Malenfant v. Ruland
| Decision Date | 18 January 1980 |
| Citation | 274 Pa.Super. 506,418 A.2d 521 |
| Parties | Pierre J. MALENFANT and Joan Malenfant, his wife, v. Carl F. RULAND and James F. Blanchard, Ind. t/a James F. Blanchard Real Estate and Aleda Exterminating Co. and John T. Kitchenman, Ind. t/a Aleda Exterminating Co. Appeal of James F. BLANCHARD, Ind. t/a James F. Blanchard Real Estate. |
| Court | Pennsylvania Superior Court |
Submitted June 29, 1979.
Harold S. Patton, Levittown, for appellant.
No appearance entered nor briefs submitted for appellees.
Before HESTER, HOFFMAN and CATANIA, [*] JJ.
Appellant contends that the lower court erred in refusing to order transcription of the trial testimony at the cost of the county, or, in the alternative, in failing to waive the local requirement that such a transcript be filed prior to deciding appellant's post-trial motions. Because we conclude that this appeal is interlocutory and therefore must be quashed we do not reach the merits of appellant's contentions.
Appellant suffered an adverse jury verdict in an action in assumpsit and trespass which plaintiff brought against him and several other defendants. [1] After the verdict was returned appellant timely filed motions for judgment N.O.V. and in arrest of judgment. Appellant requested in these motions that the trial judge order transcription of the trial testimony at the cost of the county. When the trial judge refused to issue such an order, appellant moved for a review of the trial judge's refusal by a court en banc pursuant to Bucks County Rule of Civil Procedure 252(c). [2] Appellant additionally requested the court en banc to waive the requirement of a trial transcript for consideration of post-trial motions, pursuant to Bucks County Rule of Civil Procedure 252(b). [3] On November 2, 1978, the court en banc denied appellant's requests. In the opinion in support of its order, the court en banc noted that appellant had not presented any evidence, either through affidavit, deposition, or otherwise, concerning his ability to bear the costs of transcript preparation. Moreover, the court noted, appellant at no time alleged indigency. To the contrary, the fact that appellant had already purchased many pages of transcribed deposition testimony, plus his status as an "apparently successful business person () in Bucks County," suggested appellant's ability to pay the costs of transcript preparation. (Opinion of the court en banc at 2.) From the order of the court en banc refusing the requested relief, appellant has taken this appeal.
Although none of the parties to this appeal has raised the matter, we must consider whether the order of the lower court refusing to impose transcript preparation costs on the county and refusing to waive the transcript requirement is interlocutory and nonappealable. [4]
It is, of course, well settled that an appeal will lie only from a final order unless otherwise permitted by statute. A final order is one which usually ends the litigation, or alternatively, disposes of the entire case. In determining what constitutes a final order we have followed the approach of Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), in that we look to "a practical rather than technical construction" of an order. In Cohen, the Supreme Court of the United States carved out an exception to the final judgment rule for situations where postponement of appeal until after final judgment might result in irreparable loss of the right asserted. Under Cohen, an order is considered final and appealable if (1) it is separate from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.
Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978) (citations and footnote omitted). Applying this test, the Court in Pugar v. Greco, supra, held that a lower court's order denying appellant's permission to appeal an adverse arbitration award without first paying the costs of arbitration was interlocutory and nonappealable. The Court agreed with appellants that the order of the lower court was collateral to the main cause of action and that the right involved was too important to be denied review. But the Court concluded that the lower court's order did not "adversely affect a claimed right which (would) be irreparably lost if review (were) postponed." Id. at 74, 394 A.2d at 545. The Court noted that the appellants could pay the required costs and fees and pursue trial de novo of the arbitration decision in the lower court without losing their right to question the validity of the payment requirement on a subsequent appeal or in a collateral action. The Court stated that
(w)hile either method may be more cumbersome for (appellants) than it would be if this court were to reach and decide the merits on this present appeal, each alternative would comport with our policy of discouraging a multiplicity of appeals in a single case, or, as it has sometimes been put, the policy of precluding "piecemeal determinations and the consequent protraction of litigation." McGee v. Singley, 382 Pa. 18, 22, 114 A.2d 141, 143 (1955); Sullivan v. Philadelphia, 378 Pa. 648, 649, 107 A.2d 854, 855 (1954).
Id. at 74-75 394 A.2d at 545. Moreover, in reaching its decision that the appeal was interlocutory, the...
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