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

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 ...


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