No. 1186 April Term 1978, Appeal from the Orders of the Court of Common Pleas of Greene County, Civil Div., at No. 103 May Term 1976 and No. 100 August Term 1976.
Ewing B. Pollock, Waynesburg, for appellants.
Kenneth O. Tompkins, II, Waynesburg, for appellee.
Spaeth, Watkins and Van der Voort, JJ.
[ 284 Pa. Super. Page 77]
This is an appeal from an order fixing the boundary lines of property in Wayne Township. We have concluded that we should not address the merits but instead should quash the appeal.
On June 21, 1976, appellees filed a complaint in ejectment seeking the eviction of appellants from the northern section of a one acre tract to which appellees claimed a fee simple title. Appellants filed an answer, denying allegations of wrongful use of the tract, and asserting their rights to the
[ 284 Pa. Super. Page 78]
western end of the southern section of the tract; appellants also filed a cross-complaint seeking the eviction of appellees from the southern section. After a hearing on September 27, 1977, the lower court on July 7, 1978, entered an order fixing the boundary lines of the property, an ordering appellants to remove their house trailer from the property. On July 28, appellants filed exceptions to the lower court's order. On August 1, appellees filed a motion to dismiss these exceptions, alleging:
NOW plaintiffs' counsel, Kenneth O. Tompkins, II, moves that the defendant's exceptions to the opinion and order dated July 7, 1978 be dismissed as untimely, the said exceptions being filed twenty-one (21) days after the said order of the court in violation of Pa.R.C.P. 1038(d) in assumpsit (made applicable to actions in ejectment by Rule 1058) stating that exceptions to the ruling of the trial court in a non-jury matter must be filed within ten (10) days of the notice of the filing of the decision, defendant's exceptions having been filed on July 28, 1978.
Before the lower court addressed this motion, appellant on August 4 filed a Notice of Appeal with this court. In response, the lower court on August 14 issued the following order:
AND NOW, this 14th day of August, 1978, this being the date set for a hearing on the motion to strike the petition for a rehearing and exceptions filed on behalf of the defendant, and it appearing to the Court that the defendant has now taken an appeal in this case to the Superior Court, and that the motion to strike is now a moot question, and the Court grants the motion of counsel for the defendant, orders the motion to strike sustained, and this to clear the way for the perfection of the appeal.
The lower court had no power to grant appellees' motion to strike appellants' exceptions after the Notice of Appeal was filed. Rule 1701 of the ...