author: PER CURIAM: WIEAND, Judge,

text:
    468 A.2d 509
    Daniel B. MURPHY v. George BRONG and Martha Brong, H/W and Dennis N. Sakelson, Appellant. Appeal of Dennis N. SAKELSON.
    Superior Court of Pennsylvania.
    Submitted Feb. 1, 1983.
    Filed Nov. 25, 1983.

      Raymond B. Reinl, Willow Grove, for appellant.-
    John G. Younglove, Willow Grove, for Murphy, appellee.
    Frederick C. Horn, Lansdale, for Brong, et al., appellees.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   PER CURIAM:

Appellant, Dennis N. Sakelson, seeks review of two orders of the Court of Common Pleas of Montgomery County entered on September 2, 1981, dismissing both his “Petition for Waiver of Montgomery County Rule 252 and Rule 301(d)” and his exceptions to a verdict entered by the court on June 5, 1980. For the reasons hereinafter expressed, we are constrained to quash this appeal.

Daniel B. Murphy filed a complaint in assumpsit on January 18, 1978, against Mr. and Mrs. George Brong seeking to recover broker’s commissions allegedly due on the sale of a business by the Brongs. The Brongs joined Dennis N. Sakelson, the appellant herein, as additional defendant, alleging that appellant was solely liable to the plaintiff. Trial was held before the distinguished Judge William W. Vogel sitting without a jury and a verdict was rendered in favor of the plaintiff and against the defendants, George and Martha Brong, and the additional defendant, Dennis N. Sakelson in the amount of $11,200.00. After exceptions had been filed by the defendants and by the additional defendant, Judge Vogel, in a supplemental order entered on June 5, 1980, rendered a verdict in favor of the defendants, Mr. and Mrs. Brong and against the additional defendant Dennis N. Sakelson, in the amount of $11,200.00.

On June 16, 1980, appellant filed exceptions to the supplemental order of Judge Vogel. Thereafter, while the exceptions were still outstanding, counsel for the Brongs first advised all parties of his intent to enter judgment on the verdict and subsequently proceeded to enter judgment on August 19, 1980 in favor of the plaintiffs and against the defendants and the additional defendant. Notice of the entry of judgment was sent to all parties pursuant to Pa.R.C.P. 236. It was not until six months later, on February 23, 1981, that appellant filed a motion to strike the judgment, averring that it was improperly entered as his exceptions to the verdict were still outstanding. An answer to the motion to strike was filed by plaintiff on April 10, 1981. Prior to any disposition by the court of the motion to strike, appellant filed a petition on July 8, 1981, captioned “Petition for Waiver of Montgomery County Rule 252 and Rule 301(d) of the Rules of Civil Procedure” seeking to be excused from compliance with the local rules based upon financial inability. Both the plaintiff and the original defendants denied the averment by appellant of financial inability and appellant filed no depositions or affidavits in support of his petition. On September 2, 1981, Judge Vogel dismissed the petition of appellant as well as his outstanding exceptions to the supplemental order. On September 29, 1981, appellant filed a notice of appeal from the order entered by Judge Vogel on September 2, 1981.

Although none of the parties have raised the propriety of this appeal, the appealability of an order goes to the jurisdiction of the appellate court and may be raised sua sponte. Davanzo v. Finelli, 293 Pa.Super. 70, 72, 437 A.2d 995, 996 (1981); Turner v. May Corp., 285 Pa.Super. 241, 245 n. 2, 427 A.2d 203, 204 n. 2 (1981); Penstan Supply Inc. v. Hay, 283 Pa.Super. 558, 560, 424 A.2d 950, 951 (1981).

“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.” Penstan Supply, Inc. v. Hay, supra, 283 Pa.Superior Ct. at 561, 424 A.2d at 951 (footnote omitted) (emphasis supplied). Accord Donson v. Satterthwaite, 297 Pa.Super. 496, 497-498, 444 A.2d 141, 143 (1982); Laurel National Bank v. Mutual Benefit Insurance Co., 295 Pa.Super. 255, 256-257, 441 A.2d 756, 757 (1982); Murray v. Abcon, Inc., 291 Pa.Super. 428, 429, 435 A.2d 1301, 1302 (1981); Coren v. DiDomenico, 291 Pa.Super. 331, 332-333, 435 A.2d 1252, 1253 (1981). The requirement that judgment be docketed is jurisdictional. Coren v. DiDomenico, supra, 291 Pa.Superior Ct. at 333, 435 A.2d 1253; Unterberger v. Life Assurance Company of Pennsylvania, 286 Pa.Super. 469, 470, 429 A.2d 34, 35 (1981). It is from the final judgment, properly entered upon the docket, that the appeal must be taken. See Mitchell’s Family Restaurant Inc. v. Schaeffer, 293 Pa.Super. 467, 468-469, 439 A.2d 205, 206 (1981); Davanzo v. Finelli, supra 293 Pa.Super. at 72, 437 A.2d at 996; Gaertner v. F. Jay Smith, Inc., 291 Pa.Super. 341, 435 A.2d 1257 (1981); Slaseman v. Myers, 285 Pa.Super. 167, 427 A.2d 165 (1981). See also 2 Goodrich-Amram 2d § 1038(b):1.

While judgment in the instant case was entered on the docket, it was entered on August 19, 1980, more than one year prior to the filing of the notice of appeal. Pa.R. A.P. 903(a) requires that a notice of appeal must “be filed within 30 days after the entry of the order from which the appeal is taken.” Untimely appeals present a jurisdictional issue and must be quashed. Strickler v. United Elevator Co., Inc., 257 Pa.Super. 542, 549 n. 4, 391 A.2d 614, 617 n. 4 (1978); Provident National Bank v. Rooklin, 250 Pa.Super. 194, 199, 378 A.2d 893, 895 (1977). However, the entry of judgment in favor of the plaintiff while the exceptions were still outstanding was premature and, therefore, the judgment is void. Moore v. Quigley, 402 Pa. 636, 639, 168 A.2d 334, 336 (1961); Centrone v. Tuchinsky, 294 Pa.Super. 331, 332, 439 A.2d 1226, 1227 (1982). See also Pa.R.C.P. 1038(e). “Consequently, the present appeal is abortive as having been taken from an invalid judgment. But, since the plaintiffs [exceptions have] been disposed of by the lower court’s refusal thereof, a valid judgment may now be entered from which an appropriate appeal could be taken.” Moore v. Quigley, supra 402 Pa. at 639, 168 A.2d at 336.

While we are constrained to quash this appeal as a result of jurisdictional defects, we note that the order from which this appeal was taken would appear to be a proper exercise of the discretion of the trial judge, pursuant to the amended Montgomery County Rule 301(d). The opinions of the Supreme Court in Byard F. Brogan, Inc. v. Holmes Electric Protective Company of Philadelphia, 501 Pa. 234, 460 A.2d 1093 (1983) and DeAngelis v. Newman, 501 Pa. 144, 460 A.2d 730 (1983) and the decision of this Court in Ricci v. Ricci, 318 Pa.Super. 445, 465 A.2d 38 (1983) would not, therefore, be dispositive of this appeal since those decisions reviewed the prior Montgomery County Rules 301(d) and 302(d) which prohibited the exercise of discretion by the court and required that mandatory sanctions be imposed.

Appeal quashed. Jurisdiction is relinquished.

WIEAND, J., filed dissenting statement.

WIEAND, Judge,

dissenting:

I respectfully dissent. I would remand for entry of judgment on the verdict and retain jurisdiction meanwhile. In this manner, an appellate determination of the merits can ' be made expeditiously.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    468 A.2d 512
    Steven G. WIGRIZER, Administrator of the Estate of Caprice A. Petry, deceased, Appellant, v. GOVERNMENT EMPLOYEE’S INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1983.
    Filed Nov. 25, 1983.
    Petition for Allowance of Appeal Denied March 16, 1984.

      Howard B. Segal, Philadelphia, for appellant.
    David M. McCormick, Philadelphia, for appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   PER CURIAM:

Appellant, the administrator of the estate of Caprice A. Petry, deceased appeals from the December 14, 1981 order of the trial court sustaining appellee’s preliminary objections. Decedent died as a result of injuries sustained in an automobile accident on July 27, 1980. At that time, she was covered by her parent’s no-fault insurance policy. On July 15, 1981 an action was instituted by appellant and the decedent’s parents for work loss and survivor’s loss benefits under the No-fault Act. Appellee filed preliminary objections in the nature of a demurrer, which objections were sustained as to both the work loss and survivor’s loss claims.

The issues raised on appeal are (1) whether the estate of a deceased victim of an automobile accident may recover work loss benefits pursuant to the No-fault Act and (2) whether the surviving parents of a deceased victim of an automobile accident must be dependent on the victim in order to recover survivor’s loss benefits.

The first issue was decided in Freeze v. Donegal Mutual Insurance Company, 301 Pa.Super. 344, 447 A.2d 999 (1982) (petition for allowance of appeal granted), where this court determined that an estate of a deceased victim is entitled to recover work loss benefits under the No-fault Act.

The second issue is not properly before us, as the decedent’s parents are not a party to the instant appeal.

The Order of December 14, 1981 sustaining appellee’s preliminary objection as to work loss benefits is reversed and the case remanded for further proceedings. Jurisdiction is relinquished.

      . 40 P.S. § 1009.101 et seq.


text:
    468 A.2d 513
    Jerome CAMERON v. Noel Tancred ESCOFIL, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1983.
    Filed Nov. 25, 1983.

      Noel Tancred Escofil, in propria persona.
    Jerome Cameron, in propria persona.
    Before SPAETH, President Judge, MONTEMURO and POPOVICH, JJ.
   PER CURIAM:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County granting the appellant in forma pauperis status. Such an order is interlocutory, and not appealable as of right under Pa.R.A.P. 311. Moreover, appellant has not sought permission to appeal this order under Pa.R.A.P. 312. Finally, appellant’s Notice of Appeal was filed more than thirty (30) days after the entry of the trial court’s order, in violation of Pa.R.A.P. 903. As such this appeal must be quashed.


text:
    468 A.2d 513
    KENNEDY & CARTER CONSTRUCTION COMPANY, INC., Appellant, v. Gerald L. BARKLEY and Grace Barkley, his wife.
    Superior Court of Pennsylvania.
    Argued May 25, 1983.
    Filed Nov. 25, 1983.

      Michael L. Fitzpatrick, Washington, for appellant.
    Simon B. John, Uniontown, for appellees.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   PER CURIAM:

This is an appeal from an order of the trial court, sitting en banc, dismissing exceptions to an order opening a judgment. Because it was taken out of time, this appeal must be quashed.

On January 13, 1981, Kennedy & Carter Construction Company, Inc. (hereinafter “appellant”), filed a complaint in assumpsit before District Justice Anthony Shuli alleging damages in the amount of $2,000.00 stemming from the allegedly wrongful cancellation of a construction contract by Gerald L. and Grace Barkley (hereinafter “appellees”). On February 2, 1981, after a hearing which all parties attended, together with counsel, the District Justice entered a decision in favor of appellant in the amount of $2,000.00 plus $27.00 in record costs. Appellees admit that they filed no appeal from the decision of the District Justice.

On March 19, 1981, the judgment was filed of record in the Prothonotary’s Office of Fayette County. On May 12, 1981, a writ of execution was issued and appellee’s home was listed to be sold at a sheriff’s sale scheduled for July 16, 1981. On June 2, 1981, after receiving notice of the execution, appellees consulted a second attorney to see what could be done. For the next month, appellees and their new attorney attempted to settle the dispute with appellant but were not successful.

On July 3, 1981, appellees filed a petition to stay execution and to strike the judgment. The same day, the trial judge signed an order staying the execution, striking the judgment and setting the matter for a hearing before “an arbitration panel” at 9:30 a.m. on September 21, 1981. Appellant’s answer to this petition was filed twenty-two minutes prior to the scheduled commencement of the hearing on September 21, 1981. Inter alia, appellant alleged that appellees had failed “to raise any grounds for which a petition to strike can be granted.” No notes of testimony or other record of the September 21 hearing have been transmitted with the record on appeal and no order of court appears of record disposing of the petition and answer. However, the parties and the court later agreed that the court dismissed the petition to strike. (N.T. 11/13/83 at 2-3.)

On September 25, 1981, appellees filed a “praecipe for a writ of certiorari.” On October 6, 1981, appellees filed a combined petition to open judgment and motion for permission to appeal nunc pro tunc. That same day, the court issued a rule upon appellant to show cause why the petition/motion should not be granted, set a hearing on these matters and on appellees’ request for a writ of certiorari for November 13, 1981. Appellant’s answer to the petition/motion was filed on November 12, 1981. The next day, at the beginning of the scheduled hearing, the court dismissed the petition for certiorari and the motion for permission to appeal nunc pro tunc. Appellees were permitted to proceed on their petition to open judgment. On November 27, 1981, the trial judge issued an order dated November 23, 1981, making absolute the rule to show cause and opening the judgment.

On December 3, 1981, appellant filed “Exceptions to the Adjudication of November 23, 1981.” On December 7, 1981, these exceptions were ordered to be “placed on the next Argument List” and argument was subsequently heard by the court sitting en banc. By order and opinion dated March 31, 1982, the court en banc unanimously dismissed the exceptions. Appellant filed a notice of appeal on. April 27, 1982.

The order of the trial judge dated November 23, 1981, was “[a]n order opening, vacating or striking off a judgment ...” within the meaning of Rule 311(a)(1) of the Rules of Appellate Procedure. As such, the order was on that date and for thirty days thereafter appealable as of right. The filing of “exceptions” to such an order, a practice neither authorized nor recognized by any rule of procedure, cannot extend the original thirty-day appeal period provided for by Pa.R.A.P. No. 903(a). Scoumiou v. United States Steel Corp., 293 Pa.Super. 254, 438 A.2d 981 (1981). Appellant had only two options open to it: appeal within thirty days of the order issued on November 27, 1981, or continue to litigate in the trial court and raise the issues it now seeks to raise “on any subsequent appeal in the matter from a determination on the merits” as permitted by Rule 311(d)(l)(i). See Scoumiou v. United States Steel Corp., supra.

The order of the court en banc dismissing the exceptions itself does not fall into any of the categories of interlocutory orders from which an appeal may be taken as of right. Rule 311(a)-(c). Nor is that order a final order for it does not in any way put appellant “out of court.” Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 229, 348 A.2d 734, 736 (1975). Likewise, permission to appeal an otherwise nonappealable interlocutory order has neither been sought nor granted. Pa.R.A.P. Nos. 1301 et seq. Nor did the trial court expressly grant reconsideration of the earlier order. Pa.R.A.P. No. 1701(b)(3). See also Scoumiou v. United States Steel Corp., supra. The order of the trial court en banc dismissing the exceptions is therefore not properly before us and we do not reach the merits of the issues raised in appellant’s brief.

Appeal quashed.


text:
    468 A.2d 515
    UNITED STATES NATIONAL BANK IN JOHNSTOWN, Appellant, v. Charles P. JOHNSON, Jr.; Martha Jane Johnson; Pennsylvania Energy Company; Linda Strick; CPJ, Inc.; Haws Refractories, Inc.; Bantam Four Cinemas, Inc.; Sheridan Trucking Company; Sheridan Trucking Company, Inc.; Charjim Corporation; Pennsylvania Energy Corporation; G. Gray Garland; and Sheridan Coal Company, Inc.
    Superior Court of Pennsylvania.
    Argued May 24, 1983.
    Filed Nov. 25, 1983.
    Petition for Allowance of Appeal Granted May 8, 1984.

      David J. Kaltenbaugh, Assistant Public Defender, Johns-town, for appellant.
    Lawrence L. Davis, Ebensburg, for Johnson, et al., appellees.
    James Gerard Gordon, Pittsburgh, PA Energy, appellees.
    Gary Lee Costlow, Johnstown, for Strick, etc., appellees.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   PER CURIAM:

On January 11, 1982, Appellant United States National Bank in Johnstown commenced an action in equity against various individuals, partnerships and corporations by filing a complaint containing averments of fact alleging violations of the Uniform Fraudulent Conveyance Act, Act of May 21, 1921, P.L. 1045, No. 379, § 1, 39 P.S. §§ 351 et seq. Counts Two and Four of the complaint contained allegations as to the involvement of Appellee G. Gray Garland, Pennsylvania Energy Company, a partnership, and Pennsylvania Energy Corporation, a corporation, all of whom purportedly took part in the transactions of which appellant complains. On February 2, 1982, Appellee Garland, Pennsylvania Energy Company and Pennsylvania Energy Corporation filed preliminary objections. In his preliminary objection in the nature of a demurrer, Appellee Garland specifically stated that “Plaintiffs [Bank’s] Complaint fails to allege any material facts sufficient to support a cause of action against Defendant Garland.” Appellee asked that the trial court “dismiss[] him as a party Defendant____”

By order dated May 5, 1982, the trial judge, the Honorable Eugene A. Creany, sustained Garland’s preliminary objection in the nature of a demurrer and dismissed him as a party defendant. On May 12, 1982, the Bank filed “Exceptions” to the order of May 5. These exceptions were heard by the court en banc which, by an opinion and order dated August 2, 1982, upheld the trial judge’s ruling of May 5, 1982. Upon praecipe of Garland, judgment was entered in his favor on the docket on October 5, 1982. Bank filed its notice of appeal on October 28, 1982.

This appeal is untimely and will be quashed. Although the order of May 5, 1982, sustaining appellee’s preliminary objection in the nature of a demurrer applied to only one of the numerous parties, the order was final and appealable. Love v. Temple University, 422 Pa. 30, 220 A.2d 838 (1970); Fred Lowenschuss Associates v. DePallo, 274 Pa.Super. 290, 418 A.2d 411 (1980). The trial court’s order “should have made it clear to plaintiff[] that [it was] put out of court as to that defendant.” Fred Lowenschuss Associates v. DePallo, 274 Pa.Super. at 295, 418 A.2d at 413. “[S]uch action rendered definitive and final the order and an appeal therefrom would have been from a final order.” Love v. Temple University, 422 Pa. at 33, 220 A.2d at 840. Appellant “could and should have takén an appeal from the previous order: the failure to do so renders the doctrine of res judicata applicable and precludes vacation of the order after the time of appeal has passed.” Id. By continuing to seek redress before the trial court, using a procedure neither authorized nor supported by the Rules of Civil Procedure, appellant permitted the appeal period to run. See Brown v. Kleinfelter, 267 Pa.Super. 144, 406 A.2d 560 (1979). Consideration of appellant’s substantive contentions with respect to the dismissal of G. Gray Garland as a party to the action is foreclosed.

Appeal quashed.

      . Pennsylvania Energy Company and Pennsylvania Energy Corporation sought dismissal for failure to state a cause of action and alternative relief of an order compelling a more specific complaint. The trial judge overruled the first ground but granted the request for an order compelling a more specific pleading. These rulings are not currently before us for review.

      . The Honorable Joseph F. O’Kicki dissented only from that part of the opinion and order upholding Count Two of the Complaint as it applied to Pennsylvania Energy Company and Pennsylvania Energy Corporation. The decision to dismiss Garland as a party to this action was unanimous.


author: POPOVICH, Judge:

text:
    468 A.2d 517
    In the Matter of ADOPTION OF T.N.J. and K.M.J. Appeal of L.A.J.
    Superior Court of Pennsylvania.
    Submitted Sept. 30, 1983.
    Filed Dec. 2, 1983.

      Marilyn Woolery, Erie, for appellant.
    Terrence P. Cavanaugh, Erie, for appellees.
    James E. Beveridge, Erie, for participating party.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the trial court which involuntarily terminated the rights of L.A.J., the natural mother of T.N.J. and K.M.J. We must reverse and remand for the reasons herein stated.

The order which forms the basis of the instant appeal was entered on February 8, 1982. However, subsequent to the entry of the trial court’s order, the United States Supreme Court’s decision in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) held that involuntary termination proceedings are governed by a “clear and convincing evidence” standard of proof, because “such a standard adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process.” Id. at 769, 102 S.Ct. at 1402-3, 71 L.Ed.2d at 617. Thus, we must remand this case because it was pending on appeal on March 24, 1982, the date that Santosky was decided. See, e.g., In Re: T.R., 502 Pa. 165, 465 A.2d 642 (1983); In Re: Involuntary Termination of Parental Rights to B.L. and J.L., 316 Pa.Super. 175, 462 A.2d 851 (1983); In Re Involuntary Termination of Parental Rights to Scott and Tommy, 315 Pa.Super. 144, 461 A.2d 838 (1983); In Re Adoption of M.E.T., 313 Pa.Super. 316, 459 A.2d 1247 (1983).

Reversed and remanded. Jurisdiction is relinquished.

      . We note from the record that the parental rights of the natural father also were terminated at the same time as appellant’s. However, only appellant filed exceptions to the trial court’s order. It appears, however, that a decree was not entered by the prothonotary as a final decree with respect to the natural father’s rights. See Pa.R.C.P. 1519. The order which appellant appealed dismissed her exceptions. However, that order did not affirm the previous order which had been entered terminating appellant’s rights. Id. Despite this irregularity, we will not penalize appellant for this error. Henceforth, any appeal should be from a final decree in compliance with the rules. See also, In Re Involuntary Termination of Parental Rights to B.M.D. and R.L.D., 487 Pa. 387, 409 A.2d 404 (1979).