Marino Estate

269 A.2d 645, 440 Pa. 492, 1970 Pa. LEXIS 601

• Court: Supreme Court of Pennsylvania
• Decided: October 9, 1970
• Docket: Appeal, 200
• Status: Published

Opinions

Opinion by

Mr. Justice Jones,

On Ocober 6, 1961, Gabriel E. Marino died intestate, owning, inter alia, 12.81 acres of land in Washington County. He was survived by the following named sister and four brothers: Teresino Marino, Ralph Marino, Anthony Marino, Patsy Marino¹ and Russell Marino.²

On March 6, 1969, Russell Marino, as administrator for the estate, filed a petition seeking leave to retain separate counsel to aid with certain condemnation proceedings. On March 18, 1969, Judge Charles D. Copeland, specially presiding, granted this petition to retain separate counsel. Anthony Marino appealed from the order of March 18, 1969, and Russell Marino has filed a petition to quash the appeal. The appeal must be quashed.

In the absence of express statutory authorization, an interlocutory order is generally unappealable (McGee v. Singley, 382 Pa. 18, 114 A. 2d 141 (1955)) and no such statute is presently applicable. “The evident policy of the law in such regard is to preclude piecemeal determinations and the consequent protraction of litigation.” Sullivan v. Philadelphia, 378 Pa. 648, 649, 107 A. 2d 854, 855 (1954).

. . An order is not interlocutory if it precludes a party from presenting the merits of his claim to the lower •court. Ventura v. Skylark Motel, Inc., 431 Pa. 459, 246 A. 2d 353 (1968); Stewart Estate, 423 Pa. 189, 223 A. 2d 685 (1966); Stadler v. Mt. Oliver Borough, 373 Pa. 316, 95 A. 2d 776 (1953).

In the case at bar, Anthony Marino, apparently, would like to have Russell Marino removed as administrator, although Anthony’s position is none too clear from the pleadings. The order from which this appeal has been taken only pertains to the retention of additional counsel to aid the estate in certain condemnation proceedings. The order of March 18, 1969, not only fails to raise the issue which is apparently in controversy but is also interlocutory. Middleberg v. Middleberg, 427 Pa. 114, 233 A. 2d 889 (1967). Accordingly, this appeal must be quashed. Any discussion on the mérits of this case must be deferred until such time as we may have a complete record before us. Adcox v. Pennsylvania Mfr's. Assn. Ins. Co., 419 Pa. 170, 213 A. 2d 366 (1965).³

Appeal quashed. Appellant to pay costs.

1 Patsy Marino is the judge of the Orphans’ Court Division of the Court of Common Pleas of Washington County.

2 Russell Marino, since 1968, has been the Clerh of the Orphans’ Court and Register of Wills of Washington County.

3 The disposition of this appeal shaU in no manner be deemed a condonation of the participation of Judge Marino at any stage of the proceedings in this estate nor of the action of Russell Marino in continuing as administrator of this estate after becoming Clerk of the Orphans’ Court and Register of Wills of Washington County. A judge must not act in a controversy wherein he is a party in interest (Canons of Judicial Ethics, §§13, 29 of the American Bar .Association adopted by this Court) and the conduct of Judge Marino clearly and flagrantly violated the ethical standards of the judiciary. Moreover, Russell Marino, although he was not Register of Wills when appointed administrator, should have resigned as administrator upon his election as Register of Wills.