Appeal from decree of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1971, No. 3729, in case of Partrick & Wilkins Company et al. v. John Adams et ux.
Spencer Ervin, Jr., with him Wilbur Bourne Ruthrauff, John R. Jakubowski, and Gratz, Tate, Spiegel, Ervin & Ruthrauff, for appellants.
Andrew F. Mimnaugh, with him Thomas J. Mullaney, for appellees.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Roberts.
This action in equity sought specific performance of a contract to sell realty. After an extended hearing, the chancellor entered an adjudication on June 22, 1973, which included findings of fact and conclusions of law, and a "final decree" ordering the defendants to comply with the agreement. From this "final decree", the defendants filed the instant appeal on July 18, 1973. The decree must be vacated.
In disposing of an action in equity on the merits, the chancellor must first file an adjudication in the form of a decree nisi to which either party may file exceptions in the time permitted. If such exceptions are filed, they must be reviewed by a court en banc before a final decree is entered. Cooney v. Pennsylvania Osteopathic Association, 434 Pa. 358, 253 A.2d 256 (1969). If the parties are given the opportunity of filing exceptions to the chancellor's decree nisi and fail to do so, then the scope of review on appeal is limited to determining whether correct legal principles have been applied to the facts as found. Copes v. Williams, 412 Pa. 452, 194 A.2d 899 (1963).
Since the parties here were deprived of the opportunity of filing exceptions to the chancellor's decree, and a review thereof by the court en banc below, the decree will be vacated and the record remanded for this purpose.
It is so ordered. Each side to pay own costs.
Decree vacated and record remanded.
Dissenting Opinion by Mr. ...