co., a Partnership, and Hale-Devlin, Inc., a Corporation, Additional Defendants. Appeal of HALE-DEVLIN, INC. Appeal of John M. CUDDYRE, John M. Cuddyre, Jr., and John O'Farrell, Trading and Doing Business as Steel City Piping Co., a Partnership.

Supreme Court of Pennsylvania.

April 24, 1962.

No 96:

Edward P. Good, Kountz, Fry & Meyer, Pittsburgh, for appellants.

Harold R. Schmidt, Raymond G. Hasley, Rose, Houston, Cooper &amp Schmidt, James C. Larrimer, Dougherty, Larrimer & Lee Pittsburgh, for appellees.

No. 97:

James C. Larrimer, Dougherty, Larrimer & Lee, Pittsburgh, for appellants.

Harold R. Schmidt, Raymond G. Hasley, Rose, Houston, Cooper & Schmidt, Edward P. Good, Kountz, Fry & Meyer, Pittsburgh, for appellees.

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

BELL, Chief Justice.

On July 10 1957, plaintiff instituted suit in assumpsit against defendant, Louis Marhoefer, for breach of a building contract. Marhoefer answered and also filed a complaint joining Seisel Construction Company as additional defendant. Seisel Construction Company answered Marhoefer's complaint and also joined Steel City Piping Company and Hale-Devlin, Inc., as additional defendants. In April, 1958, both Steel City and Hale-Devlin filed preliminary objections in the nature of a demurrer to Seisel Company's complaint on the ground that the cause of action on which they were joined was separate and distinct from the cause of action sued on by plaintiff; they also objected to the jurisdiction of the Court on the ground that the contract between each of them and Seisel Company contained a provision to arbitrate.

After the completion of discovery procedures by plaintiff and original defendant, the case was set down for trial at the second jury term in the fall of 1961. During this 3 1/2 years no action was taken by anyone with respect to the aforesaid preliminary objections until the same were praeciped for argument by Steel City and Hale-Devlin in October, 1961. The lower Court dismissed the preliminary objections and declared that in the instant case there is a strong presumption that a delay of 3 1/2 years by additional defendants in praeciping their preliminary objections to argument was prejudicial to plaintiff. Steel City and Hale-Devlin appealed from the Order which dismissed their preliminary objections.

It is well settled that no appeal lies from an Order overruling a preliminary objection, other than one attacking jurisdiction: Dozor Agency v. Rosenberg, 403 Pa. 237, 169 A.2d 771; Grosso v. Englert, 381 Pa. 351, 113 A.2d 250; Strank v. Mercy Hospital of Johnstown, 383 Pa. 54, 117 A.2d 697. More specifically, a preliminary objection raising the question of the validity of joining an additional defendant is interlocutory and no appeal lies therefrom: Magaro v. Metropolitan Edison Co., 315 Pa. 369, 172 A. 865; Steach v. Hippensteele, 315 Pa. 420, 172 A. 715.

In Dozor Agency v. Rosenberg, 403 Pa. at page 240, 169 A.2d at page 773, supra, the Court said: 'However, generally speaking, an order overruling preliminary objections is interlocutory and not appealable. Grosso v. Englert, 381 Pa. 351, 113 A.2d 250. That general rule is, however, subject to the exception that if a question of jurisdiction is involved that question is appealable under the Act of March 5, 1925; Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491; Powell v. Shepard, 381 Pa. 405, 113 A.2d 261.'

Therefore, if the lower Court had jurisdiction, its Order, which overruled appellant's preliminary objections in the nature of a demurrer, is not appealable, 'even though the reason given by the Court below to sustain its decision was erroneous: [citing cases]': Sherwood v. Elgart, 383 Pa. 110, 115, 117 A.2d 899, 63 A.L.R.2d 490. See to the same effect, Mitchell v. Marinelli, 356 Pa. 517, 521, 52 A.2d 203.

Appellants' preliminary objections also raise, as above noted, a jurisdictional question. The Act of March 5, 1925, P.L. 23, Section 1, 12 P.S. § 672, allows an appeal to determine preliminarily the question of jurisdiction of the Court over the defendant and over the cause of action, even though the appeal was from an interlocutory Order or Decree: Dozor Agency v. Rosenberg, 403 Pa. 237, 169 A.2d 771, supra; Gardner v. Allegheny County, 382 Pa. 88, 94-95, 114 A.2d 491; Strank v. Mercy Hospital of Johnstown, 383 Pa. 54, 117 A.2d 697, supra.

Appellants allege that the contracts between Seisel Construction Company and them specifically provides that all disputes arising under the said contracts shall be submitted to arbitration and therefore the lower Court presently lacks jurisdiction over the matter.

It is clear that an arbitration provision in a contract--irrespective of whether it is common law or statutory arbitration--does not affect the jurisdiction of the lower Court: Witney v. Lebanon City, 369 Pa. 308, 85 A.2d 106. In that case the Court said (pp....