Commonwealth v. Carsia

SPAETH, President Judge,

concurring:

I join the majority’s opinion, which I admire, and write separately only to comment a bit more fully on why the order in question is final and therefore appealable.

Appellee argues that the order is interlocutory because, not only has the Commonwealth not been put “out of court”, it is still in court, prosecuting appellee. The difficulty with this argument is that it rests upon too literal a reading of the term “out of court.”

As we have explained,

... the phrase “out of court” must not be interpreted literally; it is not synonymous with “final.” In Commonwealth v. Orsatti, 448 Pa. 72, 75-76 , 292 A.2d 313, 315 (1972), the Supreme Court in refusing to quash an appeal, said: “[W]e do not mean to suggest that a final judgment on the original issue raised by the complaint could not have been awaited by the defendants or that, upon appealing from such final judgment, the action of the court below, .... could not then have been assigned for error. But, obviously, such a course would not have afforded expeditious procedure for the ultimate disposition of the entire controversy,” quoting Broido v. Kinneman, 375 Pa. 568, 569 , 101 A.2d 647, 648 (1954). See also, Posternack v. American Casualty Co., 421 Pa. 21 , 218 A.2d 350 (1966); Pellegrine v. Home Ins. Co., 200 Pa.Superior Ct. 48, 186 A.2d 662 (1962). It is therefore plain that in deciding whether an order is “final,” one must do more than ask only whether the appellant is “out of court;” one must also ask whether, even if the appellant is still in court, the order is in its “practical aspects,” Bell v. *258 Beneficial Consumer Discount, [ 465 Pa. 225 , 348 A.2d [734] 735 (1975) ], sufficiently final to make it appealable. Gordon v. Gordon, 293 Pa.Super. 491, 499-500 , 439 A.2d 683, 687 (1983) (en banc).

Thus, “[w]hether an order is final and appealable cannot necessarily be ascertained from the face of the decree alone, nor simply from the technical effect of the adjudication. The finality of an .order is a judicial conclusion which can be reached only after an examination of its ramifications [,] ... [and] a finding of finality must be the result of a practical rather than a technical construction.” Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 228 , 348 A.2d 734, 735 (1975), citing Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949).

Consistent with this analysis, a variety of orders have been held to be final and appealable even though they did not literally put a litigant “out of court.” See, e.g., T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 337 , 372 A.2d 721, 724 (1977) (where order dismissing complaint with prejudice did not put litigant out of court because counter-claim had been filed, order held final because it had “practical ramification [of] ... completely depriving] the litigant of his day in court so far as his claim is concerned.”); Commonwealth v. Orsatti, 448 Pa. 72, 76 , 292 A.2d 313, 315 (1972) (where order dismissing preliminary objections with leave to amend complaint had practical effect of denying litigant an opportunity to litigate claim to damages, order held final because “as to the [money that Orsatti was precluded from claiming, he] was put out of court.”); Bell v. Beneficial Consumer Discount Co., supra 465 Pa. at 229 , 348 A.2d at 736 (order denying class certification possesses sufficiently practical aspects of finality to be appealable even though order may leave named plaintiff in court and does not alter cause of action.); Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344 , 447 A.2d 999 (1982) (en banc) (order denying estate ability to collect work-loss benefits under No-Fault Act, but allowing leave to amend complaint to seek other *259 benefits under Act, held final because estate was “out of court” as far as work-loss benefits were concerned); Gordon v. Gordon, supra (order denying wife’s application to proceed under new Divorce Code held final, even though it left her free to pursue the action under old law, because practical effect of order was to put her out of court regarding claims allowable only under Code.)

Here, the Commonwealth, through the Office of the Attorney General, attempted to prosecute appellee under the authority of the Commonwealth Attorneys Act, 71 Pa.C.S. § 732-205(a)(l), (2). The trial court’s order dismissing the information provides:

AND NOW, TO WIT, this 1st day of December, 1982, after hearing, and on consideration of the defendant’s petition, the information is dismissed, it appearing that the Office of the Attorney General of Pennsylvania does not have the power to investigate or prosecute the alleged criminal offense.

This order certainly puts the Commonwealth “out of court” regarding its claim of statutory authority under 71 Pa.C.S. 732-205(a)(l) and (2). Moreover, were we to hold the order to be interlocutory, the practical effect would be to deny the Commonwealth the opportunity to litigate the merits of its claim to such authority, for by the terms of the order, only a local district attorney may pursue this prosecution. See Brennan v. General Accident Fire & Life Assurance Corp., 307 Pa.Super. 288, 291 , 453 A.2d 356, 357 (1982) (“Sometimes an order will not literally put the appellant out of court but still it will be appealable because as a practical matter the appellant will be unable to present his claim.”) Such a result would not further the underlying policy of the finality rule of preventing piecemeal litigation and promoting judicial economy, see Gordon v. Gordon, supra, for it would only force the Commonwealth to litigate this issue again.

Accordingly, since the Commonwealth is, for all practical purposes, put “out of court” by the trial court’s order regarding its claim under the Commonwealth Attorneys *260 Act, I conclude that the order is final under Pa.R.A.P. 341(c). 1

. The cases appellant cites are not to the contrary. They simply stand for the proposition that when an order is not "in its 'practical aspects’ sufficiently final to make it appealable," Gordon v. Gordon, supra 293 Pa.Super. at 500 , 439 A.2d at 687 , citing Bell v. Beneficial Consumer Discount Co., supra, because some other procedure enables the litigant to be heard on the merits, then the general finality rule will render the order unappealable. See, e.g., Flanagan et al. v. United States, 465 U.S. 259 , 104 S.Ct. 1051, 1055 , 79 L.Ed.2d 288, 295 (1984) (order disqualifying counsel lacks “critical characteristics” that render pretrial order immediately appealable because, among other reasons, the claim “is in no danger of becoming moot upon conviction and sentence... .”); In Re Riggins, 435 Pa. 321 , 254 A.2d 616 (court quashes Commonwealth appeal from order discharging appellant for failure to make out prima facie case because Commonwealth could rearrest and therefore was not out of court); Commonwealth v. Gore, 279 Pa.Super. 622 , 421 A.2d 372 (1980) (court holds order refusing Commonwealth motion to amend information not appealable because Commonwealth could nolle pros and commence new prosecution.)