Appeal from the Order of the Court of Common Pleas of Dauphin County in case of James J. Ravenell, Plaintiff v. Harrisburg Housing Authority; The Board of Directors of the Harrisburg Housing Authority; Walter F. Wax; Mary Sheffer; Karl J. Yeakley; Nathan H. Waters; Andrew M. Bradley; and William Phillips, Sr., Executive Director of the Harrisburg Housing Authority, Defendants, No. 124 March Term, 1975.
Charles W. Johnston, Jr., with him Handler, Gerber and Weinstock, for appellants.
Bruce E. Cooper, with him Cooper, Friedman & Butler, for appellee.
Judges Crumlish, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 29 Pa. Commw. Page 168]
The Harrisburg Housing Authority (Authority) appeals to this Court from an order issued by the Court of Common Pleas of Dauphin County directing the Authority to reinstate James J. Ravenell to his former position as administrative assistant and to give him both back pay and reimbursement for the costs of his suit in mandamus.
The Authority has raised two issues in this appeal: (1) whether or not the court below erred when it issued an adjudication on the merits of the case without disposing of preliminary objections which the Authority alleges to be still outstanding; and (2) whether or not the decision of the court below is supported by the evidence. The record reveals, however, that the Authority has failed to comply with the Pennsylvania Rules of Civil Procedure, and we are, therefore, unable to consider the merits of its appeal.
Pa. R.C.P. No. 1099 provides that where, as here, an action in mandamus is tried by a judge sitting without a jury, the trial is governed by Pa. R.C.P. No. 1038, found in that section of the rules concerning assumpsit actions. Initially, we note that Pa. R.C.P. No. 1038(e) requires a party to praecipe the prothonotary to enter final judgment on the order of the lower court. This has not been done here, and we have previously held that an appeal brought from an order of the lower
[ 29 Pa. Commw. Page 169]
court which is not a final judgment is premature. Kane v. Allegheny County Retirement Board, 7 Pa. Commonwealth Ct. 262, 299 A.2d 686 (1973).
Although the error just noted would alone require the case to be remanded to the court below for the entry of a final judgment, there is an even more serious procedural error in the Authority's failure to file exceptions.
Pa. R.C.P. No. 1038(d) 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 ...