submitted: March 21, 1980.
NORRIS VAN TOPS, INC.
JOHN M. KOPITSKY, APPELLANT
No. 1215 October Term 1979, Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil Law, at No. 79 - 18168.
John J. Gallagher, Philadelphia, for appellant.
J. Pierce Anderson, Norristown, for appellee.
Spaeth, Brosky and Van der Voort, JJ.
Author: Per Curiam
[ 278 Pa. Super. Page 78]
This is an appeal from an order of the lower court quashing appellant's motion for a new trial after a non-jury trial in appellee's action in assumpsit.
In quashing the motion for a new trial, the lower court noted that in the body of the motion appellant had styled his objections as "exceptions," but that he had improperly captioned the motion as one for a new trial and not as exceptions. Based upon this error in the caption and the specific language of Pa.R.Civ.P. No. 1038(d) that "exceptions may be filed . . . [but] [n]o motion for a new trial . . . may be filed," the lower court quashed the motion. In so ruling the court specifically cited this court's decision in Young Antics v. Jaymar Realty Corp., 245 Pa. Super. 244, 369 A.2d 385 (1976), allocatur refused, 245 Pa. Super. xxxiii, as controlling. The lower court's reliance on Young Antics was misplaced, however, for that decision can no longer be considered valid in light of the Supreme Court's more recent decision in Pomerantz v. Goldstein, 479 Pa. 175, 387 A.2d
[ 278 Pa. Super. Page 791280]
(1978). In Pomerantz, the Supreme Court held that exceptions that were improperly captioned as a motion for a new trial should not have been dismissed because of the error in the caption but instead should have been considered on the merits as though they had been captioned exceptions. Since this case is indistinguishable from Pomerantz, we must vacate the order quashing the motion for a new trial and remand the case to the lower court for consideration of the merits of the exceptions set forth in that motion.
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