No. 850 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Trial Division-Law, of Philadelphia County, 1972, December Term, No. 3594
Bonnie Brigance Leadbetter, Philadelphia, for appellants.
Neil H. Stein, Philadelphia, for appellee.
Spaeth, Montgomery and Lipez, JJ.
[ 298 Pa. Super. Page 59]
The instant appeal arises from an order of the lower court refusing to allow the filing of exceptions nunc pro tunc by the Appellants, against whom a verdict was entered following a non-jury trial. We are presented initially with a question of whether or not the order from which the appeal arises was final and appealable. Assuming that an appeal properly lies, we are presented with the substantive issue of
[ 298 Pa. Super. Page 60]
whether or not the lower court committed reversible error in denying the application to file post-trial exceptions nunc pro tunc.
The record shows that the Plaintiff-Appellee, Kathleen Wellons, brought suit in assumpsit against Metropolitan Life Insurance Company to obtain the proceeds of an insurance policy issued by Metropolitan on the life of her late husband, Marshall Lee Wellons, II. The Appellee was the beneficiary of the policy, but a question arose as to her entitlement to the proceeds since she had fatally shot the decedent. Metropolitan denied payment on the basis of the Slayer's Act, Act of June 30, 1972, P.L. 508, No. 164, § 2, 20 Pa.C.S.A. § 8801 et seq. Metropolitan filed a petition for interpleader, placing the proceeds of the policy into an interest bearing account. The decedent's children by a prior marriage, Nancy Theresa Wellons and Marshall Lee Wellons, III, the Appellants herein, were interpleaded and subsequently filed a claim, through their mother and natural guardian, for the proceeds.
Motions for summary judgment were filed by each party, but both were denied by the lower court. The case came to trial in January, 1981, before the Honorable Thomas A. White. The sole issue before the Court was whether or not the Slayer's Act precluded any recovery by the Plaintiff-Appellee. The Court concluded that it did not and on January 26, 1981, Judge White entered a verdict in favor of the Plaintiff-Appellee. On January 28, 1981 the verdict was docketed. It appears that counsel for the Appellants received notice of the lower court's verdict on January 29, 1981. No exceptions were filed by the Appellants within ten days of the notice of the verdict, the time period permitted under Pa.R.Civ.P. 1038(d). On February 13, 1981, Appellants' counsel requested leave to file exceptions nunc pro tunc. The lower court denied that request and the instant appeal was thereafter timely filed from that order.
During the course of oral argument before this Court, a question was raised as to whether or not the instant appeal arose from an appealable final order. Leave was permitted
[ 298 Pa. Super. Page 61]
to the parties to brief this issue, and both have subsequently submitted statements of legal position to us. Both assert that the instant appeal arises from an appealable order, and we agree with that position. As a practical matter, the lower court's denial of the request to file exceptions nunc pro tunc had the effect of putting the Appellants out of court. Such circumstances create an appealable order. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 348 A.2d 734 (1975). In Seven Springs Farms, Inc. v. King, 269 Pa. Superior Ct. 361, 409 A.2d 1363 (1979), our Court noted that we had previously quashed a direct appeal, on the merits, by the appellant because timely exceptions had not been filed subsequent to the entry of a judgment. A motion to file exceptions nunc pro tunc was thereafter filed by the appellant and denied by the trial court. When that latter order was appealed, our Court considered the issue of whether the lower court had abused its discretion in denying the request to proceed nunc pro tunc. In the instant case, the same situation is apparent. We are not called upon here to ...