Opinion
April 14, 1965.
June 17, 1965.
Appeals — Final or interlocutory order — Defendant's motion for judgment on pleadings — Act of April 18, 1874, P.L. 64.
1. An order denying a defendant's motion for judgment on the pleadings is interlocutory and may not be appealed.
2. An interlocutory order is not appealable unless expressly made so by statute.
3. There is no statute which authorizes an appeal by defendant in an action of trespass from the refusal of judgment on the pleadings.
4. The Act of April 18, 1874, P.L. 64 (which allows appeals from the refusal of a motion for judgment on the pleadings) is applicable only to denials of plaintiffs' motions in assumpsit cases.
Before ERVIN, P.J., WRIGHT, WATKINS, MONTGOMERY, JACOBS, and HOFFMAN, JJ. (FLOOD, J., absent).
Appeal, No. 79, April T., 1965, from order of Court of Common Pleas of Westmoreland County, Oct. T., 1962, No. 567, in case of Victor Liscinsky v. Joseph P. Menham. Appeal quashed.
Trespass for personal injuries and property damage.
Defendant's motion for judgment on the pleadings denied, before WEISS, P.J., KEIM and SCULCO, JJ., opinion by SCULCO, J. Defendant appealed.
Daniel J. Snyder, with him Avra N. Pershing, Jr., and Pershing, Snyder and Ciarimboli, for appellant.
Edward B. Doran, for appellee.
Argued April 14, 1965.
In this trespass suit the defendant appeals from the action of the court below refusing his motion for judgment on the pleadings. The plaintiff filed his complaint to which the defendant filed an answer containing new matter. The plaintiff filed a reply to the new matter. The defendant then moved for judgment on the pleadings.
We need not consider the merits of the motion because an order denying a defendant's motion for judgment on the pleadings is interlocutory and may not be appealed. An interlocutory order is not appealable unless expressly made so by statute and there is no statute authorizing an appeal in this case. The Act of April 18, 1874, P.L. 64, 12 P.S. 1097, which has been construed as allowing appeals from the refusal of a motion for judgment on the pleadings does not authorize this appeal because that Act applies only to a denial of plaintiffs' motions in assumpsit cases. Vandetti v. Schuster, 418 Pa. 68, 208 A.2d 864 (1965), and cases therein cited.
No jurisdictional decision was made by the lower court entitling defendant to appeal under the Act of March 5, 1925, P.L. 23, 12 P.S. 672. Jurisdiction over the cause of action was never questioned and defendant in his answer admitted jurisdiction over his person.
Appeal quashed.