Levin v. Wear-Ever Aluminum, Inc., No. 18796.
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
| Writing for the Court | HASTIE, , and MARIS and FREEDMAN, Circuit |
| Citation | 427 F.2d 847 |
| Parties | Patricia Ann LEVIN, Appellant, v. WEAR-EVER ALUMINUM, INC. and Edmond Kennedy, Jr. |
| Docket Number | No. 18796. |
| Decision Date | 01 June 1970 |
427 F.2d 847 (1970)
Patricia Ann LEVIN, Appellant,
v.
WEAR-EVER ALUMINUM, INC. and Edmond Kennedy, Jr.
No. 18796.
United States Court of Appeals, Third Circuit.
Argued May 4, 1970.
Decided June 1, 1970.
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.
OPINION OF THE COURT
MARIS, Circuit Judge.
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
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:
"Subject to the provisions of Rule 54(b): (1) upon a...
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U.S. v. Schiavo, Nos. 73-1855
...442 F.2d 517, 528 (3d Cir. 1971); United States v. Fioravanti, 412 F.2d 407, 420 (3d Cir. 1967). 14 Cf. Levin v. Wear-Ever Aluminum, Inc., 427 F.2d 847, 848-849 (3d Cir. 1970). Although the Federal Rules of Civil Procedure (see note 16 below) are inapplicable to the criminal proceeding bein......
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Parisie v. Greer, No. 80-1940
...dismissal of the appeal was required in order to permit a proper "final" judgment to be prepared, e.g., Levin v. Wear-Ever Aluminum, Inc., 427 F.2d 847 (3rd Cir.1970), it is now clear that a court confronted with such a situation may consider the technically premature appeal on the merits w......
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In re Nail, Bankruptcy No. 94-71692-BGC-13.
...there is a final, appealable judgment. See e.g. United States v. Chambers, 429 F.2d 410 (3d Cir.1970); Levin v. Wear-Ever Aluminum, Inc., 427 F.2d 847 (3d Cir.1970); Pure Oil v. Boyne, 370 F.2d 121 (5th Cir.1966); cf. Healy v. Pennsylvania R. Co., 181 F.2d 934 (3d Cir.1950); In re D\'Arcy, ......
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Shirey v. Bensalem Tp., No. 81-1045
...America, 476 F.2d 594 (5th Cir. 1973); Schaefer v. First National Bank, 465 F.2d 234 (7th Cir. 1972); Levin v. Wear-Ever Aluminum, Inc., 427 F.2d 847 (3d Cir. 1970); Sullivan v. Delaware River Port Authority, 407 F.2d 58 (3d Cir. 1969). Indeed, in the cases cited the argument for appealabil......
-
U.S. v. Schiavo, Nos. 73-1855
...442 F.2d 517, 528 (3d Cir. 1971); United States v. Fioravanti, 412 F.2d 407, 420 (3d Cir. 1967). 14 Cf. Levin v. Wear-Ever Aluminum, Inc., 427 F.2d 847, 848-849 (3d Cir. 1970). Although the Federal Rules of Civil Procedure (see note 16 below) are inapplicable to the criminal proceeding bein......
-
Parisie v. Greer, No. 80-1940
...dismissal of the appeal was required in order to permit a proper "final" judgment to be prepared, e.g., Levin v. Wear-Ever Aluminum, Inc., 427 F.2d 847 (3rd Cir.1970), it is now clear that a court confronted with such a situation may consider the technically premature appeal on the merits w......
-
In re Nail, Bankruptcy No. 94-71692-BGC-13.
...there is a final, appealable judgment. See e.g. United States v. Chambers, 429 F.2d 410 (3d Cir.1970); Levin v. Wear-Ever Aluminum, Inc., 427 F.2d 847 (3d Cir.1970); Pure Oil v. Boyne, 370 F.2d 121 (5th Cir.1966); cf. Healy v. Pennsylvania R. Co., 181 F.2d 934 (3d Cir.1950); In re D\'Arcy, ......
-
Shirey v. Bensalem Tp., No. 81-1045
...America, 476 F.2d 594 (5th Cir. 1973); Schaefer v. First National Bank, 465 F.2d 234 (7th Cir. 1972); Levin v. Wear-Ever Aluminum, Inc., 427 F.2d 847 (3d Cir. 1970); Sullivan v. Delaware River Port Authority, 407 F.2d 58 (3d Cir. 1969). Indeed, in the cases cited the argument for appealabil......