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TONY PANEPINTO v. DUMMY'S DELIGHTFUL SALOONERY (08/13/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: August 13, 1982.

TONY PANEPINTO, APPELLANT
v.
DUMMY'S DELIGHTFUL SALOONERY

No. 2842 Philadelphia, 1981, APPEAL FROM THE ORDER ENTERED OF OCTOBER 13, 1981 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA NO 4473 OCTOBER TERM, 1977

COUNSEL

Vincent P. Difabio, Philadelphia, for appellant.

Catherine N. Jasons, Philadelphia, for appellee.

Hester, Cirillo and Johnson, JJ.

Author: Per Curiam

[ 304 Pa. Super. Page 257]

This is an appeal from a Judgment of Non-suit, entered in the Court of Common Pleas of Philadelphia County.

On October 21, 1977 the appellant, Tony Panepinto, filed a Complaint in Trespass against the appellee, Dummy's Delightful Saloonery, for personal injuries arising from a fall on stairs located inside the appellee, restaurant. A pre-trial conference was held on May 12, 1981, at which time a trial date was set for October 13, 1981 at 9:30 a.m. in courtroom 1206, Five Penn Center Plaza. On the morning of the scheduled trial, an associate of counsel for the appellant informed the trial court that the attorney responsible for the case was handling a criminal matter in New Jersey and would be returning later that morning. A jury panel had been sent over to the courtroom and the appellee's counsel was present and ready to commence trial. The case was then called for trial and at 10:17 a.m. the Honorable Joseph P. Braig granted the appellee's Motion for a Non-suit and dismissed the case since counsel for appellant was not present.*fn1 On October 28, 1981 the appellant filed the instant appeal.

No motion to remove or set aside the judgment was entered in the court below, instead an appeal was filed directly to this Court. The appeal was prematurely taken and must be quashed.

[ 304 Pa. Super. Page 258]

An appeal does not lie from the entry of a judgment of non-suit, but rather from the refusal to take it off. In re Estate of Jervis, 443 Pa. 226, 279 A.2d 151 (1971); Kukich v. Serbian Eastern Orthodox Church of Pittsburgh, 415 Pa. 28, 202 A.2d 77 (1964); Churilla v. Barner, 269 Pa. Super. 100, 409 A.2d 83 (1979); Durkin v. Nether Providence Township School Authority, 291 Pa. Super. 402, 435 A.2d 1288 (1981) (Van der Voort, J., dissenting). This applies to actions at law as well as in equity. See: Pa.R.C.P. No. 1512.

A motion to set aside the judgment of non-suit should first be made to the lower court en banc so as to give the court an opportunity to reconsider the evidence and to correct any errors before an appeal is taken. See: Kukich v. Serbian Eastern Orthodox, etc., supra. Since this procedure was not followed by the appellant, the appeal is quashed.

Appeal quashed.


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