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PHILADELPHIA v. PROTECT-A-LIFE CORPORATION ET AL. (12/03/71)

decided: December 3, 1971.

PHILADELPHIA
v.
PROTECT-A-LIFE CORPORATION ET AL.



Appeal from the Order of the Court of Common Pleas of Philadelphia County, No. 4485, August Term, 1970, in case of City of Philadelphia v. Protect-A-Life Corporation and Peter Vosbikian, Secretary.

COUNSEL

S. Jay Sklar, Assistant City Solicitor, with him John M. McNally, Jr., First Deputy City Solicitor, John Mattioni, Deputy City Solicitor and Levy Anderson, City Solicitor, for appellant.

Louis J. Carter, with him Warren L. Soffian, for appellees.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers.

Author: Per Curiam

[ 3 Pa. Commw. Page 470]

Before us is a motion of the appellees to quash an appeal to this Court taken by appellant from a chancellor's adjudication in equity made orally in open court at the end of the trial. Appellees contend that their motion should be granted for want of an appealable order or, alternately, for failure to comply with relevant procedural rules.

Pa. R.C.P. 1517 sanctions, as one of two alternatives, the procedure adopted by the chancellor in this case in rendering his adjudication in open court at the conclusion of the trial. The adjudication made pursuant to Rule 1517, however, is one by a chancellor contemplating

[ 3 Pa. Commw. Page 471]

    the issuance of a decree nisi to be followed by a final decree by the court incident to disposition of exceptions if any are filed.

On its face the adjudication from which this appeal was taken does not disclose whether the chancellor considered his decree to be a decree nisi or a final decree. As entered upon the docket it was denominated as a final decree. If it is considered to be a decree nisi it is not an appealable order, Community Sports, Inc. v. Oakland Oaks, 429 Pa. 412, 240 A.2d 491 (1968). If it is considered to be a final decree then no time was allowed for the filing of exceptions and the very right to file exceptions was negated contrary to Rule 1518.

If this appeal was not one from the Court of Common Pleas of Philadelphia County noncompliance with Rule 1518 would require the appeal to be quashed or the case remanded for further proceedings consistent with Rules 1518 and 1519.

Appellant points out, however, that Rule 1519 contains an exception applicable to the Court of Common Pleas of Philadelphia County which exception, it contends, obviates the necessity for compliance ...


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