Bruce B. Steinmann and Alice P. Steinmann, appellants, in propria persona.
George A. Hahalis, Bethlehem, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 10]
This appeal arises from the lower court's order dated December 22, 1976, striking appellants' exceptions to the findings of fact and verdict entered by Judge Williams following a non-jury trial in an assumpsit action. Appellants
[ 253 Pa. Super. Page 11]
contend that the judgment of non pros entered against them was improper because the Court Administrator failed to notify them of the argument on their exceptions scheduled for December 7, 1976. Since our examination of the record fails to reveal whether appellants actually received notice of the argument date, we reverse and remand for an evidentiary hearing to determine whether notice was given in compliance with Northampton Rule of Court (Civil) 258.1.*fn1
Appellee has filed a petition to strike this appeal, alleging various technical violations of the Pennsylvania Rules of Appellate Procedure and of the Rules of the Court of Common Pleas of Northampton County. Ordinarily the technical quashing of an appeal is to be deprecated. Schmehl v. Mellinger, 325 Pa. 487, 191 A.2d 62 (1937). Motions to dismiss appeals must be considered in light of the fact that the law favors appeals and a review on the merits is preferred. In a doubtful case the appeal will be maintained. 5 C.J.S. Appeal and Error § 1377 (1958). Furthermore, Pennsylvania Rule of Appellate Procedure 2101 provides that an appeal may be quashed or dismissed if the defects in the brief or record are substantial. In light of the fact that appellants are bringing this appeal pro se and the defects in their brief and reproduced record are merely technical in nature, the motion to strike is denied.
Turning to the merits of appellants' contentions, we note that appellants present many allegations of error relating to the trial judge's findings of fact and verdict in favor of appellee following the non-jury trial held on August 2, 1976.*fn2 See Pa.R.C.P. 1038. We need not, however, address
[ 253 Pa. Super. Page 12]
these contentions at this time. The trial judge's decision is only a preliminary or interlocutory judgment. Final judgment is not entered until after the hearing on the exceptions before the court en banc. It is only from the decision on the disposition of the exceptions that an appeal may be taken. Singer v. Redevelopment Authority of City of Oil City, 437 Pa. 55, 261 A.2d 594 (1970); Meitner v. Scarborough, 321 Pa. 212, 184 A. 81 (1936). The only issue properly framed for our review is, therefore, whether the trial judge erred in dismissing appellants' exceptions for failure to prosecute.
Appellants filed their exceptions to Judge Williams' August 4th decision on August 20, 1976, well within the twenty day period set forth in Pa.R.C.P. 1038(d). Appellants neglected, however, to give notice of the filing to either the court or opposing counsel as required by the local rules of court. In addition they failed to file a brief in support of their exceptions. No further action was taken until November 18, 1976, when counsel for appellee filed a praecipe for argument en banc on December 7, 1976. ...