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STANLEY J. BLAKE v. MAYO NURSING AND CONVALESCING HOME (11/22/76)

decided: November 22, 1976.

STANLEY J. BLAKE, APPELLEE,
v.
MAYO NURSING AND CONVALESCING HOME, INC., APPELLANT



Appeal from the Order dated June 17, 1975 of the Court of Common Pleas of Philadelphia County at No. 3867 September Term, 1966. No. 1619 October Term, 1975.

COUNSEL

Robert A. Rosin, Philadelphia, for appellant.

Benjamin Pomerantz, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in support of affirmance in which Hoffman, J., joins.

Author: Price

[ 245 Pa. Super. Page 275]

This appeal must be quashed. Because the factual basis has no relevance to this disposition, we will not set it forth, except to note that an alleged contract of employment and alleged breach thereof gave rise to this action. Arbitration resulted in an award for appellant, which appellee, as was his right, appealed to the Court of Common Pleas. In a non-jury trial held October 25, 1974 appellant did not appear, and a verdict was entered on that date for appellee in the amount of Fourteen Thousand Forty ($14,040) Dollars. On November 18, 1974 judgment was entered on this verdict.

Thereafter there were voluminous proceedings in the lower court commencing on November 21, 1974 with appellant's

[ 245 Pa. Super. Page 276]

Petition to Open Judgment and/or Set Aside Verdict. The procedural history then becomes quite involved. This appeal was taken June 25, 1975 from the denial on June 17, 1975 of a Petition for Reconsideration.

Disposition of this case is quite clearly governed by the failure of appellant to file exceptions to the non-jury verdict of October 25, 1974. Pa.R.C.P. No. 1038 requires that exceptions be taken within twenty (20) days. Matters not covered by exceptions are waived. The proceedings in the lower court commencing on November 21, 1974 are completely meaningless and avail appellant no route to what is at best a collateral attack on the verdict of October 25, 1974 and the judgment entered thereon on November 18, 1974.

The appeal is quashed.

SPAETH, Judge, dissenting in support of affirmance:

The somewhat curious title of this opinion may be explained as follows: I disagree with the majority's conclusion that the appeal should be quashed; I would consider it on the merits. So far as concerns the parties, this disagreement is of little importance, for when the appeal is considered on the merits, the conclusion is reached that the order of the lower court should be affirmed. Thus either way -- the majority's or mine -- appellant loses. So far as ...


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