J-A05004-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HORSHAM TOWNE ASSOCIATES IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOHN HURLEY, T/A EDIBLES 

RESTAURANT AND PUB

Appellant No. 608 EDA 2015

Appeal from the Order February 23, 2015

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2014-04519

BEFORE: OLSON, OTT, JJ. and STEVENS,* PJE.

MEMORANDUM BY OLSON, J.: FILED MARCH 30, 2016

Appellant, John Hurley, t/a Edibles Restaurant and Pub, appeals from 

the order entered on February 23, 2015, granting a motion for judgment on 

the pleadings filed by Horsham Towne Associates (Horsham) and dismissing 

Appellant’s new matter and counterclaim with prejudice. Because the order 

appealed from is interlocutory, we are constrained to quash the appeal.

The trial court briefly summarized this case as follows:

On or about November 1, 2004, [Horsham] and Appellant 

entered into an agreement of lease whereby [Horsham] 

leased a property to Appellant in the Horsham Square 

Shopping Center. On March 3, 2014, [Horsham] filed a 

complaint against Appellant which raised claims [of] breach 

of lease and [made a] demand for possession in conjunction 

with Appellant’s alleged failure to make payments under the 

lease[.] On March 24, 2014, Appellant filed preliminary 

objections, which [the trial court] overruled by order dated 

June 13, 2014. On July 2, 2014, Appellant filed an answer, 
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new matter and counterclaim to the complaint. Appellant’s 

counterclaim[] raised claims of breach of lease and breach 

of the covenant of quiet enjoyment. On October 14, 2014, 

[Horsham] filed a motion for judgment on the pleadings 

and, on February 11, 2015, [the trial court] held oral 

argument on [Horsham’s] motion. During oral argument, 

Appellant’s counsel informed the court that his client no 

longer occupied the leasehold. 

On February 23, 2015, [the trial] court entered an order 

which: (1) granted [Horsham’s] motion for judgment on 

the pleadings with respect to Appellant’s liability for breach 

of lease, (2) deemed [Horsham’s] motion with respect to 

the demand for possession of the leasehold [] moot and (3) 

dismissed Appellant’s new matter and counterclaim with 

prejudice. Further, [the trial] court deferred any decision 

related to damages and made it incumbent on the parties to 

inform the court when they were ready to proceed with a 

determination of the damage amount. Appellant filed a

timely notice of appeal on March 3, 2015. [The trial court 

issued an opinion pursuant to Pa.R.A.P. 1925(a) on March 

27, 2015.] 

Trial Court Opinion, 3/27/2015, at 1-2 (unnecessary capitalization omitted). 

Pertinent to this appeal, in its Rule 1925(a) opinion, the trial court opines 

that the order appealed from is interlocutory, because it did not dispose of 

all of the issues, as the trial court has not yet awarded damages. Id. at 2-4. 

Thus, the trial court requests that the instant appeal be quashed. Id. at 5. 

For the reasons that follow, we agree. 

On appeal, Appellant presents the following issues for our review:

1. Did the court below commit reversible error and abuse 

its discretion in granting judgment on the pleadings on 

the issue of liability of [Horsham] to [Appellant]?

2. Did the court below commit reversible error and abuse 

its discretion in granting judgment on the pleadings [] in 
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dismissing [Appellant’s] new matter and counterclaim[] 

with prejudice?

3. Was the [trial] court’s order granting judgment on the 

pleadings on [Horshaw’s] complaint on liability, and on 

[Appellant’s] new matter and counterclaim by dismissal 

with prejudice[,] appealable?

Appellant’s Brief at 3 (unnecessary capitalism omitted). 

Initially, prior to reaching the merits of any appeal, this Court must 

“first ascertain whether the order appealed from is properly appealable.” 

McGrogan v. First Commonwealth Bank, 74 A.3d 1063, 1074 (Pa. Super. 

2013) (citations omitted). Indeed, since the question of appealability 

implicates the jurisdiction of this Court, the issue may be raised sua sponte. 

Id. (citation, quotations and brackets omitted).

Thus, we will address Appellant’s third issue first. 

Generally, this Court's jurisdiction “extends only to review of final 

orders.[1]” Id. (citations omitted). “A final order is any order that: (1) 

disposes of all claims and of all parties; or (2) is expressly defined as a final 

order by statute; or (3) is entered as a final order pursuant to subdivision 

(c) of this rule.” Pa.R.A.P. 341(b). Here, however, Appellant does not 

contend that the order in question was statutorily defined as final or that the 

____________________________________________

1 Our rules of appellate procedure also allow for the appeal of interlocutory 

appeals as of right, interlocutory orders by permission, collateral orders, and 

orders specifically deemed final by the trial court. See Pa.R.A.P. 311, 1311, 

313, and 341(c). These rules are inapplicable in the case sub judice as 

Appellant claims “the [o]rder of [c]ourt granting [Horsham’s] [m]otion for 

[j]udgment on the [p]leadings is a final appealable order.” Appellant’s Brief 

at 12 (emphasis supplied). 
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trial court certified the order as final under Pa.R.A.P. 341(c). Thus, we 

must determine whether the order at issue was final as defined under Rule 

341(b)(1). 

Our decision in Swift v. Milner, 442 A.2d 1144 (Pa. Super. 1982) is 

instructive. In that case, Swift filed a complaint against Milner for breach of 

an agreement to purchase properties, along with three other investors, at a 

tax sale. Milner filed an answer and new matter. Swift filed a motion for 

judgment on the pleadings. When Milner’s attorney failed to file a response 

within the time allotted under the local rules in effect at the time, the trial 

court deemed Swift’s motion unopposed. Thus, the trial court in Swift

entered judgment in Swift’s favor, “but ordered that a trial should be held 

limited to the question of the value of the real estate to determine the value 

of [Swift’s] one-fifth interest.” Swift, 442 at 1145. Examining similar law 

as it pertains to partial motions for summary judgment, the Swift court 

determined that an order determining liability, but not fixing damages is 

interlocutory and not appealable:

We believe that the instant appeal is from an interlocutory 

order and that the postponement of appeal until after final 

judgment will not result in irreparable loss of the right 

asserted. Moreover, were we to consider the merits of the 

appeal at this juncture, and were we to affirm the action of 

the lower court, the case would go back [] for trial on the 

issue of damage which is a part of the order [at issue]. 

Following a determination of damages, the case could again 

come back to us on appeal. [...T]he reason for prohibiting 

appeals from interlocutory orders, such as the instant order, 

is to preclude piecemeal determinations and the consequent 

protraction of litigation.
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Swift, at 1146. The same applies here.

Appellant, however, argues that the dismissal of his counterclaim was 

a final decision and appealable pursuant to our decision in Fidelity Bank v. 

Duden, 521 A.2d 958 (Pa. Super. 1987) (en banc). More specifically, 

Fidelity Bank held:

An order summarily dismissing a counterclaim puts a party 

out of court on his or her counterclaim. Such an order, the 

Supreme Court has held, is final and appealable. [...]If an 

order adjudicates an action finally, it is appealable. 

Conversely, if the order does not determine the action 

finally, it is interlocutory and generally nonappealable.

Fidelity Bank, 521 A.2d at 960. 

However, as the trial court noted, Pa.R.A.P. 341 was amended 

effective July 16, 1992, after our Court rendered the Fidelity Bank decision. 

Trial Court Opinion, 3/27/2015, at 4 n.1. “The 1992 amendment generally 

eliminates appeals as of right under Rule 341 from orders not ending the 

litigation as to all claims and as to all parties.” Pa.R.A.P. 341, note. 

“Formerly, there was case law that orders not ending the litigation as to all 

claims and all parties are final orders if such orders have the practical 

consequence of putting a litigant out of court.” Id. The note to Rule 341 

further “includes a partial list of orders previously interpreted by the courts 

as appealable as final orders under Rule 341 that are no longer appealable 

as of right” which includes “an order dismissing a counterclaim but leaving 

pending the complaint which initiated the action[.]” Id. Here, Appellant 

does not challenge the trial court’s reliance on Rule 341. The order at issue 
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dismissed Appellant’s counterclaim, but a decision on damages is still 

pending. Because all of the claims regarding all of the parties have not been 

resolved, the trial court’s order entered on February 23, 2015 was 

interlocutory. Hence, we quash the appeal. Having determined we lack 

jurisdiction, we do not reach the merits of Appellant’s remaining claims.

Appeal quashed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/30/2016