decided: September 27, 1976.
ROBERT W. BALIN AND MORTON B. WEINSTEIN AND BEULA T. WEINSTEIN, APPELLANTS,
PLEASURE TIME, INC. ET AL.
Weinstein & Factor, Walter L. Ferst, Philadelphia, for appellants.
Silverman & Warden, Randolph A. Warden, Willow Grove, for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., did not participate in the consideration or decision of this case.
[ 243 Pa. Super. Page 63]
On May 7, 1973, appellants commenced this action in equity seeking inter alia, the dissolution of Pleasure Time, Inc.*fn1 and relief in the nature of requiring certain officers and directors of Pleasure Time, Inc., to personally account for corporate funds expended, without authority, in furtherance of unauthorized business.*fn2 Responsive pleadings having been filed of record, the parties worked out, as a result of a conference with the chancellor in equity, a stipulation, filed of record, for reference of the matter to a master. The docket entries show that the master was appointed "to take such testimony and other evidence as he shall deem appropriate to assist the Court in reaching a decision in this matter and to make
[ 243 Pa. Super. Page 64]
his report to the Court with his recommendation for disposition of the case."*fn3
Pursuant to the stipulation, the master commenced the performance of his duties and heard testimony on December 3, 1973 and January 21, 1974. The notes of testimony of the December 3, 1973 hearing were lost, and the testimony of the plaintiff was again taken at a third hearing on May 9, 1974.
The master filed his written report on December 30, 1974. The report consisted of Findings of fact, discussion,*fn4 and Recommendations.*fn5 No formal exceptions to the master's report were filed by the parties, and they agreed to submit the case to the chancellor on briefs without argument.
On August 6, 1975, the chancellor entered a decree nisi which, in pertinent part, provided: "[S]aid Master's report is hereby confirmed and the Complaint in Equity is dismissed pursuant to the findings of fact, discussion and recommendations of the Master which the Court hereby adopts as the adjudication in this matter." (Emphasis added.) The chancellor made no separate adjudication. See Pa.R.C.P. No. 1517.
[ 243 Pa. Super. Page 65]
Appellants, pursuant to Pa.R.C.P. No. 1518, filed exceptions, of which the following is the only relevant exception in terms of our disposition of this appeal:
"I. EXCEPTIONS TO THE COURT'S ADJUDICATION
1. Plaintiffs except to the Court's adjudication as not complying with Pa.R.C.P. No. 1517 in that it failed to contain:
(a) A summary of the issues raised in the pleadings; and
(b) Conclusions of law."
Printed Record at 251a.
The court en banc heard oral argument on the exceptions, and on November 26, 1975 entered a final decree dismissing the exceptions and denying the appellants relief. The instant appeal followed.
On appeal, appellants argue, inter alia, that the chancellor failed to comply with Pa.R.C.P. No. 1517 (the court shall make an adjudication), and submit that "[t]he failure of the Chancellor to comply with Pa.R.C.P. No. 1517 not only fails to show how the chancellor reached his decision, but also inhibits the appellants in their appeal for want of a complete record." Brief for Appellants at 22 (citation omitted). After a review of the entire record, and specifically the master's report,*fn6 we conclude that the appellants have been deprived of an adequate record for appeal.
In Community Sports Inc., v. Oakland Oaks, 429 Pa. 412, 414, 240 A.2d 491, 492 (1968) our Supreme Court succinctly summarized the requirements with which the
[ 243 Pa. Super. Page 66]
lower court and the parties must comply before "a procedurally proper appeal" may be taken in an equity action:
"Pennsylvania Rules of Civil Procedure 1516 to 1519, 12 P.S. Appendix clearly enunciate the steps which must be followed by the chancellor, and by the litigants, before a procedurally proper appeal may be taken to this Court. Rule 1516 recites that the parties may file requests for findings of fact and conclusions of law. Rule 1517 itemizes the contents of the chancellor's 'adjudication.' This adjudication must contain, in addition to a decree nisi, a summary of the issues raised in the pleadings, specified findings of fact and conclusions of law, and a discussion of the factual and legal questions involved in the case. Rule 1518 allows the parties 20 days to file specific exceptions to this adjudication. Finally, Rule 1519 provides that the court en banc shall pass on these exceptions, or, if none are filed, the prothonotary, upon praecipe, shall enter the decree as final. All of these steps are necessary to establish an adequate record on appeal." (Emphasis added.)*fn7
Moreover, the want of a proper chancellor's adjudication in this case is particularly troublesome in light of the following observation which we feel compelled to articulate. Although the appellants have not raised this issue specifically, and therefore the following is not the basis for our disposition of this appeal, there was no authority for the appointment of a master to take testimony in this case.
Rule 1514 of the Rules of Civil Procedure provides: "Except as otherwise provided by Act of Assembly or
[ 243 Pa. Super. Page 67]
rule of the Supreme Court, no examiner, master or auditor shall be appointed."*fn8 In Jackson v. Hendrick, 457 Pa. 405, 409-410, 321 A.2d 603, 605-606 (1974), our Supreme Court reviewed the limitations imposed upon the power of a court of equity to appoint a master, and articulated the following as the scope of inquiry:
"What we must determine is whether the functions assigned to the master by the trial court are exclusively judicial. If they are, the master's performance of those functions is barred by rule 1514. If the duties assigned to the master are non-judicial, our rules do not deny a court of equity the right to avail itself of the assistance of a master." (Footnotes omitted.)*fn9
[ 243 Pa. Super. Page 68]
The trial judge, sitting in equity as a chancellor, is the ultimate fact-finder. We can find no authority to support the appointment of a master, in a case of this nature, to take testimony and make findings of fact.*fn10
[ 243 Pa. Super. Page 69]
Moreover, it is well-setted that the Authority of a master cannot be supplied by consent or otherwise. Arcadia Theatre Co. v. Sablosky, 418 Pa. 34, 209 A.2d 375 (1964).*fn11 However, as noted, the unauthorized appointment of the master is not the rationale for our disposition of this case; the parties have not objected.*fn12 The dispositive issue is that the trial judge, sitting in equity as a chancellor, failed to file a proper adjudication and thus denied the appellants an adequate record for appeal.
The decree below is vacated, and the record remanded with instructions that the chancellor prepare an adjudication in conformity with Pa.R.C.P. No. 1516-17. The parties then, if they so choose, may proceed in conformity with Rules 1518-19.