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PIERRE J. MALENFANT AND JOAN MALENFANT v. CARL F. RULAND AND JAMES F. BLANCHARD (01/18/80)

filed: January 18, 1980.

PIERRE J. MALENFANT AND JOAN MALENFANT, HIS WIFE,
v.
CARL F. RULAND AND JAMES F. BLANCHARD, IND. T/A JAMES F. BLANCHARD REAL ESTATE AND ALEDA EXTERMINATING CO. AND JOHN T. KITCHENMAN, IND. T/A ALEDA EXTERMINATING CO. APPEAL OF JAMES F. BLANCHARD, IND. T/A JAMES F. BLANCHARD REAL ESTATE



No. 2889 October Term, 1978, Appeal from the Order Of the Court of Common Pleas of Bucks County, Civil Action, at No. 73-5761-09-1.

COUNSEL

Harold S. Patton, Levittown, for appellant.

No appearance entered nor briefs submitted for appellees.

Hester, Hoffman and Catania,*fn* JJ.

Author: Hoffman

[ 274 Pa. Super. Page 507]

Appellant contends that the lower court erred in refusing to order transcription of the trial testimony at the cost of the county, or, in the alternative, in failing to waive the local requirement that such a transcript be filed prior to deciding appellant's post-trial motions. Because we conclude that this appeal is interlocutory and therefore must be quashed, we do not reach the merits of appellant's contentions.

Appellant suffered an adverse jury verdict in an action in assumpsit and trespass which plaintiff brought against him and several other defendants.*fn1 After the verdict was returned, appellant timely filed motions for judgment N.O.V. and in arrest of judgment. Appellant requested in these motions that the trial judge order transcription of the trial testimony at the cost of the county. When the trial judge refused to issue such an order, appellant moved for a review

[ 274 Pa. Super. Page 508]

    of the trial judge's refusal by a court en banc, pursuant to Bucks County Rule of Civil Procedure 252(c).*fn2 Appellant additionally requested the court en banc to waive the requirement of a trial transcript for consideration of post-trial motions, pursuant to Bucks County Rule of Civil Procedure 252(b).*fn3 On November 2, 1978, the court en banc denied appellant's requests. In the opinion in support of its order, the court en banc noted that appellant had not presented any evidence, either through affidavit, deposition, or otherwise, concerning his ability to bear the costs of transcript preparation. Moreover, the court noted, appellant at no time alleged indigency. To the contrary, the fact that appellant had already purchased many pages of transcribed deposition testimony, plus his status as an "apparently successful business person [ ] in Bucks County," suggested appellant's ability to pay the costs of transcript preparation. (Opinion of the court en banc at 2.) From the order of the court en banc refusing the requested relief, appellant has taken this appeal.

Although none of the parties to this appeal has raised the matter, we must consider whether the order of the lower court refusing to impose transcript preparation costs on the

[ 274 Pa. Super. Page 509]

    county and refusing to waive the transcript requirement is interlocutory and non-appealable.*fn4

It is, of course, well settled that an appeal will lie only from a final order unless otherwise permitted by statute. A final order is one which usually ends the litigation, or alternatively, disposes of the entire case. In determining what constitutes a final order we have followed the approach of Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), in that we look to "a practical rather than technical construction" of an order. In Cohen, the Supreme Court of the United States carved out an exception to the final judgment rule for situations where postponement of appeal until after final judgment might result in irreparable loss of the right asserted. Under Cohen, an order is considered final and appealable if (1) it is separate from and collateral to the main cause of ...


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