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ANNE S. LEVIN v. DESERT PALACE (10/16/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: October 16, 1981.

ANNE S. LEVIN, A MINOR, BY HER PARENTS AND NATURAL GUARDIANS, MARVIN J. LEVIN AND CHARLOTTE W. LEVIN AND MARVIN J. LEVIN AND CHARLOTTE W. LEVIN, IN THEIR OWN RIGHT, APPELLANTS,
v.
DESERT PALACE, INCORPORATED, T/A CAESAR'S PALACE

No. 362 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, at No. 875 December Term, 1976.

COUNSEL

Gordon Gelfond, Philadelphia, for appellants.

Joel Paul Fishbein, Philadelphia, for appellee.

Spaeth, Brosky and Hoffman, JJ.

Author: Hoffman

[ 291 Pa. Super. Page 409]

Following the lower court's granting appellee's motion for compulsory non-suit in this trespass action, appellant moved to have the non-suit removed. The lower court denied appellant's motion, prompting this appeal. We are unable to reach the merits of the appeal, however, because the order denying appellant's motion has not been reduced to judgment and docketed.

[ 291 Pa. Super. Page 410]

It is clear that an order refusing a new trial or judgment n. o. v. is interlocutory and non-appealable, see, e. g., Slagter v. Thrifty Clean, Inc. (Slagter v. Mix), 441 Pa. 272, 272 A.2d 885 (1971); Thomas M. Durkin & Sons, Inc. v. Nether Providence Township School Authority, 291 Pa. Super. 402, 435 A.2d 1288 (1981); Mitchell v. United Elevator Page 410} Co., 290 Pa. Super. 476, 434 A.2d 1243 (1981); Richard v. Chester Extended Care Center, 287 Pa. Super. 289, 430 A.2d 290 (1981); Brogley v. Chambersburg Engineering Co., 283 Pa. Super. 562, 424 A.2d 952 (1981), and does not become appealable until it is "reduced to judgment and docketed." Pa.R.A.P. 301(c). Cf. Heffner v. Bock, 287 Pa. Super. 345, 430 A.2d 318 (1981); Penstan Supply Co. v. Hay, 283 Pa. Super. 558, 424 A.2d 950 (1981) (orders denying exceptions following non-jury trial, held not appealable).

Similarly, an appeal from an order denying appellant's motion to remove a non-suit is interlocutory and non-appealable. Rule 227.1 of the Civil Procedure sets forth the time for filing all post-trial motions after a trial by jury. It provides:

All post-trial motions after trial by jury, including a motion for a new trial, judgment not obstante veredicto, judgment upon the whole record after disagreement of a jury, removal of a non-suit and in arrest of judgment, shall be filed within ten (10) days after non-suit or verdict or disagreement of the jury.

(Emphasis added.) The rule was promulgated in 1977 to provide some uniformity in the area of civil post-trial motions. See. E. J. McAleer & Co. v. Iceland Products, 475 Pa. 610, 612 n.2, 381 A.2d 441, 442 n.2 (1977); Explanatory Note to Pa.R.Civ.P. 227.1. See also Pa.R.Civ.P. 1038(d) (filing motions for new trial, judgment n. o. v., and removal of non-suit not permitted after non-jury trial). Following the denial of post-trial motions, judgment must be entered upon the docket before the matter is properly appealable. Pa.R.A.P. 301(c). We cannot discern any basis for treating the propriety of an appeal from an order denying a motion to take off a non-suit any differently from that of an order denying a new trial or judgment n. o. v. The motions are to be filed at the same time, before the same court. We can find no justification for developing different procedural prerequisites to appeal these similar motions.

[ 291 Pa. Super. Page 411]

Thomas M. Durkin & Sons, Inc. v. Nether Providence Township School Authority, supra 291 Pa. Super. at 405, 435 A.2d at 1289-1290. Accordingly, because judgment has not been entered, the appeal must be quashed.*fn*

Appeal quashed.


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