Summary
In Binder v. Miller, 456 Pa. 11, 317 A.2d 304 (1974), the supreme court held in a per curiam opinion that disputes as to appropriate division do not raise jurisdictional issues.
Summary of this case from Balter v. BalterOpinion
Argued November 16, 1973
Decided March 25, 1974
Appeals — Interlocutory order — Order overruling preliminary objections which asserted that equity action should have been brought in Orphans' Court Division rather than Civil Trial Division.
Mr. Chief Justice JONES dissented.
Before JONES, C. J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Appeal, No. 279, Jan. T., 1973, from decree of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1972, No. 4353, in case of Fannie Binder v. Leonard Miller and Leah Miller, his wife, and Gerald Miller and Marilyn Miller, his wife, and Leonard Miller and Gerald Miller, administrators of the estate of Sarah Miller, deceased. Appeal quashed.
Equity.
Preliminary objections by defendants dismissed, opinion by HIRSH, J. Defendants appealed.
Joseph T. Coghlan, Jr. and Albert J. Bader, for appellants.
Harry J. Greenstein, for appellee.
This action in equity was filed in the Civil Trial Division of the Court of Common Pleas of Philadelphia. The defendants filed preliminary objections to the complaint challenging the "jurisdiction" of the Civil Trial Division to entertain the action and asserting "exclusive jurisdiction" was in the Orphans' Court Division. When these preliminary objections were overruled, the defendants filed this appeal under the provisions of the Act of March 5, 1925, P. L. 23, 12 Pa.C.S.A. § 672, as amended by the Act of July 31, 1970, P.L. 673, No. 223, Art. II, § 202, 17 Pa.C.S.A. § 211.202 (Supplement).
The issue presented is not one of jurisdiction. See Posner v. Sheridan, 451 Pa. 51, 299 A.2d 309 (1973). Hence, the appeal is not cognizable under the Act of 1925, supra. The decree entered in the trial court is interlocutory in nature from which the instant appeal does not lie.
Under § 502(c) of the Act of 1970, 17 Pa.C.S.A. § 211.502(c), this Court may grant a petition for allowance of appeal from an interlocutory order, but no such petition was filed in this case.
Appeal quashed. Each party to pay own costs.
Mr. Chief Justice JONES dissents.