text:
    543 A.2d 120
    INSILCO CORPORATION, a Corporation v. Joel T. RAYBURN and Judy A. Rayburn, his wife, Appellants. INSILCO CORPORATION, a Corporation, Appellant, v. Joel T. RAYBURN and Judy A. Rayburn, his wife.
    Superior Court of Pennsylvania.
    Argued Nov. 6, 1987.
    Filed May 16, 1988.

      Frank J. Piatek, New Castle, for appellants (at 402) and for appellees (at 797).
    James E. Kerr, Butler, for appellant (at 797) and for appellee (at 402).
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   ROWLEY, Judge:

These are consolidated appeals from a summary judgment in mortgage foreclosure and from an order granting two stays of execution on the mortgage foreclosure judgment pending resolution of the appeal from the summary judgment in mortgage foreclosure. We quash the appeal from the summary judgment filed at No. 402 Pittsburgh 1987, and we affirm the order granting the stays of execution appealed at No. 797 Pittsburgh 1987.

On January 9, 1974, Joel and Judy Rayburn (Rayburns) executed an agreement with Miles Homes of Pennsylvania, Inc., the predecessor corporation of Insilco Corporation, the plaintiff herein. (Hereafter, Miles Homes and Insilco shall be referred to simply as “Insilco.”) The agreement provided that Insilco would provide the Rayburns with specified materials for building a house for the sum of $12,901.00. It was agreed that the Rayburns would deliver to Insilco a mortgage note which would be secured by an open-ended mortgage upon the Rayburns’ “real estate or interest thereon, including that property upon which [the Rayburns] agree[d] to erect” the house.

On June 27, 1975, the Rayburns entered into a land installment sales agreement with Judy Rayburn’s mother, Ruth Whipkey (Whipkey), to purchase from Whipkey a certain parcel of land upon which the Rayburns planned to build the house the material for which the Rayburns had previously agreed to purchase from Insilco.

In early to mid September, 1975, at the request of Insilco, Whipkey signed a document stating that she would notify Insilco before taking any legal action to enforce her rights under the land installment sales agreement.

On September 23, 1975, the Rayburns executed a mortgage to Insilco. The mortgage recited that the Rayburns were conveying to Insilco as security for the debt owed to Insilco “all that certain piece, parcel or tract of land” upon which the house was to be built. The mortgage did not recite that the Rayburns were owners in fee of the real estate, nor did it specifically describe the interest which they had in the property. However, the mortgage stated that the Rayburns are “purchasers on an Installment Land Contract dated June 27, 1975, between Ruth E. Whipkey, seller and Joel T. Rayburn and Judy A. Rayburn, husband and wife, buyers,____” Whipkey did not co-sign the mortgage.

In 1982, Insilco commenced a mortgage foreclosure action against the Rayburns and Whipkey because the Rayburns were in default of the mortgage debt. Separate preliminary objections were filed by both the Rayburns and Whip-key. Before the preliminary objections were disposed of by the court, Whipkey commenced an amicable ejectment action against the Rayburns because they were in default on the land installment sales contract. However, Whipkey did not inform Insilco that she was taking this legal action to enforce her interests under the land installment sales agreement with the Rayburns. As a result of the ejectment action, the Rayburns conveyed their interest in the subject real estate to Whipkey by quitclaim deed in 1982. Since then, Judy Rayburn has continued to reside on the subject real estate, and Insilco has commenced a separate action against Whipkey and the Rayburns in which it demands full payment of the unpaid balance on the mortgage note on theories of implied contract, unjust enrichment and restitution, civil conspiracy, and illegal use of civil process.

Several years after the Rayburns conveyed their interest in the real estate to Whipkey by quitclaim deed, the trial court, in the mortgage foreclosure action, granted the preliminary objections of Whipkey in the nature of a demurrer and she was dismissed from the action. On motion of Insilco, summary judgment against the Rayburns was granted. The Rayburns have appealed from the summary judgment at No. 402 Pittsburgh 1987.

Following the entry of summary judgment, Insilco commenced execution proceedings to foreclose on the property and have the property sold at a sheriffs sale. Both the Rayburns and Whipkey filed petitions to stay execution: the Rayburns sought a stay pending appeal, and Whipkey sought a stay pending further hearing. The trial court granted both petitions for stay on the condition that the Rayburns obtain a fire insurance policy on the property for 120% of the amount claimed by Insilco, and on the condition that Whipkey not convey any part of, or interest in, the property during the pendency of the appeal. Insilco filed an appeal from the order granting the stays of execution to both the Rayburns and Whipkey at No. 797 Pittsburgh 1987. The appeal from summary judgment and appeal from the order granting the stays were consolidated.

I. APPEAL AT 402 PITTSBURGH 1987

In the appeal from the summary judgment in mortgage foreclosure, the Rayburns argue: 1) the trial court erred in granting summary judgment because the only interest the Rayburns ever had in the property was an equitable interest which they conveyed to Whipkey prior to entry of the summary judgment; 2) the trial court did not have subject matter jurisdiction to grant summary judgment because after the action was commenced, but prior to judgment being entered, the Rayburns conveyed their equitable interest in the property to Whipkey, the legal owner of the property who was subsequently dismissed from the action; 3) the trial court erred in failing to sustain the Rayburns’ demurrer to the complaint; and 4) the Rayburns have standing to pursue the appeal. Because of our resolution of the standing issue, it is unnecessary for us to address the other issues raised.

The Rayburns argue that they have standing to bring the present appeal despite the fact that they have conveyed their interest in the subject property because if they cannot appeal, there is no one who is a party who could appeal. Insilco contends that the Rayburns do not have standing to appeal because the nature of the summary judgment which was obtained was exclusively in rem, and by conveying all of their interest in the real estate to Whipkey, the Rayburns have stripped themselves of any further interest in the property or the mortgage foreclosure action. In order to resolve the question of standing to appeal, we must first determine the nature of the judgment which has been obtained.

A. NATURE OF JUDGMENT

An action in mortgage foreclosure is strictly an in rem action and may not include an in personam action to enforce personal liability. Pa.R.C.P. 1141. The sole purpose of a judgment obtained through mortgage foreclosure is to effect a judicial sale of the mortgaged real estate, Meco Realty Company v. Burns, 414 Pa. 495, 200 A.2d 869 (1964), and the judgment obtained in a mortgage foreclosure action is only in rem. First Seneca Bank v. Greenville Distributing Company, 367 Pa.Super. 558, 533 A.2d 157 (1987). However, where a mortgagee fails to follow Pa.R.C.P. 1141 and includes in a mortgage foreclosure complaint a request not only for an in rem judgment of foreclosure on the mortgaged property but also an in personam judgment against the individuals who executed the mortgage for their personal liability on the note or bond accompanying the mortgage, the judgment in mortgage foreclosure can be both in rem and in personam provided that the mortgagor waives any objection to the inclusion of the assumpsit action for a personal judgment in the mortgage foreclosure proceeding. Kretschman v. Stoll, 238 Pa.Super. 51, 352 A.2d 439 (1975).

In the present case, the Court’s order dated February 17, 1987 did not specify whether the judgment granted was in rem, in personam, or both. Rather, it simply provided “the plaintiff’s Motion for Summary Judgment is granted.” Because the trial court could not have granted more relief than was sought, we must examine the complaint in mortgage foreclosure and the summary judgment motion to determine the nature of the judgment entered. Upon comparison of the facts in the present case with those in Kretschman, where the judgment obtained in the mortgage foreclosure action was determined to be both in personam and in rem, and by comparison with the facts in Peoples National Bank of Lebanon, 338 Pa.Super. 177, 487 A.2d 912 (1985), where the judgment obtained in the mortgage foreclosure action was distinguished from Kretschman and held to be only in rem, we conclude that the summary judgment obtained in the present case is only in rem.

In Kretschman, the mortgage foreclosure complaint requested both an in rem judgment against the property and an in personam judgment against the individuals who had executed the mortgage and the bond underlying it. The complaint was brought upon both the mortgage and the bond, and the prayer for relief requested judgment “against Defendants” in a specified amount, “and for foreclosure and sale of the mortgaged property.” The trial court granted both in rem and in personam relief as requested.

In Peoples National Bank, the appellee argued that its judgment in mortgage foreclosure was both in rem and in personam as in Kretschman. However, the court found otherwise. The complaint in Peoples National Bank was captioned “Mortgage Foreclosure,” and a bond upon which judgment could have been obtained was not mentioned in the complaint. The complaint stated that “the mortgages are in default,” and that “in accordance with the terms and conditions of the mortgages ”, the entire principal was due immediately. The complaint also recited that upon failure to pay the entire amount due, action would be commenced to foreclose. Furthermore, the prayer for relief did not specifically request judgment “against Defendants” but only demanded “judgment for the aforesaid amounts, together with collection fees, accrued late charges, costs of suit, etc., and for foreclosure and sale of the mortgaged premises.” Id., 338 Pa.Superior Ct. at 181-182, 487 A.2d at 914. Additionally, in the written notice of intention to foreclose, the mortgagee stated “we may also sue you personally,” and the mortgagee’s praecipe for judgment asked that the damages include the balance of the principal of the mortgage. Finally, the docket entry did not indicate that an in personam judgment was granted as well as an in rem judgment.

A comparison of the facts in the instant case with those in Kretschman and Peoples National Bank shows that the present case is most like Peoples National Bank in which the mortgage foreclosure judgment was held to be only in rem. In the instant case, the complaint which was filed by Insilco is captioned “Mortgage Foreclosure” just as in Peoples National Bank. Also, as in Peoples National Bank, the complaint recites that “notice of intention to accelerate the maturity and to foreclose” was given (paragraph 9), and the complaint recites that “pursuant to the terms of the mortgage and as a result of the aforementioned default .. .the whole amount” has become due (paragraph 12). A further similarity with Peoples National Bank, is that the complaint nowhere recites any of the terms of the underlying bond, nor attaches it as an exhibit to the complaint, nor requests judgment on the bond; the complaint simply recites “No judgment has been entered on the bond accompanying the mortgage.” (paragraph 11). The only similarity of the present case with Kretschman and distinction from Peoples National Bank, is that the prayer for relief requests “judgment against the defendants Joel T. Rayburn and Judy A. Rayburn, his wife, in the sum of ... [,]a foreclosure of the mortgage premises and a judicial sale thereof.”

In addition to the similarities between the present case and Peoples National Bank, there are two other factors which must be considered in our analysis of the type of judgment which was entered in this case. First, under the Rules of Civil Procedure governing mortgage foreclosure actions, not only is there a requirement that the action be limited to an in rem action, Pa.R.C.P. 1141, but there is also a requirement that the prayer for relief demand judgment for the amount due. Pa.R.C.P. 1147(6). Thus, the effect of the demand for judgment against the Rayburns contained in the prayer for relief in the instant case must be considered in light of the other factors which we have enumerated. If there are other factors present which indicate that the mortgagee only intended to seek an in rem judgment, then the prayer for relief requesting judgment for the amount due specifically against the Rayburns may be viewed as an inartful attempt to comply with Pa.R.C.P. 1147(6) that a demand for judgment be included in the complaint. However, if the other evidence shows that the mortgagee was in fact trying to combine the in personam action with the in rem action, then the prayer for relief demanding judgment against the Rayburns specifically may be viewed as a deliberate attempt to obtain a separate in personam judgment in the mortgage foreclosure action.

The second additional factor which must be considered is that Insilco asserts repeatedly throughout its appellate brief that the present mortgage foreclosure action is exclusively an in rem action and that there can be no in personam judgment obtained in it.

Considering that Insilco takes the position that only an in rem judgment could be obtained in an action for mortgage foreclosure, and that under the rules of Civil Procedure a mortgage foreclosure complaint can only include a cause of action in rem, considering that the complaint recites that the only notice given was to seek a mortgage foreclosure, considering that the complaint recites only that the terms of the mortgage, and not the bond, have been breached, considering that the terms of the bond are not recited in or attached to the complaint, and considering that the prayer for relief does not request judgment on the bond but simply requests judgment against the Ray-burns in an amount equal to the amount due pursuant to the terms of the mortgage, we hold that the summary judgment which was granted is only an in rem judgment, and does not constitute a personal judgment against the Rayburns on the bond.

B. STANDING

Having concluded that the judgment in the mortgage foreclosure proceeding is only an in rem judgment, we must now consider whether or not the Rayburns have standing to pursue the appeal. Rule 501 of the Rules of Appellate Procedure provide that except where a statute enlarges the right to appeal, the only persons who may appeal are: 1) a party who is aggrieved by an appealable order; and 2) a fiduciary whose estate or trust is aggrieved by an appealable order. The Rayburns are not fiduciaries and therefore do not come within the second class of persons who may appeal. Therefore, they have standing to appeal only if they are a party who is aggrieved.

An aggrieved party is one who has a direct, immediate, pecuniary and substantial interest in the subject matter of the litigation. Tripps Park Civic Association v. Pennsylvania Public Utility Commission, 52 Pa.Cmwlth. 317, 415 A.2d 967 (1980); Matter of Harrison Square, Inc., 263 Pa.Super. 324, 397 A.2d 1230 (1979). The Rayburns have given to Whipkey a quitclaim deed conveying any interest they may have had in the real estate. As a result, they no longer have any immediate, direct, pecuniary or substantial interest in the real estate or the in rem mortgage foreclosure action. Consequently, we hold that under Pa.R.A.P. 501, the Rayburns are not an “aggrieved party” and do not have standing to bring the present appeal from the in rem summary judgment in mortgage foreclosure.

If the judgment which was entered was also a judgment in personam, we would not hesitate to conclude that the Rayburns have an immediate, pecuniary, substantial and direct interest. Moreover, if it were possible in the mortgage foreclosure action to ascertain the fair market value of the property and thereby obtain a deficiency judgment against the Rayburns personally, we likewise might find that the Rayburns are aggrieved by the summary judgment. However, a deficiency judgment cannot be obtained in a mortgage foreclosure action and can only be brought in an in personam action. Meco Realty Company v. Burns, supra; First Seneca Bank v. Greenville Distributing Company, supra. Because the Rayburns are not an aggrieved party, they lack standing to pursue the present appeal, and the appeal is therefore quashed.

II. APPEAL AT NO. 797 PITTSBURGH 1987

Insilco has appealed at this docket number from the trial court’s order granting both the Rayburns’ petition for stay of execution and sheriff’s sale pending appeal on the condition that they obtain a fire insurance policy in an amount equal to 120% of the amount claimed by Insilco, and Whip-key’s petition for stay of execution and sheriff’s sale pending further hearing. The order appealed from granted two separate stays, one pending appeal, and one pending further hearing. Although Insilco has appealed from the order generally, it makes no argument concerning the stay granted to Whipkey pending further hearing. Therefore, that portion of the trial court’s order granting Whipkey’s petition for stay pending further hearing is affirmed.

As to that portion of the trial court’s order granting a stay to the Rayburns pending appeal, Insilco makes a two-pronged argument. First, Insilco argues that the trial court abused its discretion in granting the stay under the standards set forth in Allets, Inc. v. Penn Township Board of Supervisors, 67 Pa.Cmwlth. 326, 447 A.2d 329 (1982). Secondly, Insilco argues that the substitute security which the trial court approved as a condition of the stay was inadequate.

A. GRANTING OF STAY

The standards for granting a stay pending appeal are controlled by the Supreme Court’s decision in Pennsylvania Public Utility Commission v. Process Gas Consumers, 502 Pa. 545, 467 A.2d 805 (1983). In Pennsylvania Public Utility Commission, the Supreme Court expressly disapproved of the standards set forth in Allets, and held that the grant of a stay is warranted if: 1) the petitioner makes a strong showing that he is likely to prevail on the merits; 2) the petitioner has shown that he will suffer irreparable injury without the requested relief; 3) the issuance of a stay will not substantially harm other parties; and 4) the issuance of a stay will not adversely affect the public interest. However, the decision to grant or deny a stay pending appeal is vested in the trial court’s discretion, and will not be reversed absent a clear abuse of that discretion. In re: Upset Sale, Tax Claim Bureau of Berks Co., 505 Pa. 327, 479 A.2d 940 (1984).

Although the trial court did not specifically address the factors set forth in Pennsylvania Public Utility Commission when it granted the stay to the Rayburns, we nevertheless do not conclude that the granting of the Ray-burns’ petition for a stay was an abuse of the trial court’s discretion. First, as the trial court noted in its order granting the stays, there was “considerable confusion concerning the status of the property.” The likelihood of the Rayburns succeeding on the merits on appeal could not be readily ascertained as a result of the confusion noted by the trial court. Moreover, although we found it unnecessary to reach the merits of the issues raised by the Rayburns, we cannot say that they raised insignificant issues. See Pennsylvania Public Utility Commission v. Process Gas Consumers, Id., 502 Pa. at 554, 467 A.2d at 809. Secondly, should the Rayburns have prevailed on appeal, the failure to obtain the stay would have resulted in a substantial, irreparable loss to them, i.e., the loss of the actual real estate in question. Third, while the granting of the stay would delay Insilco’s obtaining satisfaction of its judgment, presuming that Insilco would prevail on appeal, Insilco would nevertheless be able to satisfy its judgment by selling the property and recovering money damages for the delay in the sale of the property. Finally, because this is a dispute between private parties, there is no substantial public interest to be affected by either the grant or denial of the stay. Considering all of these factors, we conclude that the trial court did not abuse its discretion in granting the Rayburns’ petition for a stay.

B. AMOUNT OF SECURITY

The final issue that we must discuss, therefore, is whether or not the amount of security required by the trial court as security pending appeal was sufficient. Pa.R.A.P. 1733(b) sets forth the requirements for a supersedeas in a mortgage foreclosure action as follows:

(b) Tangible property. When the order determines the disposition of the property in controversy as in real actions, replevin, and actions to foreclose mortgages or when such property is in the custody of the sheriff, or when the proceeds of such property or appropriate security for its value is in the possession, custody or control of the court, the amount of the additional security shall be fixed by agreement of the parties, or by the court, at such sums only as will secure any damages for the use and detention of the property, interest, the costs of the matter and costs on appeal.

Insilco contends that the requirement that the Rayburns obtain a fire insurance policy in the amount of 120% of the amount claimed by Insilco to be due to it is inadequate because: 1) the policy does not provide security for the costs of the proceeding; 2) the policy does not provide security for the Rayburns’ detention of the property during the appeal; and 3) the policy has questionable validity when the Rayburns claim to have no insurable interest.

At the hearing on the petitions for stays, Insilco presented no evidence concerning the estimated costs of the appeal nor an estimate as to the damages which would be necessary for detention of the property should it prevail on appeal. Furthermore, while the amount of the mortgage foreclosure was stated to be $26,225.92, Whipkey, the present legal owner of the real estate, testified that the value of the property was $75,000. Insilco presented no evidence to the contrary. Thus, on the facts before the trial court, the property itself secured nearly three times the amount claimed by Insilco. Since no evidence was presented to show that costs and damages might exceed the value of the property, the court did not abuse its discretion in refusing to order a separate bond as security for costs and damages. Furthermore, inasmuch as Rule 1733(b) authorizes the court to order security only for “damages for the use and detention of the property, interest, the costs of the matter and costs on appeal,” and inasmuch as Insilco failed to establish any value as to the items for which the court could order security, even if the insurance policy obtained by the Rayburns is unenforceable because the Rayburns do not have an insurable interest, we conclude that the trial court did not abuse its discretion in granting the Rayburns’ stay especially in light of the Rayburns’ informa pauperis status.

The appeal at No. 402 Pittsburgh 1987 is quashed. The order appealed at No. 797 Pittsburgh 1987 granting a stay of execution pending appeal and a stay of execution pending further hearing is affirmed.

      . The United States of America was also named as a defendant, apparently because it had filed tax liens against the property. The United States is not a participant on appeal, and the tax liens are not in issue in the present appeals.

      . The precise terms of the quitclaim deed and what rights and responsibilities of the Rayburns as mortgagors were transferred to Whipkey cannot be determined inasmuch as a copy of the deed is not included in the original record. We recognize that the deed was admitted as an exhibit at the hearing on the motions for stay of execution as evidenced by the list of exhibits in the transcript of the hearing as included in the reproduced record. However, neither the transcript of the hearing nor any of the exhibits from the hearing have been included in the original record certified to this court.

      . We recognize that in addition to the trial court’s order of February 17, 1987 which simply stated that “Plaintiffs Motion for Summary Judgment is granted,” Insilco filed a praecipe for judgment directing the Prothonotary to enter judgment in favor of Insilco and against Joel T. Rayburn and Judy A. Rayburn. While there may be some question as to whether the court’s order was itself the judgment which should have been appealed or whether it was necessary for Insilco to file the praecipe for judgment, we need not decide this issue and do not address it.
      First, it is unnecessary for us to decide this issue in order to determine that the appeal was timely because both the trial court's order and the praecipe for judgment were filed within 30 days of the filing of the instant appeal.
      Secondly, it is unnecessary for us to decide whether the trial court’s order was the “judgment” or whether the judgment entered by the Prothonotary pursuant to the praecipe for judgment was the actual "judgment" in order to determine whether or not the judgment was in rem, in personam, or both in rem and in personam. As discussed in the body of this opinion, the trial court can grant no more than the relief requested by Insilco, and we determined that the only relief requested was an in rem judgment. Similarly, judgment can only be entered to the extent that it is provided for in the order pursuant to which judgment is entered.
      At first glance, the judgment entered pursuant to Insilco’s praecipe might appear to be only an in personam judgment since the praecipe directed the Prothonotary to enter only a judgment against the Ray-burns. However, the language in the praecipe is identical to that used by Insilco in its complaint. Since we have already considered the language used by Insilco in the complaint along with the other facts of this case and determined that the relief requested and granted by the court was only in rem relief, we conclude that the judgment entered by the Prothonotary pursuant to Insilco’s praecipe was also only an in rem judgment.

      . While we express no opinion on the matter, we note that although Insilco has argued that the Rayburns lacked standing to pursue the appeal from the summary judgment, Insilco has not argued that the Rayburns lacked standing to seek a stay of the execution.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    543 A.2d 128
    Theodore GROFF and Denise Groff, h/w, Appellants, v. PETE KINGSLEY BUILDING, INC. v. H. Glenn ESBENSHADE and Leslie L. Witmer, t/a G & L Developers, Realty Trade and Equity Company of Lancaster, Pennsylvania, Warren Weaber, Inc., J.K. Towers and the Township of East Hemfield v. B.R. KREIDER & SON, INC., Appellees.
    Superior Court of Pennsylvania.
    Submitted March 8, 1988.
    Filed May 25, 1988.

      Paul W. Grego, Lancaster, for appellants.
    John L. Sampson, Lancaster, for Pete Kingsley, appellee.
    James R. Adams, Lancaster, for H. Glenn Esbenshade and Witmer, appellees.
    Jefferson C. Crosby, Lancaster, for Realty Trade and Warren Weaber, appellees.
    James H. Thomas, Lancaster, for J.K. Towers and East Hempfield Tp., appellees.
    George H. Eager, Assistant District Attorney, Lancaster, for B.R. Kreider, appellees.
    Before ROWLEY, WIEAND and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from an order of the Court of Common Pleas of Lancaster County dismissing appellant’s amended complaint on appellee’s motion for judgment on the pleadings.

Appellants, Theodore and Denise Groff, purchased a tract of land in Lancaster County through the agent of a land developer. Thereafter, in October of 1982, appellants contracted in writing with appellee, Pete Kingsley Builder, Inc., to construct a new house on the tract of land. Appellants took possession of the completed house on February 1, 1983.

On September 3, 1986, appellants instituted suit against the appellee, Pete Kingsley Builder, Inc. Appellants contended in their Complaint that appellee had negligently constructed their house “... in complete contravention of the plans and authorizations from the Plaintiffs, said construction also below the standards within the building industry ...” R.R. at 3a. Appellants listed the following structural problems existing in their completed house which they claimed were caused by appellee’s negligent construction:

A. The outside basement wall has developed large cracks;
B. The basement floor has developed large cracks;
C. The front stoop/door area is completely misaligned, resulting in it being almost impossible to open and close the front door;
D. Larger than normally expected drywall cracks have developed throughout the house;
E. The french doors are completely misaligned, thereby making it almost impossible to open and close them ...

Id. Appellants also included a breach of contract claim in their Complaint, averring that the “actions and/or omissions by the Defendant caused an utter breach of the Contract ...” R.R. at 4a. Appellants attached to their Complaint a document which they identified as their written Contract with appellee. This document consists of a five-page “Specifications and Description of Material for Construction” and a three-page floor plan of the proposed dwelling. Neither the specifications nor the floor plan contains any terms (such as price, time schedule, or possible warranties) concerning the parties’ agreement beyond a listing of the dimensions of the proposed house and the types of construction material which were to be used.

Appellee filed an answer to the Complaint on November 10, 1986, wherein the appellee denied that it was negligent in building appellants’ house and asserted that any structural problems are due to a cause other than appellee’s workmanship. Appellee contended that it had complied with all of its contractual obligations. By way of New Matter, appellee averred that the developer of the appellant’s building lot had placed improper fill on the lot which resulted in a tract of land not suitable to support a home. Answer of Appellee, 11/10/86 at 4. Appellee further averred that it had no reason to know that the subsurface condition of appellants’ lot was unsuitable to support the house which it contracted to build for appellants and that the appellants had acted negligently in failing to determine the subsurface condition of their lot prior to entering into a construction contract. Id. at 5. Finally, the appellee’s New Matter contains the following allegations:

22. Pursuant to the terms of the parties’ contract, Defendant provided protection against construction defects to Plaintiffs through the Home Owners Warranty Program as a result of which the Home Owners Warranty Corporation issued insurance/warranty documents to Plaintiffs.
26. Defendant is not liable for damages resulting from the alleged drywall cracks by reason of the exclusions set forth in Paragraph 15F of the parties’ contract.
27. Defendant is not liable for damages resulting from the alleged concrete cracks by reason of the exclusions set forth in Paragraph 15J of the parties’ contract.

Id. at 6. We have thoroughly reviewed the record before us and we note that it does not contain a copy of the contractual provisions described by the appellee in its above quoted New Matter. See n. 1., infra.

In February of 1987, appellee joined additional defendants, among them the developer of the appellants’ building lot. On June 10, 1987, the appellee filed a motion for judgment on the pleadings. In this motion, appellee contended, inter alia, that the statute of limitations had run with respect to appellants’ claim that appellee had been negligent in building the house. In reference to appellants’ breach of contract claim, appellee argued that the document attached to appellants’ Complaint “.. .contains no warranties, expressed or implied, and no covenants or promises of any kind. Plaintiffs have therefore not alleged a cause of action based on breach of contract ...” Appellee’s Brief in Support of Motion for Judgment on the Pleadings, 6/10/87 at 9.

Appellants responded to the motion for judgment on the pleadings by filing an amended complaint. The amended complaint contained the same factual averments as appellants’ original complaint, but contained only a claim for breach of contract as follows: “This defective construction by the Defendant caused an utter breach of the contract, and of the warranty of habitability implied therein ...” R.R. at 38a. After the filing of the amended complaint, appellee continued to pursue its motion for a judgment on the pleadings, contending that appellants’ breach of contract claim must rest solely upon an implied contractual theory because “.. .Plaintiffs were unable to point to any terms of the contract pleaded which were violated by Defendant.” Appellee’s Reply Brief in Support of Motion for Judgment on the Pleadings, 8/10/87 at 3 (emphasis added). Appellee argued that appellants had failed to state a cause of action for breach of an implied warranty of habitability on the grounds that this implied contractual warranty has only been recognized in cases where the builder of a structure is also the seller or vendor of the building lot. The trial court entered the following Order, which is the subject of the instant appeal:

AND NOW, August 18, 1987, upon consideration of Defendant’s, Pete Kingsley Builder, Inc., motion for judgment on the pleadings and the legal briefs filed in support and opposition by the concerned parties, it is Ordered that such motion is granted since under the rationale of Elderkin v. Gaster, 447 Pa. 118, 288 A.2d 771 (1972), as reconfirmed by Tyrus [Tyus] v. Resta, 328 Pa.Super.Ct. 11, 476 A.2d 427 (1984), the moving Defendant in the present case is not a builder-vendor and thereby not responsible for the implied warranties of habitability and reasonable workmanship.
Consequently, judgment is entered in favor of Pete Kingsley Builder, Inc. and against Plaintiffs, (footnote omitted)

R.R. at 62a.

A trial court, in granting judgment on the pleadings, must confine its consideration to the pleadings and relevant documents properly before it. Del Quadro v. City of Philadelphia, 293 Pa.Super. 173, 437 A.2d 1262 (1981). Judgment on the pleadings is appropriate only when no material facts are in dispute. Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878 (1986). “In reviewing the court’s decision, we must determine if the action of the court was based on a clear error of law or whether there were facts disclosed by the pleading which should properly go to the jury. The decision will be affirmed only in cases which are clear and free from doubt.” Id., 354 Pa.Superior Ct. at 296, 511 A.2d at 880 (citations omitted). This is a case which is certainly not free from doubt.

The appellants and the appellee, by way of their pleadings, agree that they did execute a written construction contract. This contract was apparently never attached to any of the pleadings filed by either the appellants or the appellee. As a result, the trial court was apprised of the contract’s existence but not of its contents. Under these circumstances, we find that the trial court erred in entering a judgment on the pleadings in favor of the appellee as to the claim that the appellee had breached the terms of this construction contract. Our review of the allegations contained in the appellee’s Answer, filed November 10, 1986, convinces us that the construction contract, as executed between these parties, may contain express warranties concerning the quality of appellee’s workmanship. Although we recognize that appellants have already amended their complaint once, we are “mindful ... that a complaint should be dismissed only in clear cases, and that leave to amend should be granted when there is a possible theory under which the complaint might be self-sustaining ...” Harkins v. Zamichieli, 266 Pa.Super. 401, 410, 405 A.2d 495, 500 (1979). In the case presently before us, we have no way of knowing whether the construction contract was in the exclusive possession of the appellee, or whether the appellants also had a copy of the contract. Appellants, upon remand, should be given an opportunity to amend their complaint to state a cause of action, if they can, for breach of the express terms of the construction contract.

We also find error in the entry of judgment on the pleadings in favor of the appellee as to the alleged breach of the implied warranty of habitability.

In Elderkin v. Gaster, 447 Pa. 118, 288 A.2d 771 (1972), our supreme court addressed for the first time the implied warranty of habitability in the area of residential construction contracts. The appellants in Elderkin had entered into a construction contract to purchase a lot from the appellee. This contract also provided that the appellee would construct a house on the lot. After the appellants had taken possession of the house, they discovered that the well water supply for the house was unfit for human consumption. The issue facing our supreme court in Elderkin was whether any contractual warranties are implied when a builder sells a new house and a lot to a lay purchaser. Initially, the supreme court noted that the existence of “[a] series of American decisions holding that the sale by its builder-vendor of a new home in the process of construction is accompanied by implied warranties of workmanship construction and habitability.” Id., 447 Pa. at 125, 288 A.2d at 775. The court recognized the following as the “thesis of all of these decisions”:

“[T]he whole object, as both parties know, is that there shall be erected a house in which the intended purchaser shall come to live. It is the very nature and essence of the transaction between the parties that he will have a house put up there which is fit for him to come into as a dwelling house. It is plain that in those circumstances there is an implication of law that the house shall be reasonably fit for the purpose for which it is required, that is for human dwelling.”

Id., 447 Pa. at 125-126, 288 A.2d at 775 (citation omitted). The Elderkin court stated that “the warranties appear to apply whether the homes are purchased prior to construction, during construction, or after the dwelling has been constructed but not yet occupied.” Id., 447 Pa. at 126-127, 288 A.2d at 776.

The Elderkin court held that the appellee, who had purchased land and built a home thereon for the purpose of sale to the appellants, impliedly warranted that “...the house he has built and is selling is constructed in a reasonably workmanlike manner and that it is fit for the purpose intended—habitation.” Id., 447 Pa. at 128, 288 A.2d at 777. In so holding, the court recognized:

.. .the law will imply a warranty of fitness for the purpose intended when a buyer has reason to rely upon and does rely upon the judgment of the seller who manufactures the product. We have concluded that one who purchases a development home conforms to this standard; he justifiably relies on the skill of the developer that the house will be a suitable living unit. Not only does a housing developer hold himself out as having the necessary expertise with which to produce an adequate dwelling, but he has by far the better opportunity to examine the suitability of the home site and to determine what measures should be taken to provide a home fit for habitation. As between the builder-vender and the vendee, the position of the former, even though he exercises reasonable care, dictates that he bear the risk that a home which he has built will be functional and habitable in accordance with contemporary community standards

Id. The Elderkin court concluded that the appellee had breached the implied warranty of habitability by failing to provide the home with drinkable water.

We hold that in instant case, the appellee, upon executing the construction contract with appellants, impliedly warranted that appellants’ house would be constructed in a reasonably workmanlike manner and it would be fit for habitation as a residential dwelling. We believe this is both a logical and fair application of the Elderkin decision. Our decision rests predominantly upon the underlying rationale of the Elderkin opinion, but we are also guided by case law from other jurisdictions.

In McDonald v. Mianecki, 79 N.J. 275, 398 A.2d 1283 (1979), the Supreme Court of New Jersey examined in detail the evolvement and the rationale of the doctrine of the implied warranty of habitability in the area of new home construction. Without exception, this exhaustive discussion, which parallels the discussion of our supreme court in Elderkin, applies with equal weight whether a layperson contracts to purchase a new house and accompanying lot from the builder, or whether a layperson contracts to have a new house constructed upon land which the layperson already owns. A contract to purchase a new home or to have a new home constructed is “.. .not an everyday transaction for the average family; * * * in many instances [it] is the most important transaction of a lifetime.” Id. at 288, 398 A.2d at 1289 (citations omitted). In such contracts, it is essential to recognize that the contracting parties do not bargain as two equals. On the contrary, whether a house is completed or in the process of being built, most members of the general public lack the knowledge and expertise in construction practices to adequately inspect and supervise the builder’s workmanship. See Petersen v. Hubschman Construction Co., Inc., 76 Ill.2d 31, 40, 27 Ill.Dec. 746, 750, 389 N.E.2d 1154, 1158 (1979); Moxley v. Laramie Builders, Inc., 600 P.2d 733, 735 n. 2 (Wyo.1979). We recognize that “modern construction is complex and regulated by many governmental codes, and that homebuyers are generally not skilled or knowledgeable in construction, plumbing, or electrical requirements and practices ...” Richards v. Power-craft Homes, Inc., 139 Ariz. 242, 246, 678 P.2d 427, 431 (en banc) (1984). “Furthermore, most defects are undetectable to even the most observant layman and the expense of expert advice is often prohibitive.” McDonald, supra, 79 N.J. at 288, 398 A.2d at 1289.

Thus, the consumer in the area of new house construction must rely in great part upon the expertise of the builder who holds himself out as competent to construct the consumer’s home. Although a layperson purchasing a new home or contracting for the construction of one may attempt to protect himself from faulty construction with express contract provisions, it has been recognized that, in the area of residential construction contracts, “standard form contracts are generally utilized and ‘[ejxpress warranties are rarely given, expensive, and impractical for most buyers to negotiate.’ ” Id. at —, 398 A.2d at 1290 (citation omitted). Builders enjoy a superior bargaining position when contracting with laypersons interested in securing their services or buying their finished construction. As a result, the law implies a warranty of habitability to protect lay purchasers who enter the marketplace in order to obtain a new house from a builder. Otherwise, the public would remain at the professional builder’s mercy.

The existence of the implied warranty of habitability does not place a surprise burden upon builders. Rather, it serves to achieve the reasonable intent of the parties who contract for the construction of a residential structure. It is the “... implicit understanding of the parties to a construction contract .. .that the agreed price is tendered as consideration for a home that is reasonably fit for the purposes for which it was built—i.e., habitation.” Id. at 293, 398 A.2d at 1292. The builder knows he is building a structure which will be used as a home. Neither does the implied warranty of habitability place an unfair or unreasonable burden upon builders of new residential construction. The professional builder is expected to have the skill and expertise to know how to guard against potential structural problems. Moreover, the builder is in the best position to prevent structural defects. Finally, this jurisdiction has recognized that builders may protect themselves from liability for breach of implied warranties by including express disclaimers of such warranties in their construction contracts. Tyus v. Resta, 328 Pa.Super. 11, 476 A.2d 427 (1984) (Implied warranties of habitability and reasonable workmanship in contracts whereby a builder sells a newly constructed home may be limited or disclaimed by clear and unambiguous language in a written contract between the builder and the home purchaser, with contractual language purportedly creating an express restriction or exclusion of an implied warranty being strictly construed against the builder.) The recognition of the implied warranty of habitability in residential construction contracts benefits the entire building industry because it serves to discourage “the unscrupulous, fly-by-night, or unskilled builder and to ‘discourage much of the sloppy and jerry building that has become perceptible over the years.’ ” Capra v. Smith, 372 So.2d 321, 323 (Ala.1979) (citations omitted).

When presented with the issue, other jurisdictions have recognized that a builder, when contracting with a landowner to construct a residential home on the owner’s land, impliedly warrants that the structure will be erected in a workmanlike manner. See, e.g., Henggeler v. Jindra, 191 Neb. 317, 214 N.W.2d 925 (1974); Robertson Lumber Company v. Stephen Farmers Cooperative Elevator Company, 274 Minn. 17, 143 N.W.2d 622 (1966); Holmes v. Worthey, 159 Ga.App. 262, 282 S.E.2d 919 (1981); Wurst v. Pruyn, 250 La. 1109, 202 So.2d 268 (1967); Redarowicz v. Ohlendorf, 92 Ill.2d 171, 65 Ill.Dec. 411, 441 N.E.2d 324 (1982): The Supreme Court of Wyoming, in deciding that a warranty of habitability is implied in a construction contract wherein the builder agrees to erect a house on land of the owner, concluded that:

We can see no difference between a builder or contractor who undertakes construction of a home and a builder-developer. To the buyer of a home the same considerations are present, no matter whether a builder constructs a residence on the land of the owner or whether the builder constructs a habitation on land he is developing and selling the residential structures as part of a package including the land. It is the structure and all its intricate components and related facilities that are the subject matter of the implied warranty. Those who hold themselves out as builders must be just as accountable for the workmanship that goes into a home that a buyer or his successor or successors in interest expect to occupy in the years that thereafter follow, as are builder-developers.

Moxley, supra at 736. We are in full agreement with the statements of the Supreme Court of Wyoming and, accordingly, we find no reason not to apply the basic concepts leading to recognition of the implied warranty of habitability and reasonable workmanship in Elderkin, supra, to builders generally who contract with the general public for the construction of residential homes.

We now reverse the entry of judgment on the pleadings in favor of the appellee and remand for further proceedings consistent with this Opinion. We are deciding this case only upon a motion for judgment on the pleadings and we therefore express no opinion on whether appellants will ultimately be able to establish the breach of contract action they allege.

Jurisdiction is relinquished.

      . In its Answer, appellee admitted that it had entered into a written contract with appellants. Appellee denied, however, that the document which appellants had attached to their complaint was a copy of this contract. Answer of Appellee, 11/10/86 at 1. Appellee alleged that the document attached to appellants’ complaint is merely "a copy of the specifications for the house.” Id. The record before us does not contain any document which appears to be a copy of the written construction contract which these parties apparently executed sometime in September or October of 1981.

      . Our holding here is limited, of necessity, to the particular facts of the case presently before us, namely, a written construction contract executed by a builder and a layperson for the construction, according to plans and specifications furnished by the builder, of a residential house upon the layperson's land. We express no opinion on whether an implied warranty of habitability will be extended in other factual contexts.


author: WIEAND, Judge: OLSZEWSKI, Judge, KELLY, Judge,

text:
    543 A.2d 134
    Richard P. DRIVER and Sara M. Driver, his wife, and Samuel D. Harris and Margaret E. Harris, his wife, Appellees, v. Earl J. TEMPLE and Edna Temple, his wife, and Walter H. Heffner and Mary H. Heffner, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1988.
    Filed May 23, 1988.

      Michael R. Lynn, Bloomsburg, for appellants.
    J. Howard Langdon, Muncy, for appellees.
    Before BROSKY, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA, KELLY, POPOVICH and JOHNSON, JJ.
   WIEAND, Judge:

This appeal by Earl Temple and by Walter and Mary Heffner, husband and wife, is from an order confirming finally the report of a board of viewers which established a private road across their lands for the purpose of giving appellees, Richard and Sara Driver, husband and wife, and Samuel and Margaret Harris, husband and wife, access to their adjoining properties. Although appellants concede that appellees’ lands are “landlocked,” they contend that the board of viewers abused its discretion by refusing to establish the roadway along the shortest available route. Before considering this issue, we must determine whether the order of the trial court is subject to appellate review prior to a determination of the damages to be paid to appellants for the land taken from them for appellees’ road.

Proceedings for the opening of private roads are authorized by the Act of June 13, 1836, P.L. 551, as amended. Section 11 thereof (36 P.S. § 2731) provides in pertinent part as follows:

The several courts of quarter sessions shall, ... upon petition of one or more persons ... for a road from their respective lands or leaseholds to a highway or place of necessary public resort ... direct a view to be had of the place where such road is requested, and a report thereof to be made____

Section 1 (36 P.S. § 1781) specifically authorizes the court to appoint a board of viewers, whose duties are defined in section 2 (36 P.S. § 1785) as follows:

The persons appointed as aforesaid shall view such ground, and if they shall agree that there is occasion for a road, they shall proceed to lay out the same, having respect to the shortest distance, and the best ground for a road, and in such manner as shall do the least injury to private property, and also be, as far as practicable, agreeable to the desire of the petitioners.

Section 12 (36 P.S. § 2732) provides that if it shall appear by the report of viewers to the court that such a road is necessary, “... the proceedings in such case[] shall be entered on the record, as before directed, and, thenceforth such road shall be deemed and taken to be a lawful private road.” Thereafter, according to section 16 (36 P.S. § 2736),

[t]he damages sustained by the owners of the land through which any private road may pass shall be estimated in the manner provided in the case of a public road, and shall be paid by the persons ... at whose request the road was granted or laid out: Provided, That no such road shall be opened before the damages shall be fully paid.

Proceedings to open private roads and subsequent proceedings to assess damages therefor are distinct proceedings. The commencement of proceedings for the assessment of damages, it has been held, is a waiver of defects in the order confirming the opening of the private road. Weaver’s Road, 45 Pa. 405 (1863). Because of the bifurcated course which the two proceedings must take, the trial court is required to determine all legal issues involved in the proceeding to take another’s land for private use before the damages to be paid can be assessed. Only after it has been decreed that a private road is necessary and is to be opened across the land of another, and the location, width, and distance thereof have been determined, does it become possible to estimate damages “in the manner provided in the case of a public road.” Of necessity, therefore, the two proceedings are separate and distinct.

This statutory procedure is still in effect. It has not been altered by constitutional amendment, by statute, or by procedural rule. In recognition of the bifurcated nature of such proceedings, this Court has entertained an appeal from an order confirming finally a viewers’ report determining that a road shall be laid out and fixing the location thereof. See: In re Private Road in Monroeville Borough, Appeal of Marinclin, 204 Pa.Super. 552, 205 A.2d 885 (1964). The Commonwealth Court has similarly entertained such an appeal. Mattei v. Huray, 54 Pa.Commw. 561, 422 A.2d 899 (1980). This practice appears to be sound. For an appellate court to refuse to entertain such an appeal and require proceedings to assess damages to go ahead before the location of the roadway has been determined finally would permit absurd consequences in the event the location of the road were subsequently altered following appellate review. We conclude, therefore, that an order finally confirming the opening of a private road is an order which is sufficiently final to permit immediate appellate review.

The contrary holding of a panel majority in Beers v. Raub, 363 Pa.Super. 521, 526 A.2d 801 (1987), is disapproved and expressly overruled. The practice adhered to and followed in cases of this type for many years has not been altered by the elimination of courts of quarter sessions or by the establishment of a unified judicial system. The Act of 1836 and the practice thereunder remain extant. Cf. Eminent Domain Code of June 22, 1964, P.L. 84, § 517, 26 P.S. § 1-517 (decree confirming report of viewers after it has been determined finally shall constitute final order).

The Act of 1836, supra, grants to boards of view broad authority to determine whether a private road is necessary and, if so, where it shall be located. Although the board’s findings are subject to review and may be set aside, its authority will not be infringed upon by a court’s substituting its judgment for that of the viewers. In re Private Road in Monroeville Borough, Appeal of Marin clin, supra 204 Pa.Super. at 558, 205 A.2d at 887-888. See also: In re Private Road in Greene Township, 343 Pa.Super. 304, 307, 494 A.2d 859, 860-861 (1985). “Appellate review of these matters is solely to ascertain the validity of the court’s jurisdiction, the regularity of the proceedings, questions of law, and whether there has been an abuse of discretion. We cannot look beyond the record ... or consider questions of fact.” Little Appeal, 180 Pa.Super. 555, 558, 119 A.2d 587, 588 (1956). See also: Keller’s Private Road, 154 Pa. 547, 548, 25 A. 814, 814 (1893).

Appellants contend that the board of viewers in the instant case abused its discretion by failing to follow the statutory mandate to lay out a road having the shortest distance and in such a manner as to do the least damage to the remaining land. However, the length of the roadway and the amount of damage caused are only two of several considerations mandated by statute. Of equal importance is the “best ground for a road.”

The three possible routes in the instant case are depicted as follows:

According to Plan No. 1, the roadway would extend from Legislative Route 41080 to the southeast corner of the Harris tract. It would cross the Heffner tract via an existing roadway through woodland, traverse a field used for farming on the Temple tract, continue along an existing roadway on the Temple tract, and terminate at the Harris tract, where it would connect with another existing roadway. The roadway across lands of Heffner and Temple would rise an average of 1.11 feet in 100 feet, a grade of 1.11%. The steepest grade would be 4.81%. The length of this road would be 2596.31 feet. It would take .4340 acres from the Heffner tract and .9965 acres from the Temple tract. Of the total length of this roadway, however, a distance of 1311.22 feet would be over existing roadways, consuming .7224 acres. The balance of the road, 1284.99 feet in length and .707 acres in area, would traverse farmland owned by Temple. Of all possible routes, this roadway would be the easiest to maintain.

The route envisioned by Plan No. 2 is the shortest route. It would commence at Township Road 738, cross the Temple property at a descending grade of 13.62% to a stream, and then continue across the Temple property at an ascending grade of 12.61% to the Harris tract. The steepest grade would be 14.57%. This route would be 1062.70 feet in length and would take .5855 acres from the Temple tract. There was engineering testimony that the grades for such a road would be excessive and that extensive drainage ditches would be necessary to capture surface run-off and prevent a washout of the road. To construct such a road it would be necessary to erect a drainage structure across the stream and to alter the road’s surface with fill in order to accommodate its entrance at the township road. Whether an all-weather road could be maintained adequately was uncertain.

The roadway to be accommodated by Plan No. 3 would also begin at Township Road 738, but it would terminate at the northwest corner of the Driver tract. This roadway would be 1932.8 feet in length and would take 1.056 acres of pasture land owned by Temple. The average grade of such a road would be 8.94%, but the steepest grade would be 21.17%. The roadway would be winding and would include several sharp turns. It would be bordered on the south by a stream and, therefore, would require extensive drainage ditches and cross-drains to capture and divert surface waters away from the road in order to prevent flooding of the road. These necessary improvements, according to engineering testimony, would significantly increase the cost of constructing the road.

The board of viewers concluded from the evidence presented that the excessive grades and poor, overall terrain over which routes 2 and 3 would run “made them less practical than Plan No. 1 in spite of the fact [that] Plan No. 1 [was] longer and [would cause] more injury than the others.” The board also observed that Plan No. 1, as surveyed, would minimize the injury to Temple’s farmland by following the contour lines and crop rows as it crossed his field. Finally, the board found that the road envisioned by Plan No. 1 would be an all-weather road; whereas, the other routes had the potential for becoming impassable in winter months and during periods of heavy rains. Thus, even though it entailed the longest route, the roadway included in Plan No. 1 would be constructed over the most suitable ground.

The board’s findings are fully supported by competent evidence. The trial court found no abuse of discretion and confirmed the report of the viewers. Our review of the record discloses no basis for reversing the order of the trial court.

Appellants argue, however, that the relief sought by the petitioner-appellees was barred by principles of res judicata. In support of this argument they point to a prior action in equity wherein appellees were unable to prove a right-of-way by prescription. There is no merit in this argument. The doctrine of res judicata precludes relitigation of an issue of fact or law which was fully litigated in a prior action. “[B]efore the doctrine of res judicata will apply, there must be: (1) identity of the thing sued ... for; (2) identity of the cause of action; (3) identity of the ... parties to the action; and (4) identity of the quality or capacity of the parties suing or being sued.” Shindel v. Leedom, 350 Pa.Super. 274, 278, 504 A.2d 353, 355 (1986).

In the prior equity action, the court determined that appellees had failed to prove that their use of a roadway across land owned by Temple had been open, notorious, continuous, and hostile for a period of 21 years. The present proceedings are authorized by statute and are determined by necessity. Because the parties are agreed that appellees’ properties are landlocked, the need for a private road has been fully established. The remaining issues concern location and such things as grade and practicality. These are not the same issues which were litigated in the prior action in equity. Clearly, therefore, the present proceedings are not barred by principles of res judicata.

It is correct, as appellants contend, that the route adopted by the viewers and confirmed by the trial court will cross through prime farmland. This fact, however, will be reflected in the amount of damages which they will be entitled to recover as a result of the taking of their land. It does not alone prevent the laying out of the road across land otherwise found most suitable for roadway purposes.

The order confirming the report of viewers is affirmed.

OLSZEWSKI, J., files a concurring and dissenting opinion.

KELLY, J., files a dissenting opinion in which BECK and JOHNSON, JJ., join.

OLSZEWSKI, Judge,

concurring and dissenting:

I agree with the majority that an order granting a request to open a private road pursuant to 36 P.S. § 2731 is final and appealable. I respectfully disagree, however, with the majority’s decision to affirm the finding of the Board of Viewers. In my view, the Board abused its discretion in designating Plan No. 1 as the right-of-way.

Section 1785 of Title 36 requires that the Board consider the following factors in determining the site for a private road: (1) the shortest distance; (2) the best ground; (3) the least injury to private property; and (4) as far as practicable, the desire of the petitioners. 36 P.S. 1785. A review of the findings of fact and conclusions of law submitted by the Board reveals no support for the selection of Plan No. 1 as the sight for the private road.

Section 1785 first requires that the Board take into consideration the shortest route for a private road. It is undeniable that Plan No. 1 encompasses the greatest distance. Indeed, the total length and area of Plan No. 1 (2,596.31 feet/.9965 acres) is over twice that of Plan No. 2 and more than one-third longer than Plan No. 3. Therefore, this Section 1785 factor should weigh against the adoption of Plan No. 1.

The Board, however, appeared to be unpersuaded. In giving “consideration” to this factor, the Board stated:

The Board took into account all of the first three factors specified in the Act and after weighing all three concluded that Plan No. 1 was the most practical way ... in spite of the fact Plan No. 1 is longer.

Findings of fact and conclusions of law, 3/21/86 at 11 (emphasis in original). In effect, the Board simply paid lip service to this factor. This error by the Board is not without consequence; having failed to consider and properly weigh one of the four factors, the balance of the remaining factors easily tips in appellees’ favor.

The second Section 1785 factor requires that the Board consider “the best ground for the road.” 36 P.S. 1785. The evidence of record readily supports a finding that the best ground for the road is in Plan No. 1. As the Board noted, the lands contained in Plans No. 2 and 3 have have relatively high grades and are prone to water runoff. Accordingly, the use of vehicles during the winter and rainy seasons would be difficult. On the other hand, the ground in Plan No. 1 is nearly level with a relatively dry terrain. This factor, therefore, easily weighs in favor of Plan No. 1.

Third, the Board was required to determine which route would cause the least injury to the private property. As for this Section 1785 factor, the Board stated: “Plan No. 1 would be more inconvenient ... because in part it would divide in two parts a plot ... which is cultivated, crop-producing farmland.” Findings of fact and conclusions of law at 8. In justifying its conclusion, the Board also noted that Plan No. 1 “causes more injury than the others [but] ... is designed to minimize the injury to the field of Earl J. Temple by following contour lines and crop rows where it crosses the field and by being on the edge of the field for the remainder of the way.” Id. at 11. Despite the Board’s attempt to minimize the injury to appellants, the fact remains that Plan No. 1, unlike Plans No. 2 and 3, severs appellants’ prime, crop-producing farmland. Prime farmland simply should not be sacrificed when laying out a private road. Based upon the evidence presented at the hearing as well as the Board’s own statements, I believe that this factor weighs against the use of Plan No. 1.

The fourth Section 1785 factor requires that the Board consider the desire of the petitioners. Given that this factor will always favor the petitioning party, some measure of restraint is necessary in giving weight to this consideration. Consequently, the petitioner’s desire is tempered by a notion of practicability. It is only to an extent which is “practicable” or reasonable that a petitioner’s desire is taken into consideration.

In this case, appellees favored Plan No. 1. Pursuant to the fourth Section 1785 factor, the question presented to the Board was as follows: Is it practicable to permit appellees to build a lengthy, private road through the prime farmland of one property owner and over the land of another owner, merely because the route has a smaller grade and would be less costly to maintain? I believe the Board acted improvidently in answering this question in the affirmative. The private interest of appellees in obtaining an access route of choice should be subservient to the interest of the landowner whose property is being confiscated. In other words, Section 1785 permits appellees to obtain a practicable or reasonable road, not the best possible road.

A review of the Section 1785 factors establishes that two factors—the length of the road and the injury to private property—weigh against adoption of Plan No. 1. One factor—the best ground for the road—weighs in favor of that plan. As for the last factor—the desire of appellees—I believe the Board acted improvidently in concluding that neither Plan No. 2 nor Plan No. 3 was a reasonable alternative.

Finding that the balance of the Section 1785 factors weigh against the adoption of Plan No. 1, I would, therefore, reverse.

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 determinations 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 Cohen 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 damages 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 common 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,1 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.

      . This is vividly illustrated by the facts of the instant case. Three separate routes have been proposed. Locations and lengths, as well as terrain, the area subsumed, and the type of land crossed, are different. Thus, damages will vary according to the final route selected. Realistically, therefore, proceedings to determine the amount of appellants’ damages cannot begin until the precise location of the roadway across their lands has been finally determined.

        . The author of the dissenting opinion would adopt the reasoning in Beers v. Raub 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 ha[s] been removed.” Dissenting Opinion at p. 402-403. This overlooks the fact that prior to 1969, the proceedings to determine damages were held in the same court as the court which had determined that a private road should be opened. Prior to 1969, proceedings to open a private road and proceedings to assess damages were both held in the court of quarter sessions before a board of viewers. See: In re Private Road in Monroeville Borough, Appeal of Marinclin, supra. If a party were dissatisfied with the damages awarded by viewers, he was permitted to file exceptions. These exceptions were filed in the court of quarter sessions. Id. Only if he wanted to appeal from the viewers’ award of damages and have his damages determined by a jury would he file an appeal in the court of common pleas. Id. This procedure was not changed in 1969. The only change made by constitutional amendment in 1969 was to consolidate the courts of quarter sessions and common pleas into one trial court to be known as the court of common pleas.

      . Appellees’ expert opined that with maintenance Plan No. 2 could be made drivable in all seasons. Notes of hearing before Board of Viewers, 6/28/85 at 46.

      . Although the provisions of the Act creating the Agricultural Lands Condemnation Board, Act No. 100 of 1979, 71 Pa.S. § 106, are not directly applicable, the Act evidences an express policy of this Commonwealth to preserve farmland.

      . "[Practicable] means the accomplishing of something which is reasonable to accomplish, and it includes the doing of what is unreasonable or unnecessary____ ‘A thing practicable must necessarily be possible, but a thing may be possible that is not practicable.’ ’’ Jeannette Glass Co. v. Indemnity Insurance Co., 370 Pa. 409, 417, 88 A.2d 407, 411 (1952) (Musmanno, J., dissenting).

      . The cost of building a road is not a factor in this determination. Appellees’ expert witness could not determine whether Plan No. 1 (which is a more lengthy route), or Plan No. 2 (which has a steeper grade) would be a more costly alternative. The testimony established, however, that Plan No. 2 would be more costly to maintain.

      . 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).


author:
TAMILIA, Judge:
      CAVANAUGH, Judge, dissenting:

text:
    543 A.2d 142
    Harry J. WEIST v. ATLANTIC RICHFIELD COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 19, 1987.
    Filed June 6, 1988.

      Lori A. Kradzinski, Philadelphia, for appellant.
    John W. Craynock, Philadelphia, for appellee.
    Before CAVANAUGH, McEWEN and TAMILIA, JJ.

      . In Bruno v. Elitzky, 515 Pa. 47, 526 A.2d 781 (1987), the Supreme Court held a trial court sanction Order striking defendant’s new matter is interlocutory in nature and not within one of Pa.R.A.P. 311(a)’s seven specified Orders from which an appeal as of right may be taken. We find Bruno inapposite to the instant appeal because here ARCO is precluded from presenting a defense to appellee’s action, not simply from raising new matter claims. See Zarnecki, supra 367 Pa.Super. at 235, n. 1, 532 A.2d at 876, n. 1.

   TAMILIA, Judge:

This appeal concerns a trial court order imposing sanctions against appellant Atlantic Richfield Company (“ARCO”). The action was commenced on December 10, 1985 by appellee filing a complaint in assumpsit averring ARCO breached its contract with appellee by charging him $18,203 in alleged royalty deficiencies without justification pursuant to an am/pm Mini Market agreement between the parties. In its answer, filed February 13, 1986, ARCO denied any overcharge and averred it was entitled to the money for deficiencies during the auditing period. Arco also raised a number of affirmative defenses in new matter.

On September 4, 1986, appellee noticed the deposition of Arthur Goldstein, a “managing agent” of ARCO. In response to this notice, ARGO filed a motion for protective Order requesting the deposition of Goldstein, who worked in a California office of ARCO, be taken by telephone, written interrogatories, or by oral deposition in either California or Pennsylvania at appellee’s expense. After argument, by a November 3, 1986 Order, the trial court effectively denied ARCO’s motion by ordering the deposition of Goldstein in Philadelphia on January 12, 1987, the day before the scheduled arbitration in the case, and by allowing appellee to file interrogatories within twenty days and ARCO to file answers within twenty days thereafter.

On or about November 25, 1986, appellee forwarded interrogatories to counsel for ARCO. Then on January 7, 1987, appellee filed a motion for sanctions averring that ARCO had failed to respond to his interrogatories sent approximately forty-three days prior to the sanctions motion and also averred ARCO had informed appellee it would not produce Goldstein for deposition on January 12,1987, as ordered by the court. In response to appellee’s motion for sanctions, the trial court entered a January 9, 1987 Order precluding ARCO from calling any witnesses at the arbitration or trial. The arbitration board found against ARCO in the amount of $20,418.78 on January 13, 1987, which award was filed and docketed on January 15, 1987, and appealed by ARCO on February 13, 1987 to the Court of Common Pleas of Philadelphia County. The trial court’s January 9, 1987 sanction Order was not entered on the trial court’s docket until January 27, 1987 and ARCO brought this timely appeal of that Order on February 26, 1987.

As a preliminary matter, we conclude that the sanction Order of January 9, 1987 is a final Order under Pa.R.A.P. 341 and that our jurisdiction lies under 42 Pa.C.S. § 742. “An order will also be treated as final if the practical consequence is, in effect, to put an appellant out of court, or if it precludes an appellant from presenting the merits of the claim to the lower court.” Grossman v. Commissioner of Police, 318 Pa.Super. 584,-589, 465 A.2d 1007, 1010 (1983) (citing Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978)); Foulke v. Lavelle, 308 Pa.Super. 131, 454 A.2d 56 (1982). By preventing ARCO from presenting witnesses at arbitration or at trial the sanction Order effectively precluded ARCO from presenting the merits of its claims to the $18,203 below. “An order does not put a party 'out of court’ unless it precludes proof of facts at trial, which if determined in favor of the pleader, would provide him with a complete defense to the action.” Zarnecki v. Shepegi, 367 Pa.Super. 230, 232, 532 A.2d 873, 874 (1987) (en banc) (citing Posternack v. American Casualty Company of Reading, 421 Pa. 21, 23-4, 218 A.2d 350 (1966)). The sanction Order puts ARCO “out of court” for all practical purposes because it precludes proof at trial of what might be a complete defense to appellee’s claim.

ARCO raises six issues, which are interrelated, questioning the propriety, severity, and appropriateness of the sanction Order. ARCO claims no sanctions could be imposed because the November 3, 1986 Order disposing of ARCO’s motion for a protective Order and directing ARCO to produce Goldstein for deposition was entered in contravention of the law because the non-party Goldstein was never served with a subpoena to appear at the deposition, which, ARCO argues, Pa.R.C.P. 4007.1 requires. ARCO also contends the sanctions imposed were too extreme and unjustified, and prematurely imposed prior to actual noncompliance with the November 3, 1986 Order requiring Goldstein be produced for deposition.

The sanction Order of the trial court is based upon Pa.R.C.P. 4019, which governs the imposition of sanctions for failure to make discovery. This rule provides in pertinent part as follows:

Rule 4019. Sanctions
(a)(1) The court may, on motion, make an appropriate order if
(viii) a party or person otherwise fails to make discovery or to obey an order of court respecting discovery.
(c) The court, when acting under subdivision (a) of this rule, may make
(2) an order ... prohibiting [the disobedient party] from introducing in evidence designated documents, things or testimony____

(Emphasis added.)

The imposition of specific sanctions under Rule 4019 for failure to obey a discovery Order is largely within the discretion of the trial court. Pompa v. Hojnacki, 445 Pa. 42, 281 A.2d 886 (1971); Hoffman v. Memorial Osteopathic Hospital, 342 Pa.Super. 375, 492 A.2d 1382 (1985); Brunetti v. Southeastern Pennsylvania Transportation Authority, 329 Pa.Super. 477, 478 A.2d 889 (1984). However, the exercise of judicial discretion in formulating an appropriate sanction Order requires the court to select a punishment which “fits the crime.” Brunetti, supra; Commercial Trading Company v. Milsan Mills, Inc., 327 Pa.Super. 407, 476 A.2d 16 (1984); Gonzales v. Procaccio Brothers Trucking Company, 268 Pa.Super. 245, 407 A.2d 1338 (1979).

In its brief, ARCO cites Griffin v. Tedesco, 355 Pa.Super. 475, 513 A.2d 1020 (1986), for the contention that before the trial court can issue sanctions it must first enter an Order “compelling compliance” with discovery and that in this case, the trial court erred in not imposing such an Order (appellant’s brief at 15-16). We find ARCO has misconstrued both the factual circumstances of this case and Griffin. In Griffin, supra, 355 Pa.Superior Ct. at 481, 513 A.2d at 1023, we stated:

We recognize that Rule 4019 does not require the imposition of an order compelling discovery as a prerequisite to the trial court’s authority to impose an appropriate sanction. As stated in the explanatory note to Rule 4019, ‘Subdivision (a)(viii) is a blanket authorization to the court to enter a sanction order whenever there is a failure to make discovery or to obey an order of the court.’ Explanatory Note to Rule 4019-1978 Civil Procedural Rules Committee (Emphasis added). See Crance v. Sohanic, 344 Pa.Super. 526, 496 A.2d 1230 (1985) (sanctions may be imposed where there is a disregard of a discovery order or an obligation stated in the rules of civil procedure) (emphasis added).

(Emphasis in original.) Neither Rule 4019 nor Griffin require an Order “compelling compliance” with discovery prior to imposition of sanctions by a trial court. Linker v. Churnetski Transportation, Inc., 360 Pa.Super. 366, 520 A.2d 502 (1987). Although we did determine in Griffin that in view of the factual circumstances in that case, the trial court abused its discretion in not first directing discovery prior to imposition of sanctions, Griffin is inapposite to the present case. In Griffin when imposing sanctions the trial court was not acting on a motion for sanctions for noncompliance with an Order directing discovery but, instead, was acting on a motion for sanctions for noncompliance with the discovery rules themselves. Here, the trial court had already imposed an Order directing ARCO to produce Gold-stein, i.e. the November 3, 1986 Order, and the January 9, 1987 Order sanctioned ARCO for noncompliance with the November Order. Therefore, due to the fact the trial court in the present matter had already issued an Order directing compliance, our decision in Griffin lends no weight to ARCO’s argument; if anything, Griffin supports appellee’s position that sanctions in the form of precluding a party from introducing testimony at trial can be proper when issued for failure to comply with a specific court Order.

Further, we find no merit in appellant’s argument that because the November 3, 1986 Order was rendered in response to ARCO’s motion for protective Order under Pa.R.C.P. 4012 it could not be the basis of sanctions. The last paragraph of Pa.R.C.P. 4012(a) provides that: “[i]f the motion for protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery.” The trial court’s action of directing ARCO to produce Goldstein for deposition was a proper response under the rule to ARCO’s motion for protective Order.

Additionally, the lack of a subpoena is inconsequential in this case due to the valid court Order directing Goldstein to appear. In ruling on ARCO’s motion for protective Order the trial court addressed this procedural deficiency and acted properly in issuing an Order correcting the oversight by directing Goldstein to appear. The November 3, 1986 Order recognized the potential expense a deposition in Pennsylvania would cause ARCO and for that reason ordered the deposition held the day before arbitration in an effort to minimize the cost to ARCO at the “expense” of appellee’s preparation time being cut to a minimum. In connection with this, we find the fact that the imposition of sanctions was prior to actual noncompliance with the Order directing the production of Goldstein does not render the sanctions premature in this case as ARCO argues. ARCO notified appellee just days before the motion for sanctions and the date scheduled for the deposition of Goldstein that it would not produce Goldstein for deposition in direct contravention to the trial court’s Order (Slip Op. at 2). Considering the trial court’s prior effort of minimizing ARCO’s costs by directing the deposition at the last possible moment, we believe ARCO should not benefit to the detriment of appellee by insisting that actual noncompliance was required before sanctions could be imposed when it clearly never intended to comply with the November 3, 1986 Order and stated that intention in advance.

The remaining question is whether or not the sanction of precluding ARCO from calling any witnesses at the arbitration or trial in support of its claims was proper.

ARCO was sanctioned for refusing to produce a witness whose deposition the appellee had noticed and the trial court had ordered. Goldstein was the only person appellee sought to depose. We find unsound ARCO’s contention that its decision not to call Goldstein as a witness at arbitration or at trial forecloses any possibility of prejudice to appellee. Appellee maintains it noticed the deposition of Arthur Goldstein in order to ascertain, in detail, the basis in the audit and the franchise agreement from which ARCO grounded its determination that appellee owed the $18,203. Appellee considered Goldstein to be the person who supervised the audit and actually interpreted the results of the audit against appellee, hence, explaining why he sought to depose only Goldstein. We find ARCO’s answers to appellee’s interrogatories bear this out. In response to appellee’s interrogatories ARCO specifically answered that Arthur Goldstein was: the ARCO personnel who made the decision to audit appellee; the man to whom the public accounting firm conducting the 1984 audit reported its results; the only ARCO personnel who interpreted the results of the 1984 audit; and, the individual who prepared the am/pm franchise marketing audit results for ARCO. Consequently, we conclude appellee’s need to depose Gold-stein critical in understanding why ARCO considered the amount in question properly chargeable, regardless of ARCO's determination not to call Goldstein in its own defense.

ARCO relies on our decisions in Griffin, supra; Dunn v. Maislin Transport Limited 310 Pa.Super. 321, 456 A.2d 632 (1983), and Roman v. Pearlstein, 329 Pa.Super. 392, 478 A.2d 845 (1984), in arguing that the sanctions imposed were excessive. Although we reversed sanctions precluding testimony, evidence, or a defense in all three cases, we find them distinguishable from the present circumstances. Both Griffin and Dunn dealt with sanctions imposed as a result of a failure to answer interrogatories during the regular course of discovery and not as a result of a failure to follow a previously entered discovery Order.

In Dunn, we found the interrogatories in question to be improper as a whole due to their excessive nature, including many unrelated and irrelevant questions which appeared to be “canned.” We concluded in Dunn that the sanctioned corporate party did attempt to respond to the interrogatories to the best of its ability and, therefore, the sanction of precluding any defense at trial was too severe. Here, we have had no attempt by ARCO to comply with the valid discovery Order and, as we have already stated, the ordered deposition of Goldstein was highly relevant and appropriate as demonstrated by ARCO’s answers to interrogatories. Furthermore, we specifically limited our holding in Dunn by stating: “[i]n the instant appeal, it is useful to keep in mind that we are not dealing with the failure by the defendant to comply with any order of court respecting discovery.” Dunn, supra 310 Pa.Super. at 328, 456 A.2d at 636.

Likewise, the factual circumstances in Griffin demonstrate it is not controlling in the present matter. In Griffin we found the sanctions imposed for failure to answer interrogatories too severe because the sanctioned party’s counsel had “tendered but one refusal to comply with [the] discovery request,” and concluded an Order compelling compliance would have been a more appropriate response. Griffin, supra, 355 Pa.Superior Ct. at 481, 513 A.2d at 1023. Here, ARCO repeatedly refused to produce Goldstein for deposition even after imposition of an Order requiring the same.

The case which lends the most support of ARCO’s argument of excessiveness is Roman, supra. Roman dealt with sanctions precluding the defendant from introducing any evidence and examining any witnesses at trial and imposed a $500 counsel fee on the defendant. These sanctions were entered as a result of the defendant’s failure to follow a trial court Order directing defendant to answer interrogatories and produce certain documents. We concluded the Order’s imposition of counsel fees was proper, but found that the preclusion from introducing evidence and examining witnesses was too severe. We found that the discovery requested related not to liability but solely to damages and “[i]t was therefore disproportionate to punish [the defendant] by, in effect, imposing liability on him despite the fact that his liability had not been proved, and the further fact that the discovery requested would not assist in proving it.” Roman, supra, 329 Pa.Superior Ct. at 400, 478 A.2d at 849.

Here, Goldstein’s testimony would have concerned both liability and damages. The failure to provide Goldstein for deposition greatly hampered appellee’s entire case. We recognize that Roman demonstrates our adversión to severe sanctions which preclude a party’s ability to present its case, but find that under these circumstances they are appropriate. ARGO willfully disregarded opposing counsel’s requests and an Order of court. The 1978 Explanatory Note to Pa.R.C.P. 4019 allows us to consider this as a factor: “The court may impose sanctions even if the failure is not wilful. Wilfulness of course may be a factor in determining the extent of the sanction but it will not be an essential condition precedent to the power to impose a sanction.” The essential relevance of the information sought coupled with the dramatic timing of ARCO’s refusal to comply warrants the imposition of such sanctions. Both parties’ substantive rights were involved. The trial court struck a proper balance between the need to move the case to a prompt disposition and the substantive rights of the parties. Gonzales, supra. To allow ARGO to go forward with testimony by its witnesses while denying appellee the right to depose Goldstein with the only sanction being the denial to ARCO the right to call Goldstein is ludicrous. ARCO doesn’t need Goldstein and probably will be harmed by his testimony if he should appear. Such a sanction benefits ARCO. The only sanction that balances out the unavailability of Goldstein, a major witness for appellee, is to deny ARCO the right to call any witnesses.

Order affirmed.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge, dissenting:

I respectfully dissent from the majority decision.

In Bruno v. Elitzky, 515 Pa. 47, 526 A.2d 781 (1987), our Supreme Court held that a sanction order striking the appellant’s New Matter was interlocutory in nature. The court observed that “[tjhere is no distinction ... between this particular order and other pre-trial orders on discovery or admissibility of evidence.” Id., 515 Pa. at 50, 526 A.2d at 782. It went on to observe that while Pa.R.A.P. No. 311(a) lists seven interlocutory orders from which an appeal may be taken as of right, none applied to the facts at bar.

The majority seeks to distinguish Bruno, supra, by stating that the appellant herein is precluded from presenting a defense. Insofar as affirmative defenses fall within the scope of New Matter, I fail to see any distinction between Bruno and the case sub judiee. While it is true that a “finding of the finality of an order is a judicial conclusion which results from a practical rather than a technical interpretation”, Bruno, supra, 515 Pa. at 50, 526 A.2d at 782 (citation omitted), practical considerations militate against a finding of finality in the instant case. I am concerned that the decision today will countenance the consideration of similar appeals, thereby taxing our already overburdened judicial system. See Bruno, supra, 515 Pa. at 50, 526 A.2d at 782, n. 1 (“By insisting that sanctions are final orders, the dissent, in effect, would open the floodgates to perpetual judicial impermanence and impotence at the trial level and an unmanageable quantum of cases choking the appellate system.”)

Moreover, we should not engage in attempting to measure the substantive effect of a sanction order where it will be necessary to examine each case on an ad hoc basis since there is no clear line of demarcation which would disclose when the order simply handicaps the defense or may be said to effectively put the litigant out of court.

In light of the foregoing, I would dissent from the majority decision and would quash the appeal.

      . There is some dispute as to whether or not Goldstein is a “managing agent” of ARCO or merely an employee or "other person” under Pa.R.C.P. 4007.1(e), dealing with the proper procedure for deposition by oral examination. The trial court did refer to Goldstein as a managing agent (Slip Op., Doty J., 5/27/87, p. 2).

      . The November 3, 1986 Order reads as follows:
      ORDER
      AND NOW, this 3 day of Nov., 1986, upon consideration of the Motion for Entry of Protective Order Relating to Deposition of Arthur Goldstein, it is hereby ORDERED that the Deposition of said Mr. Goldstein which has been noticed by Plaintiff’s counsel for October 10, 1986 in Philadelphia, Pennsylvania shall be held on January 12, 1987 and the arbitration January 13, 1987 at 2:30 p.m. Plaintiff may file interrogatories within 20 days hereof and defendant will answer within 20 days thereafter.

      . The January 9, 1987 Order reads as follows:
      ORDER
      AND NOW, this 9 day of Jan., 1987, upon consideration of Plaintiffs Motion for Sanctions, it is hereby ORDERED and DECREED that ARCO is precluded from calling any witnesses at the arbitration or trial whatsoever in support of its claim to entitlement to the Eighteen Thousand Two Hundred Three ($18,203.00) Dollars paid to ARCO by Plaintiff, Harry Weist, pursuant to its demand for payment of alleged royalty deficiencies.

      . We note that ARCO failed to comply with Pa.R.A.P. 2115, requiring the text of the Order in question to be set forth verbatim immediately following the statement of jurisdiction. ARCO improperly set forth the trial court's November 3, 1986 Order disposing of ARCO’s motion for entry of a protective Order, failing to mention the January 9, 1987 sanction Order from which its appeal is based (appellant’s brief at v—vi).

      . We recognize that ARCO finally filed answers to appellee’s interrogatories on January 9, 1985, two days after appellee’s motion for sanctions, and that the trial court was aware of this when imposing sanctions on that date; meaning the sanctions in question were only imposed for ARCO’s refusal to produce Goldstein for deposition.