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.
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
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,
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 ...