Appeal from the Order of the Court of Common Pleas of Philadelphia County, in the case of Robert Crawford and Marie Crawford v. Commonwealth of Pennsylvania, Department of Justice of the Commonwealth of Pennsylvania, No. 2344, April Term, 1980.
Warren L. Soffian, with him, Jerold Allen, Master, Donsky, Soffian & Allen, for appellants.
William C. McGovern, with him, David C. Shelton, Mylotte, David & Fitzpatrick, for appellees.
Judges Barry and Palladino (p.), and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.
[ 125 Pa. Commw. Page 86]
Robert and Marie Crawford (Appellants) have appealed from an order of the common pleas court of Philadelphia County granting the Commonwealth of Pennsylvania's and the Commonwealth of Pennsylvania, Department of Justice's (Appellees') motion for non-suit at the close of Appellants' case at trial. Because we have determined that Appellants' appeal was prematurely taken and must be quashed,*fn1 we need not address its merits.
Our Supreme Court, in Kukich v. Serbian Eastern Orthodox Church of Pittsburgh, 415 Pa. 28, 202 A.2d 77 (1964), quashed an appeal from a chancellor's entry of a compulsory non-suit where the appellant had failed to file a motion to remove or set aside the non-suit. The Court pertinently stated that: "[a]n appeal does not lie from the
[ 125 Pa. Commw. Page 87]
entry of a judgment of non-suit but rather from the refusal to take it off . . . . This applies to actions at law as well as in equity." Id. at 28-29, 202 A.2d at 77 (citations omitted).
Although the statute upon which the Court's decision was based*fn2 has since been repealed,*fn3 we have determined that the same result must obtain under our present Rules of Civil Procedure which replaced it.
Pa. R.C.P. No. (Rule) 227.1 provides, in relevant part:
(a) After trial and upon the written Motion for Post-Trial Relief filed by any ...