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
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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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