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CHERIE UNTERBERGER v. LIFE ASSURANCE COMPANY PENNSYLVANIA (04/24/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: April 24, 1981.

CHERIE UNTERBERGER, STANLEY SCHLESINGER, THE FIDELITY BANK, TRUSTEES UNDER THE WILL OF HERBERT UNTERBERGER, APPELLANTS,
v.
LIFE ASSURANCE COMPANY OF PENNSYLVANIA

No. 2085 October Term, 1979, Appeal from Order of the Court of Common Pleas of Phila. County, Trial Division, Civil Section at No. 269 Feb. Term 1972.

COUNSEL

Roger J. Harrington, Philadelphia, for appellants.

M. Melvin Shralow, Philadelphia, for appellee.

Spaeth, Brosky and Hoffman, JJ.

Author: Per Curiam

[ 286 Pa. Super. Page 470]

This is an action in assumpsit, brought by appellants as trustees under the will of Herbert Unterberger to recover under an insurance policy issued by appellee on Unterberger's life. Appellee refused payment on the ground that in applying for the policy, Unterberger misrepresented his medical history. The appeal must be quashed.

The lower court heard the case without a jury. On March 30, 1979, the lower court's finding for appellee was docketed. On April 11, on appellee's praecipe, judgment was entered. On April 19 appellants moved for leave to file exceptions nunc pro tunc. On June 11 the lower court filed an order opening the judgment and granting leave to file exceptions within 10 days. Exceptions were filed. On September 14 the lower court filed an order denying the exceptions. On September 25 the lower court filed another order, which read, "Ordered and decreed that the plaintiff's exceptions are denied and the rule dismissed." This appeal is from the September 25 order.

Pa.R.A.P. 301(c) provides that "an order denying a motion for a new trial . . . does not constitute an appealable order." "An order dismissing exceptions following a trial without a jury is in the same category as an order refusing a new trial." Penstan Supply, Inc. v. Hay, 283 Pa. Super. 558, 560, 424 A.2d 950, 951 (1981). Such an order does not become appealable until, "on praecipe of any party," Pa.R.A.P. 301(d), it is "reduced to judgment and docketed," Pa.R.A.P. 301(c). And see Pa.R.C.P. 1038(e). The requirement that judgment be docketed is jurisdictional. Penstan Supply, Inc. v. Hay, supra. Here, the lower court's order of September 25 dismissing appellants' exceptions was never reduced to judgment and docketed. The next entry on the docket is "Oct. 4 1979 Notice of Appeal."*fn1

Appeal quashed.


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