Superior Court rules defendant remains in tort case and trial court order not final

By Nicholas Malfitano | Oct 28, 2016

HARRISBURG – The Superior Court of Pennsylvania recently ruled a trial court order was not final and that very same order did not dispose of all defendants in a lengthy tort case.

On Oct. 20, Judges Anne E. Lazarus, Victor P. Stabile and Eugene B. Strassburger III decided to quash the appeal of Andreas M. Schilit, in response to a trial court decision on his fifth amended complaint in the case.

“On August 27, 2014, plaintiff filed a second amended complaint in this matter. The defendants named in that complaint were EQT Corporation Et.Al (the Equitable Defendants), Bernstein Law Firm (the Bernstein Defendants), JRD Development Company, Arbors Management, John R. Deklewa, Jeff Reck, Susan Yencik, and James Wallace,” Strassburger said.

Over the following 16 months, three additional amended complaints (for a total of five) were filed by the plaintiff, with the defendants countering with preliminary objections on each occasion. All defendants except for Wallace motioned to strike the fifth amended complaint, because the preliminary objections to the fourth amended complaint had not yet been ruled upon.

On Dec. 9, 2015, the trial court ruled “the fifth amended complaint is stricken” and “accurately observes that the fifth amended complaint does nothing material to address the issues raised by defendants in prior preliminary objections.”

Further, the preliminary objections to the fourth amended complaint were sustained and the complaint further violated the pleading requirements by attempting to set forth allegations in the form of an affidavit attached to the complaint.

The plaintiff filed an appeal in this case on Jan. 6.

“Before we reach the merits of this appeal, we consider the appealability of the Dec. 9, 2015 order. This Court has jurisdiction over final orders. The definition of a final order is provided in Rule 341 of the Pennsylvania Rules of Appellate Procedure, ‘Rule 341 is fundamental to the exercise of jurisdiction by this court,” Strassburger said.

Strassburger also pointed to the determination of finality outlined in Rule 341's paragraph (c), which explains, “When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim or when multiple parties are involved, the trial court or other government unit may enter a final order as to one or more but fewer than all of the claims and parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case.”

Strassburger said since the trial court did not add the language required to satisfy paragraph (c), the order is only appealable if it disposes of all claims and all parties. Wallace did not file preliminary objections to the fourth amended complaint.

“Accordingly, the trial court’s order sustaining preliminary objections of those parties that filed preliminary objections did not dispose of all parties,” Strassburger said. “Thus, Wallace remains a defendant in this case, the Dec. 9, 2015 is not a final order, and we lack jurisdiction over this appeal.”

The plaintiff is represented by Neil Jay Ferranti of Scarsdale, N.Y.

The defendants are represented by Christopher W. Cahillane of Tucker Arensberg, Joyce C. Dailey of Peoples Natural Gas Company, Nicholas D. Krawec of Bernstein Burkley, J. Michael McCague of Griffith McCague & Wallace and Danielle M. Vugrinovich of Marshall Dennehey Warner Coleman & Goggin, all in Pittsburgh.

Superior Court of Pennsylvania case 45 WDA 2016

Allegheny County Court of Common Pleas case GD 14-008994

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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