Appeal, No. 102, Oct. T., 1956, from judgment of the Municipal Court of Philadelphia County, Oct. T., 1952, No. 1018, in case of Martin Platt and Joseph Rosenberg v. City of Philadelphia. Motion to quash appeal dismissed.
M. E. Maurer, with him S. C. Nissenbaum, and Wexler, Mulder & Weisman, for appellants.
Levy Anderson, First Deputy City Solicitor, with him David Berger, City Solicitor, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).
[ 183 Pa. Super. Page 481]
This was an action in assumpsit commenced by plaintiffs, landlords, to recover $1,680.00 and interest from the defendant, their tenant, for breach of covenant to repair demised premises. The plaintiffs filed a complaint
[ 183 Pa. Super. Page 482]
but the defendant filed no answer and the case came to trial before a judge without a jury in the Municipal Court for the County of Philadelphia. At the trial plaintiffs offered in evidence the allegations of their complaint and offered a written point for a finding in their behalf and rested. The defendant objected to the offer on the ground that plaintiffs' action, while brought in assumpsit, actually sounded in tort, therefore no answer was necessary under the law, and moved that the plaintiffs be nonsuited. The judge overruled the motion for a non-suit and gave the defendant an opportunity to put in a defense. No defense was presented in behalf of the defendant. After receiving plaintiffs' request for a finding in their favor and defendant's motion for a non-suit, the court stated that "I will reserve a point on it. If I sustain his position, there you are, and if I overrule it, then he will know where he is." Thereafter briefs were submitted by both sides to the trial judge and on May 10, 1955 the trial judge granted defendant's motion for a non-suit. Three days later plaintiffs filed a motion which in the record is designated a "Motion for Judgment N.O.V." but which actually read as follows: "And Now, to wit, this 13th day of May, A.D. 1955, the plaintiff, by his attorneys, Nissenbaum & Maurer, Esqs., having presented a request for findings in favor of the plaintiff, moves the Court to have all the evidence taken upon the trial duly certified and filed so as to become part of the record, and for judgment in favor of the plaintiff upon the whole record." Briefs were presented to the court in banc, which court, on October 19, 1955, entered a decree refusing plaintiffs' motion for judgment in favor of the plaintiffs upon the whole record, although the court erroneously called it a motion for judgment n.o.v. On January 3, 1956 plaintiffs perfected their appeal.
[ 183 Pa. Super. Page 483]
The defendant filed a motion to quash the appeal. It argues that where a non-suit has been entered an appeal will not lie unless the plaintiff first moves the court to remove the non-suit. If the only motion before the lower court were defendant's motion for a non-suit we would be obliged to agree with appellee and quash the appeal. In none of the cases cited by appellee was there also before the lower court a motion for judgment n.o.v. or a motion for judgment in favor of the plaintiff upon the whole record. In Com. ex rel. Heck v. Everts, 19 Pa. Superior Ct. 419, in addition to the motion for a non-suit there was also a motion to amend made subsequently to the non-suit. We said in that case that such a motion is interlocutory and not a final judgment. We therefore followed the general rule that there must be a motion to set aside the non-suit before an appeal. In the present case the motion for judgment for plaintiffs upon the whole record is not interlocutory in character but is a final decree from which an appeal may be taken. Act of April 22, 1905, P.L. 286, as amended, 12 PS § 681. No case has been cited by appellee wherein (1) plaintiff's motion for judgment upon the whole record and (2) defendant's motion for a non-suit were present. The plaintiffs' motion for judgment upon the whole record was a proper motion for submission to the lower court, in this case the Municipal Court for the County of Philadelphia.
In Fitzpatrick v. Bates, 92 Pa. Superior Ct. 114, 116, we said: "In proceedings where the trial is had by the judge without a jury, the motion for binding instructions is an anomaly, for the judge is not required to instruct himself. The use of the motion is merely adopting a procedure which in such cases is equivalent to asking the court to enter judgment for the mover. Merely ...