Driver v. Temple

KELLY, Judge,

dissenting:

I dissent. I would find that an order authorizing the opening of a private road is subject to appellate review only after the issue of damages has been resolved. Accordingly, I would quash the instant appeal as interlocutory.

Preliminarily, I note that in the interest of judicial economy, our courts have consistently adopted a policy of discouraging multiple appeals in a single case. “The fair and efficient administration of justice cannot tolerate ‘piecemeal *402determinations and the consequent protraction of litigation.’ ” Beers v. Raub, 363 Pa.Super. 521, 526 A.2d 801 (1987), citing Fried v. Fried, 509 Pa. 89, 97, 501 A.2d 211, 215 (1985); Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). Thus, we will ordinarily review only those cases where the trial court enters a final order that “ends the litigation” or “disposes of the entire case.” Pugar v. Greco, supra; Zarnecki v. Shepegi, 367 Pa.Super. 230, 532 A.2d 873 (1987). However, this “final judgment” rule is not without exceptions. Under the so-called Cohen1 collateral order test, an otherwise interlocutory order is immediately appealable when “(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.” Pugar v. Greco, supra, 483 Pa. at 73, 394 A.2d at 545. See also Bell v. Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975); Fidelity Bank v. Duden, 361 Pa.Super. 124, 521 A.2d 958 (1987).

The majority finds that “an order finally confirming the opening of a private road is an order which is sufficiently final to permit immediate appellate review.” 374 Pa.Super. at 401, 543 A.2d at 140. It is unclear whether the majority finds that the order is “final” or whether the majority holds that the order is interlocutory and meets the criteria for immediate appealability. I would find that the order is neither final nor of such exigency that it meets the third prong of the collateral order test for immediate appealability-

First, the order is not final by traditional standards, as it does not end the litigation or dispose of the entire case. The parties stipulated that once the Board designated a route, a separate hearing would be held to determine the *403damages owed appellants. (N.T. 6/28/85 at 7). This damages phase of the litigation has not yet taken place.

Moreover, I would find that the order does not meet the third prong of the Cohen collateral order test, requiring the order to be such that “if review is postponed until final judgment in the case, the claimed right will be irreparably lost.” Pugar v. Greco, supra. The majority, citing Weaver’s Road, 45 Pa. 405 (1863), finds that proceedings to open private roads and subsequent proceedings to access damages therefor are distinct proceedings, and that the commencement of proceedings for the assessment of damages is a waiver of defects in the order confirming the opening of the private road. Thus, according to the majority, the right to challenge the order confirming the opening of a private road will be “irreparably lost” unless an immediate appeal is allowed. In my view, much has changed since Weaver’s Road was written in 1863; the major changes in judicial practice and procedure in the Commonwealth have virtually eliminated the truly bifurcated nature of the previous procedure. I believe that the old waiver rule is also a product of the bygone era, and is no longer applicable.

I find that the reasoning stated in Beers v. Raub, supra, is both instructive and persuasive. In Beers, a panel of this Court noted that, prior to 1969, private road cases followed a truly bifurcated course, with the possibility of multiple appeals from the quarter sessions judge to the court of common pleas. As stated in Beers:

The Act of 1836 [Act of June 13, 1836, P.L. 551, 36 P.S. § 2731 et seq.] vested the courts of quarter sessions with jurisdiction over private road cases. The quarter sessions judge appointed the board of view and either confirmed or rejected the viewers’ report. See 36 P.S. §§ 2731, 2732. The Act of April 15, 1891, P.L. 17, § 1, 36 P.S. § 2151, allowed any party aggrieved by the viewers’ award of damages the right to appeal the confirmation of that award to the court of common pleas, where a jury would determine the issue ‘according to the course of the *404common law.’ This right of appeal applied to private road cases by virtue of section 16 of the Act of 1836, 36 P.S. 2736. See Mattei v. Huray, 54 Pa.Commw. 561, 565 n. 5, 422 A.2d 899, 901 n. 5 (1980). Thus, proceedings for opening private roads followed a bifurcated course at the time we decided Monroeville Borough. The aggrieved party could appeal the confirmation of the viewers’ report directly to this court from the court of quarter sessions. At the same time, the party could appeal the damages portion of the report to the court of common pleas for a jury trial.

526 A.2d at 803. The Beers panel opined that the previously bifurcated procedure in private road cases was eliminated in 1969 with the establishment of unified courts of common pleas and the elimination of various inferior courts, including the courts of quarter sessions. The Beers court reasoned that since, under the new procedures, the same court which confirms the viewers’ report also conducts the trial on damages, the need for piecemeal review of private road cases had been removed.

Upon the reasoning stated in Beers, supra, I would find that the waiver rule is no longer applicable. The court of common pleas may now render one decision regarding the issues of opening a private road and damages. Certainly, the proceedings remain “bifurcated” in the sense that they focus upon separate issues. However, I would find this separate focus more closely analogous to the separate liability and damages phases of a jury trial. Just as an order granting partial summary judgment on liability is not appealable until after an order is entered disposing of the damages issues,21 would find that the order in the instant case is not immediately appealable.

I would quash the appeal as interlocutory.

BECK and JOHNSON, JJ., join.

. The collateral order doctrine was originally set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

. See Swift v. Milner, 296 Pa.Super. 463, 442 A.2d 1144 (1982).