Praisner v. Stocker
459 A.2d 1255
Pa. Super. Ct.
1983
Check Treatment

*1 459 A.2d 1255 PRAISNER, individual, Appellant, Bruce an STOCKER, individual, Fastuca, S. Olive Mike

an individual. Superior Pennsylvania. Court of

Argued Feb. 1983. April 1983. Filed Appeal Sept. Petition Allowance of Denied 1983. in which J., filed statement concurred Cavanaugh, JJ., Hoffman, joined. Popovich *4 Morava, appellant. Philadelphia, Mark W. for Abramson, W. Philadelphia, appellees. Howland for CERCONE, P.J., CAVANAUGH, WIEAND, Before and CIRILLO, POPOVICH, HOFFMAN, MONTGOMERY and JJ.

WIEAND, Judge: Does the rule of immunity from liability for judicial acts extend to justices? district This is the issue principal raised by in appeal the instant case. reaching Before that issue, however, we must first determine this whether Court has jurisdiction appeal. to hear the Our jurisdiction de- pends upon the of an order appealability entering summary judgments on two counts three of a count complaint where the three counts contained separate causes of action in the complaint pursuant 1044(a). same to Pa.R.C.P. a criminal complaint charging

After Bruce Praisner with checks issuing dismissed, bad had been Praisner filed a trespass in against district justice, Olive S. Stocker, counts, in alleging, three causes of action for false arrest, malicious abuse of process assault and battery. closed, After the pleadings were Stocker filed motion for judgment on the pleadings grounds on that a district justice is immune from for acts liability performed his or court, her as a capacity judicial officer. The trial following argument, entered of summary judgments favor Stocker on the alleging counts causes action for false arrest and order, malicious From process. abuse this Praisner appealed. remaining count alleging cause action battery compulsory assault and was ordered down for resulted in an arbitration and award favor of Praisner for award, ($10) Ten No was filed that appeal Dollars. expired. therefor has the time now only well settled from a It is will lie A otherwise final permitted by final order unless statute. or, usually litigation one ends alternative order is Greco, entire 483 Pa. Pugar of the case. ly, disposes Bracken, (1978); 72-73, Bracken v. 394 A.2d 371, 373, (1982); 1247-1248 Mitch 439 A.2d 350, 353, Cadillac, City ell v. Center 542, 544, (1981); Lee, Hall v. A.2d Ruland, 274 Pa.Su 178, 179 Malenfant “Conversely, an per. effectively puts final unless it interlocutory order is

337 v. Foy, ‘out of court’.” Giannini Pa.Super. 279 litigant v. Allessandro 338, 553, 556, (1980), citing 421 339 A.2d Co., 487 Pa. Mutual Auto. Ins. 274, State Farm 409 A.2d v. Tire Safety Corp. Tire (1979). Accord: 347 Hoffman Inc., Company, 834, (1974); 102, 103, Pa. 329 A.2d 835 458 Inc., Banda, Virginia Apartments, Inc. v. Manor James v. Stadler Mt. 408, 410, 925, (1973); 303 A.2d 926 451 Pa. Borough, 316, 318, 776, Oliver (1953); Pa. 95 A.2d 776 373 Moultrie, v. 252, 255, 1033, Jackson A.2d Pa.Super. 288 431 v. American States Insurance (1981); 1034-1035 Schaefer Co., 67, 69, 672, (1979). 414 673 Pa.Super. 272 A.2d ascertaining appealable

“In what is a final order ... we beyond adjudication must look the technical effect of the Moultrie, v. supra Jackson practical its ramifications.” 255, Pa.Super. 288 at 431 A.2d at 1034-1035. Accord: v. Pennsylvania Turnpike Commission Atlantic Richfield Co., T.C.R. 615, 618, 491, (1978); 482 Pa. 394 A.2d 493 Cox, Inc. v. Realty, 331, 337, 721, 472 Pa. 372 A.2d 724 Co., Bell v. Consumer Discount (1977); 465 Pa. Beneficial Husted v. Board of 225, 228, 734, (1975); 348 A.2d 735 District, Directors Wellsboro Area School 57 Pa. Giannini v. 520, 524, 272, (1981); A.2d Cmwlth. 427 274 Foy, supra 556, 339; at 421 A.2d Pa.Super. at Schaefer Co., v. American supra States Insurance at 70, 414 finality A.2d at 673. “The of an order is a judicial only conclusion which can be reached after an examination Greco, Pugar supra 73, of its ramifications.” 483 Pa. at Bell v. Consumer 545, quoting 394 A.2d at Beneficial Co., Discount supra 228, 465 Pa. at at 735. Accord: Pennsylvania Turnpike Commission v. Atlantic supra 618, 493; West 482 Pa. at 394 A.2d at Richfield West, 75, 76, (1982); 446 A.2d Gordon, Gordon v. 293 Pa.Super. 439 A.2d rule, general As a dismissing order some but not all counts of a multi-count complaint is interlocutory and Gordon, supra, Gordon v. appealable. 293 Pa.Superior Madden, Stengena v. (1981); at 439 A.2d at 686-687 364, 366, Mitchell Cadillac, City supra v. Center 287 Pa.Super. at *6 Vickers, v. Bagshaw 322; A.2d at 246, 249, 286 Pa.Super. Giannini v. Foy, supra 664, (1981); 428 A.2d 666 279 556, Pa.Super. at 421 A.2d at 339. An examination of the holding cases so discloses that the upon basis which this rule is founded is that general most instances when one dismissed, a complaint count of multi-count has been the plaintiff is not out of court and is not precluded from presenting the merits of his cause of action. In these cases the courts have adhered to a policy which seeks to avoid rule, piecemeal litigation. Following general this Court has also held that an will not lie from an order Milner, v. granting partial summary judgment. See: Swift Rohr v. 463, 467, 1144, (1982); 296 442 A.2d Pa.Super. 1146 Co., Insurance Keystone 179, 182, Pa.Super. 294 439 A.2d Ruminant Products v. J & Nitrogen Co. 809, (1982); 811 Inc., Co., M Machinery 144, Pa.Super. 294 439 A.2d 791 (1982); Inselberg Employers Companies, v. Mutual 291 v. American 406, (1981); Pa.Super. 435 A.2d 1290 Schaefer Co., supra. States Insurance However, rule not without general exceptions. is “out of put litigant literally orders which have not Certain litigation or terminated the have never completely court” aspects finality held to sufficient to possess theless been effect the order immediately because the appealable asserting the cause litigant preclude has been Insurance Donegal Hudock v. Mutual alleged. of action Co., 438 Pa. 668, Thus, 276, 272, 264 A.2d 671 (1) denying an order appealable: been held following have (Klemow Incorporated, 189, v. Time Pa. 466 class status denied, cert. 12, (Í976), 429 U.S. 14 n. 5 5,n. 352 A.2d 194 Bell v. (1976); 86, 91 828, L.Ed.2d 97 50 S.Ct. Beneficial Lee v. Child Care Service supra; Consumer Discount District, 641, County Institution Pa. 645 n. Delaware 461 (2) dismissing 586, (1975)); 1 an order n. 1, 588 337 A.2d Au Area Joint School (Brandywine party third Inc., VanCor, 240, 448, 451, 241 233 A.2d thority v. 426 Pa.

339 110, A.2d Borbonus, 257 390 (1967); Arnold v. 248 Company, Trust Pa.Su (1978); Harker v. Farmers 271 (1977)); (3) dismissing an order new 427, A.2d 171 per. (Posternack v. American in defendant’s answer matter 23-24, 21, 421 Pa. Reading, Casualty Company of 350, (1966); Home Insurance Com Pellegrine 51-52, (1962); 186 A.2d pany, 176 Pa.Su Company, v. New York Fire Insurance Higgs (4) 310, 311, (1954)); and an order 106 A.2d per. (Broido a defendant’s counterclaim v. Kinne dismissing 568, 569-570, (1954); man, Riling 101 A.2d 375 Pa. Idell, 472, 476, 140 A. Olivieri v. 291 Pa. Olivieri, 457, 462 n. 363 n. (1976)). *7 sepa three judice, appellant joined

In the case sub This he complaint. permit causes of action in one was rate 1044(a), not permits, to do which but does by ted Pa.R.C.P. in trespass of causes of action which require, joinder series of out of the same transaction or occurrence or arise entry or occurrences. The trial court’s transactions against appellant alleg on the counts summary judgments process effectively arrest and malicious abuse of ing false pursuing him from further the merits of these precluded such, judg and distinct causes of action. As separate final, him against interlocutory. ments entered were not Turnpike Commission v. Atlantic Pennsylvania Richfield against The of the entered supra. finality judgments not impaired by him on these causes of action was the fact separate there remained undetermined a action for battery. assault of the appealability summary judgments entered case if readily apparent

this becomes we understand the separate causes of action upon may basis 1044(a) complaint. permits, the same Pa.R.C.P. does but require, joinder of causes action which arise out of the same transaction or occurrence or series of transac- tions or occurrences.1 appellant If had not joined his three causes of action in one complaint but had used sepa- three rate complaints, as he might done, have there could be no doubt about the appealability judgments entered against him on two of the three causes of action. Should appeala- bility be by determined the form of the or pleading plead- ings by which a litigant three, chooses to state his separate causes of action? We think not!

The practical ramifications of the order entered by the trial court also demonstrate the finality of that order. Indeed, in this case the finality of the court’s order stands forth in clarity which only the occurrence of subsequent events produce. can The trial court recognized that summary judgments entered on two counts involved causes of action separate and distinct from the count averring assault battery. Therefore, as permitted by Pa.R.A.P. 1701(c),2the separate action for assault and battery was set down for compulsory arbitration. After it had been heard by a board of arbitrators an award was entered in favor of appellant against appellee ($10) for Ten Dollars. No appeal therefrom was filed by either party; and that action has now finally clear, determined. It therefore, seems that the the action for assault and battery should required not be support an appeal by appellant prior judgments on separate and distinct causes of *8 action for false arrest and malicious of-process. abuse On the contrary, these actions were determined finally when 1020(a), pertains assumpsit, permits joinder 1. Pa.R.C.P. the same of an indefinite number of causes of action which quasi-contractual. arise from contract or are affecting ‘separate “prevent[s] pending appeal This rule a from 2. ” separate subject disputes parties involving matter.’ other or between 97, 2, 1008, Pa.Super. Rolling Hospital, n. 437 A.2d Litt v. Hill (1981), 293 100 Institute, Pennsylvania Pennsylvania quoting Bar 1010 n. 2 1980-130) (Pub. Appellate No. Practice under the Rules of Procedure at 18.

341 summary judgments were entered thereon; and from such appeal must lie.3 judgments separate and distinct causes of Where action have permissive under standards of joinder Pa.R.C.P. 1020(a) 1044(a),the appealability judgment or Pa.R.C.P. of a entered on one or more but not all counts must be distin guished from the situation in which separate counts have been used to state alternate theories for on the recovery same cause of action. In the former situation the summary judgment litigation upon separate has terminated latter, distinct cause of action. In the an order dismissing or on entering judgment one or more but not all counts of a can, complaint is for the interlocutory, plaintiff neverthe less, proceed to determination on the cause of underlying Hess, action. See: J.A. & Inc. v. Hazle Township, W.A. 465, 470-471, 858, (1976). Thus, Pa. 350 A.2d 861-862 dismissal of a count alleging damages for breach of an express contract is not if appealable an alternate count seeking damages to recover the same on quantum based meruit Hess, remains undecided. J.A. & W.A. Inc. v. Hazle there Township, supra. Similarly, is no final order where a averring negligence count has been dismissed but there remains undetermined a count alleging for a liability defec tive product under (Sec Section 402A of the Restatement ond) reasons, of Torts. For similar where one of several counts seeks to punitive damages recover in a complaint alleging contract, breach a dismissal of that count does not put the plaintiff out of court on his underlying cause of action. if Only he is successful in his cause of action for breach of contract does the measure of damages become relevant. See: Safety Corp. Tire Compa- Tire Hoffman appeal delayed If 3. had been until after final determination of the action, battery untimely. assault and it would have been It is axio appeal thirty days matic that an entry must be filed within of the order or from which the is taken. Commonwealth v. Jones, (1982); Pa.Super. Tompkins, Boden v. (1982); 452 A.2d 833 Erie Human Relations Commis Exchange, sion ex rel. Dunson v. Erie Insurance (1982); Riebow, 450 A.2d Commonwealth v. 299 Pa.Su 458, 459, per. (1982); Weinrebe, 445 A.2d Hesson 216, 218, 903(a). Pa.R.A.P. *9 Inc., 103-104, supra 835; 458 Pa. at 329 A.2d at ny, Insurance, 399, Brandon v. State Farm Pa.Super. A.2d 1163 Gurnick v. Government In Employees 437, 2, 620, Pa.Super. surance 439 n. n. 2 The same separate result obtains where a count seeking punitive damages trespass in a action has been Madden, dismissed. See: Stengena supra v. 1270; Cadillac,

at 435 A.2d at Mitchell v. Center City 322; at 430 A.2d at v. supra Bagshaw 666; Vickers, at 428 A.2d at supra In cases such as these the Foy, supra. plain Giannini v. tiff not out of court when one of has is several counts been dismissed, is procedurally preferable delay appel and it to late review until the entire action has been determined. Supreme

The test announced the Court of the United by Corpora- v. Industrial Loan States Cohen Beneficial tion, (1949), and 69 S.Ct. 93 L.Ed. 1528 U.S. Pennsylvania the Court of Bell by Supreme followed and Pu- supra, Company, Consumer Discount Beneficial gar has Greco, has no supra, application where separate on a cause taken from entered rule, a three test for part That which contains action. to orders applicability only has determining appealability, Cohen, action. In to the main cause of which are collateral order, collateral to a of an appealability the issue was the action, to petition denied a stockholders’ derivative to cover defendant’s plaintiff post security to require unsuc- proved fees if action plaintiff’s and counsel expenses appealable the order held Supreme Court cessful. from, and “separable was adjudicated the claim because action, to important too to, in the rights asserted collateral the cause itself independent review and too denied until be deferred consideration appellate require at 69 S.Ct. 337 U.S. at Id. adjudicated.” case is whole In Bell v. Consumer at 1536. 93 L.Ed.2d Beneficial Pennsyl- Court Supreme supra, Company, Discount an order holding appealable test the Cohen applied vania cause underlying although action status class denying *10 orders, action had not of been decided. Such the Court said, “possess practical aspects of to sufficiently finality them appealable.” make Id. 465 Pa. at 348 A.2d at Greco, 736. Similarly, Pugar supra, applied the Court to quash appeal the Cohen test an from an order a denying request to be to appeal allowed from arbitration without payment the arbitrators’ fees and court costs. The order “indeed, was collateral to the it liability question, basic right involve a too to The important be denied review. [did] not, however, adversely order affect claimed right a [did] which be if irreparably lost post- review [would] [were] poned.” Id. 483 Pa. at 394 A.2d at 545.

These it decisions make clear that the Cohen test is applicable to determine only appealability the of an order is collateral to the main In action. instant the case we are not concerned with an order that is collateral to Rather, main action. we are faced with an order which has entered summary judgments on two separate and entirely independent which, actions for purposes of efficiency and convenience, joined complaint third, were the same awith separate action as permitted 1044(a). by Pa.R.C.P. The was, order the entering summary judgments as we have illustrate, to attempted a final and appealable determination separate actions for false arrest and malicious abuse of process. hold, therefore, where,

We here, that a final as judgment action, has entered on separate been cause of judgment is appealable.4 Neither nor finality ap- appealability judgment 4. The of an order or must be determined as of appeal appealed the time the is If therefrom filed. the order is interlocutory, appeal may quashed immediately upon motion. cases, jurisdiction See: Pa.R.A.P.1972. In such lack to entertain appeal interlocutory by an from the order cannot be corrected subse- quent jurisdiction events in the same action. How then can our appeal judgment entertain taken from an order or on one cause of by subsequent proceedings separate action be affected on a cause of Thus, case, action? The answer is that it cannot. in this it was the judgments from the final on causes of action for false arrest process subsequent proceedings and malicious abuse of and not on battery jurisdiction the action for assault and which vested in this pealability of such a judgment is destroyed merely because the cause of action on which was entered was one of several causes of action which had in the same pursuant 1044(a). to Pa.R.C.P. See: Penn- sylvania Turnpike Commission v. Atlantic Richfield Decisions of supra. this Court which have reached a contrary result are overruled. aspects substantive of the instant are case

fairly Judges absolutely clear. are immune from liability damages acts, when if performing judicial even their actions are in or performed error with malice. Stump 435 U.S. Sparkman, S.Ct. L.Ed.2d (1978), denied, 436 U.S. rehearing S.Ct. *11 “ (1978). L.Ed.2d 795 ‘A officer is not judicial liable for acts done in his there is not clear judicial capacity where a jurisdiction subject-matter per- absence of all over the and son, though even such acts constitute an excessive exercise jurisdiction of or involve a decision that the official had case, in he over the where fact had jurisdiction particular is that all offi- principle judicial none...... involved in liability their official character from protected by cers are tort, of public clearly pale of conduct within because legal er- although involving demonstrable authority, their ” 79 600 Cauffiel, ror.’ v. Commonwealth Juris, (emphasis supplied). 515 (1922), quoting Corpus 25 officers, judicial extends to all immunity Judicial juris “If a of an inferior judge including justices. district of law to hear and authority under power has the diction belongs, the cases, particular on to which offense pass protected he should be requires that reason same of action, exempts judges for erroneous liability If liability. from such general jurisdiction or superior can in the law most learned expected to be properly judges law, in the a blunderings for their exemption official plead should expected is to be less those from whom fortiori their mistakes damages respond to compelled be imprisonment false of the the determination Court to review process actions. abuse of malicious

345 honestly Petition, 48, 55-56, made.” McNair’s 324 Pa. (1936), A. quoting Commonwealth Cauffiel, supra, Pa.Superior at 600-601. Accord: Petition of 585, 590-591, 486 Pa. Dwyer, Slevin, (1898). Hanna v. “the immunity independence

Judicial insures magistrates so that they may free to exercise be their apply understanding law, discretion and their of the wheth erroneous, er correct to or the facts and circumstances presented supra them....” Petition Pa. Dwyer, at at (emphasis original). Thus, there can be no cause of action and no recovery damages against a who justice processes district a accepts crimi nal complaint though even a careful examination of the revealed, contends, evidence have may appellant as there was probable no cause for the criminal charges against Jensen, him. See: Huendling v. 168 N.W.2d 745 (Iowa, 1969). Similarly, there can no recovery of dam ages a against justice civil action district temporar who detains in his or her office or ily courtroom a person against whom criminal has been filed. See com pare: Towne, Burgess Wash.App. 538 P.2d 559 entering

The order summary judgments on causes of action for false arrest and of process malicious abuse is *12 affirmed.

CAVANAUGH, J., a concurring files statement in which HOFFMAN, JJ., POPOVICH and join.

CAVANAUGH, Judge, concurring: agree I the majority’s with thoughtful analysis of the law concerning multi-count I appeals complaints but feel unnecessary decide, it is and improper to under the facts of case, this of the issue whether an order entering summary

judgment on one or more but all counts of a multi-count complaint which several causes of action have 1044(a) pursuant to Pa.R.C.P. is always appealable. “An final thus appealable order is if it litigation, ends disposes of the entire or effectively puts litigant case the out of court.” Rogers Rogers, (1980) cases). notes, (citing majority As battery cause action assault and in the instant finally case has been determined and the counts re- only maining are those on which was en- summary judgment It is that appellant clear is now “out of court” tered. summary is, entering the order entirely, thus case, final, appealable order. this disposition I of the merits majority’s with the agree too, I, and therefore would affirm order instant of the lower court. HOFFMAN, JJ., concurring join this

POPOVICH statement. A.2d 1263 Pennsylvania, Appellant,

COMMONWEALTH Douglas BEALS. Jack Pennsylvania. Superior Court of 13, 1982. Submitted Oct. April 1983.

Filed Aug. 1983. Appeal Denied for Allowance of Petition