Appeal from the Judgment of the Court of Common Pleas, Civil Action - Law, of Luzerne County at No. 1628 January Term, 1967. No. 1101 October Term 1975.
Joseph J. Musto, Wilkes-Barre, for appellants.
John H. Doran, Wilkes-Barre, for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., concurs in the result. Hoffman, J., files a dissenting opinion in which Watkins, President Judge, joins.
[ 245 Pa. Super. Page 245]
This action in trespass was tried before a judge without a jury, pursuant to Pa.R.C.P. 1038.*fn1 A "verdict" was rendered for appellees on May 20, 1974. Appellants filed motions for new trial and judgment n. o. v. on May 24, 1974. Appellees moved to quash the motions on the ground that appellants had not complied with Pa.R.C.P. 1038(d), which provides:
Within twenty (20) days after notice of the filing of the decision, exceptions may be filed by any party to the decision or any part thereof, to rulings on objections to evidence or to any other matters occurring during the trial. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to final judgment, leave is granted to file exceptions raising these matters. No motion for a new trial, for judgment non obstante veredicto, in arrest of judgment or to remove a non-suit may be filed.
[ 245 Pa. Super. Page 246]
The court below, sitting en banc, granted the motion to quash. We affirm.
The question is, What will be deemed compliance with Pa.R.C.P. 1038(d)? Since the Rule explicitly forbids the filing of motions for new trial and judgment n. o. v., appellants have not complied with it, if it is to be applied literally. Appellants urge, however, that the rule should not be applied literally, and they advance two arguments: first, their error should be excused because the trial judge and the prothonotary also failed to comply with Rule 1038; and second, at least certain of the points raised in the motion for new trial were sufficiently specific to serve as exceptions and should therefore be treated as such.*fn2
Appellants' first argument is not convincing. The trial judge denominated his decision a "verdict", a term more appropriate to a jury's decision, as appellants rightly state. Rule 1038 uses throughout the term "decision." However, we agree with the court en banc that this is a "quibble over captions." Appellants argue that just such a quibble was fatal to their post-trial motions, but there are two important differences. First, the terms "motion for new trial" and "motion for judgment n. o. v.," unlike the terms "decision" and "verdict," are formal titles, each with a specific and different meaning. Arguably, miscaptioning a motion might mislead, whereas it seems impossible that a judge's rendering a "verdict" would fail to inform that he had ...