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MICHAEL SOTAK AND KAREN SOTAK v. RICHARD H. NITSCHKE AND URSULA NITSCHKE (08/20/82)

filed: August 20, 1982.

MICHAEL SOTAK AND KAREN SOTAK, HIS WIFE
v.
RICHARD H. NITSCHKE AND URSULA NITSCHKE, APPELLANTS



No. 721 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, of Washington County at No. 7358, In Equity.

COUNSEL

George B. Stegenga, Washington, for appellants.

Bernard S. Shire, Monessen, for appellees.

Brosky, Cirillo and Popovich, JJ.

Author: Popovich

[ 303 Pa. Super. Page 362]

This is an appeal from the final decree entered by the court in equity which directed appellants-defendants, Richard and Ursula Nitschke, to perform specifically the agreement of sale they negotiated with appellees-plaintiffs, Michael and Karen Sotak. We affirm in part and remand for the reasons herein stated.

In this appeal, appellants raise the following issues: (1) whether the trial court failed to comply with Pa.R.C.P. 1517 because the decree nisi failed to include a statement of the issues, a chronological statement of the facts, and a discussion of the legal issues presented; (2) whether appellees failed to prove fraud; (3) whether specific performance should have been granted because the suit was filed untimely and because the trial court failed to conclude that appellants should be reimbursed for $23,000 worth of improvements they made on the property in question; and (4)

[ 303 Pa. Super. Page 363]

    whether appellees should be charged with knowledge of the second survey.

The "DECREE NISI" which appellants complain is defective contained the following information:

" DECREE NISI

March 23, 1981

After reviewing this matter extensively, we have decided to accept the Plaintiff's proposed findings of fact with the exception of No. 28 finding. We would also delete the word "obvious" from finding No. 2.

We accept the Plaintiff's proposed conclusion of law. It seems to me that since there must be oral arguments on this case before the court en banc, if exceptions are taken, that a full dress opinion can await that stage; otherwise we double the paper work.

The Defendants are granted 20 days from service hereof to take exceptions. In the interest of bringing the arguments to a head -- it was all quite diffuse in the chancellor's room -- we urge that the Defendant not file the routine boilerplate objection to each finding of fact and conclusion of law but address exceptions to those on which a centrality of disagreement can be conferred. We find that the Plaintiffs were defrauded and deceived here -- that is the heart of the matter.

In the event no exceptions are filed, we will issue a final decree in 20 days. We intend specifically therein to require performance of the agreement of sale dated November 14, 1975 as the same is written and intend to order that the deed be reformed and rectified by making it's [sic] description consistent with the agreement of sale. Ancillary relief, as requested in the other lettered paragraphs of the Plaintiff's demand, will be applied to effectuate this central decision.

/s/ Charles G. Sweet P. J."

When examining the chancellor's decree, we must remember the following guidelines:

[ 303 Pa. Super. Page 364]

"Pennsylvania Rules of Civil Procedure 1516 to 1519, 12 P.S. Appendix clearly enunciate the steps which must be followed by the chancellor, and by the litigants, before a procedurally proper appeal may be taken to this Court. Rule 1516 recites that the parties may file requests for findings of fact and conclusions of law. Rule 1517 itemizes the contents of the chancellor's 'adjudication.' This adjudication must contain, in addition to a decree nisi, a summary of the issues raised in the pleadings, specified findings of fact and conclusions of law, and a discussion of the factual and legal questions involved in the case. Rule 1518 allows the parties 20 days to file specific exceptions to this adjudication. Finally, Rule 1519 provides that the court en banc shall pass on these exceptions, or, if none are filed, the prothonotary, upon praecipe, shall enter the decree as final. All of these steps are necessary to establish an adequate record on appeal.*fn1 See also In re Involuntary Termination of Parental Rights, 487 Pa. 387, 409 A.2d 404 (1979).*fn2

Houston-Starr Co. v. Virginia Mansions Apartments, Inc., 295 Pa. Super. 480, 483-484, 441 A.2d 1334, 1336 (1982).

Appellants contend that the decree is defective because of the absence of a statement of the issues, chronological statement of the facts, and conclusions of law. We cannot agree.

In the discussion portion of their brief, appellants also state that "the action should be dismissed as the Court does not have jurisdiction in this matter, for the reason that indispensable parties, to-wit, the several purchasers of the land in question, were not joined in this proceeding." Brief

[ 303 Pa. Super. Page 365]

    for Appellants at 16. The state of the record, however, precludes an examination of this contention.

To begin with, the chancellor adopted appellees' proposed findings of fact, with two exceptions, and their conclusions of law. Those findings and conclusions, which are of record, are as follows:

"PLAINTIFF'S PROPOSED FINDINGS OF FACT

1. The parties entered into a Sales Agreement prepared by Kent Putnam, Esquire, dated November 14, 1975 which contained the following details: (Exhibit 1)

(a) Richard H. Nitschke and Ursula Nitschke, his wife, were Sellers.

(b) Michael Sotak and Karen Sue Sotak, his wife, were Buyers.

(c) The closing date was set for March 14, 1976.

(d) The sales price was Forty-five Thousand and 00/100ths ($45,000.00) Dollars; Two Thousand and 00/100ths ($2,000.00) Dollars for personal property and Forty Three Thousand and ...


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