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SALVATORE NOTO v. JEANETTE NOTO (12/11/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: December 11, 1981.

SALVATORE NOTO,
v.
JEANETTE NOTO, APPELLANT

No. 1900 Philadelphia, 1980, Appeal from Order dated August 1, 1980, Court of Common Pleas, Civil Division, Bucks County at No. 80-3734-05-5.

COUNSEL

Eric I. Lerner, Philadelphia, for appellant.

Paul R. Beckert, Fairless Hills, for appellee.

Cercone, President Judge, and Hester and Johnson, JJ.

Author: Johnson

[ 293 Pa. Super. Page 162]

Salvatore Noto, the former husband and plaintiff in this action, filed suit demanding compensation for various types of jointly owned personal and real property which the defendant, his former wife Jeanette, had allegedly kept for herself. Jeanette filed an answer and new matter, raising the issues of res judicata and the statute of limitations. Salvatore's reply to the new matter merely denied Jeanette's averments. Jeanette then filed a motion for judgment on the pleadings*fn1 which was denied by the trial judge. The judge treated the motion as a motion for summary judgment*fn2 and based his denial on the questions of fact raised by Jeanette's new matter and by Salvatore's reply.*fn3

Jeanette brought this appeal from the denial of her motion for judgment on the pleadings. Because the decision below was an interlocutory order, the appeal is quashed.

Appellant, Jeanette, asserts that this court has jurisdiction over her appeal under the Act of April 18, 1874, P.L. 64, § 1, 12 P.S. § 1097. She is mistaken for two reasons. Firstly, that statute gave plaintiffs, not defendants, a right of appeal from a denial of a judgment on the pleadings in

[ 293 Pa. Super. Page 163]

    there no § 702(b) statement in the order denying the judgment on the pleadings, but the trial judge in his opinion specifically declined to comment on the appealability of the order.*fn8

This court has jurisdiction over all appeals from final orders of the courts of common pleas. 42 Pa.C.S.A. § 742 (Purdon 1981). A final order is one which ends the litigation, or disposes of the case. Pennsylvania Turnpike Commission v. Atlantic Richfield Co., 482 Pa. 615, 394 A.2d 491 (1978); Tunstall v. Penn Federal Savings and Loan Association, 287 Pa. Super.Ct. 511, 430 A.2d 1007 (1981); Giannini v. Foy, 279 Pa. Super.Ct. 553, 421 A.2d 338 (1980). An order is interlocutory and not final unless it puts the litigant out of court. Napet, Inc. v. Benkart Co., 288 Pa. Super.Ct. 187, 431 A.2d 351 (1981); Giannini v. Foy, supra. See also Hughes v. Pron, 286 Pa. Super.Ct. 419, 429 A.2d 9 (1981) (motion for summary judgment is interlocutory and not appealable); Philadelphia National Bank v. Lutherland, Inc., 286 Pa. Super.Ct. 48, 428 A.2d 232 (1981).

By denying a motion for judgment on the pleadings the trial judge was concluding that there were issues of fact which needed to be resolved. There has been no final order yet in this case. This appeal must therefore be quashed.


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