Opinion
Argued October 1, 1973
Decided March 25, 1974
Appeals — Interlocutory order — Order sustaining preliminary objections without dismissing complaint or granting leave to amend is nonappealable.
Before JONES, C. J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Appeal, No. 5, March T., 1972, from order of Court of Common Pleas of Washington County, No. 6619, in case of Matthew Micklege, Jr., and Mable Micklege, his wife v. John V. Capozzi and Margaret Capozzi, his wife; 256, Inc., a Pennsylvania Corporation, and Overbrook Savings and Loan Association of Pittsburgh, a Pennsylvania Corporation. Appeal quashed and case remanded.
Equity.
Preliminary objections by defendants, Capozzi and 256, Inc., to plaintiffs' amended complaint sustained, order and opinion by SWEET, P. J., MARINO and DiSALLE, JJ. Plaintiffs appealed.
Milton D. Rosenberg, with him W. Bryan Pizzi, II, and Bloom, Bloom, Rosenberg Bloom, for appellants. Robert L. Ceisler, with him Patrono, Ceisler, Edwards Pettit. for appellees.
The decree of the Court of Common Pleas of Washington County, sustaining the preliminary objections of defendants Capozzi and 256, Inc., appellees, neither dismissed the complaint nor granted the plaintiffs leave to amend it. Accordingly, it is not a final decree from which an appeal can be taken. Cherry v. Empire Mutual Insurance Co., 417 Pa. 7, 10, 208 A.2d 470, 471 (1965). The appeal, therefore, is quashed and the case is remanded to that court for a final disposition. Each party to pay own costs.
We note also that the trial court made no finding as to the status of the judgment at law on the basis of which it sustained the preliminary objections nor as to the position of said judgment relative to the mortgage lien of defendant Overbrook Savings and Loan Association. (See Pa. R. C. P. 1028(c): "If an issue of fact is raised, the court shall take evidence by deposition or otherwise.")