Marcinak v. Lavery
428 A.2d 587
Pa. Super. Ct.
1981
Check Treatment

*3 PRICE, CAVANAUGH, and Before HESTER JJ. CAVANAUGH, Judge:

The lower defendants the court’s order denying their petition for leave file nunc pro to They argue a breakdown in the of processes occurred the lower them court which denied the to and right that the its lower abused discretion their denying petition for leave to exceptions, file tunc. We agree and remand the case for the of exceptions.

Our review of disposition requires a the somewhat compli- cated of this case. In 1974the history plaintiffs brought action in interfering from equity enjoin defendants with an easement which burdened defendants’ land. The plaintiffs claimed that gave them the right deed drain the basement of their residence a sewer through line which on The opened property. defendants’ Webster, through their Mr. filed an answer. attorney, On 3,1974 October a trial was held and were repre- sented of counsel. the record by Apparently testimony and, therefore, of this trial was either or destroyed lost 14, another was held trial on October 14, trial, On October 1976 the date of the second defendants dismissed their and them- attorney represented selves.1 29, 1977 the chancellor issued a decree nisi in April

On favor of the The docket entries show that on plaintiffs. filed; was was May “appeal” to the decree nisi. The defendants lost; claim that these have been are not placed the record on The case was appeal. argument list and on December 1977 the court en banc banc, alia, modified the decree nisi. The court en inter enjoined the defendants with the interfering plaintiffs’ sewer line and ordered the to submit to the court a plaintiffs approval prior sewer line for court proposed installation. The shows entry docket of the order mailed counsel of record. copies were In plaintiffs’ plan 1978 the court May, approved installation of the sewer line and a of the order was served on the defendants the sheriff. The defendants by filed exceptions se. The court ordered that a be hearing held on June 1978 and of the order were issued to copies held, counsel of record. On June 1978 a was but hearing the defendants did not appear; claimed receive notice of the On 1978 another hearing. July was held on At exceptions. time the court defendants, se, told the appearing pro were nisi, court en banc had but modified the decree the record *4 shows that the defendants did not understand the court. 3, August

On 1978 the court filed an order approving sewer plan and issued a of the order to the defendants. 30, On October 1978 the defendants’ Mr. present attorney, Tompkins, 8, entered his appearance. On November 1978 petition filed a for leave of court to file exceptions nunc tunc. was set for November pro Argument 24,1978. On December the court en banc denied petition and this followed. appeal transcript part

1. The of the second trial is not of the record transmit by reproduced ted us the lower court record. or 96

The defendants seek review of the banc’s order 30, However, dated December did appeal not they that order within period prescribed the time an appeal 3, did not order filed appeal August 1978 which approved the sewer within the time period prescribed for filing an should appeal. They argue that be allowed to tunc. appeal nunc also that They argue since must in the be filed lower court to preserve appeal, issues for be they should allowed to file in the lower court since the filed they previously there lost.

The time for filing be extended only when there is fraud or some breakdown the court’s E. g., Goodard, West Power Penn Co. v. operation. 460 Pa. 551, comment; 333 A.2d 909 see (1975); 105(b) Pa.R.A.P. 903; Pa.R.A.P. 9 Chapter Standard Pa. Practice 25§ (1962 revised). The court’s failure to send notice of the order is sought which to be a appealed constitutes break down in the court’s operation may justify allowing Nixon, Nixon 329 Pa. 198 A. see 154 Purdy Estate, generally (1938); 447 Pa. 291 Horner, Commonwealth v. A.2d 93 (1972); Pa. 296 Case, Peter A.2d 760 (1972); Adoption Pa.Super. A.2d 185 Here (1954). the lower court held that the defend ants were aware of the order wish to We appeal. disagree. The show docket entries that notice of the court en banc’s order the decree nisi was mailed 4,1978 to “counsel of record”. does The docket not show order was mailed the defendants. Appar ently the was mailed only former his name lawyer; still the docket as counsel of appeared However, record. the court had known since time of trial, October defendants were appearing pro se and had dismissed their lawyer. Although the de fendants’ lawyer should have withdrawn his his appearance, failure do so does preclude Moreover, no asserting they received notice. notice to their former did not send such notice lawyer to is not notice defendants. *5 4, 1978, the date that January to subsequent The record nisi was the decree modifying en the court banc’s view that when record, the corroborates mailed to counsel did not record, the defendants sent counsel of notice was to hearing notice of a June receive such notice. On sewer plaintiffs’ proposed to the defendants’ The defendants did was to of record”. sent “counsel had received no they this and later said appear hearing at to hearing held another hearing. notice of the The court their views. present to opportunity allow the defendants sent were January specifically All other notices after we to the docket entries. Thus according to the notice of the court record shows that conclude the that not mailed on decree nisi was banc’s order 4, 1978 the defendants. January to the defendants notice was not sent

Although notice 4, 1978, we must consider whether hearing 1978 a July been to them another time. On given plan. sewer plaintiffs’ was held on defendants’ informed hearing the course During had the decree court en banc affirmed nisi in it in part and overruled 6-7. July had denied in N.T. part. not under

However, shows the defendants did hearing have been decided without stand how their could that notice Id. at explained 7. The court notice to them. the defendants agreed had been the defendants and given to order, thinking that had received an had re another order which referring court was Id. However, is from later remarks from ceived. it clear understand Id. decree nisi had been decided.2 sufficient remarks at this were not hearing We hold that the defendants; were in the remarks to constitute notice Lavery: 2. Mr. case, your and it I it is not case. I did understant [sic] ** * hearing. July up-another N.T. 30. The did not come judge. presided

judge was not the trial at this *6 a different form from the usual notice since were oral written, rather than were made in the context of a hearing devoted to another purpose, they occurred in the midst of the while other matters were under discus- sion, and the of record the hearing shows the affirmatively defendants did not understand to which order the court was (at referring time the defendants had filed two sets of exceptions: nisi, one to the decree the other to the proposed sewer plan). we consider Finally whether the defendants’ failure to appeal order filed August 1978 which approved the sewer plan them precludes from The relief. court en banc’s order modifying decree nisi enjoined defendants from obstructing plaintiffs’ use of the sewer line and required the plaintiffs to submit a proposed plan for the sewer line. Since the plaintiffs were required to submit a proposed plan line, for the sewer the order did not end the case. Therefore, it was not a final Greco, order. v. Pugar 483 Pa. 394 A.2d 542 (1978). Since the order modifying the decree nisi order, was not a final review of that order could have been obtained by appealing the final order ap- proving the sewer plan. Nevertheless we have stated that: “In an action tried without a jury, appeal is premature ”

if entered before exceptions have been 2 disposed of ... Goodrich-Amram 507; 2d 2 1038(e) § cf. Slotsky Gellar, 455 Pa. 314 A.2d 495 (1974) (in equity action appeal does not lie until banc passes on excep- tions to trial court’s adjudication). Paul, 202, 211,

Paul v. 281 421 A.2d Pa.Super. (1980). had no notice Instantly had been of. Thus in their exceptions disposed view an the sewer appeal approving order Moreover, had notice plan premature. would have been nisi, of the order the decree given could have the order immedi appealed since it was an Altemose Con ately injunction. See Trades, and Construction Council Building struction Co. v. al., 461 Pa. 337 A.2d and et Philadelphia Vicinity J.); Pa.R. (1975) (concurring opinion by Pomeroy, these circumstances the defendants’ 311(a)(4). A.P. Under the sewer approving final order appeal failure to seek. the relief them from not preclude does on their ruling the order notice of Since defendants, they may given nisi was not the decree however, allowing merely Instantly, nunc Here the record sufficient. tunc is not lost; has been of the defendants’ appeal, opinion the record on are contained excep indicate what on the ruling no reliable the defendants have tions were raised and Un workpapers). incomplete exceptions (they of the remand to allow circumstances we der these *7 that to allow was concerned The lower court them an give would defendants to re-submit will be prepared now the since advantage unfair from the of the exceptions The loss with the aid of counsel. More of the defendants. record, however, was not the fault not only raised on are over, can be the matters which but, as to in exceptions, contained limited to those matters matters which were matters, limited to some are further no Therefore, there is trial as well. properly preserved we although Finally, unfair to the defendants. advantage was most with patient lower court realize that to accord se and was careful defendants who appeared resolution of this that the rights delay them their in our view plaintiffs, disadvantageous matter bemay right the defendants if their more would result to injustice denied. review is appellate to allow defendants reversed and case remanded Order lower court’s order file tunc to the on the the lower court rules 30,1977. After dated December this court. file a new either exceptions, party PRICE, J., in the result. concurs HESTER, J., statement. dissenting files a HESTER, dissenting: Judge, Opinion on the well-reasoned

I dissent. I would affirm below. Adams of the court Judge