Appeals from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1961, No. 400, in case of Angelo P. Atene v. Paul A. Lawrence.
Fred Lowenschuss, with him Fred Lowenschuss Associates, for plaintiff.
Joseph G. Manta, with him James M. Marsh, and LaBrum and Doak, for defendant.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ.
[ 220 Pa. Super. Page 445]
In this trespass action involving an automobile collision the jury brought in a verdict for the plaintiff in the amount of $20,000.00. Motions for new trial and judgment n.o.v. were filed by defendant. After argument, defendant's motion for judgment n.o.v. was withdrawn and the lower court made the following order: "July 2nd, 1971: Plaintiff is directed to file a remittitur of all sums in excess of $13,500.00 or Defendant's motion for New Trial is granted."
The plaintiff did not file a remittitur and both parties appealed from the order of July 2, 1971. However, this is not an appealable order and both appeals must be quashed. Clarkson v. Crawford, 285 Pa. 299, 132 A. 350 (1926).
No judgment has been entered nor has a new trial been granted. Nowhere on the record is there a statement
[ 220 Pa. Super. Page 446]
by plaintiff that he will not remit. Until such election is made, an appealable final order cannot be entered. If the plaintiff decides to remit, a judgment may be entered on the verdict as remitted and a judgment appealable by the defendant exists. If plaintiff refuses to remit, an order granting a new trial should be entered. Such an order is also appealable.
Both appeals are quashed.