J-S79004-16


                               2016 PA Super 278

PATRICIA J. MURPHY AND PATRICIA J.              IN THE SUPERIOR COURT OF
MURPHY AS ADMINISTRATOR FOR THE                       PENNSYLVANIA
ESTATE OF EDWARD TURNER,
DECEASED

                          Appellant

                     v.

THE INTERNATIONAL DRUIDIC SOCIETY,
JUDY ELLEN TAYLOR, STEVEN TURNER,
ALLEN TURNER, RUSSELL TURNER,
JAMIE TAYLOR AND MARLOW TAYLOR

                          Appellees                 No. 2233 EDA 2015


                   Appeal from the Order Entered June 3, 2015
              In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): 02989 November Term, 2012


BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.

OPINION BY GANTMAN, P.J.:                       FILED DECEMBER 08, 2016

      Patricia J. Murphy, individually and as administrator for the Estate of

Edward F. Turner (collectively “Appellant”), purports to appeal from the

order of the Philadelphia County Court of Common Pleas, which entered a

compulsory nonsuit during trial in her civil action against Appellees, the

International Druidic Society (“IDS”), Judy Ellen Taylor, Steven Turner, Allen

Turner, Russell Turner, Jamie Taylor and Marlow Taylor, for civil conspiracy,

fraud, theft and conversion, racketeering, and unjust enrichment. We quash

the appeal.

      The relevant facts and procedural history of this case are as follows.
J-S79004-16


Decedent, Edward F. Turner, lived with his daughter, Judy Ellen Taylor in

New Jersey since 2006, and appointed her his attorney in fact to handle his

financial affairs, including his care expenses and distribution of gifts to his

family while he was still living.   Decedent died in New Jersey on March 3,

2010. Appellant tried and failed to compel the administration of Decedent’s

estate in Philadelphia Orphans’ Court. The New Jersey Surrogate Court of

Burlington County later appointed Appellant as administrator of Decedent’s

estate on July 29, 2011.      Appellant subsequently obtained a judgment

against Decedent’s estate in the amount of $315,798.00 plus interest, based

upon a promissory note from Decedent to Appellant, individually, to ensure

payment of two certificates of deposit upon maturity.

      Appellant initiated this action on November 29, 2012, against IDS, a

Pennsylvania non-profit corporation that Decedent allegedly managed,

directed and controlled. The other defendants in the case were the children

and grandchild of Decedent. Appellant’s 2012 civil action against Appellees

charged them with looting and depleting Decedent’s and IDS’ liquid assets,

beginning in 2007, without Decedent’s consent. Appellant sought recovery

of the funds she claimed were held in trust for her benefit by Decedent/IDS.

The court scheduled a non-jury trial for June 1, 2015.

      During Appellant’s case-in-chief at trial, Appellant’s counsel called Judy

Ellen Taylor to the stand, elicited her direct testimony, and introduced

several exhibits. During the questioning of Ms. Taylor, the court expressed


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its doubt regarding the sufficiency of the evidence so far and frequently

directed Appellant’s counsel to present appropriate evidence, through

suitable questions directed to Ms. Taylor, to prove Appellant’s case.   After

trial had been in session for approximately an hour and a half, the court

asked Appellant’s counsel to summarize Appellant’s case and explain how

Appellant intended to prove it. Counsel offered that he intended to call the

individual members of Decedent’s family and prove Appellant’s case by

establishing that each person called to testify had received money from

Decedent through checks signed by his daughter as attorney in fact.      The

court also asked counsel why Appellant had not filed the case in New Jersey.

At this point, Appellees moved for a compulsory nonsuit, which the court

granted against Appellant.

     The compulsory nonsuit was officially entered as an order on the

docket on June 3, 2015. Appellant filed no post-trial motions. Instead, on

June 26, 2015, Appellant filed a notice of appeal. The court did not order

Appellant to file a concise statement of errors complained of on appeal,

pursuant to Pa.R.A.P. 1925(b), and Appellant filed none.

     Appellant raises the following issues in her appeal:

        DID THE TRIAL COURT COMMIT AN ERROR OF LAW OR A
        MANIFEST ABUSE OF DISCRETION IN GRANTING
        [APPELLEES’]   MOTION    FOR NON    SUIT  BEFORE
        [APPELLANT] HAD EVER FINISHED THE EXAMINATION OF
        THE FIRST LIABILITY WITNESS?

        WITHOUT WAIVING [APPELLANT’S] ISSUE I, WHICH
        [APPELLANT] CONTEND[S] IS THE DISPOSITIVE ISSUE ON

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         APPEAL, DID THE TRIAL COURT COMMIT A MANIFEST
         ABUSE OF DISCRETION BY TERMINATING THE TRIAL
         SHORTLY AFTER ITS INCEPTION, BY REFUSING TO ALLOW
         [APPELLANT]    TO    PROCEED     IN    PRESENTING
         DOCUMENTARY EVIDENCE AND CALLING WITNESSES IN
         SUPPORT OF [THE] CAUSES OF ACTION AND BY
         GRANTING [APPELLEES’] MOTION FOR NON SUIT?

(Appellant’s Brief at 2-3).

      As a prefatory matter, the “appealability of an order goes directly to

the jurisdiction of the Court asked to review the order.” Stahl v. Redcay,

897 A.2d 478, 485 (Pa.Super. 2006), appeal denied, 591 Pa. 704, 918 A.2d

747 (2007).    “[T]he jurisdiction of the court in a matter before it may be

raised at any time.” Forrester v. Hanson, 901 A.2d 548, 554 (Pa.Super.

2006) (quoting Kessler v. Cardonick, 323 A.2d 378, 379 (Pa.Super. 1974).

This Court can raise the issue of jurisdiction sua sponte. Forrester, supra

(citing Tohan v. Owens-Corning Fiberglas Corp., 696 A.2d 1195, 1198

(Pa.Super. 1997), appeal denied, 553 Pa. 700, 718 A.2d 786 (1998)). “This

Court does not have jurisdiction to entertain an appeal from a non-

appealable,   interlocutory   order.”     Forrester,   supra    (citing   Davis

Supermarkets, Inc. v. United Food and Commercial Workers, Local

23, 533 A.2d 1068 (Pa.Super. 1987)).

      Pennsylvania Rule of Civil Procedure 230.1 provides as follows:

         Rule 230.1. Compulsory Nonsuit at Trial

            (a)(1) In an action involving only one plaintiff and one
         defendant, the court, on oral motion of the defendant, may
         enter a nonsuit on any and all causes of action if, at the
         close of the plaintiff’s case on liability, the plaintiff has

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        failed to establish a right to relief.

          (2)    The court in deciding the motion shall consider
        only evidence which was introduced by the plaintiff and
        any evidence favorable to the plaintiff introduced by the
        defendant prior to the close of the plaintiff’s case.

          Note: Subdivision (a) changes the prior practice
        whereby the entry of a compulsory nonsuit was precluded
        when any evidence had been presented by the defendant.

           If a motion for compulsory nonsuit is granted, the
        plaintiff may file a written motion to remove the nonsuit.
        See Rule 227.1.

           (b)     In an action involving more than one plaintiff, the
        court may not enter a compulsory nonsuit as to any
        plaintiff until the close of the case of all the plaintiffs.

          (c)    In an action involving more than one defendant,
        the court may not enter a nonsuit of any plaintiff prior to
        the close of the case of all plaintiffs against all defendants.
        The nonsuit may be entered in favor of

           (1)    all of the defendants, or

           (2)   any of the defendants who have moved for
        nonsuit if all of the defendants stipulate on the record that
        no evidence will be presented that would establish liability
        of the defendant who has moved for the nonsuit.

          Note: The      term    “defendants”    includes   additional
        defendants.

Pa.R.C.P. 230.1. Pennsylvania Rule of Civil Procedure 227.1 requires a party

to file written post-trial motions within ten days after notice of a nonsuit.

Pa.R.C.P. 227.1(c)(2). The written post-trial motion must ask the court to

remove the nonsuit. Pa.R.C.P. 227.1(a)(3).

     Historically, Pennsylvania law has held that the entry of compulsory


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nonsuit is not the ruling that is immediately appealable; rather, the appeal

lies from the trial court’s denial of the motion to remove the compulsory

nonsuit.     See    Kukich    v.   Serbian    Eastern      Orthodox   Church   of

Pittsburgh, 415 Pa. 28, 28-29, 202 A.2d 77, 77 (1964); Nazareth

Foundry & Mach. Co. v. Marshall, 257 Pa. 489, 493, 101 A. 848, 849

(1917); Haverly v. Mercur, 78 Pa. 257, 265-66 (1875); Smith v. Grab,

705 A.2d 894, 896 n.1 (Pa.Super. 1997), appeal denied, 567 Pa. 728, 786

A.2d 989 (2001). In other words, the adversely affected party has the right

to appeal only after that party has filed a motion to remove the compulsory

nonsuit, and the trial court has denied it.           Vucelich v. Trustees of

University of Pennsylvania, 481 A.2d 1193, 1194 (Pa.Super. 1984)

(quashing appeal for appellant’s failure to seek removal of compulsory

nonsuit before filing appeal); Conte v. Barnett’s Bootery, Inc., 467 A.2d

391, 392 (Pa.Super. 1983) (stating right to appeal following order entering

compulsory nonsuit “does not exist until a motion to have the nonsuit taken

off is first filed with and denied by the trial court”).

      Pennsylvania law also makes clear that the entry of a compulsory

nonsuit before trial has even begun is the functional equivalent of a pre-

trial dispositive order such as one granting summary judgment or judgment

on the pleadings. Lewis v. United Hospitals, Inc., 547 Pa. 626, 631, 692

A.2d 1055, 1058 (1997) (holding trial court cannot enter compulsory

nonsuit per Pa.R.C.P. 230.1 “prior to the commencement of trial before


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plaintiff’s presentation of evidence as to liability”; trial court erred in

granting pre-trial motion for compulsory nonsuit; trial court should have

treated motion as one for either summary judgment or judgment on the

pleadings); Phillips v. Lock, 86 A.3d 906, 912 (Pa.Super. 2014) (viewing

entry of nonsuit during jury selection as equivalent of grant of summary

judgment, and stating: “Where a court enters a nonsuit prior to trial, the

action would be [considered] either a [grant of] summary judgment or

judgment on the pleadings[,] not of non-suit”); Wujcik v. Yorktowne

Dental Associates, Inc., 701 A.2d 581, 583-84 (Pa.Super. 1997) (holding

entry of compulsory nonsuit following offer of proof at pre-trial conference

was improper; trial court should have treated challenge to pre-trial offer of

proof as either motion for summary judgment or for judgment on pleadings).

     Where a trial court mistakenly enters a nonsuit as a pre-trial

dispositive order, that order should be considered an order granting

summary judgment or a judgment on the pleadings, and the party

challenging entry of that order does not have to file a post-trial motion to

remove the nonsuit before filing an appeal.     See Lewis, supra (stating

Superior Court erred in quashing appeal because appellants failed to file

motion to remove pretrial nonsuit); DiGregorio v. Keystone Health Plan

East, 840 A.2d 361, 366 (Pa.Super. 2003) (holding appellants were not

required to file post-trial motion prior to appeal, where trial court granted

motion to dismiss in chambers on first day of trial, after jury was


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empaneled, but before jury heard any evidence, because order granted

either    summary     judgment   or   judgment   on   pleadings,   not   nonsuit);

Gallagher v. Harleysville Mut. Ins. Co., 617 A.2d 790 (1992), appeal

denied, 535 Pa. 620, 629 A.2d 1381 (1993) (stating entry of pre-trial

nonsuit on plaintiffs’ contract claim was error; what court did cannot be

characterized as grant of nonsuit; timely post-trial motion to remove nonsuit

was unnecessary).       The mischaracterization of a pre-trial disposition as a

compulsory nonsuit can also create a dilemma regarding the timeliness of an

appeal. Rivera v. Home Depot, 832 A.2d 487 (Pa.Super. 2003) (refusing

to quash appeal as untimely, where trial court entered pre-trial compulsory

nonsuit that should have been treated as summary judgment ruling;

plaintiffs were misled by erroneous ruling, filed written motion to remove

nonsuit, and filed appeal within thirty days of denial of their motion).

         On the other hand, the entry of a compulsory nonsuit is proper if trial

on the case has begun and the plaintiff has presented evidence.               See

Pa.R.C.P. 230.1; Rachlin v. Edmison, 813 A.2d 862 (Pa.Super. 2002) (en

banc). Likewise, the entry of a compulsory nonsuit pursuant to Rule 230.1

is appropriate, where the court considers the plaintiff’s offer, in concise

summary form, of evidence to be submitted at trial. Id. at 867-68 (holding

entry of nonsuit during non-jury trial was appropriate after plaintiff

presented proposed evidenced in summary fashion); Rivera, supra at 489-

90 (explaining court can enter compulsory nonsuit in stipulated trial, where


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plaintiff waives jury, provides summary of proposed evidence, and all

participants stipulate to anticipated testimony); Liles v. Balmer, 653 A.2d

1237 (Pa.Super. 1994), appeal denied, 541 Pa. 640, 663 A.2d 692 (1995)

(treating nonsuit as appropriately entered, where court entered nonsuit

during trial after court requested offer of proof and in response, plaintiff

indicated prior evidentiary ruling precluded her from proceeding further). In

these scenarios, the plaintiff must file a written motion to remove the

nonsuit, and the court must deny the motion, before the plaintiff can appeal.

See Vucelich, supra; Conte, supra.

      Instantly, the trial court entered a compulsory nonsuit against

Appellant after Appellant had elicited testimony from her witness and

introduced several exhibits into the record.      After the court found the

evidence Appellant had presented thus far at trial was insufficient, the court

requested and Appellant provided a summary of her proposed evidence.

Following the offer of proof, Appellees moved for a compulsory nonsuit, and

the court entered a compulsory nonsuit against Appellant.           The court

summarized the exchange at trial as follows:

         THE COURT: The [c]ourt allowed the witness to step
         down and asked [Appellant] to present to it proof that
         [s]he intends to present to the [c]ourt in order to establish
         h[er] claim as set forth in the complaint filed in this
         matter. [Appellant] did.

         At the conclusion the [c]ourt asked [Appellees] if they had
         a motion. They had a motion for nonsuit which the [c]ourt
         granted.


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                                       *       *    *

          [Appellant] for an hour and a half put evidence on that this
          [c]ourt felt was [not] relevant to the issue at hand.

          [Appellant], then in summarizing h[er] evidence, this
          [c]ourt found that…as to these individuals [s]he did not
          have sufficient information to show that there was a
          dissipation of assets of the estate.

                                       *       *    *

          This [c]ourt finds that [Appellant] taking the evidence that
          [s]he claimed [s]he would have presented could not
          present that case.

          Further, [Appellant] claims that part of the funds were
          used by that [Appellee], IDS. [Appellant] has failed to
          establish that the estate is authorized to act on behalf of
          IDS.

          [Appellant] has not presented any [c]ourt [o]rder directing
          that [s]he was allowed or the estate is authorized to act on
          behalf of IDS….

          Without that authority to show that they have the ability
          to─that [Appellant] ha[s] the right to proceed on behalf of
          IDS as to those assets, this [c]ourt finds that [Appellant]
          would be unable to prove [her] case and, therefore,
          grant[s] a judgment of nonsuit.

(N.T. Trial, 6/1/15, at 80-83).1

       Here, the court entered a compulsory nonsuit against Appellant under

circumstances comparable to those cases where the entry of the nonsuit was

deemed procedurally correct.            See Rachlin, supra.   Before the court

____________________________________________


1
 The record indicates the trial court even questioned its own jurisdiction to
hear the case. (See N.T. Trial, 6/1/15, at 82.)



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entered the compulsory nonsuit, trial had begun, Appellant had presented

evidence, and the court had considered Appellant’s offer of proof. When it

decided Appellees’ motion, the court fittingly entered a compulsory nonsuit.

See id.; Rivera, supra.

     Following trial, Appellant failed to file a post-trial motion to remove the

nonsuit. See Pa.R.C.P. 227.1. Instead, Appellant purported to file a notice

of appeal from the order entering the compulsory nonsuit, which is not an

appealable order. See Smith, supra; Rivera, supra. Therefore, we lack

jurisdiction to consider Appellant’s issues on the merits.     See Vucelich,

supra. Accordingly, we quash this appeal.

     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2016




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