La Sota v. Philadelphia Transportation Co. ( 1966 )

Dissenting Opinion by

Mb. Justice Cohen:

The trial court issued two orders: (1) denying defendant’s motion for judgment n.o.y. and (2) granting a new trial generally. Defendant appealed from the order denying its motion for judgment n.o.v. Neither party appealed from the order granting a new trial. Consequently, this Court is faced with only one issue: Did the court below err in denying defendant’s motion for judgment n.o.v.? That is the only question which this case presents for our consideration. Yet, after reaching a determination on that matter, the majority have seen fit to remand the record to the lower court to determine whether the new trial which the lower court had ordered and from which order no appeal had been taken should be a new trial limited to the issue of damages. The absurdity of this Court’s decision is highlighted by the fact that if the defendant had not taken its appeal from the order denying the motion for judgment n.o.v., this case, as to any issue, would never have been before us. It is as though my colleagues, through the exercise of their King’s Bench powers, would study every radio, television and newspaper account of the decisions of the courts below, as well as the official reports of our trial courts, and then review each and every case without requiring that an appeal be taken. I submit that the majority have in this matter taken the first step toward that ridiculous end.

It has been the policy of this Court that a single appeal may not present for review more than one order, judgment or decree. Clark v. Clark, 411 Pa. 251, 191 A. 2d 417 (1963); Gibson v. Bruner, 406 Pa. 315, 178 A. 2d 145 (1961); Frailey Township School District v. Schuylkill Mining Company, 361 Pa. 557, 64 A. 2d 788 (1949). In Gibson, we required appellant to choose which of two adverse judgments entered against her she desired that we review inasmuch as only one appeal had been taken. In that case, appellant intended to appeal from both adverse judgments and by error or omission failed to do so. In the matter presently before us, no appeal was taken from the order granting a new trial, not because of error or omission, but because neither party intended to take such an . appeal. Surely, if this Court will not review an order from which an appeal was erroneously omitted, it should not review án order which the parties were satisfied to.- leave alone. If we were to review every case in. which error occurred but no appeal was taken, we might as well close our Court to displeased litigants who wish to properly pursue their right of appeal.

.1 dissent.