Micklege v. Capozzi, Appeal, No. 5

Appeal, No. 5 | Pa. | Mar 25, 1974

Opinion

Per Curiam,

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.”)