Kovalchick v. B.J.'s Wholesale Club , 774 A.2d 776 ( 2001 )

DEL SOLE, President Judge:

¶ 1 Appellants, Anthony and Helen Ko-valchick, appeal from the orders of the trial court granting B.J.’s Wholesale Club’s (“B.J.’s”) motion in limine and Additional Defendant Benderson Development Company, Inc.’s (“Benderson’s”) motion to dismiss. For the reasons set forth below, we quash this appeal.

¶ 2 Appellant Helen Kovalehick was allegedly injured when the shopping cart she was pushing along the sidewalk toward the main entrance of B.J.’s struck a protruding concrete block, causing her to strike the cart and fall to the ground, sustaining injuries. Appellants filed suit against B.J.’s, who in turn joined Benderson as an additional defendant. Benderson was the owner of the property on which B.J.’s wholesale club was located.

¶ 3 The case was scheduled for trial in May of 2000. Four days prior to the scheduled trial, B.J.’s filed a motion in limine seeking to bar the parties from introducing at the time of trial any evidence or argument contrary to the provisions of a written lease agreement between B.J.’s and Benderson. The interpretation of the lease agreement sought by B.J.’s had the effect of placing sole responsibility upon Benderson for the condition which Appellant alleged caused the injuries. After argument, the motion in limine was granted. At the same argument, Bender-son made an oral motion to dismiss on the basis that the statute of limitations barred the joinder of Benderson by B.J.’s. The trial court granted this motion. Appellant’s motion for reconsideration of these two orders was denied. Appellant now appeals.

¶ 4 Before we reach the merits of Appellant’s claims, we must first determine whether this appeal is properly before us. Although neither Appellee raised the issue, the appealability of an order is a question of jurisdiction and may be raised sua sponte. Swift v. Milner, 296 Pa.Super. 463, 442 A.2d 1144, 1145 (1982). Rule 341 provides that an appeal as of right may be taken from a final order. Pa. R.A.P. 341. Any order or other form of decision that adjudicates fewer than all claims and all parties does not constitute a final order. Pa.R.A.P. 341. Although Benderson was dismissed from this action, B.J.’s was not. A ruling on a motion in limine is not a final order. Thus, because all claims against all parties have not been resolved, this appeal is premature and must be quashed.

¶ 5 Any characterization of the trial court’s ruling on the motion in limine as a resolution of the parties’ ultimate responsibility and the end of the case is necessarily in error.¹ The court’s interpretation of the lease provision between B.J.’s and Bender-son cannot affect the responsibility that B.J.’s, as a possessor, owes to a business invitee. In addition, while direct recovery against the additional defendant may be prevented by its untimely joinder, such joinder does not exclude the potential for contribution or indemnification by Bender-son to B.J.’s. See Hughes v. Pron, 286 Pa.Super. 419, 429 A.2d 9, 12 (1981). With these matters outstanding it is apparent that this appeal has not been taken from a final order and cannot be entertained.

¶ 6 In response to our esteemed colleague, Judge Brosky, and his dissenting opinion certain observations should be made. Initially, his references on pages 778 and 779 of the dissent, to statements by counsel for either B.J.’s or Benderson, are not binding on Appellant. One can easily understand Benderson agreeing that it is solely liable since it was not joined within the statute of limitations.

¶ 7 As Judge Brosky notes, counsel for Appellant continued to mention that B.J.’s remained liable to the plaintiff. Again, it is important to recognize

that B.J.’s liability to the plaintiff is not dependent on the lease agreement but rather it is dependent on the duty a possessor of land owes to a business invitee. Since the trial court order did not end the litigation between Appellant and B.J.’s it is not final.

¶ 8 The dissent’s reliance on Klein v. Weisberg, 694 A.2d 644 (Pa.Super.1997) is misplaced since there the appellant “stipulated on the record that the order [to enter the motion in limine ] was case disposi-tive.” In the matter sub judice, this is not the case.

¶ 9 Unlike the situation envisioned by Judge Cavanaugh in Klein, remand would not result in a useless exercise. Appellant can recover an award against B.J.’s and, if so, B.J.’s can seek contribution or indemnification from Benderson based on the lease provisions.

¶ 10 Appeal quashed.

¶ 11 BROSKY, J., files a dissenting opinion.

1 . We note that we are at a loss to understand how a lease can be interpreted and corresponding liability determined through a motion in limine as the trial court attempted to do.