McConnell v. Schmidt

Opinion by

Jacobs, J.,

Dissenting In Part :

This appeal was brought from the order of the court below certifying the issue of paternity for determination by the civil division of the court of common pleas in a jury trial. In my view, an appeal from such an order is interlocutory and should not be considered by this Court either as a matter within our discretion, 1 as the majority holds, or as a question of jurisdiction. 2

In the present case, the complainant initially filed a civil complaint for support of her three children, naming appellant as defendant, in 1967. At that time the children were four, eight and ten years of age. The allegation in the complaint was that the defendant had not contributed to the support of these children for the preceding five years. A hearing was held on January 10, 1974. At the hearing, counsel for appellant entered on behalf of his *416 client a denial of paternity and preliminarily objected to the jurisdiction of the court to hear the paternity issue. The lower court reserved its decision on the question of jurisdiction and heard the testimony of the complainant. The defendant did not testify but through his counsel cross-examined the complainant. Subsequently, an order was entered denying the defendant-appellant’s motion to dismiss for lack of jurisdiction, and granting a jury trial in the civil division of the court of common pleas to determine paternity. It was further ordered that should there be a finding of paternity, the matter would be returned to the family division to establish the amount of support. An appeal from the order was brought to this Court challenging the lower court’s finding of jurisdiction and certification of the issue to the civil division.

Under the Appellate Court Jurisdiction Act, this Court has exclusive jurisdiction of appeals from final orders of the courts of common pleas which are not within the exclusive jurisdiction of the Supreme or Commonwealth Courts. Act of July 31, 1970, P.L. 673, art. III, §302, 17 P.S. §211.302 (Supp. 1974-75). If authorized by law, an appeal can be taken from an interlocutory order to an appellate court which would have jurisdiction over a final order in the same matter. Act of July 31, 1970, P.L. 673, art. V, §501 (a), 17 P.S. §211.501 (a) (Supp. 1974-75). The standard accepted for determining appeal-able orders under the Act has been stated: “ ‘unless a special right to appeal is expressly given by statute, an appeal will lie only from a definitive order, decree, or judgment which finally determines the action.’ ” Brown Estate, 446 Pa. 401, 406 , 289 A.2d 77, 79 (1972). (emphasis original), quoting from Stadler v. Mt. Oliver Borough, 373 Pa. 316, 317-318 , 95 A.2d 776 (1953). Finality of an order or judgment is found when it effectively puts a defendant “out of court,” by precluding the proof of facts at trial which could provide a complete defense, Ventura v. Skylark Motel, Inc., 431 Pa. 459 , 246 *417 A.2d 353 (1968), or it otherwise terminates litigation between the parties by precluding either party from further action in that court. Marino Estate, 440 Pa. 492 , 269 A.2d 645 (1970). Since the appeal in the present case is from an order certifying the question for trial in the civil division, and the defendant-appellant is clearly not deprived of his day in court, the appeal is interlocutory and cannot be reviewed by this Court unless allowed by some express statutory authority.

The question therefore becomes whether the non-final order below falls within a specific statutory provision allowing appeals from interlocutory orders. Those members of the Court who would hear this appeal adopt the position that an appellate court can allow an appeal from an interlocutory order as a matter within its discretion. Two sections of the Appellate Court Jurisdiction Act permit an appellate court to exercise its discretion to accept an appeal. One, the Act of July 31, 1970, P.L. 673, art. V, §501 (b), 17 P.S. §211.501 (b) (Supp. 1974-75) 3 allows appeals from interlocutory orders when the lower court has certified the question for appeal by stating in the interlocutory order itself that a controlling question of law is involved. The order in the present case contains no such certification, but simply transfers the issue to the civil division for a jury trial. Therefore, this section does not aid the appellate court in taking jurisdiction of this case.

*418 An appellate court is permitted to use its discretion in accepting an appeal under another section of the Appellate Court Jurisdiction Act. This section provides: “[t]he failure of an appellee to file an objection to the jurisdiction of an appellate court on or prior to the hearing of the appeal... shall, unless the appellate court shall otherwise order, operate to perfect the appellate jurisdiction of such appellate court, notwithstanding any provision of this act. . . vesting jurisdiction of such appeal in another appellate court.” Act of July 31, 1970, P.L. 673, art. V, §503(a), 17 P.S. §211.503(a) (Supp. 1974-75). Although the appellee in the present case failed to object to our Court’s jurisdiction of this appeal, it is my opinion that this section is not applicable to the present case. It appears from the wording of the section that an appellate court may accept an appeal which has not been objected to on jurisdictional grounds when the subject matter of that appeal may be within the jurisdiction of another appellate court. This section does not expressly give an appellate court the discretion to accept an interlocutory appeal absent certification from the court below. I would limit the application of the section to appeals from final orders where the question of jurisdiction between the appellate courts has not been raised, and allow an appellate court’s discretionary acceptance of a properly appealable question to perfect its jurisdiction even if the appeal should have been brought to another appellate court.

Both before and after the passage of the Appellate Court Jurisdiction Act, the courts of this Commonwealth have held that the express authorization of law is required to allow an appeal from an interlocutory order. See Brown Estate, supra; Philadelphia v. William Penn Business Institute, 423 Pa. 490 , 223 A.2d 850 (1966) ; Weste v. Grayson-Robinson Stores, Inc., 417 Pa. 6 , 207 A.2d 851 (1965). Even consent of the parties does not give an appellate court jurisdiction of an interlocutory *419 appeal absent a special right granted by statute. Stadler v. Mt. Oliver Borough, 373 Pa. 316 , 95 A.2d 776 (1953). Statutes ordinarily recognized as permitting interlocutory appeals from non-final orders are the Act of March 5, 1925, 4 (a question of jurisdiction is appealable), and section 501(b) of the Appellate Court Jurisdiction Act 5 (Acceptance of appeal within appellate court’s discretion when certified by lower court). See Philadelphia v. William Penn Business Institute, supra; Commonwealth v. Guardiani, 226 Pa. Superior Ct. 435 , 310 A.2d 422 (1973).

My research does not reveal a single decision where section 503(a) of the Appellate Court Jurisdiction Act was relied upon as the basis for an appellate court’s exercise of discretion to accept an interlocutory appeal. To now permit such liberty would be contrary to the intent of the Act. As has been indicated above, the Act has provided for discretionary allowance of interlocutory appeals when the question is certified by the lower court. The parties are protected against harm that might result from the delay occasioned by such interlocutory appeal by the provision in that section that “ [a] petition for an allowance of an appeal under this subsection shall not stay the proceedings before the lower court . . . unless the lower court. . .or the appellate court or a judge thereof shall so order.” Act of July 31, 1970, P.L. 673, art. V, *420 §501 (b), 17 P.S. §211.501 (b) (Supp. 1974-75). It would appear at least inconsistent that acceptance of interlocutory appeals would be so narrowly confined and controlled in one section, only to be liberally permitted in another. No protection against the suspension of litigation below is provided in section 503(a). The parties could in effect consent to the appellate court’s taking jurisdiction of interlocutory appeals, a practice never permitted previously, 6 by not raising objections. This practice would encourage a multiplicity of appeals from non-final orders, brought in hopes of the appellate court’s acceptance of jurisdiction, thus inviting unending litigation. In my view, the general authorization provided for in section 503(a), allowing discrétionary acceptance of appeals rightfully in the jurisdiction of other appellate courts, should not be stretched to allow for the discretionary acceptance of interlocutory appeals.

It is appellant’s further contention that the lower court lacks the jurisdiction to determine the question of paternity in a civil hearing. A question of the jurisdiction of a lower court, which has been determined by that court, can be appealed even though it is interlocutory. Act of March 5, 1925, P.L. 23, §1, 12 P.S. §672 (1953). However, the question whether a case is to be heard by the civil division of the court of common pleas or whether it is to be decided in the criminal division in the same court is not a question of jurisdiction which can be the subject of an interlocutory appeal to this Court under the Act of March 5,1925.

Before the 1968 amendment to the Pennsylvania Constitution, jurisdiction of disputes involving support of illegitimate children in which the putative father denied a parental relationship was in the quarter sessions court. See Commonwealth v. Pewatts, 200 Pa. Superior Ct. 22 , 186 A.2d 408 , allocatur refused, 200 Pa. Superior Ct. xxix *421 (1962). The 1968 amendment abolished the quarter sessions court 7 and provided for a consolidated court of common pleas having unlimited original jurisdiction in all cases, except as otherwise provided by law. Pa. Const. art. V, §5. The new consolidated court of common pleas now exercises the jurisdiction that had previously been in the quarter sessions court and the other diverse lower courts. 8 Jurisdiction of the present controversy, which previously would have been in the quarter sessions court, is now properly in the court of common pleas. Cf. Stanis v. Simpson, 452 Pa. 57 , 305 A.2d 29 (1973). Statutory provision has been made for several divisions within the court of common pleas of Allegheny County. 9 “The Court of Common Pleas of Allegheny County established by the Judiciary Article shall consist of a civil division, a criminal division, an Orphans’ Court division and a family division. The present courts of oyer and terminer and general jail delivery and quarter sessions of the peace . . . are abolished and their present jurisdiction shall be exercised by the court of common pleas.” Act of December 2, 1968, P.L. 1142, §2, 17 P.S. §235.2 (Supp. 1974-75).

*422 It is clear from the governing statutes and constitutional provisions that the separate divisions of the court of common pleas do not each exercise a separate jurisdiction. Rather, the single unified jurisdiction of the consolidated court of common pleas is exercised through its separate divisions. Thus, although there may be a civil or criminal division to the court, there is no separate civil court, distinct from a criminal court. In determining which division is to hear the controversy, no question of jurisdiction is involved. It has been stated that “a question of jurisdiction over the cause of action can exist, appealable under the Act of 1925, only in the relatively rare situation where no ‘side’ of the court has the power and competence to entertain the action.” West Homestead Borough School Dist. v. Allegheny County Bd. of School Directors, 440 Pa. 113, 118 , 269 A.2d 904, 907 (1970) (emphasis original). Although the court quoted above was discussing the lack of a jurisdictional distinction between the legal and equitable sides of the court of common pleas, the analysis is comparable to the present situation. Therefore, in the instant case, where the court of common pleas does have jurisdiction of the subject matter of the cause of action, the question of which division is to exercise that jurisdiction is not a question appealable to this Court.

The appeal should be quashed as interlocutory.

Watkins, P.J., and Cercone, J., join in this opinion.

. Act of July 31, 1970, P.L. 673, art. V, §§501 (b), 503(a), 17 P.S. §§211.501 (b), 211.503(a) (Supp. 1974-75).

. Act of March 5, 1925, P.L. 23, §1, 12 P.S. §672 (1953) as modified Act of July 31, 1970, P.L. 673, §509 (g) (30), added by Act of June 3, 1971, P.L. 118, No. 6, 17 P.S. §211.509 (g) (30); and Pa.R.C.P. 1451, 1501-1550 and 1017(b) (1).

. This Section provides as follows: “Discretionary Allowance of Appeals. When a court ... in making an interlocutory order in a matter in which its final order would he within the jurisdiction of an appellate court, shall he of the opinion that such order involves a controlling question of law as to which there is no substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter, it shall so state in such order. The appellate court may thereupon, in its discretion, permit an appeal to he taken from such order.”

. Act of March 5, 1925, P.L. 23, §1, 12 P.S. §672 (1953). This statute has been suspended in part by Pa.R.C.P. 1501-1550 and 1451; it has been repealed in part by the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, §509 (g) (30), added by Act of June 3, 1971, P.L. 118, No. 6, 17 P.S. §211.509 (g) (30); it is additionally suspended in part by Pa.R.C.P. 1550(19), and Pa. R.C.P. 1451, and note under Pa.R.C.P. 1017(b) (1). However, interlocutory appeals questioning jurisdiction are still appeal-able to this Court. See, e.g., McCrory Corp. v. Girard Rubber Corp., 225 Pa. Superior Ct. 45 , 307 A.2d 435 (1973) (all orders raising questions of jurisdiction are appealable to this Court as if they were final judgments.)

. Act of July 31, 1970, P.L. 673, art. V, §501 (b), 17 P.S. §211.501 (b) (Supp. 1974-75).

. See Brown Estate, 446 Pa. 401 , 289 A.2d 77 (1972) ; Stadler v. Mt. Oliver Borough, 373 Pa. 316 , 95 A.2d 776 (1953).

. Pa. Const. sched. art. V, §4.

. Id. This section provides: “[u]ntil otherwise provided by law, the several courts of common pleas shall exercise the jurisdiction now vested in the present courts of common pleas. The courts of oyer and terminer and general jail delivery, quarter sessions of the peace, and orphans’ courts are abolished and the several courts of common pleas shall also exercise the jurisdiction of these courts.”

. Separate divisions of the Allegheny Court of Common Pleas are constitutionally provided for as follows: “Until otherwise provided by law: (a) The court of common pleas shall consist of a trial division, an orphans’ court division and a family court division; the courts of oyer and terminer and general jail delivery and quarter sessions of the peace, the county court, the orphans’ court, and the juvenile court are abolished and their present jurisdiction shall be exercised by the court of common pleas.” Pa. Const. sched. art. V, §17.