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MARVIN VENDING CORPORATION v. BIEBER ET AL. (03/24/66)

decided: March 24, 1966.

MARVIN VENDING CORPORATION, TO USE,
v.
BIEBER ET AL., APPELLANTS



Appeal from order of Court of Common Pleas of Montgomery County, No. 62-8609, in case of Marvin Vending Corp. to the use of Model Vending, Inc. v. Eddie H. Bieber and Pauline Bieber, individually and trading as Pauline & Eddie's Snack Bar.

COUNSEL

Philip Shuchman, for appellants.

Lawrence Mazer, for appellees.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Ervin, P. J. Concurring Opinion by Wright, J.

Author: Ervin

[ 207 Pa. Super. Page 249]

This was an action in assumpsit for an alleged breach of a vending machine contract. After a trial, the plaintiff obtained a verdict of $3,000.*fn1 The defendants filed motions for a new trial and for judgment n.o.v. The court below entered the following order: "And Now, this 10th day of June, 1965, after oral argument before the Court en banc and upon consideration

[ 207 Pa. Super. Page 250]

    of the brief filed, the motions for a new trial and judgment non obstante veredicto are refused." The defendants then appealed to this Court.

The record shows that there was no judgment entered on the verdict prior to the appeal. It follows that this appeal is premature.

It was said in Simpson v. Pa. Turnpike Com., 384 Pa. 335, 121 A.2d 84: "An appeal does not lie from the refusal of a new trial [or judgment n.o.v.] but from the judgment entered subsequent to the court's disposition of after-verdict motions. Accordingly, any litigant, feeling aggrieved by a trial court's refusal of his motion for a new trial [or for judgment n.o.v.], should himself, if necessary, cause a judgment to be entered on the undisturbed verdict in order that he might properly perfect an appeal. The verdict fee which he would be required to pay would, if he should ultimately prevail, be taxed to his credit as part of the costs. As the instant appeal is obviously abortive, we cannot do otherwise than dismiss it."

Scarcely a session of this Court is held without one or more cases of this nature appearing on the argument list. This involves useless time and expense to the attorneys involved, the court, the prothonotary and even the printing company which prints the paper books.

In a footnote to Menyo v. Sphar, 409 Pa. 223, 224, 186 A.2d 9, Mr. Chief Justice Bell called the attention of the Bar to this requirement but in Denmon v. Rhodes, 416 Pa. 568, 207 A.2d 860, he was required to apply the rule and quash that appeal because it was premature. See also Bodick v. Harcliff Mining Company, 207 Pa. Superior Ct. 159, 214 A.2d 735.

All that my brother Wright says in his concurring opinion is true. Notwithstanding the numerous opinions by both of our appellate courts, many lawyers apparently are not familiar with the rule. The majority feel that this additional ...


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