303 Pa. Super. 393 449 A.2d 745

449 A.2d 745

CITY OF PHILADELPHIA v. FRANKLIN SMELTING AND REFINING COMPANY, Appellant. BRIDESBURG CIVIC COUNCIL v. FRANKLIN SMELTING AND REFINING COMPANY, Appellant.

Superior Court of Pennsylvania.

Argued June 23, 1982.

Filed Aug. 20, 1982.

Petition for Allowance of Appeal Denied Nov. 3, 1982.

*394Carl N. Weiner and Louis W. Fryman, Philadelphia, for appellant.

Kenneth S. Cooper, Philadelphia, for City of Philadelphia, appellee.

Jerome Balter, Philadelphia, for Bridesburg, appellee.

Before WICKERSHAM, McEWEN and LIPEZ, JJ.

LIPEZ, Judge:

Defendant Franklin Smelting and Refining Company has filed two appeals, which have been consolidated here, from orders denying Franklin Smelting’s preliminary objections to complaints by plaintiff City of Philadelphia and plaintiff Bridesburg Civic Council. These orders are interlocutory and nonappealable, and the appeal must therefore be quashed.

In its “statement of jurisdiction,” Pa.R.A.P. 2114, Franklin Smelting relies on Rule of Appellate Procedure *395341, which deals only with final orders. An order dismissing a defendant’s preliminary objections, however, is clearly interlocutory. Balter v. Balter, 284 Pa.Super.Ct. 350, 355, 425 A.2d 1138, 1140 (1981); see Martino v. Transport Workers Union of Philadelphia—Local 234, 301 Pa.Super.Ct. 161, 169, 447 A.2d 292, 296 (1982). Under the Act of March 5, 1925, P.L. 23, § 1,12 P.S. § 672, such an order was nevertheless appealable if it dealt with a question of jurisdiction, Balter v. Balter, supra, but that statute was repealed effective June 27, 1980. See generally Gallardy v. Ashcraft, 288 Pa.Super.Ct. 37, 39-40, n.3, 430 A.2d 1201, 1202, n.3 (1981), appeal dismissed as improvidently granted, 497 Pa. 587, 442 A.2d 693 (1982).1 Thus it is inapplicable to these appeals, which were filed on March 5, 1981.

Since section 672 is inapplicable, we need only consider whether the jurisdictional issues raised by Franklin Smelting meet the requirements of Pennsylvania Rule of Appellate Procedure 311(b), effective April 22, 1979. 8 Pa.Bull. 3636, 3637 (1978). The only jurisdictional issues covered by Rule 311(b)2 are questions of personal or in rem jurisdiction.

In its appeal with respect to the Bridesburg Civic Council’s complaint, Franklin Smelting claims the court be*396low had no jurisdiction of the cause of action under the federal Clean Air Act because of failure to meet the notice requirement of the Act. Assuming such notice is a prerequisite to jurisdiction, it certainly does not raise an issue of personal or in rem jurisdiction under Rule 311(b).

Franklin Smelting also claims that the court below lacked “equity jurisdiction” of the complaints of both the City of Philadelphia and the Bridesburg Civic Council. These challenges to so-called “equity jurisdiction” do not pose a true question of jurisdiction at all. Balter v. Balter, supra, 284 Pa.Super.Ct. at 355-56, 425 A.2d at 1140-41. The orders involved here would thus-not have been appealable even if section 672 were still in effect, and they are certainly not appealable under Rule 311(b), which is narrower in its coverage than section 672. None of the orders here are appealable on any basis, and the entire consolidated appeal must therefore be quashed.

Appeal quashed.

City of Philadelphia v. Franklin Smelting & Refining Co.
303 Pa. Super. 393 449 A.2d 745

Case Details

Name
City of Philadelphia v. Franklin Smelting & Refining Co.
Decision Date
Aug 20, 1982
Citations

303 Pa. Super. 393

449 A.2d 745

Jurisdiction
Pennsylvania

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!