Appeal from order of Court of Common Pleas of Erie County, Sept. T., 1966, No. 31, in case of Dr. Richard W. Cooney v. Pennsylvania Osteopathic Association.
Thomas D. Caldwell, with him Walter A. Dart, Jr., and Caldwell, Fox & Stoner, for appellant.
J. S. Jiuliante, Jr., for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Cohen. Mr. Chief Justice Bell joins in this dissenting opinion.
In this action the plaintiff sought and gained a decree in the court below declaring him to be a valid honorary member of the Pennsylvania Osteopathic Association. For the reasons which follow, the decree must be vacated.
The action was instituted by the filing of a petition for a rule to show cause. This procedure was improper. A complaint in equity was the correct course to pursue: Garrett v. McHenry, 403 Pa. 451, 170 A.2d 363 (1961), and 2 Pennsylvania Standard Practice, 473 et seq. Cf. also, Hemphill v. Lenz, 413 Pa. 9, 195 A.2d 780 (1963).
But since the aggrieved party entered no objection to the form of the action, and since in its brief it indicates that it treated the action as one in equity, we, too, shall so consider it. However, another obvious defect then appears in the record.
The chancellor entered a final decree from which the present appeal was entered. A chancellor must first file an adjudication which includes a decree nisi
to which either party may file exceptions within twenty days, and if such are filed, these exceptions must then be reviewed by the court en banc before a final decree is entered. See Goodrich-Amram Procedural Rules, §§ 1517-1, 6 and §§ 1518 and 1519. An appeal does not lie from the decree of the chancellor, but rather from the final decree. Sessa v. Melnick, 420 Pa. 257, 216 A.2d 56 (1966).
Since the chancellor failed to file a proper adjudication, and denied the parties the opportunity of filing exceptions thereto and a review thereof by the court en banc, the decree will be vacated and the record remanded with ...