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MARY JANE CONTE AND MARION CONTE v. BARNETT'S BOOTERY (10/28/83)

filed: October 28, 1983.

MARY JANE CONTE AND MARION CONTE, HER HUSBAND, APPELLANTS,
v.
BARNETT'S BOOTERY, INC.



No. 339 PITTSBURGH, 1981, Appeal from the Judgment in the Court of Common Pleas, Civil Division, of Beaver County, No. 1020-80.

COUNSEL

Raymond Radakovich, Pittsburgh, for appellants.

Louis Long, Pittsburgh, for appellee.

Cercone, President Judge, and Spaeth and Hester, JJ. Spaeth, J., concurred in the result.

Author: Hester

[ 320 Pa. Super. Page 413]

Following the presentation of appellants' case in chief in the Court of Common Pleas of Beaver County, Pennsylvania,

[ 320 Pa. Super. Page 414]

    appellee's motion for a compulsory non-suit was granted. Ten days following the entry of the non-suit, appellants filed a motion to remove the non-suit. Said motion was not briefed, argued, or ruled upon in the lower court; instead, appellee reduced the non-suit order to judgment, and appellants filed this appeal.

Appellee moved to quash the appeal for appellants' failure to file a timely motion to remove the non-suit in the trial court prior to taking an appeal. Appellee's motion was denied by this Court in its Order dated August 3, 1981, without prejudice to the parties to argue the issue of waiver along with the merits on appeal.

Appellants, Mary Jane Conte and Marion Conte, her husband, filed a Complaint in Trespass against appellee, Barnett's Booterie, Inc., for injuries which Mrs. Conte sustained as a result of falling down a flight of stairs inside appellee's bootery in Rochester, Beaver County, Pennsylvania. Mrs. Conte allegedly slipped on ice cream situate on the first or top step. The lower court entered the compulsory non-suit due to its opinion that appellants presented no evidence as to how the ice cream was placed on the steps and whether it had been there long enough to impute knowledge thereof to appellee.

We must first determine whether the mere entry of a compulsory non-suit is a final appealable order. As alluded to above, appellants' motion to take off the non-suit, though filed, was never ruled upon by the lower court. This appeal was taken following appellee's reducing the order to judgment.

Pennsylvania Rule of Civil Procedure 224 authorizes a trial court to enter a non-suit for the plaintiff's failure to plead and prove a prima facie case. The order entering a non-suit is not a final appealable order triggering the exclusive appellate jurisdiction of the Superior Court under Act of July 31, 1970, P.L. 673, ...


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