Opinion
March 20, 1968.
April 15, 1968.
Appeals — Judgment n.o.v. — Refusal — Judgment not entered against complaining party.
1. An appeal does not lie from the refusal of judgment n.o.v. but from the judgment entered subsequent to the court's disposition of after-verdict motions.
2. Where no judgment has been entered against a complaining party, an appeal following the refusal of judgment n.o.v. is premature and must be quashed.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and HANNUM, JJ.
Appeals, Nos. 764 and 796, Oct. T., 1967, from order of Court of Common Pleas of Columbia County, Oct. T., 1964, No. 296, in case of Bruce Carl, Jr., a minor, by Bruce Carl, Sr. and Betty Carl, his guardians, and Bruce Carl, Sr. and Betty Carl, in their own right, v. M.J. Matzko et al. Appeal quashed and record remanded.
Trespass for alleged medical malpractice. Before KREISHER, P.J.
Verdict against both defendants; motion for judgment n.o.v. by defendant Dr. Clemens granted, and motion by Dr. Matzko denied. Defendant, Dr. Matzko, appealed.
Robert E. Bull, with him Paul Matzko, and Clark, Ladner, Fortenbaugh Young, for appellant.
Gailey C. Keller, with him Smith, Eves and Keller, for appellees.
Arthur M. Peters, Jr., for appellee.
Argued March 20, 1968.
This was an action in trespass against two physicians, M.J. Matzko and F.B. Clemens, for alleged medical malpractice. The jury returned a verdict against both defendants. Each defendant filed motions for judgment n.o.v. The court below entered the following order. "AND NOW, to wit, this 6th day of June, 1967, the motion for judgment n.o.v. on behalf of Dr. F.B. Clemens, Defendant, is hereby granted, and the motion for judgment n.o.v. on behalf of Dr. M.J. Matzko, Defendant, is hereby denied. Exception noted."
Defendant M.J. Matzko appealed to this court from the denial of judgment n.o.v.
A close study of the record reveals, however, that judgment was not entered on the verdict against Dr. Matzko. Both our Court and the Supreme Court have emphasized that an appeal does not lie from the refusal of judgment n.o.v. but from the judgment entered subsequent to the Court's disposition of after-verdict motions. Simpson v. Pennsylvania Turnpike Commission, 384 Pa. 335, 121 A.2d 84 (1965); Denmon v. Rhodes, 416 Pa. 568, 207 A.2d 860 (1965); Kersey Manufacturing Company v. Rozic, 205 Pa. Super. 551, 211 A.2d 76 (1965); Bodick v. Harcliff Mining Co., 207 Pa. Super. 159, 214 A.2d 735 (1965); Marvin Vending Corp. v. Bieber, 207 Pa. Super. 248, 217 A.2d 822 (1966). The appeal of Dr. Matzko, therefore, is premature and must be quashed.
The appeal at No. 764 October Term, 1967 is quashed and the record is remanded to the Court of Common Pleas of Columbia County, without prejudice to the right to enter judgment on the verdict.