Mims v. City of Philadelphia

267 Pa. Super. 129 (1979) 406 A.2d 552

Fred MIMS and Claudia Mims, Appellants,
v.
CITY OF PHILADELPHIA.

Superior Court of Pennsylvania.

Argued March 21, 1979. Decided June 15, 1979.

Barbara E. Etkind, Philadelphia, for appellants.

Agostino Cammisa, Assistant City Solicitor, Philadelphia, for appellee.

Before PRICE, SPAETH and LIPEZ, JJ.

PRICE, Judge:

This appeal involves an action in trespass brought by appellants against appellee, and is taken from an order entered March 27, 1978, granting appellee's motion for judgment on the pleadings and dismissing the complaint. The propriety of the order and action here involved is dependent upon an earlier dismissal of appellants' preliminary objections by the same court, with a different judge presiding, on August 15, 1977.

We are satisfied that the order of August 15, 1977, was interlocutory and not appealable; therefore, appellants are not barred from raising the question at this time.

Unfortunately, there is no opinion explaining the order of August 15, 1977, and it is clear that the order of March 27, 1978, assumes the correctness of that ruling. Indeed, to have done otherwise would have been improper, since the orders were issued by judges of equal and concurrent jurisdiction.

It is necessary, however, for the disposition of this appeal, to have an opinion in support of the order of August 15, 1977, from the Honorable Charles L. Durham, pursuant to Pa.R.A.P. 1925(a). For that purpose, the record is remanded for compliance, and upon completion shall be returned to this court where argument shall be rescheduled and new briefs shall be submitted by the parties.