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E. J. MCALEER & CO. v. ICELAND PRODUCTS (12/23/77)

decided: December 23, 1977.

E. J. MCALEER & CO., INC., T/A MRS. PAUL'S KITCHENS, APPELLANT,
v.
ICELAND PRODUCTS, INC. AND SAMBAND ISL. SAMVINNUFELAGA



COUNSEL

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]

OPINION

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 ...


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