No. 427 Pittsburgh, 1980, Appeal from the judgment, Court of Common Pleas of Allegheny County, Civil Division at No. 6411 of 1978.
Linda C. Liechty, Pittsburgh, for appellant.
John Newborg, Pittsburgh, submitted a brief on behalf of North Side Deposit Bank, appellee.
John L. Bailey, Pittsburgh, for Ernest Sarver, appellee.
Spaeth, Shertz and Montgomery, JJ. Shertz, J., files a dissenting opinion.
[ 289 Pa. Super. Page 473]
This appeal is from a judgment in an action in assumpsit that was tried without a jury. Since we cannot tell whether exceptions were timely filed, we shall reverse and remand for further proceedings.
The trial was on December 6, 1979. The opinion and finding of the lower court are dated December 28, 1979; the docket entries state that they were filed January 2, 1980. The docket entries further state that appellant filed exceptions on January 22, 1980. Appellee North Side Deposit Bank filed a motion to quash the exceptions (in which it is said that the exceptions were filed January 18, 1980) on the
[ 289 Pa. Super. Page 474]
ground that Pa.R.C.P. 1038(d) requires that exceptions be filed within ten days after notice of the decision. By order of April 7, 1980, the lower court denied the motion to quash the exceptions "since said Exceptions were filed within the period limited by Pa.R.C.P. § 1038(d)," and dismissed the exceptions as "being without legal merit." On May 7, 1980, a praecipe for final judgment was filed and this appeal was taken.
It is not apparent what the lower court meant by its statement that the exceptions "were filed within the period limited by Pa.R.C.P. § 1038(d)." Rule 1038(d) provides:
(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.
If the lower court meant, as it seems to have, that appellant was allowed, as of right, to file exceptions at the time she did, it may have been mistaken. The docket entries show that appellant's exceptions were not filed within ten days of the filing of the court's decision. These entries do not indicate, however, when appellant received notice of the filing of the court's decision.*fn1 It is therefore possible that appellant did file her exceptions within the required number of days. We cannot tell from a review of the record. Then too, appellant could, with leave of court, have filed exceptions more than ten ...