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BLACK TOP PAVING COMPANY v. JOHN CARLO (11/20/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: November 20, 1981.

BLACK TOP PAVING COMPANY, INC., A PENNSYLVANIA CORPORATION,
v.
JOHN CARLO, INC., A MICHIGAN CORPORATION AND UNITED STATES FIDELITY AND GUARANTY COMPANY, A MARYLAND CORPORATION

No. 570 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Washington County, Civil Division, Pennsylvania, Dated May 13, 1980, at No. 88 October Term, 1977 A.D.

COUNSEL

John P. Liekar, Jr., Canonsburg, for appellants.

Lawrence R. Zewe, Washington, for appellee.

Spaeth, Shertz and Montgomery, JJ. Spaeth, J., filed a concurring statement.

Author: Shertz

[ 292 Pa. Super. Page 405]

This is an action in assumpsit which was tried non-jury and resulted in a verdict in favor of Appellee-plaintiff. Appellants filed exception and this appeal is from the Order dismissing those exceptions. No final judgment was entered.

Although neither party has raised the issue, this Court will, sua sponte, consider the appealability of an Order inasmuch as this is a matter which goes to the very jurisdiction of an appellate court to entertain an appeal. Karpe v. Stroudsburg, 290 Pa. Super. 559, 434 A.2d 1292 (1981). This Court has often stated than an appeal from an order dismissing exceptions is interlocutory and unappealable.

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 is entered.

Pennstan Supply, Inc. v. Hay, 283 Pa. Super.Ct. 558, 424 A.2d 950, 951 (1981) (footnote omitted). See also Karpe, supra; Sun Oil Company of Pennsylvania v. Banghart, 289 Pa. Super.Ct. 187, 432 A.2d 1115 (1981).

Appeal quashed.*fn1

SPAETH, Judge, concurring:

I write only to emphasize my agreement with the majority's invitation to the Rules Committee. At 447 n. 1. I hope the Committee will change not only the Comment, but the Rule itself. See Coren v. DiDomenico, 291 Pa. Superior Ct. 331, 334, 435 A.2d 1252, 1254 (1981) (SPAETH, J., dissenting) (1981).


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