J-S07008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 ALAN B. ZIEGLER                          :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 COMCAST CORPORATION D/B/A                :   No. 1431 MDA 2018
 COMCAST BUSINESS                         :

              Appeal from the Order Entered August 7, 2018
   In the Court of Common Pleas of Berks County Civil Division at No(s):
                               18-00353


BEFORE:    OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY OLSON, J.:                 FILED: MARCH 27, 2019

      Appellant, Alan B. Ziegler, appeals from the order entered on August 7,

2018, which sustained in part and overruled in part the preliminary objections

filed by Comcast Corporation d/b/a Comcast Business (hereinafter “Comcast”)

and which dismissed Appellant’s action without prejudice, so that Appellant

could refile in the magisterial district court. We quash this appeal.

      The trial court ably summarized the facts underlying this appeal:

        [On June 18, 2018, Appellant filed a complaint against
        Comcast. Within the complaint, Appellant] alleged that[,] in
        July 2017, he began negotiating with a business account
        executive of [Comcast] to switch his telephone and internet
        service to [Comcast] from another provider.             During
        negotiations, [Appellant] insisted that the sales tax and other
        fees be included in the negotiated sum for telephone and
        internet services to establish a monthly amount certain on
        the billing of his account. [Appellant] alleged that the
        account executive estimated the sales taxes and other fees
        to be approximately ten percent of the contract price.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        [Appellant] claimed that on July 24, 2017, [Comcast] sent
        [him] a writing confirming that the monthly charges were
        $204.65 (which amount [Appellant] insists included taxes
        and fees), plus a one-time installation charge of $119.80. . .
        .

        Starting in October 2017 [Comcast] billed [Appellant]
        $204.65 plus taxes and fees. [Appellant] only paid the
        $204.65 and refused to pay the taxes and fees. This
        continued [in subsequent billings – with Appellant] only
        pa[ying] the estimated monthly charges and not the
        applicable taxes and fees. . . .

        On April 6, 2018, [Comcast] shut off [Appellant’s] services
        because the bills were not being paid in full. [Appellant]
        made his regular $204.65 monthly payment and the services
        were restored. [Appellant’s] services were shut off again on
        April 11, 2018 and [Appellant] filed an emergency injunction
        requesting that [Comcast] be ordered to turn on and leave
        on [Appellant’s] services pending further order of court. The
        injunction was granted on April 11, 2018. On June 18, 2018,
        [Appellant] filed a complaint against [Comcast] demanding
        damages "in excess of $50,000." The complaint assert[ed]
        three causes of action: at Count I, breach of contract; at
        Count II, fraud; and[,] at Count III, negligent
        misrepresentation. . . .

Trial Court Opinion, 10/3/18, at 1-3 (some internal capitalization omitted).

      Comcast responded to Appellant’s complaint by filing preliminary

objections. The preliminary objections were on the following grounds: 1) in

the nature of a demurrer to Appellant’s breach of contract claim because “the

contract expressly provides that taxes and fees are not included in the

estimated monthly price;” 2) in the nature of demurrers to the fraud and

negligent misrepresentation claims, as the claims are barred by the gist of the

action doctrine; and 3) a demand to compel arbitration, unless the trial court

should determine that Appellant’s “claims fall within the jurisdictional limits of


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J-S07008-19



the small claims court.”1 See Comcast’s Preliminary Objections, 7/9/18, at 1-

12.

       On August 7, 2018, the trial court entered an order sustaining in part

and overruling in part Comcast’s preliminary objections. Specifically, the trial

court:   overruled Comcast’s demurrer to the breach of contract (Count I)

claim; sustained Comcast’s demurrers to the fraud (Count II) and negligent

misrepresentation (Count III) claims, thus dismissing Counts II and III; and,

overruled Comcast’s demand to compel arbitration. Trial Court Order, 8/7/18,

at 1-2. Further, the trial court’s order declared:

         because the tort claims are being dismissed, this case should
         be filed with the magisterial district justice as the amount in
         controversy on the alleged breach of contract claim is
         $445.66, the amount of taxes and fees in dispute. . . .

         It is further ORDERED that this matter is DISMISSED
         WITHOUT PREJUDICE to refiling before the magisterial
         district justice.

Id. at 2 (internal paragraph numbering and some internal capitalization

omitted).

       On August 27, 2018, Appellant filed a notice of appeal from the trial

court’s August 7, 2018 order. We now quash this appeal.


____________________________________________


1 Within the preliminary objections, Comcast claimed that “there is a valid
agreement to arbitrate between the parties, and [Appellant’s] claims . . . fall
squarely within the arbitration provision. The only way [Appellant] can avoid
arbitration is if he opted out of the arbitration requirement, which he did not,
or if his claims fall within the jurisdictional limits of the small claims court.”
Comcast’s Preliminary Objections, 7/9/18, at ¶¶ 29-30 (internal paragraphing
and citations omitted).

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       As we have explained, this Court is obligated to “first ascertain whether

the [order appealed from] is properly appealable, because the question of

appealability implicates the jurisdiction of this [C]ourt.” Commonwealth v.

Borrero, 692 A.2d 158, 159 (Pa. Super. 1997). “The general rule is that,

unless otherwise permitted by statute, only appeals from final orders are

subject to appellate review.” Commonwealth v. Sartin, 708 A.2d 121, 122

(Pa. Super. 1998). In relevant part, Pennsylvania Rule of Appellate Procedure

341 defines a “final order” as any order that “disposes of all claims and of all

parties.” Pa.R.A.P. 341(b)(1). Further, as this Court has held, “for finality to

occur, the trial court must dismiss with prejudice the complaint in full.” Mier

v. Stewart, 683 A.2d 930, 930 (Pa. Super. 1996) (emphasis added).

       In the case at bar, although the trial court sustained Comcast’s

demurrers to the fraud and negligent misrepresentation claims, the trial court

overruled Comcast’s demurrer to the breach of contract claim – thus

permitting that claim to survive. Trial Court Order, 8/7/18, at 1-2. Further,

after determining that the amount in controversy was within the jurisdiction

of the magisterial district court, the trial court declared that Appellant’s

complaint was “dismissed without prejudice to refiling before the magisterial

district justice.”2 Id. at 2 (internal emphasis omitted).


____________________________________________


2 We do not have subject matter jurisdiction over this appeal and, thus, we
may not pass upon the merits of the case. However, we point the trial court
to 42 Pa.C.S.A. § 5103 (concerning transfer of erroneously filed matters).


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       Therefore, in this case, the trial court’s August 7, 2018 order did not

“dispose[] of all claims and of all parties,” as Appellant’s breach of contract

claim is still viable and any dismissal of Appellant’s complaint was “without

prejudice.” See Pa.R.A.P. 341(b)(1). Nevertheless, Appellant did not file an

amended complaint and Appellant did not do what was required to create a

final, appealable order in this case, such as filing a praecipe to dismiss his

complaint with prejudice.        See Hionis v. Concord Twp., 973 A.2d 1030,

1035–1036 (Pa. Cmwlth. 2009) (explaining procedure to obtain a final order

where the trial court dismisses a complaint without prejudice, but where the

plaintiff either does not wish to or does not timely comply with the trial court's

order to amend the complaint); Chamberlain v. Altoona Hosp., 567 A.2d

1067, 1069–1070 (Pa. Super. 1989) (same). Instead, Appellant filed a notice

of appeal from the trial court’s interlocutory, August 7, 2018 order.3

       Further,    while    interlocutory      orders   are   appealable   in   certain

circumstances, none of those circumstances applies to the case at bar. Our

Supreme Court has explained:
____________________________________________


3 We note that the interlocutory nature of the trial court’s order is not altered
by the fact that the 20-day time-frame granted to Appellant to file an amended
complaint has expired. See Hionis, 973 A.2d at 1036 (“It should be noted
that an order sustaining preliminary objections often grants the plaintiff leave
to amend within a time certain or suffer dismissal. Such an order is
interlocutory and never will become appealable, because it is a mere direction
that an order be entered at some time in the future, unaccompanied by actual
entry of the specified order in the docket. In order to appeal such an order,
the plaintiff must allow the period for amendment specified in the lower court's
order to expire, and then praecipe the lower court clerk to enter an order
dismissing the complaint”) (quoting 20 G. RONALD DARLINGTON, ET AL.,
PENNSYLVANIA APPELLATE PRACTICE § 301:19 (2008-2009)) (emphasis omitted).

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        in addition to an appeal from final orders of the Court of
        Common Pleas, our rules provide the Superior Court with
        jurisdiction in the following situations: interlocutory appeals
        that may be taken as of right, Pa.R.A.P. 311; interlocutory
        appeals that may be taken by permission, Pa.R.A.P. [312];
        appeals that may be taken from a collateral order, Pa.R.A.P.
        313; and appeals that may be taken from certain distribution
        orders by the Orphans' Court Division, Pa.R.A.P. 342.

Commonwealth v. Garcia, 43 A.3d 470, 478 n.7 (Pa. 2012) (internal

quotations omitted), quoting McCutcheon v. Phila. Elec. Co., 788 A.2d 345,

349 n.6 (Pa. 2002).

     Here, the challenged order is not defined as appealable as of right (per

Pa.R.A.P. 311), Appellant did not ask for or receive permission to appeal the

interlocutory order (per Pa.R.A.P. 312), and Appellant has not provided this

Court with any argument as to whether – or how – the order could satisfy the

collateral order doctrine (per Pa.R.A.P. 313). Thus, since we do not have

jurisdiction over this appeal, we are required to quash the appeal. See 42

Pa.C.S.A. § 742.

     Appeal quashed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:03/27/2019




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