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ISADORE B. COREN AND HILDA COREN v. MATTHEW J. DIDOMENICO AND AURELIO NARDONI AND JOHN MATTHEW (10/09/81)

filed: October 9, 1981.

ISADORE B. COREN AND HILDA COREN
v.
MATTHEW J. DIDOMENICO AND AURELIO NARDONI AND JOHN MATTHEW, INC. APPEAL OF MATTHEW DIDOMENICO AND AURELIO NARDONI



No. 566 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Delaware County, Civil Division, No. 78-16420.

COUNSEL

Catherine M. Lecky, King of Prussia, for appellants.

Gary A. Hurwitz, Media, for appellees.

Spaeth, Brosky and Hoffman, JJ. Spaeth, J., files a dissenting opinion.

Author: Per Curiam

[ 291 Pa. Super. Page 332]

Following a non-jury trial in this assumpsit action, the lower court rendered a decision awarding appellees damages of $18,321.00. Appellants subsequently filed exceptions, which the lower court denied in the order from which the present appeal is taken.*fn1 We are unable to reach the merits, however, because the order denying appellants' exceptions has not been reduced to judgment and docketed. It is settled that "[a]n order denying exceptions following a non-jury trial is interlocutory and not appealable." Heffner v. Bock, 287 Pa. Super. 345, 346, 430 A.2d 318, 319 (1981). See also Lashner v. Redevelopment Authority of the City of Philadelphia, 286 Pa. Super. 549, 429 A.2d 659 (1981); Unterberger v. Life Assurance Co. of Pennsylvania, 286 Pa. Super. 469, 429 A.2d 34 (1981); Slaseman v. Myers, 285 Pa. Super. 167, 427 A.2d 165 (1981); Penstan Supply Co. v. Hay, 285 Pa. Super. 558, 424 A.2d 950 (1981). "Such an order does not

[ 291 Pa. Super. Page 333]

    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." Unterberger v. Life Assurance Co. of Pennsylvania, supra, 286 Pa. Super. at 470, 429 A.2d at 35. Because this requirement has not been met in the present case, the appeal is premature and must be quashed.*fn2

Appeal quashed.

SPAETH, Judge, dissenting:

I believe we should not quash the appeal but should reach the merits, and on the merits, remand for further findings of fact.

1

The action is in assumpsit to recover damages for breach of an agreement of sale. The case was tried by a judge sitting without a jury. On November 8, 1979, the judge entered a finding in favor of appellees and against appellants in the amount of $18,321. Appellants filed exceptions,

[ 291 Pa. Super. Page 334]

    and on February 29, 1980, the lower court, by the judge who had been the trial judge, entered an order dismissing appellants' exceptions and stating that "[t]he Award entered by this Court on November 8, 1979 . . . be and the same is hereby affirmed." This appeal is from that order.

I agree with the majority that before we may consider the appeal on its merits, we must decide whether it is from an appealable order. Although appellees do not raise this issue, since it concerns the jurisdiction of this court we may, and should, raise it sua sponte. Penstan Supply, Inc. v. Hay, 285 Pa. Super. 558, 424 A.2d 950 (1981); Williams v. Williams, 253 Pa. Super. 444, 385 A.2d 422 (1978); Polascik v. Baldwin, 245 Pa. Super. 1, 369 A.2d 263 (1976). I also agree with the majority that an order dismissing exceptions following a trial without a jury is not appealable. Before an appeal will lie, final judgment must be entered. Penstan Supply, Inc. v. Hay, supra.

Ordinarily, an order dismissing exceptions is reduced to judgment by the clerk of the lower court on praecipe of any party. Pa.R.A.P. 301(d). That was not done here. Here, the lower court said that it "affirmed" the trial judge's finding in favor of appellees. If instead of saying that it "affirmed," the lower court had said that it was "entering judgment," I assume no question of appealability would arise. For I see no distinction of ...


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