Appeals from order of Court of Common Pleas No. 5 of Philadelphia County, June T., 1960, No. 2778, in case of Joseph Di Chiacchio v. Rockcraft Stone Products Company.
Sheldon L. Albert, with him James E. Beasley, for plaintiff.
John J. O'Brien, Jr., for defendant.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Mr. Justice Musmanno dissents.
Plaintiff, Joseph Di Chiacchio, recovered a jury verdict against Rockcraft Stone Products Company in an action of trespass. The jury's verdict was in the amount of $25,000. Subsequent to trial, Rockcraft filed a motion for new trial and, on August 10, 1965, the court en banc entered the following order: "It is ordered that damages in excess of $12,000.00 be remitted within 30 days, otherwise New Trial granted as to damages only." On September 2, 1965, Rockcraft filed its appeal at No. 360. Subsequently, Di Chiacchio filed an appeal at No. 364.
Both appeals are premature and must be quashed. While the court below entered an order directing that that portion of the verdict in excess of $12,000 be remitted or new trial granted, Rockcraft filed its appeal within the 30 day period and the new trial order had no opportunity to become effective. In any event, no judgment in any amount having been entered against Rockcraft and no order precluding its defense as to liability having become effective, Rockcraft's appeal is premature.
The same situation exists with respect to Di Chiacchio. While Di Chiacchio could appeal from a new trial order in these circumstances, such order is not, in the present posture of the litigation, effective.
The appeals must therefore be quashed and the record remanded to the court below with directions to allow 20 days from the date of the filing of this opinion for the election of Di Chiacchio under the Court's order to be made.
Appeals quashed and record remanded for further proceedings consistent with this opinion.
Appeals quashed and record ...