220 Pa. Super. 427 | Pa. Super. Ct. | 1972
Opinion by
These appeals are taken from an order sustaining preliminary objections filed by defendant, Crossgates, Inc. No further action was taken by the court below and, after analysis of the pleadings, we find the order interlocutory and quash the appeals.
Plaintiffs purchased a house and lot from Cross-gate, Inc., a residential developer. The deed to the property was delivered to plaintiffs on June 10, 1966. Because of alleged defects in the construction and an
In its opinion the lower court held that the theory of implied warranty of fitness for a particular purpose should not be applied to a dwelling or any other realty and that the doctrine of strict liability does not apply to the purchase of homes. The court recognized that in building contracts there is an implied agreement on the part of the seller-builder that his construction shall be done in a workmanlike manner and that defendants would be liable for negligence in construction. The court said nothing about the intended effect of its order on the various complaints.
The appealability of an order goes to the jurisdiction of the appeals court and may be raised by the court sua sponte. McGee v. Singley, 382 Pa. 18, 114 A.2d 141 (1955). "As a general rule, an order which sustains preliminary objections in the nature of a demurrer without dismissing the complaint or entering judgment or otherwise terminating the action between the parties is interlocutory and, therefore, lacks the requisite finality to be an appealable order. Where, however, the order does, in effect, terminate the action between the parties, or so restricts the pleader with respect to further amendment of his complaint as virtually to put him out of court on the cause of action he seeks to
We are compelled to conjecture as to the exact effect of the court’s order. Are the plaintiffs out of court on all claims except those based on negligence? Or are they still in court on their assertion of an implied -warranty that the house would be constructed in a good and workmanlike manner? Was it possibly the intention of the court that the plaintiffs would be permitted to amend in any respect? The court below does not mention the alleged warranty of compliance with township ordinances. Under these circumstances we are unable to determine the effect of this order on the plaintiffs. The order cannot be considered definitive and final until further action is taken by the court below.
Appeals quashed.