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EARL MARCINAK AND FRANCES MARCINAK v. JOHN LAVERY AND PEARL LAVERY (04/03/81)

filed: April 3, 1981.

EARL MARCINAK AND FRANCES MARCINAK, HIS WIFE
v.
JOHN LAVERY AND PEARL LAVERY, HIS WIFE, APPELLANTS



No. 1635 April Term, 1978, Appeal from Order of the Court of Common Pleas, Civil Division, of Fayette County at No. 2661 In Equity.

COUNSEL

Kenneth O. Tompkins, II, Waynesburg, for appellants.

Joseph E. Kovach, Uniontown, submitted a brief on behalf of appellees.

Price, Hester and Cavanaugh, JJ. Price, J., concurs in the result. Hester, J., files a dissenting statement.

Author: Cavanaugh

[ 286 Pa. Super. Page 94]

The defendants appeal the lower court's order denying their petition for leave to file exceptions nunc pro tunc. They argue that a breakdown occurred in the processes of the lower court which denied them the right to appeal and that the lower court abused its discretion in denying their petition for leave to file exceptions, nunc pro tunc. We agree and remand the case for the filing of exceptions.

Our disposition requires a review of the somewhat complicated history of this case. In 1974 the plaintiffs brought an action in equity to enjoin the defendants from interfering with an easement which burdened defendants' land. The plaintiffs claimed that their deed gave them the right to drain the basement of their residence through a sewer line which opened on defendants' property. The defendants through their attorney, Mr. Webster, filed an answer. On October 3, 1974 a trial was held and defendants were represented by counsel. Apparently the record of the testimony of this trial was either lost or destroyed and, therefore, another trial was held on October 14, 1976.

[ 286 Pa. Super. Page 95]

On October 14, 1976 the date of the second trial, the defendants dismissed their attorney and represented themselves.*fn1

On April 29, 1977 the chancellor issued a decree nisi in favor of the plaintiffs. The docket entries show that on May 18, 1977 an "appeal" was filed; this was apparently the defendants' exceptions to the decree nisi. The defendants claim that these exceptions have been lost; and they are not part of the record on appeal. The case was placed on the argument list and on December 30, 1977 the court en banc modified the decree nisi. The court en banc, inter alia, enjoined the defendants from interfering with the plaintiffs' sewer line and ordered the plaintiffs to submit to the court a plan of the proposed sewer line for court approval prior to installation. The docket entry shows that on January 4, 1978 copies of the order were mailed to counsel of record.

In May, 1978 the court approved the plaintiffs' plan for installation of the sewer line and a copy of the order was served on the defendants by the sheriff. The defendants filed exceptions pro se. The court ordered that a hearing be held on June 23, 1978 and copies of the order were issued to counsel of record. On June 23, 1978 a hearing was held, but the defendants did not appear; they claimed they did not receive notice of the hearing. On July 6, 1978 another hearing was held on the exceptions. At that time the court told the defendants, who were appearing pro se, that the court en banc had modified the decree nisi, but the record shows that the defendants did not understand the court.

On August 3, 1978 the court filed an order approving the sewer plan and issued a copy of the order to the defendants. On October 30, 1978 the defendants' present attorney, Mr. Tompkins, entered his appearance. On November 8, 1978 the defendants filed a petition for leave of court to file exceptions nunc pro tunc. Argument was set for November 24, ...


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