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JANICE S. GIBSON v. RONALD J. MILLER (04/12/79)

SUPERIOR COURT OF PENNSYLVANIA


decided: April 12, 1979.

JANICE S. GIBSON, APPELLANT AT NO. 579
v.
RONALD J. MILLER, ERWIN A. SEIGEL AND GIANT EAGLE MARKETS, INC. V. JOHN WALTER GIBSON, APPELLANT AT NO. 555

Nos. 555, 579 April Term, 1978, Appeal from the Order dated December 21, 1977, of the Court of Common Pleas of Allegheny County, Pennsylvania at Arbitration Docket No. 4955 of 1976, Civil Division.

COUNSEL

John W. Gibson, in pro. per., for appellant at No. 555.

Janice S. Gibson, in pro. per., for appellant at No. 579.

Fred W. Dunton, Pittsburgh, for appellees Erwin Seigel and Giant Eagle Markets.

Maury D. Nusbaum, Pittsburgh, for appellee Ronald Miller.

Price, Hester and Watkins, JJ.

Author: Hester

[ 265 Pa. Super. Page 598]

These cross-appeals arise from a multiple car, "chain-reaction" collision on the Parkway West in Pittsburgh on September

[ 265 Pa. Super. Page 59918]

, 1975. At approximately 7:30 a. m. that day, John Gibson, with his wife Janice as a passenger, (John and Janice Gibson are the respective appellants in the two appeals before us) was driving his wife's car in the outbound portion of the Parkway, near the Carnegie exit. The vehicle directly in front of him, later identified as a Chevy Impala belonging to one Collonn, suddenly skidded and came to rest blocking both lanes of traffic. Gibson, driving in the left lane, was able to stop his car in time before striking the Impala but was almost immediately rearended by a Ford pickup truck driven by appellee Ronald Miller. Miller, also driving in the left lane, had seen the stopped vehicles in front of him and was attempting to decelerate and go around the accident when he too was rearended by a Ford Torino driven by appellee Erwin Seigel, acting in the scope of his employment with appellee Giant Eagle Markets, Inc. The Miller truck, propelled by the force of the Seigel vehicle, glanced off the right rear portion of the Gibson's car and came to a rest beside it in the right lane. At least one other car behind Seigel was also involved in the pile-up but did not participate in the proceedings below. The day was wet with lightly falling rain. There were no injuries.

Suit was instituted in arbitration by Janice Gibson against Miller, Seigel, and Giant Eagle. Miller answered, denying liability, and joined John Gibson as an additional defendant. In addition, Miller brought a cross claim against Seigel, Giant Eagle, and John Gibson. The arbitrators' award for both plaintiffs was appealed and the court heard both cases de novo, non-jury, on October 5, 1977. Its decision, reached the following day, found for all defendants against plaintiffs in both cases. The decision was duly filed and notices sent by the prothonotary to the parties on October 20, 1977. On November 9, 1977, appellant John Gibson filed exceptions alleging error in various evidentiary rulings by the court and averring that the decision was against the weight of the evidence. On the motion of Seigel and Giant Eagle, the court en banc dismissed the exceptions because they were not filed within the time required under Pa.R.Civ.P. 1038(d).

[ 265 Pa. Super. Page 600]

John Gibson then brought this appeal to our Court at No. 555, April Term, 1978.*fn1 His wife Janice thereafter brought a cross-appeal, Pa.R.App.P. 903(b), at No. 579, April Term, 1978. As to the appeal of John Gibson, we will affirm. As to the appeal of Janice Gibson, we quash.

Rule 1038 of Pa.R.Civ.P.*fn2 provides in pertinent part that the decision of the court shall be filed with the prothonotary, who shall notify all parties or their attorneys of the date of filing. Rule 1038(d) then requires:

(d) Within ten (10) 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 obstante veredicto, in arrest of judgment or to remove a non-suit may be filed.

Thus, failure to file exceptions within ten days following the prothonotary's notice will preclude a party from challenging the court's decision. In the instant case, the notices were sent October 20, 1977 and exceptions were filed twenty days later by appellant John Gibson on November 9, 1977, ten

[ 265 Pa. Super. Page 601]

    days beyond the prescribed time.*fn3 The exceptions being untimely, the court was correct in dismissing them. E. J. McAleer and Co., Inc. v. Iceland Products, 475 Pa. 610, 381 A.2d 441 (1977); Wingert v. Teitrick, 31 Pa. Super. 187 (1906) (decided under Act of 1874, 12 P.S. ยง 688 requiring exceptions to non-jury decision to be filed within thirty days of notice of filing of decision).

Appellant argued to the court below that, in accord with the liberal construction applicable to the Rules of Civil Procedure,*fn4 the court may allow the exceptions to be filed out of time where no prejudice will result. See, McAleer, supra. The court en banc did not find sufficient reason for doing so.*fn5 Appellant has abandoned this argument on appeal and now contends the court's dismissal was erroneous since the ten day time limit of Rule 1038(d) is a recent amendment and, as such, is only applicable to actions instituted after its effective date, July 29, 1977. See, Pa.R.Civ.P. 152 and Trinity Area School District v. Dickson, 223 Pa. Super. 546, 302 A.2d 481 (1973). Since the instant proceedings

[ 265 Pa. Super. Page 602]

    were begun prior to that date, appellant argues the twenty day limit of former Rule 1038(d) should be applied. We do not reach this issue of retroactivity since it is raised for the first time on appeal. Our courts have long held that we will not review questions which were neither raised, tried, or considered in the trial court. Commonwealth v. National Federation of the Blind, 471 Pa. 529, 370 A.2d 732 (1977); Robert F. Felte, Inc. v. White, 451 Pa. 137, 302 A.2d 347 (1973).

Turning to the appeal of Janice Gibson, No. 579, we note she did not file exceptions at any time to the lower court's decision. Accordingly, all issues she wishes to raise are waived. Rule 1038(d). Mrs. Gibson has apparently tried to appeal on the coattails of her husband's exceptions. This she cannot do. The Gibsons have proceeded as separate parties throughout this litigation and nowhere in the record does it appear Janice joined her husband's exceptions. As a separate party, she was required to file exceptions in her own stead and failure to do so will preclude an appeal.*fn6 Blake v. Mayo Nursing and Convalescing Home, Inc., 245 Pa. Super. 274, 369 A.2d 400 (1977); Frankel v. Reliance Mutual Life Insurance Co. of Ill., 199 Pa. Super. 295, 184 A.2d 305 (1962); Ravenell v. Harrisburg Housing Authority, 29 Pa. Commw. 167, 370 A.2d 761 (1977); Lundvall v. Camp Hill School District, 25 Pa. Commw. 248, 362 A.2d 482 (1976).

As to the appeal of John Gibson, No. 555, April Term, 1978, we affirm the order of the court below. The appeal of Janice Gibson, No. 579, April Term, 1978, is quashed.


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