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IRVING S. KARPE v. BOROUGH STROUDSBURG (09/18/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: September 18, 1981.

IRVING S. KARPE, APPELLANT,
v.
BOROUGH OF STROUDSBURG

No. 1411 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas of Monroe County, at No. 1088 October Term, 1978.

COUNSEL

Edwin Krawitz, East Stroudsburg, for appellant.

Philip H. Williams, Stroudsburg, for appellee.

Brosky, Johnson and Popovich, JJ. Johnson, J., files concurring statement.

Author: Popovich

[ 290 Pa. Super. Page 560]

The instant appeal comes before this Court on an appeal from an order dismissing plaintiff-appellant's motions for a new trial and for judgment notwithstanding the verdict. For the reasons herein stated, that appeal will be quashed.

Appellant, Irving Karpe, received zoning and building permits from defendant-appellee in order to construct a parking lot. Approximately one year later, the permits were revoked. Instead of filing a direct appeal from the order revoking the permits, appellant filed an action against appellee in assumpsit and in trespass. The matter proceeded before a judge, sitting without a jury. Hearings were held, and the following verdict was issued:

[ 290 Pa. Super. Page 561]

"AND NOW, October 25, 1979, the Court finds in favor of the Defendant and against the Plaintiff, for failure of Plaintiff to prove the damages sustained.

BY THE COURT:

/s/ Harold A. Thomson Jr.,

J."

(R. 45a, p. 3)

Appellant then filed two separate post-trial motions, a motion for a judgment notwithstanding the verdict and a motion for a new trial. (R. Nos. 41a and 43a) These motions were treated properly by the trial court as exceptions to the verdict and subsequently dismissed.*fn1 No final judgment was entered, and this appeal followed.

Although the issue is not raised by either party, this Court may raise sua sponte the question of jurisdiction. See Penstan Supply, Inc. v. Hay, 283 Pa. Super. 558, 424 A.2d 950 (1981); Turner v. May, 285 Pa. Super. 241, 245 ftn. 2, 427 A.2d 203, 204 ftn. 2 (1981). Additionally, we have said that:

"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 has been entered."

Penstan Supply, Inc. v. Hay, 283 Pa. Super. at 560, 424 A.2d at 951 (1981) (emphasis added). Accord Lattanze v. Silverstrini, 287 Pa. Super. 263, 429 A.2d 1201 (1981).

[ 290 Pa. Super. Page 562]

Because the trial court's order of June 5, 1980, which dismissed appellant's "exceptions" is interlocutory, an appeal from such an order cannot lie " until a final judgment Page 562} has been entered." Id. Consequently, this Court cannot address the merits of the issues raised by appellant.*fn2

Appeal quashed.

JOHNSON, Judge, concurring:

I join in the majority opinion of Judge Popovich, holding that the appeal be quashed. I am unable to agree with the majority on those issues discussed in footnote two relating to

[ 290 Pa. Super. Page 563]

    the notice provision contained in Pa.R.C.P. ยง 1038(d), which review is unnecessary to the decision in this case.


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