Fisher v. Findlay

Full title: Jack E. FISHER and Constance Fisher, Appellants, v. John R. FINDLAY and…

Court: Superior Court of Pennsylvania

Date published: Dec 18, 1981

293 Pa. Super. 293 (Pa. Super. Ct. 1981)

438 A.2d 1000

Opinion

Argued December 1, 1980.

Filed December 18, 1981.

Appeal from the Court of Common Pleas, Pike County, No. 74 November Term, 1976, Marsh, J.

Warren D. Utermahlen, Milford, for appellants.

Lucille Marsh, Scranton, for appellees.

Before HESTER, CAVANAUGH and VAN der VOORT, JJ.

PER CURIAM:

Appellants have filed their appeal from the lower court's order refusing appellants' motion to set aside judgment of compulsory non-suit. Because the order has not been reduced to judgment and docketed, on the basis of Pa.R.A.P. 301(c) the appeal is untimely. Durkin Sons, Inc. v. Nether Providence Township School Authority, 291 Pa. Super. 402, 435 A.2d 1288 (1981).

Appeal quashed.

VAN der VOORT, J., filed a dissenting opinion.

VAN der VOORT, Judge, dissenting:

I respectfully dissent from the action of the majority which holds that the order refusing appellants' motion to set aside judgment of compulsory nonsuit is not appealable because the order was not reduced to judgment and docketed. I would hold that the order of the court below refusing to take off the nonsuit is properly before this Court for review. See my concurring and dissenting opinion in Durkin Sons, Inc. v. Nether Providence Township School Authority, 291 Pa. Super. 402, 435 A.2d 1288 (1981).