holding that in absence of appropriate order of finality under Rule 341(c), appeal must be quashed from order dismissing complaint as to three defendants but leaving claims against two other defendants
How later courts described this case
- holding that in absence of appropriate order of finality under Rule 341(c), appeal must be quashed from order dismissing complaint as to three defendants but leaving claims against two other defendants
- quashing appeals where order did not dismiss all defendants and finality determination under 341(c) was not pursued notwithstanding the fact that two remaining defendants had filed for federal bankruptcy protection
- finding trial court order which dismissed claims against three of five defendants named in complaint, but did not extend to two remaining defendants, was not final appealable order
- concluding that otherwise proper appeal proceedings may go forward against non-bankrupt parties
Written by the judges who cited it.
The opinion
CIRILLO, President Judge Emeritus,
dissenting:
Because I cannot agree with the conclusion reached by the majority in this case, I must respectfully dissent. Specifically, I hesitate to align myself with the majority’s narrow application of Rule 341 of the Pennsylvania Rules of Appellate Procedure.
This case involves an appeal of the trial court’s dismissal, with prejudice, of the complaint filed by appellants/ plaintiffs Prelude, Inc., Grant Waldman, Robert Madrick, and Alex Febles (referred to collectively as “Prelude”) as against appellees/defendants, Dan *425 iel Laurence Rubini, Esquire, Lawrence R. Scheetz, Esquire, and Williams & Scheetz, P.C. (referred to collectively as attorney appellants). Pursuant to Pa.R.AP. 341, 1 the dismissal of those defendants is not an ap-pealable order because it leaves two defendants against whom Prelude could proceed, namely, M. Dolores Jorcyk and Barbary Coast, II, Inc. In this case, however, the two defendants who remain have filed for federal bankruptcy protection, which triggers an automatic stay of proceedings against the party who has filed. 11 U.S.C. § 362 (a). 2 At the present time, therefore, Prelude is precluded from proceeding against anyone until Jorcyk and Barbary have been discharged from bankruptcy.
The majority has concluded that because Prelude has not availed itself of Pa.R.AP. 341(c), whereby the trial court can certify an order affecting fewer than all claims as final and make review the present appeal. 3 I cannot agree.
Rule 105(a) of the Pennsylvania Rules of Appellate Procedure states that:
These rules shall be liberally construed to secure the just, speedy and inexpensive determination of every matter to which they are applicable. In the interest of expediting decision, or for other good cause shown, an appellate court may, except as otherwise provided in Subdivision (b) of this rule, disregard the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction.
Pa.R.AP. 105(a), 42 Pa.C.SA. It is a general rule in this Commonwealth that orders dismissing some, but not all, counts of a multi-count complaint are interlocutory and not immediately appealable. Bell v. State Farm, 430 Pa.Super. 435 , 634 A2d 1137 (1993). In this case, however, Prelude’s opportunity to proceed against anyone has been foreclosed by a combination of the trial court’s dismissal of the complaint as against the attorney defendants, and the subsequent mandatory stay of proceedings against Jorcyk and Barbary due to federal bankruptcy law. While I realize that Rule 341 was amended to stem the flood of cases appealing “final” orders, the result in this ease is inequitable.
In Filipovich v. J.T. Imports, Inc., 431 Pa.Super. 552 , 637 A2d 314 (1994), this court held that an order sustaining the preliminary objections of one of two defendants, was immediately appealable, even though the order constituted a dismissal of less than all parties. The rationale behind this decision was that the remaining party, a foreign corporation, in all likelihood could not be served; therefore, the effect of the grant of the preliminary objection was to terminate the litigation. Id. at 554 n. 1, 637 A.2d at 315 n. 1.
A liberal construction of Rule 341 allows for a similar result in the instant case. Although the certified record does not indicate under what chapter or chapters of the Bankruptcy Code Jorcyk and Barbary filed, their discharge could take up to five years, See 11 U.S.C. § 1322 , during which time Barbary could be dissolved and Jorcyk could move out of the jurisdiction of the court. The effect of the trial court’s order is to terminate the litigation indefinitely.
Because Prelude has, in effect, been put out of court, I believe that an immediate *426 appeal from the trial court’s order is warranted.
FORD ELLIOT, J., joins.
. Section 341 of the Pennsylvania Rules of Appellate Procedure, entitled Final Orders; Generally, states:
(a) General Rule. Except as prescribed in subdivision (d), and (e) of this rule, an appeal may be taken as of right from any final order of an administrative agency or lower court.
Pa.R.A.P. 341, 42 Pa.C.S.A.
. Section 362 of the Bankruptcy Code provides: (a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title operates as a stay, applicable to all entities, of—
(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title[.]
11 U.S.C. § 362 (a)(1).
.Of the numerous cases cited by the majority, none involves the unique set of facts with which we are presented here.