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PENSTAN SUPPLY v. DAVID T. HAY (01/23/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: January 23, 1981.

PENSTAN SUPPLY, INC.
v.
DAVID T. HAY, NORTHWEST HEATING AND AIR CONDITIONING, CONSTRUCTION CONCEPTS AND HENRY M. WHITEHEAD, APPELLANTS

No. 982 April Term, 1979, Appeal from the Order Entered October 10, 1979 of the Court of Common Pleas of Cambria County, Civil Action-Law-Assumpsit, at No. 1977-4957

COUNSEL

Francis J. Leahey, Jr., Ebensburg, for appellants.

William P. Kelly, Johnstown, for appellee.

Spaeth, Wickersham and Lipez, JJ.

Author: Wickersham

[ 283 Pa. Super. Page 559]

This is an action in assumpsit that was tried before Judge Caram J. Abood sitting without a jury, who returned, on May 16, 1979, a verdict against all Defendants in the amount of $27,075.53 with interest from January 1, 1978.

Plaintiff-appellee, Penstan Supply, Inc., had sold plumbing supplies to defendants-appellants in 1977 for use by said defendants in plumbing work in the Johnstown area following the July 1977 flood.

Following the non-jury verdict exceptions were filed, briefed and argued pursuant to the provisions of Pa.R.C.P. No. 1038.*fn1

[ 283 Pa. Super. Page 560]

On October 10, 1979 the Cambria County Court en banc filed an order dismissing the exceptions filed on behalf of the defendants, Construction Concepts and Henry M. Whitehead.*fn2

An appeal was then taken to this court without final judgment having been entered. The appeal will be quashed.

Before we may consider appellant's contentions, we must determine whether the appeal from the lower court's order is properly before us. Although the appellee does not raise this issue, appealability of an order goes to the appellate court's jurisdiction and may be raised sua sponte. Williams v. Williams, 253 Pa. Super. 444, 385 A.2d 422 (1978); Polascik v. Baldwin, 245 Pa. Super. 1, 369 A.2d 263 (1976); 42 Pa.C.S.A. ยง 704(b)(2).

[ 283 Pa. Super. Page 561]

An order dismissing exceptions following a trial without jury is in the same category as an order refusing a new trial. It is interlocutory and unappealable. The appeal should not be filed and may not be entertained until a final judgment is entered.*fn3

Pa.R.C.P. 1038(e) clearly states that final judgment shall be entered. Pa.R.C.P. 1039 provides:

Rule 1039. Entry of Judgment upon Praecipe of a Party

In addition to the provisions of any Rule of Civil Procedure or Act of Assembly authorizing the prothonotary to enter judgment upon praecipe of a party, the prothonotary shall enter judgment upon praecipe of a party in the following instances:

(1) Upon a verdict of a jury, if no timely post trial motion is filed.

(2) When a court grants or denies relief, but does not itself enter judgment or order the prothonotary to do so.

Note: See Rule 237 requiring notice of filing of praecipe for judgment. For illustrative Rules of Civil Procedure specifically authorizing entry of judgment by the prothonotary on praecipe of a party, see Rules 1037, 1047, 1128, 1265(a), 1272(d), (e), 1276(a), 1277, 1511, 1519(a), 1659, 3031(a) and 3146.

For rules authorizing the prothonotary to enter judgment on praecipe of a party where no exceptions are filed to the decision of the court in a non-jury trial or in an equity action, see Rules 1038(e) and 1519.

[ 283 Pa. Super. Page 562]

Added, effective April 19, 1971; amended March 28, 1973, effective July 1, 1973.

The appeal is quashed.


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