*2 HOFFMAN, SPAETH, and JJ. Before BROSKY PER CURIAM: action, trial in this
Following
nonjury
assumpsit
a decision awarding appellees
the lower court rendered
filed
$18,321.00. Appellants subsequently
excep
damages of
denied in the order from which
tions, which the lower court
We are unable
reach the
is taken.1
present appeal
the
however,
the order
ex
merits,
denying appellants’
because
to judgment
reduced
and docketed. It
has not been
ceptions
denying exceptions following
is settled
“[a]n
and not
Heffner
interlocutory
appealable.”
trial is
nonjury
Bock,
v.
318,
287
430 A.2d
Pa.Super.
319 (1981).
v.
of the.
Redevelopment Authority
City
also Lashner
See
549,
(1981);
429 A.2d
Pa.Super.
286
659
Unter
Philadelphia,
of Pennsylvania,
Pa.Super.
v. Life Assurance Co.
286
berger
285
469,
(1981);
Myers,
Pa.Super.
Slaseman
Penstan
167,
(1981);
Supply
165
Co. v.
285
Hay,
558,
Appeal quashed.
SPAETH, J., dissenting opinion. files a SPAETH, Judge, dissenting:
I believe we should not but should reach quash merits, merits, remand for further fact.
The action is in to recover assumpsit damages breach The case was agreement of an of sale. tried aby judge 8, 1979, a November sitting jury. without On judge entered in favor of and finding appellees against appel- a $18,321. lants in the amount of exceptions, Despite jurisdictional principle the well settled embodied in our cases, the dissent would “consider the lower court’s statement that it equivalent ‘entering judg- ‘affirmed’ as to a statement that it was ” support interpretation, its ment.’ At 1254. of the dissent as- present appeal proper sumes that the would be had the lower court “entering judgment.” assump- it stated that was Id. at 1254. That warranted, 301(c) expressly tion is not for Pa.R.A.P. mandates that by specified judgment, direction the lower court that a sentence “[a] entered, unaccompanied by entry or other order shall be actual docket, specified appealable order in the . .. does not constitute an case, (Emphasis added.) being order.” That we cannot discern Moreover, present appealable. how order can be deemed while governing appeals the dissent’s call for revision of the rules is not merit, statutes, rules, present defining without and cases and delimiting applicable. jurisdiction sufficiently readily are Court’s clear and perceive Consequently, construing we can no basis for “liberally” compensate lower court orders for the inadvertence of Co., Employees counsel. Cf. Gurnick v. Government Pa.Super. Insurance 278 437, 440-41, (1980) (HOFFMAN,J., A.2d 623-24 420 dissenting) (no recognize discretionary power need to a broad of interlocutory orders). review of 334 court, judge the lower who February by
and on dismissing entered an appel- the trial order judge, had been that Award entered stating exceptions by lants’ “[t]he 8, 1979 the same November ... be and is this Court This from that order. appeal affirmed.” hereby that with the before we consider the majority may I agree decide it is from merits, its we must whether an issue, appellees do not raise this Although order. appealable of we jurisdiction may, it concerns .the this court since Penstan v. should, Hay, it Inc. 285 sponte. Supply, raise saa (1981); Williams, 950 v. Williams Pa.Super. (1978); Baldwin, A.2d 422 v. 385 Polascik with agree A.2d I also dismissing following an a exceptions that order majority an appealable. is not Before will jury trial without entered. Inc. lie, Supply, must be Penstan judgment final Hay, supra. is reduced
Ordinarily, dismissing exceptions the lower by praecipe clerk of court on judgment Here, That was here. 301(d). Pa.R.A.P. not done party. it judge’s court that “affirmed” the trial said favor If instead of it appellees. saying finding had said it was “affirmed,” the lower court “entering question I assume no would appealability judgment,” I see no distinction substance between a arise. For entered the clerk on of a praecipe judgment court itself. entered we should consider lower court’s statement I believe to a it statement that was equivalent that it “affirmed” as we must we must. But quash, If “entering judgment.” *4 end promptly is to controversies as as responsibility court’s judicial system Here, of the I operation permits. the sound believe, quash controversy unnecessarily. prolongs now one of we must assume that: Having quashed, that the will file a clerk enter a praecipe judgment; parties taken; we shall what I will be then do think appeal second fact; do now—remand further we should will taken. Confronted with so dishearten- be a third
335
if
means
unwilling
quash—even
I an
prospect,
ing
liberally.
order very
construing
court’s
from this case.
after all come
may
some
Perhaps
good
rule as
as does
enforcing
strictly
reason for
One
erring parties,
of the
example
is to make
majority
assumes,
This
others to do better.
encouraging
thereby
better is worth
however,
are
to do
they
supposed
that what
that one of the
insisting
Is it worth
But
doing.
query:
clerk,
with the
is to file a praecipe
must do
things
I
if he doesn’t?
don’t
quashed
his
having
peril
make
ensuing judgment
No
a praecipe
think so.
doubt
should not become an end in
docket. But tidiness
tidy
for a
court needs to know is what the
What an appellate
itself.
clerk,
It is the contents of the
court, not the
did.
lower
of a
order,
prae
not the
or absence
presence
court’s
as the
jurisdiction.
long
that should control our
So
cipe,
lower court’s
to disclose when the
tidy enough
docket
said, we
tell whether we
was
and what it
can
I therefore
appeal.
hope
to hear the
power
have
Rules and the
Appellate
Committee on
Court
Advisory
will re-examine Pa.R.A.P.
Procedural Rules Committee
Civil
misguided
have
litigants
Pa.R.C.P. 1038. Too many
301 and
case,
e.
in addition to this
g.,
over them. See
tripped
185,
Hill
289
432 A.2d
Rolling
Hospital,
Pa.Super.
v.
Myerson
(1981);
Banghart,
Co. of Penna. v.
289 Pa.Su
1114
Sun Oil
Smith,
287,
(1981);
1115
Dennis v.
288
432 A.2d
Pa.Su
per.
185,
Bock,
(1981);
Pa.Super.
Having concluded that we should not I am quash, obliged to consider the merits—although-1 recognize view my of the merits controls no one. 25, 1978, agreement,
On written May appellants prom- Avenue, ised to build a house on Lot No. Glenwood Aldan, Pennsylvania. The for settle- agreement provided ment on when appellees planned October to move into the house. The house was to resemble one built already 24, subject on Lot No. listed in clause 5 changes These kitchen agreement. changes included appliances, cabinets, special heater, medicine a hot water carpeting, bath, a window in the master bedroom and also various “extras,” a including fireplace, vanity, special plumbing. The agreement payment called for of 50% of the cost of the at the signing agreement. “extras” time of Appellees 50%, $5,290, well a paid deposit as as which was ten cent of the per purchase price. 31, 1978, the house
On October was far from complete. fixtures, The flooring, electrical kitch- carpeting, plumbing, sidewalks, en appliances, driveway grading and downspouts were among those items not completely Appellees installed. appeared at settlement with their but attorney, because the made, house was not complete, settlement was not and this litigation followed. Questions Involved,
In their Statement of appellants iden- However, tify six issues. these bemay reduced to three. first that the argue lower court in erred disqualifying trial attorney, Gary Hurwitz. This issue arose because Mr. Hurwitz called his law partner William March to Mr. March testify; had represented appel- lees, he settlement, testified the events regarding at the house, the condition of the and the value of his services. of Professional 5-102, Code DR Responsibility, pro- vides in part:
DR 5-102. Withdrawal as Counsel When The Lawyer Becomes a Witness. or contemplated
(A) If, undertaking employment after learns or it is obvious that he litigation, lawyer pending firm to be called as witness ought or a in his lawyer *6 the conduct of client, he shall withdraw from behalf of his shall not continue firm, represen- his if any, the trial and he trial, may repre- that continue tation in the except in the may testify he or a in his firm lawyer sentation and 101(B)(1) (4). through enumerated in DR 5 circumstances 101(B)(1) in through enumerated DR 5 The circumstances (4) are: will relate to an uncontested
(1) testimony solely If the matter.
(2) If the will relate to matter of testimony solely that substantial and there is no reason to believe formality in to the opposition testimony. evidence will be offered (3) If the will relate to the nature and testimony solely in value of services rendered the case legal lawyer or his firm to the client. matter,
(4) As to
if refusal would work a substantial
any
client
hardship on the
because
distinctive value of
in
particular
or his firm as counsel
case.
lawyer
and then
practice
testifying
of one
continu-
attorney
as trial counsel has been condemned
our
ing
Supreme
Hertz,
443 Pa.
was in direct a resolution expedite intended to the parties tion between Default Judgment by opening dispute, of the overall a trial immediately and proceeding [appellants] against Peti- on merits, [appellants’] of argument instead Judgment. Open tion to at 5-6.1
Slip op. should not ruling lower court’s In these circumstances prevented exped- would have Disqualification disturbed. be appel- in the resolution, stipulation by joining which itious Also, have not requested. appellants had themselves lants interest or bias of conflict of evidence specific pointed Mr. March. part b court erred hold- next argue *7 appellees their to sell agreement had breached they that ing view, appellants’ date. In house on settlement completed by “preventing the agreement who breached appellees it was on October house delivering completed from [appellants] carpeting, the flooring, that argue 1978.” Appellants were fixtures, by appellees ordered driveway electrical failure to cooperate own appellees’ because completed install these items.2 hired to appellees the contractors with February brought Appellees action on November 1978. On 1. against appellants. judgment was entered On default opened pursuant stipulation, the was to October and the case was tried. delivery appellees prevented Appellants argue of a com- also that they by failing pay time were pleted for all “extras” the to house agreement provided: Appellants in the that refer to a clause ordered. changes Plans (C) in or additions to the Extras. Seller will make only Buyer Specifications on Seller’s form a .. . if submits Extra, pay- together with to Seller for such written authorization (as reasonably the cost of such Extra in full to Seller of ment by Seller) . . . estimated alone, required appellees might agree, this clause to that read One However, they pay at the time were ordered. for all extras payment requiring agreement of the also included a clause 50% trial, appel- signing agreement. At the time of cost of extras at receipt payment, acknowledged and in their of this lants 50% paid say remaining they to be that “the [was] to this court brief 50% of bills payment direct cite evidence Inc., contractor, Tori, P. electrical David Carpets, to Roselli for the driveway. Appellees, contractor and another con- hand, separate did not make they contend other Tori, Inc., or other with David Carpets, tracts Roselli claim that all orders they placed They contractor. to “either with or directly [appellants] the house additions no did [appellees] employ subcontractors. instance their to work the premises.” (Appel- third contractors 7) Appellee lees’ Brief at Isadore Coren testified arrangements for Nardoni and a salesman made appellant he Carpets to to Roselli and order go carpeting him wanted, and Roselli the amount over that paid only that he him. “I make no appellants which credited He said: didn’t 64) (N.T. with these also arrangements people.” Coren with as to that he dealt all appellants testified house, to did not separate additions that he make electrician, or carpet paving with the company, contracts work he contractor to install the additional desired. disposition issue is critical to of this Resolution of this no guidance we have received from case. Unfortunately, In its court, which no fact. to court filed in response appeal, opinion states: however,
Defendants, justify their failure attempt under contract that the Plaintiffs perform by alleging Agree- failed to or under certain collateral perform pay *8 for of a and a dishwasher. purchase refrigerator ments nonperformance part If there on the any was Plaintiffs, and it was the of the Court it finding [sic] not, was it was so insubstantial as not to affect the overall the contract. under performance (Slip op. 4) 3) (Appellants’ Appellee Coren at settlement.” Brief at Isadore prepared pay remaining to
testified that he was at settle- 50% circumstances, argument appellees appellants’ In ment. these by agreement failing pay for the is without breached the extras merit. defense, however, Appellants’ was not based alleged “collateral for the of a Agreements purchase refrigerator dishwasher,” but on for alleged separate agreements electrical and the flooring, carpeting, driveway. fixtures Given court’s cannot only opinion, it be determined whether defense has merit. appellants’ Where fact, lower court to make critical findings has failed of appeal is to reverse and for proper remedy on remand Co., further See Bedillion v. W. A. Wilson findings.3 Stave (1979). c $18,321 Appellants state that of Award is $601.20 “[t]he than less the amount claimed. Unfortunately, since Fact, Trial did submit it Judge of Findings impossible to determine which of the items of damage that were were Judge claimed not considered the Trial to be justi- 37) fied.” Brief at (Appellants’ then challenge basis several legal evidentiary of of appellees’ claims, their claim for loss of including bargain on the sale their home, loans, of own interest and fees swing rental two apartments, fees. attorney’s
It cannot be from lower determined court’s opinion which of claims for damages rejected court reaching its decision to award somewhat less the full than amount sought appellees. circumstances, such proper remedy is remand to the court explanation of it reached how the amount of it damages Zanella, awarded. See Warden A.2d 1026 trial, judge record that at the indicates conclusion the trial parties required findings asked counsel for the whether the case appellants require fact. findings Counsel for said: “1 think it does fact, “Well, does, responded: you Your The court Honor.” if it ” give (N.T. 168) better me some and conclusions then . .. . suggested findings appear No of fact or of law conclusions in the record, although say appellants in their to this brief court that “both parties proposed findings of fact and memoranda with the Trial 8) Judge.” (Appellants’ Brief at *9 not but should reasons, quash I should foregoing
For fact, with in- findings for further remand and reverse filed, fact had been such when structions to be further exceptions, file might either following dismissal entered as was judgment from such exceptions. those A .2d 1257 GAERTNER, Appellant,
Nora M. INC., Corporation. SMITH, A F. JAY Pennsylvania. Superior Court of 13, 1980. Argued Nov. 9, 1981.
Filed Oct. Becker, appellant. for Pittsburgh, F. John Little, appellee. Pittsburgh, Robert C. VOORT, VAN der JJ. HESTER, BROSKY
Before PER CURIAM: judgment reduced to not been the verdict has
Since new trial motions for denying is from an Order before us v., properly this case is n. o. Bock, 287 Heffner v. 301(c). See Pa. R.A.P. this time. therein. and cases cited (1981) Appeal quashed.