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GENERAL ELECTRIC CREDIT CORPORATION v. AETNA CASUALTY AND SURETY COMPANY ET AL. (03/20/70)

decided: March 20, 1970.

GENERAL ELECTRIC CREDIT CORPORATION, APPELLANT,
v.
AETNA CASUALTY AND SURETY COMPANY ET AL.



Appeal from judgments of Court of Common Pleas of Allegheny County, Jan. T., 1965, No. 826, in case of General Electric Credit Corporation v. The Aetna Casualty and Surety Company et al.

COUNSEL

Hubert I. Teitelbaum, with him James K. O'Malley, and Morris, Safier & Teitelbaum, for appellant.

Loyal H. Gregg, with him Jones, Gregg, Creehan, Graffam and Gerace, for appellees.

Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell took no part in the consideration or decision of this case.

Author: Eagen

[ 437 Pa. Page 466]

A cause of action in assumpsit was brought by General Electric Credit Corporation (GECC) to recover on seven fire insurance policies, each issued by a different insurance company but through the same agent, for damage to personal property caused by a fire on October 28, 1963. The personal property, of which GECC was conditional vendor, consisted of equipment in the Silver Spur Restaurant in Monroeville, Allegheny County, Pennsylvania. The jury returned a verdict in favor of GECC for $50,000 against five of the seven insurance companies involved, and the other two insurance companies were held not liable. A subsequent motion for a new trial by GECC was denied. GECC now brings one appeal, asserting errors in the trial and in the charge of the court below, which it alleges entitle it to a new trial as to all seven defendants.

Before reaching the merits, certain procedural issues must first be disposed of.*fn1 Where a motion for a

[ 437 Pa. Page 467]

    new trial is made after a verdict and the motion is overruled, no appeal lies from the order refusing the new trial. Such an order is interlocutory and is unappealable: Bartkewich v. Billinger, 430 Pa. 207, 241 A.2d 916 (1968); Straw v. Sands, 426 Pa. 81, 231 A.2d 144 (1967); O'Donnell v. Bachelor, 425 Pa. 626, 229 A.2d 755 (1967); Lynch v. Metropolitan Life Insurance Company, 422 Pa. 488, 222 A.2d 925 (1966). In such case, the appeal must be from the judgment which is entered on the verdict: Bartkewich v. Billinger, supra; Simpson v. Pa. Turnpike Commission, 384 Pa. 335, 121 A.2d 84 (1956).

In this case, therefore, no appeal lay from the order of the lower court issued on December 9, 1968, denying GECC's motion for a new trial. However, pursuant to that order, judgments were respectively entered in favor of the defendants, The American Insurance Company and The American Casualty Company, on December

[ 437 Pa. Page 46831]

, 1968. Appeals could properly be taken from these final judgments.

Judgments were never entered prior to appeal as to the five companies against whom the jury returned its verdict. The judgments entered in favor of The American Insurance Company and The American Casualty Company will not support GECC's appeal from the verdicts against these five defendants, because each defendant's liability is separate, arising out of its separate contract with the plaintiff. Rule 2229(b)*fn2 of the Pennsylvania Rules of Civil Procedure gives the plaintiff the option of joining two or more persons as defendants if the liabilities of the defendants arise from a common factual background and a common question of law or fact will arise: Burke v. North Huntingdon Twp., 390 Pa. 588, 136 A.2d 310 (1957). However, this permissive joinder of defendants (or plaintiffs under Rule 2229(a)) does not unite the causes of action, and they remain independent to the same extent as if separate suits had been brought but consolidated for trial: George v. Snyder, 52 Pa. D. & C. 58, 49 Lanc. 123 (1944); Toth v. O'Brien, 44 Pa. D. & C. 405 (1942); Pa. R. Civ. P. 2231;*fn3 4 Anderson Pa. Civ. Prac.

[ 437 Pa. Page 469609]

(1962 ed.). For practice prior to the rule, see Azinger v. Pa. Railroad Co., 262 Pa. 242, 105 A. 87 (1918). Thus when plaintiffs or defendants are joined by virtue of Rule 2229, the claim and liability of each remains distinct and must be separately determined by the jury: Myers v. Buck, 50 Luz. 229 (1960); 3 Goodrich-Amram ยง 2231(d)-5. Separate judgments must also be entered in accord with the separate verdicts, as in the case of the joinder of husband and wife under Rule 2228: 4 Anderson Pa. Civ. Prac. 614 (1962 ed.); Notes of the Procedural Rules Committee to Rule 2231(c) and (d). See Fisher v. Diehl, 156 Pa. Superior Ct. 476, 40 A.2d 912 (1945).

Separate verdicts were rendered in this case. The mere fact that judgments were entered on only two of the verdicts does not affect the finality of these two judgments, but neither does it affect the interlocutory nature of the remaining five verdicts upon which ...


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