DeANGELI v. FITZGERALD, 433 Pa. 529 (1969)

252 A.2d 706

DeAngeli, Appellant, v. Fitzgerald.

Supreme Court of Pennsylvania.January 9, 1969.
April 23, 1969.

Appeals — Final or interlocutory order — Order sustaining preliminary objections and dismissing plaintiff-wife’s consortium claim — Jurisdiction — Amount of controversy — Superior Court — Act of June 24, 1895, P. L. 212, as amended, August 14, 1963, P. L. 819.

1. In an action of trespass, an order which not only sustains defendant’s preliminary objections but dismisses the plaintiff-wife’s consortium claim is a final order and therefore appealable. [531]

2. Where the amount claimed by the plaintiff-wife for loss of consortium is less than $10,000, appellate jurisdiction is in the Superior Court: Act of June 24, 1895, P. L. 212, § 7(c), as amended, August 14, 1963, P. L. 819. [531]

Page 530

Argued January 9, 1969. Before BELL, C. J., JONES, COHEN, EAGEN, O’BRIEN, ROBERTS and POMEROY, JJ.

Appeal, No. 96, Jan. T., 1969, from order of Court of Common Pleas of Montgomery County, No. 67-15391, in case of Maurice B. deAngeli et ux. v. Myrtle E. Fitzgerald. Case remitted to Superior Court.

Trespass for personal injuries and property damage.

Defendant filed preliminary objections; preliminary objections sustained and wife-plaintiff’s claim dismissed, opinion by HONEYMAN, J. Wife-plaintiff appealed.

Willard C. Hetzel, for appellant.

Albert R. Subers, with him Bean, DeAngelis, Tredinnick Giangiulio, for appellee.

OPINION BY MR. CHIEF JUSTICE BELL, April 23, 1969:

This is an appeal from the Order of the Court of Common Pleas sustaining appellee’s preliminary objections to appellant Marianne’s claim for damages for loss of her husband’s consortium.

Maurice deAngeli filed a complaint in trespass seeking to recover damages for (a) loss of wages and medical bills and (b) pain and suffering and (c) repairs to his car arising out of a collision with appellee’s car. Marianne deAngeli, appellant herein, was named as a party plaintiff in her husband’s trespass action in order that she might recover damages for loss of her husband’s consortium. Marianne’s consortium claim was averred to be for less than $10,000.

Appellee filed preliminary objections to appellant’s consortium claim, on the ground that such a claim was not recognized by the law. Brown v. Glenside Lumber

Page 531

and Coal Company, 429 Pa. 601, 240 A.2d 822; Neuberg v. Bobowicz, 401 Pa. 146, 162 A.2d 662. The lower Court dismissed the claim for consortium and ordered that it be expunged from the complaint

It is clear that the Order of the lower Court which not only sustained appellee’s preliminary objections but dismissed the plaintiff-wife’s consortium claim is a final Order and therefore appealable. Brandywine A. J. School Authority v. VanCor, Inc., 426 Pa. 448, 451, 233 A.2d 240; see, also Sullivan v. Philadelphia, 378 Pa. 648, 107 A.2d 854.

However, the amount of damages claimed by the plaintiff-wife for loss of consortium is less than $10,000 and therefore appellate jurisdiction is in the Superior Court. Act of June 24, 1895, P. L. 212, § 7(c), as amended, August 14, 1963, P. L. 819, § 1, 17 Pa.C.S.A. § 184 (Supp.) 1963. Morris v. Board of Property Assessment, 417 Pa. 192, 209 A.2d 407.

Case remitted to the Superior Court, appellant to pay costs.