Levin v. Wear-Ever Aluminum, Inc., 18796.
| Decision Date | 01 June 1970 |
| Docket Number | No. 18796.,18796. |
| Citation | 427 F.2d 847 |
| Parties | Patricia Ann LEVIN, Appellant, v. WEAR-EVER ALUMINUM, INC. and Edmond Kennedy, Jr. |
| Court | U.S. Court of Appeals — Third Circuit |
Robert M. Ross, Richter, Syken, Ross, Binder & O'Neill, Philadelphia, Pa., for appellant.
Richard M. Shusterman, White & Williams, Philadelphia, Pa., for appellee Wear-Ever Aluminum, Inc.
Before HASTIE, Chief Judge, and MARIS and FREEDMAN, Circuit Judges.
In this case the plaintiff, Patricia Ann Levin, brought suit against the defendants, Wear-Ever Aluminum, Inc., and Edmond Kennedy, Jr., in the District Court for the Eastern District of Pennsylvania to recover damages for injuries suffered by her in an automobile accident. Defendant Kennedy was the driver of the automobile which struck her and she alleged that defendant Wear-Ever Aluminum, Inc., was his employer or principal.
At the first trial of the case, defendant Wear-Ever Aluminum, Inc., made a motion at the close of the plaintiff's case, and again at the close of all the evidence, for a directed verdict in its favor. Treating this as a motion to dismiss as to that defendant, the trial judge orally granted the motion and a notation to that effect was entered on the docket on April 29, 1968. However, no written order was filed. The trial proceeded as to the defendant Kennedy and the jury, being unable to agree upon a verdict, was discharged. Thereafter, following certain proceedings not here necessary to recite, the case came on for a second trial as to the defendant Kennedy at which trial the jury rendered a verdict of $35,000.00 in favor of the plaintiff and against that defendant on January 9, 1970. The present appeal by the plaintiff followed. See, 306 F.Supp. 511.
We have before us a motion by the plaintiff to remand the record to the district court for the entry of a final appealable judgment in favor of Wear-Ever Aluminum, Inc., in accordance with the oral decision dismissing the complaint as to it to which we have referred, and a counter motion by the defendant Wear-Ever Aluminum, Inc., to dismiss the present appeal. The appeal must be dismissed because the record does not disclose the existence and entry on the docket of the district court of a final appealable judgment terminating the litigation.
Rule 58, F.R.Civ.P., as amended effective July 1, 1963, provides:
Rule 79(a), F.R.Civ.P., in pertinent part provides:
* * *"
The decision noted on the docket on April 29, 1968 was not an appealable judgment. In the first place it terminated the litigation as to only one of the two defendants named in the complaint and did not contain a determination that there was no just reason for delay or an express direction for the entry of judgment as required by Rule...
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