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THOMAS M. DURKIN & SONS v. NETHER PROVIDENCE TOWNSHIP SCHOOL AUTHORITY AND H. GILROY DAMON AND H. GILROY DAMON ASSOCIATES (10/16/81)

filed: October 16, 1981.

THOMAS M. DURKIN & SONS, INC., A PENNSYLVANIA CORPORATION
v.
NETHER PROVIDENCE TOWNSHIP SCHOOL AUTHORITY AND H. GILROY DAMON AND H. GILROY DAMON ASSOCIATES, INC. AND HAAG AND D'ENTREMONT. APPEAL OF NETHER PROVIDENCE TOWNSHIP SCHOOL AUTHORITY



No. 2066 OCTOBER TERM, 1979, Appeal from the Order of the Court of Common Pleas of Delaware County, Civil Action, No. 5409 of 1973.

COUNSEL

George W. Thompson, Upper Darby, for appellant.

Vincent B. Mancini, Media, for Durkin, appellee.

Peter A. Dunn, Media, for Gilroy, appellee.

Robert D. Thompson, Philadelphia, for Haag, appellee.

Wickersham, Hoffman and Van der Voort, JJ. Van der Voort, J., files a concurring and dissenting opinion.

Author: Hoffman

[ 291 Pa. Super. Page 404]

Following a jury trial in this assumpsit action, the lower court entered a $32,856.10 verdict for appellee against appellant only and granted a non-suit with respect to the additional defendants. Appellant subsequently filed post-trial motions seeking a new trial, judgment n. o. v., or the removal of the non-suit. The lower court denied all three post-trial motions, and appellant took this appeal. We are unable to reach the merits of the appeal, however, because the order denying appellant's post-trial motions has not been reduced to judgment and docketed.

An order refusing a new trial or judgment n. o. v. is interlocutory and non-appealable, see, e. g., Slagter v. Thrifty Clean, Inc. (Slagter v. Mix), 441 Pa. 272, 272 A.2d 885 (1971); Richard v. Chester Extended Care Center, 287 Pa. Super. 289, 430 A.2d 290 (1981); Brogley v. Chambersburg Engineering Co., 283 Pa. Super. 562, 424 A.2d 952 (1981), and does not become appealable until it is "reduced to judgment and docketed." Pa.R.A.P. 301(c). See also Heffner v. Bock, 287 Pa. Super. 345, 430 A.2d 318 (1981); Penstan Supply Co. v. Hay, 283 Pa. Super. 558, 424 A.2d 950 (1981).

Similarly, an appeal from an order denying appellant's motion to remove a non-suit is interlocutory and non-appealable. Rule 227.1 of the Rules of Civil Procedure sets forth the time for filing all post-trial motions after a trial by jury. It provides:

All post-trial motions after trial by jury, including a motion for a new trial, judgment non obstante veredicto,

[ 291 Pa. Super. Page 405]

    judgment upon the whole record after disagreement of a jury, removal of a non-suit and in arrest of judgment, shall be filed within ten (10) days after ...


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