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JAMES CHIRICO v. BOARD SUPERVISORS FOR NEWTOWN TOWNSHIP (12/31/81)

decided: December 31, 1981.

JAMES CHIRICO, THOMAS NEWBY, III AND BRIAN MCNEILL, APPELLANTS
v.
BOARD OF SUPERVISORS FOR NEWTOWN TOWNSHIP, APPELLEE. BOARD OF SUPERVISORS FOR NEWTOWN TOWNSHIP, APPELLANT V. JAMES CHIRICO, THOMAS NEWBY, III AND BRIAN MCNEILL, APPELLEES



Appeals from the Order of the Court of Common Pleas of Delaware County in the case of James Chirico, Thomas Newby, III and Brian McNeill v. Board of Supervisors for Newton Township, No. 6023 of 1975.

COUNSEL

Alexander A. DiSanti, Richard, Brian, DiSanti & Hamilton, for James Chirico, Thomas Newby, III and Brian McNeill.

Bruce A. Irvine, Fronfield and DeFuria, for Board of Supervisors for Newtown Township.

Judges Williams, Jr., MacPhail and Palladino, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 63 Pa. Commw. Page 592]

Following an impasse in collective bargaining between Newtown Township Police Department (Police) and the Board of Supervisors for Newtown Township (Township), the disputed issues were submitted to arbitration as required by Section 4 of the Act of June 24, 1968 (Act 111), P.L. 237, as amended, 43 P.S. ยง 217.4. An award was made by a Board of Arbitration on December 27, 1974, for the calendar year 1975. Additionally, on November 29, 1975, a Board of Arbitration entered an award for the calendar year 1976.

[ 63 Pa. Commw. Page 593]

Neither party has appealed from the awards and the appeal periods have now expired.*fn1

Subsequent to the expiration of the appeal periods the Police brought an action in mandamus in the Court of Common Pleas of Delaware County to compel the Township to implement certain provisions of the aforesaid awards. Cross-appeals have been taken to various portions of that Court's decision dated November 13, 1980. In addition, the Township has filed a Motion to Quash the appeal of the Police for failure to file exceptions in the lower court within ten days of that Court's decision as required by Pa. R.C.P. No. 1038.

We shall first address the motion to quash. Rule 1038(d) states: "Within ten (10) days after notice of the filing of the decision, exceptions may be filed. . . . Matters not covered by exceptions are deemed waived. . . ." (Emphasis added.) Rule 1038(e) provides: "The prothonotary shall, on praecipe, enter final judgment on the decision if no exceptions have been filed within the ten (10) day period. . . . [E]xceptions shall be heard by the court en banc. . . ." (Emphasis added.) Reading these provisions together evidences an expectation that an initial decision would be filed by a trial judge, with exceptions, filed within ten days of the decision, to be heard by the lower court en banc. Absent exceptions, final judgment would be entered.

In this case, it is clear that there was a non-jury trial. That trial was conducted by Judge Jerome on November 7, 1977. On November 2, 1978, an opinion and order on the case was handed down by Judge

[ 63 Pa. Commw. Page 594]

    deFuria.*fn2 In an order dated November 9, 1978, Judge deFuria withdrew the opinion and order of November 2. The order of November 9 said in part, "It is further ordered that the parties shall appear for Argument on a date and time to be set by this Court, at which time said parties may file briefs and may ...


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