Hionis v. Concord Township, No. 1771 C.D. 2008 (Pa. Commw. 2009).
A plaintiff may seek review of an interlocutory order granting preliminary objections but providing the ability to file an amended pleading, by waiting until the time period for amendment expires and petitioning the lower court for an order dismissing the complaint.
Appellant Alexander Hionis submitted a preliminary subdivision and land development plan to the Township proposing a commercial development on a 5.17 acre property owned by a family partnership. Although there is frontage on one road, the development requires access to a second public road. There would be access to the second public road via a private drive, and the Township has an easement over this private road, owned by MVP Realty, pursuant to the MVP Realty land development plan. The Township, however, never accepted dedication of the private road thus it remained private at the time the application for final land development approval was made. Hionis filed a Complaint against the Township seeking to compel the dedication of the private road to make it public, and the Township filed preliminary objections seeking dismissal based on the alleged failure to state a valid cause of action and immunity from suit. The Common Pleas Court granted the preliminary objections, but provided that the landowner may file a Second Amended Complaint within twenty days of the date of the Order. Hionis appealed the Court’s ruling.
In submissions to the Commonwealth Court, the Common Pleas Court maintained that the appeal was improper because its decision was not a final and appealable order. The Court agreed with the Lower Court. Specifically, the Court held that because the underlying Order permitted the plaintiffs to file an amended complaint, did not dispose of all parties and did not dispose of all claims, the order was not final. The Court found that even if the plaintiffs did not wish to file a second, amended complaint, it could seek review of the Order granting the preliminary objections by waiting for the 20 day period for amending the complaint to expire and then praecipe the lower court clerk to enter an order dismissing the complaint. This requires the lower Court to issue a final, appealable order so that the plaintiffs can obtain appellate review of the decision on preliminary objections.
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