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decided: December 23, 1977.



Clark, Ladner, Fortenbaugh & Young, Samuel B. Fortenbaugh, Jr., Edward C. Toole, Jr., Philadelphia, for appellant.

Berman, Boswell, Snyder & Tintner, William D. Boswell, Harrisburg, for appellees.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Packel, J., files a dissenting opinion in which Roberts, J., joins.

Author: Pomeroy

[ 475 Pa. Page 611]


The plaintiff-appellant, E. J. McAleer & Co., Inc., trading and doing business under the name of Mrs. Paul's Kitchens ("Mrs. Paul's") is a processor of frozen foods, primarily fish, for sale in the retail home market. In 1970 Mrs. Paul's instituted a suit against the defendant-appellees, Iceland Products, Inc., a New York corporation engaged in the processing of fish and having its principal office and place of business in Camp Hill, Pa., and Samband Isl. Samvinnufelaga, a cooperative of the Republic of Iceland and a worldwide marketer of frozen fish, alleging a breach of certain

[ 475 Pa. Page 612]

    purchase orders issued by the appellant and accepted by appellees for the sale and delivery of codfish blocks during the years 1969 and 1970. Following extensive discovery, a trial was held before Hon. G. Thomas Gates, specially presiding, sitting without a jury. On May 6, 1974 an adjudication was filed and verdict rendered in favor of appellees and against appellant.

Twenty-nine days later, on June 5, 1974, counsel for Mrs. Paul's obtained court permission, by order entered that day,*fn1 to file exceptions to the court's decision beyond the 20-day limit prescribed by Pa.R.Civ.P. 1038(d).*fn2 On June 25, 1974, pursuant to a petition of the defendants, the court granted a rule to show cause why the order of June 5 should not be vacated, Mrs. Paul's filed an answer to the rule*fn3 and,

[ 475 Pa. Page 613]

    by agreement of the parties, the issue was briefed and submitted to the court en banc without argument. On September 9, 1974, the court en banc, construing Rule 1038(d), n. 2 supra, held that the trial court was without authority to grant leave to a party to file exceptions following the expiration of the 20-day period and therefore vacated the June 5 order. Thereupon the prothonotary entered judgment for the defendants. On appeal, the Superior Court affirmed, per curiam. We allowed this appeal by Mrs. Paul's.

Appellant asserts that a trial court may, under appropriate circumstances, grant leave to file exceptions to a judge's decision notwithstanding that the 20-day period for doing so under Rule 1038(d) has expired. We agree with this proposition but nevertheless affirm the order below.*fn4

The narrow issue presented by this case is the proper interpretation of paragraph (d) of Pa.R.Civ.P. 1038:

"(d) 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

[ 475 Pa. Page 614]

    obstante veredicto, in arrest of judgment or to remove a non-suit may be filed." (Emphasis added.)

It is true, as appellees assert, that a literal reading of the underscored portion of the above paragraph might preclude a filing of any exceptions beyond the 20-day period unless some exceptions are first timely filed, and leave is then obtained to file additional exceptions as to matters not covered by the initial exceptions. Thus if no exceptions are filed within the first 20 days, all rights under the rule are waived. A reading so literal would not comport with the liberality of construction which should attend the Rules of Civil Procedure,*fn5 and would be to disregard the teaching of Pa.R.Civ.P. 248. That rule provides:

"The time prescribed by any rule of civil procedure for the doing of any act may be extended or shortened by written agreement of the parties or by order of court."

We thus hold that it is within the discretion of the trial court to allow exceptions under Rule 1038(d) to be filed out of time in a case where the particular circumstances indicate that there are good and sufficient reasons for so doing.*fn6

We see no reason why the construction of the rule here adopted should in any material way delay the termination of

[ 475 Pa. Page 615]

    a case or impair the finality of litigation. As provided by Rule 1038(e), a verdict-winner need only file with the prothonotary, following expiration of the 20-day period, a praecipe for judgment in order to preclude the untimely filing of exceptions. Where the verdict-winner fails to reduce the verdict to judgment and can point to no prejudice resulting from the delay in the filing of exceptions, there is no valid basis for complaint if the losing party should seek leave to obtain an extension of time. See Gagliardi v. Lynn, 446 Pa. 144, 285 A.2d 109 (1971).

Having concluded that in appropriate circumstances a trial court may extend the 20-day period of Rule 1038(d), it remains to be seen whether good and sufficient reasons for doing so existed in the instant case. No excuse was given by appellant for failing to file exceptions to the decision of Judge Gates. The failure was explained, however, by the frank acknowledgment of "inadvertence". Speaking for the court en banc below, Judge Gates noted:

"We have intentionally avoided a discussion of the reason plaintiff assigns for not filing exceptions within the mandate of Rule 1038(d). We have done so for the simple reason that if inadvertence of counsel were a valid reason for disregarding the time limitation rules of our Supreme Court, then they might as well not have any rules at all." (Record at 57(a))

We agree with the court below that the appellant, Mrs. Paul's, has failed to present any legally cognizable reason for the failure to comply with Rule 1038(d). We therefore find no abuse of discretion in the lower court's refusal to allow the untimely filing of exceptions.

Order of the Superior Court affirmed.

PACKEL, Justice, dissenting.

The trial court, in this controversy involving in excess of four million dollars, concluded that it was without authority

[ 475 Pa. Page 616]

    to grant leave to file exceptions nine days late. I agree with the majority holding that the court below had that authority. I dissent because the matter should have been remanded to the trial court to exercise its sound discretion in reviewing the facts as to the delay, in light of our determination that it has such authority.

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