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ROBERT WILSON. APPEAL ROBERT WILSON (02/24/82)

SUPERIOR COURT OF PENNSYLVANIA


submitted: February 24, 1982.

IN RE ROBERT WILSON. APPEAL OF ROBERT WILSON

No. 2193 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Civil Action - Law, of Luzerne County at No. 1802-C of 1981.

COUNSEL

John J. Thomas, Assistant Public Defender, Wilkes-Barre, for appellant.

Ralph J. Johnston, City Solicitor, Wilkes-Barre, for participating party.

Spaeth, Brosky and Beck, JJ.

Author: Spaeth

[ 303 Pa. Super. Page 327]

This appeal is from an order recommitting appellant, a forty year old man, to in-patient psychiatric care at Danville State Hospital for thirty days. We note at the outset that although the thirty days have expired, this appeal is not moot. See, In Re Ann S., 279 Pa. Superior Ct. 618,

[ 303 Pa. Super. Page 328421]

A.2d 370 (1980) (dismissal of appeals from expired commitment orders as moot would result in challenged procedures evading review). However, we affirm the order of the lower court because appellant has failed to preserve any issues for our review.

Pa.R.A.P. 302(a) provides that "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.C.P. 1038(d) provides, in part, that "[m]atters not covered by exceptions are deemed waived unless, prior to final judgment, leave is granted to file exceptions raising these matters." Rule 1038 is applicable to the trial of an action in assumpsit by a judge sitting without a jury. The rules specifically provide that other civil actions are to conform to the assumpsit rules unless a different procedure is expressly mandated. See, Pa.R.C.P. 1051, 1061, 1071. Insofar as there is no authority requiring a different procedure in cases involving civil commitment, we think Pa.R.C.P. 1038 is controlling. See, In the Interest of Treva Stover, 297 Pa. Superior Ct. 116, 443 A.2d 327 (1982); Commonwealth ex rel. Bielat v. Bielat, 257 Pa. Superior Ct. 446, 390 A.2d 1321 (1978).*fn1 In this case, appellant failed to file exceptions to the adjudication below. Consequently, no issues have been preserved for appellate review.*fn2

[ 303 Pa. Super. Page 329]

Nevertheless, appellant is not without a remedy, for he can petition the lower court for leave to file exceptions nunc pro tunc, or he can seek review by alleging ineffective assistance of counsel for failing to file exceptions. See, In Page 329} Re Commitment of Donna Hutchinson, 279 Pa. Superior Ct. 401, 421 A.2d 261 (1980).

Affirmed.


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