Elderkin, Martin, Kelly, Messina & Zamboldi v. Sedney

WIEAND, Judge,

dissenting:

When counsel for the defendant-appellants failed to appear for a pre-trial conference, the trial court, pursuant to authority contained in a local rule of court, entered a sanction order which precluded the defendant-appellants from presenting evidence in defense of the claims being asserted against them. A majority of this court holds, not without some merit, that the order of the trial court is interlocutory and not subject to appeal until after a final judgment has been entered in a monetary amount. However, in Commonwealth v. Wheeling-Pittsburgh Steel Corp., 473 Pa. 432, 375 A.2d 320 (1977), the Supreme Court of Pennsylvania specifically held that such an order is appealable. “The refusal to allow evidence of a possibly meritorious defense,” the Court held, “effectively puts [appellant] out of court and, therefore, the order is ‘final’ for appeal purposes.” Id., 473 Pa. at 440, 375 A.2d at 323.

. I share the majority’s abhorence of a rule which permits piecemeal appeals. See: Miller Oral Surgery, Inc. v. Dinello, 342 Pa.Super. 577, 493 A.2d 741 (1985). Therefore, I agree with the majority that, in general, the entry of a judgment for plaintiff on the issue of liability should not become appealable until damages have been determined and a final judgment has been entered. See: Sims v. Feingold, 329 Pa.Super. 437, 478 A.2d 868 (1984).

However, I must dissent vigorously from the majority’s conclusions (1) that Commonwealth v. Wheeling-Pittsburgh Steel Corp., supra, has been overruled by implication by the opinion of the Supreme Court in Fried v. Fried, *261509 Pa. 89, 501 A.2d 211 (1985); and (2) that the appealability of the sanction order in the instant case is to be determined by application of the “collateral order” test announced by the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed.2d 1528 (1949), and adopted by the Supreme Court of Pennsylvania in Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975), and Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978).1 This rule “has applicability only to orders which are collateral to the main cause of action.” Praisner v. Stocker, 313 Pa.Super. 332, 342, 459 A.2d 1255, 1260-1261 (1983) (emphasis added). See also: Bell v. Beneficial Consumer Discount Co., supra; Pugar v. Greco, supra.

In Fried v. Fried, supra, the Supreme Court considered the appealability of an order pertaining to alimony, counsel fees and expenses in a divorce action. Such an order, the Court observed, was separable from and collateral to the main action of divorce. As such, the Supreme Court appropriately applied the “collateral order” test for appealability articulated in Cohen v. Beneficial Industrial Loan Corp., supra, and determined that appellate review of the order could be delayed, without prejudice to the parties, “until final disposition of the case.” Fried v. Fried, supra 509 Pa. at 97, 501 A.2d at 215.

The sanction order in the instant case is not separable from and collateral to the main action. It precludes the defendant-appellant from defending against liability in the main cause of action alleged by the plaintiff-appellees. Therefore, the appealability of the sanction order cannot be determined by applying the “collateral order” test.

*262The general rule applicable to sanction orders was articulated by this Court in McManus v. Chubb Group of Insurance Companies, 342 Pa.Super. 405, 493 A.2d 84 (1985). We there said:

“As a general rule, this Court will not provide interim supervision of [pretrial] proceedings conducted in connection with litigation pending in the several trial courts. In the absence of unusual circumstances, we will not review discovery or sanction orders prior to a final judg-ment____”

Id., 342 Pa.Superior Ct. at 410, 493 A.2d at 87.

The Supreme Court, in Commonwealth v. Wheeling-Pittsburgh Steel Corp., supra, held that an order precluding a defendant from presenting a defense, because it effectively put the defendant out of court, was so unusual that it should be immediately appealable. Because this holding encourages piecemeal appeals — it permits two appeals in the same action even though one would clearly suffice — it would be my hope that the Supreme Court might reconsider the appealability of such an order. In the meantime, the holding thereof should not be expanded beyond the precise factual posture of that case. Because the Supreme Court’s holding in Commonwealth v. Wheeling-Pittsburgh Steel Corp., supra, is precisely on all fours with the instant case, however, I believe we are bound by it.2 Therefore, I- would not quash the appeal in this case ,but would proceed to a consideration of the merits of the order from which the appeal was taken.

That order, in my judgment, was an abuse of discretion. The trial court overreacted to the rudeness of defense counsel and visited retribution on the client. I would reverse the sanction order and remand for trial on all disputed issues.

. Under this test, an order is considered appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review, and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Cohen v. Beneficial Industrial Loan Corp., supra 337 U.S. at 546, 59 S.Ct. at 1226, 93 L.Ed.2d at 1536.

. It is interesting to note that the "collateral order” test of Cohen v. Beneficial Industrial Loan Corp., supra, had been adopted by the Pennsylvania Supreme Court before it decided Commonwealth v. Wheeling-Pittsburgh Steel Corp., supra.