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DENNIS L. MILLER AND CONSTANCE J. MILLER v. ELVIN HURST (07/23/82)

filed: July 23, 1982.

DENNIS L. MILLER AND CONSTANCE J. MILLER, IN THEIR OWN RIGHTS AND AS PARENTS AND NATURAL GUARDIANS OF SCOTT LEE MILLER, A MINOR, APPELLANTS,
v.
ELVIN HURST



No. 2630 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Lebanon County, No. 813 Year 1979.

COUNSEL

Neil J. Rovner, Harrisburg, for appellants.

Wiley P. Parker, Lebanon, for appellee.

Cercone, President Judge, and Cavanaugh, Rowley, Wieand, McEwen, Cirillo and Montemuro, JJ. Cirillo, J., files a dissenting and concurring opinion.

Author: Wieand

[ 302 Pa. Super. Page 238]

In this appeal, we are asked to determine whether a dog owner who permits a dog to run free in violation of a law requiring that the dog be restrained is liable, without further proof of negligence, for injuries caused when the dog bites a small child. This issue arises because the trial judge entered a compulsory non-suit in an action brought by the child's parents to recover for injuries caused by a roving German Shepherd, and the court en banc refused a motion to remove the non-suit. Before reaching the substantive issue, however, we must determine whether an order refusing to remove a compulsory non-suit is a final and appealable order.

Until recently the procedural rule of law was clear. An appeal did not lie from an order entering a non-suit, but it did lie from the refusal to take it off. Kukich v. Serbian Eastern Orthodox Church of Pittsburgh, 415 Pa. 28, 202 A.2d 77 (1964); Dellacasse v. Floyd, 332 Pa. 218, 2 A.2d 860 (1938); Gehringer v. Erie Railways Co., 297 Pa. 47, 146 A. 148 (1929); Fine v. Soifer, 288 Pa. 164, 135 A. 742 (1927); McDonald v. Babcock, 269 Pa. 68, 112 A. 29 (1920); Nazareth F. & M. Co. v. Marshall, 257 Pa. 489, 101 A. 848 (1917); Bausbach v. Reiff, 237 Pa. 482, 85 A. 762 (1912); Haverly v. Mercur, 78 Pa. 257 (1875). See also 1 Goodrich Amram 2d, § 231(b):4.1.

The authority for the non-suit procedure had been found in the Act of March 11, 1875, P.L. 6, § 1, 12 P.S. § 645, which provided:

Whenever the defendant, upon the trial of a cause in any court of common pleas of this commonwealth, shall offer no evidence, it shall be lawful for the judge presiding at the trial to order a judgment of non-suit to be entered, if, in his opinion, the plaintiff shall have given no such evidence as in law is sufficient to maintain the action, with leave, nevertheless, to move the court in banc to set aside such judgment of non-suit; and in case the said court in banc shall refuse to set aside the non-suit, the plaintiff may remove the record by writ of error into the supreme

[ 302 Pa. Super. Page 239]

    court for revision and review, in like manner and with like effect as he might remove a judgment rendered against him upon a demurrer to evidence.*fn1

This statutory provision was repealed, effective June 27, 1980, by the Judiciary Act Repealer Act of April 28, 1978, P.L. 202, No. 53, § 2(a)[653], 42 P.S. § 20002(a) [653]. Nevertheless, the practice of entering a non-suit for failure to prove a prima facie case has continued. See Pa.R.C.P. 224. However, "[t]here is still no right to appeal without first moving to take off the non-suit. The appeal lies only from the action of the court en banc in refusing to remove the non-suit." 1 Goodrich Amram § 231(b):5.

A refusal by the court en banc to remove a compulsory non-suit is a final order which unequivocally puts the plaintiff out of court. It is a judicial determination holding it "inconceivable, on any reasonable hypothesis, that a mind desiring solely to reach a just and proper conclusion in accordance with the relevant governing principles of law, after viewing the evidence in the light most advantageous to the plaintiff, could determine in his favor the controlling issues involved." Sargeant v. Ayers, 358 Pa. 393, 397, 57 A.2d 881, 883 (1948), quoting from Virgilio v. Walker and Brehm, 254 Pa. 241, 244-45, 98 A. 815, 816 (1916). It is not a direction by a court en banc that a specified judgment shall thereafter be entered or that a verdict be recorded. It is neither the same as nor comparable to the denial of a motion for a new trial which calls for the subsequent entry of a judgment. A refusal to remove a compulsory non-suit is a final order and requires no further entry of judgment. It constitutes a final adjudication that the plaintiff cannot recover, puts him or her finally out of court, and bars the

[ 302 Pa. Super. Page 240]

    commencement of a second action upon the same cause. Can any adjudication be more final than this? The answer is readily apparent. Because such a determination is a final order, it is appealable to the same extent as other final orders. See Adoption of G.M., 484 Pa. 24, 398 A.2d 642 (1979); Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977); T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977).

Several recent decisions by panels of this court have sought to equate an order refusing to remove a compulsory non-suit with an order refusing to award a new trial and have held that an order refusing to remove a non-suit is not appealable unless and until a judgment has been entered thereon. See Anskis v. Fischer, 294 Pa. Super. 212, 439 A.2d 826 (1982); Fisher v. Findlay, 293 Pa. Super. 293, 438 A.2d 1000 (1981); Lawson v. Bond, 293 Pa. Super. 179, 437 A.2d 1264 (1981); Levin v. Desert Palace, Inc., 291 Pa. Super. 408, 435 A.2d 1292 (1981); Thomas M. Durkin & Sons, Inc. v. Nether Providence Township School Authority, 291 Pa. Super. 402, 435 A.2d 1288 (1981). The analogy attempted to be drawn by these decisions is not apt. An order refusing to remove a compulsory non-suit, contrary to an order refusing to award a new trial, is a final, judicial determination that as a matter of law the plaintiff has no cause of action on which recovery can be had. In this respect it is comparable to an order sustaining preliminary objections in the nature of a demurrer to ...


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