J-A05004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HORSHAM TOWNE ASSOCIATES                       IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JOHN HURLEY, T/A EDIBLES
RESTAURANT AND PUB

                        Appellant                   No. 608 EDA 2015


                 Appeal from the Order February 23, 2015
           In the Court of Common Pleas of Montgomery County
                    Civil Division at No(s): 2014-04519


BEFORE: OLSON, OTT, JJ. and STEVENS,* PJE.

MEMORANDUM BY OLSON, J.:                           FILED MARCH 30, 2016

     Appellant, John Hurley, t/a Edibles Restaurant and Pub, appeals from

the order entered on February 23, 2015, granting a motion for judgment on

the pleadings filed by Horsham Towne Associates (Horsham) and dismissing

Appellant’s new matter and counterclaim with prejudice. Because the order

appealed from is interlocutory, we are constrained to quash the appeal.

     The trial court briefly summarized this case as follows:

        On or about November 1, 2004, [Horsham] and Appellant
        entered into an agreement of lease whereby [Horsham]
        leased a property to Appellant in the Horsham Square
        Shopping Center. On March 3, 2014, [Horsham] filed a
        complaint against Appellant which raised claims [of] breach
        of lease and [made a] demand for possession in conjunction
        with Appellant’s alleged failure to make payments under the
        lease[.] On March 24, 2014, Appellant filed preliminary
        objections, which [the trial court] overruled by order dated
        June 13, 2014. On July 2, 2014, Appellant filed an answer,

*Former Justice specially assigned to the Superior Court.
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        new matter and counterclaim to the complaint. Appellant’s
        counterclaim[] raised claims of breach of lease and breach
        of the covenant of quiet enjoyment. On October 14, 2014,
        [Horsham] filed a motion for judgment on the pleadings
        and, on February 11, 2015, [the trial court] held oral
        argument on [Horsham’s] motion. During oral argument,
        Appellant’s counsel informed the court that his client no
        longer occupied the leasehold.

        On February 23, 2015, [the trial] court entered an order
        which: (1) granted [Horsham’s] motion for judgment on
        the pleadings with respect to Appellant’s liability for breach
        of lease, (2) deemed [Horsham’s] motion with respect to
        the demand for possession of the leasehold [] moot and (3)
        dismissed Appellant’s new matter and counterclaim with
        prejudice. Further, [the trial] court deferred any decision
        related to damages and made it incumbent on the parties to
        inform the court when they were ready to proceed with a
        determination of the damage amount. Appellant filed a
        timely notice of appeal on March 3, 2015. [The trial court
        issued an opinion pursuant to Pa.R.A.P. 1925(a) on March
        27, 2015.]

Trial Court Opinion, 3/27/2015, at 1-2 (unnecessary capitalization omitted).

Pertinent to this appeal, in its Rule 1925(a) opinion, the trial court opines

that the order appealed from is interlocutory, because it did not dispose of

all of the issues, as the trial court has not yet awarded damages. Id. at 2-4.

Thus, the trial court requests that the instant appeal be quashed. Id. at 5.

For the reasons that follow, we agree.

     On appeal, Appellant presents the following issues for our review:

        1. Did the court below commit reversible error and abuse
           its discretion in granting judgment on the pleadings on
           the issue of liability of [Horsham] to [Appellant]?

        2. Did the court below commit reversible error and abuse
           its discretion in granting judgment on the pleadings [] in



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             dismissing [Appellant’s] new matter and counterclaim[]
             with prejudice?

         3. Was the [trial] court’s order granting judgment on the
            pleadings on [Horshaw’s] complaint on liability, and on
            [Appellant’s] new matter and counterclaim by dismissal
            with prejudice[,] appealable?

Appellant’s Brief at 3 (unnecessary capitalism omitted).

       Initially, prior to reaching the merits of any appeal, this Court must

“first ascertain whether the order appealed from is properly appealable.”

McGrogan v. First Commonwealth Bank, 74 A.3d 1063, 1074 (Pa. Super.

2013) (citations omitted).          Indeed, since the question of appealability

implicates the jurisdiction of this Court, the issue may be raised sua sponte.

Id. (citation, quotations and brackets omitted).

Thus, we will address Appellant’s third issue first.

       Generally, this Court's jurisdiction “extends only to review of final

orders.[1]” Id. (citations omitted).           “A final order is any order that: (1)

disposes of all claims and of all parties; or (2) is expressly defined as a final

order by statute; or (3) is entered as a final order pursuant to subdivision

(c) of this rule.”     Pa.R.A.P. 341(b).         Here, however, Appellant does not

contend that the order in question was statutorily defined as final or that the
____________________________________________


1
  Our rules of appellate procedure also allow for the appeal of interlocutory
appeals as of right, interlocutory orders by permission, collateral orders, and
orders specifically deemed final by the trial court. See Pa.R.A.P. 311, 1311,
313, and 341(c). These rules are inapplicable in the case sub judice as
Appellant claims “the [o]rder of [c]ourt granting [Horsham’s] [m]otion for
[j]udgment on the [p]leadings is a final appealable order.” Appellant’s Brief
at 12 (emphasis supplied).



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J-A05004-16



trial court certified the order as final under Pa.R.A.P. 341(c).     Thus, we

must determine whether the order at issue was final as defined under Rule

341(b)(1).

      Our decision in Swift v. Milner, 442 A.2d 1144 (Pa. Super. 1982) is

instructive. In that case, Swift filed a complaint against Milner for breach of

an agreement to purchase properties, along with three other investors, at a

tax sale. Milner filed an answer and new matter. Swift filed a motion for

judgment on the pleadings. When Milner’s attorney failed to file a response

within the time allotted under the local rules in effect at the time, the trial

court deemed Swift’s motion unopposed.        Thus, the trial court in Swift

entered judgment in Swift’s favor, “but ordered that a trial should be held

limited to the question of the value of the real estate to determine the value

of [Swift’s] one-fifth interest.” Swift, 442 at 1145. Examining similar law

as it pertains to partial motions for summary judgment, the Swift court

determined that an order determining liability, but not fixing damages is

interlocutory and not appealable:

        We believe that the instant appeal is from an interlocutory
        order and that the postponement of appeal until after final
        judgment will not result in irreparable loss of the right
        asserted. Moreover, were we to consider the merits of the
        appeal at this juncture, and were we to affirm the action of
        the lower court, the case would go back [] for trial on the
        issue of damage which is a part of the order [at issue].
        Following a determination of damages, the case could again
        come back to us on appeal. […T]he reason for prohibiting
        appeals from interlocutory orders, such as the instant order,
        is to preclude piecemeal determinations and the consequent
        protraction of litigation.


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J-A05004-16



Swift, at 1146. The same applies here.

      Appellant, however, argues that the dismissal of his counterclaim was

a final decision and appealable pursuant to our decision in Fidelity Bank v.

Duden, 521 A.2d 958 (Pa. Super. 1987) (en banc).               More specifically,

Fidelity Bank held:

        An order summarily dismissing a counterclaim puts a party
        out of court on his or her counterclaim. Such an order, the
        Supreme Court has held, is final and appealable. […]If an
        order adjudicates an action finally, it is appealable.
        Conversely, if the order does not determine the action
        finally, it is interlocutory and generally nonappealable.

Fidelity Bank, 521 A.2d at 960.

      However, as the trial court noted, Pa.R.A.P. 341 was amended

effective July 16, 1992, after our Court rendered the Fidelity Bank decision.

Trial Court Opinion, 3/27/2015, at 4 n.1. “The 1992 amendment generally

eliminates appeals as of right under Rule 341 from orders not ending the

litigation as to all claims and as to all parties.”      Pa.R.A.P. 341, note.

“Formerly, there was case law that orders not ending the litigation as to all

claims and all parties are final orders if such orders have the practical

consequence of putting a litigant out of court.” Id. The note to Rule 341

further “includes a partial list of orders previously interpreted by the courts

as appealable as final orders under Rule 341 that are no longer appealable

as of right” which includes “an order dismissing a counterclaim but leaving

pending the complaint which initiated the action[.]”     Id.    Here, Appellant

does not challenge the trial court’s reliance on Rule 341. The order at issue


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J-A05004-16



dismissed Appellant’s counterclaim, but a decision on damages is still

pending. Because all of the claims regarding all of the parties have not been

resolved, the trial court’s order entered on February 23, 2015 was

interlocutory.   Hence, we quash the appeal.     Having determined we lack

jurisdiction, we do not reach the merits of Appellant’s remaining claims.

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2016




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