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BOARD SCHOOL DIRECTORS v. JOSEPH KASSAB AND E. ELIZABETH KASSAB (09/15/82)

decided: September 15, 1982.

BOARD OF SCHOOL DIRECTORS, WALLINGFORD-SWARTHMORE SCHOOL DISTRICT ET AL., APPELLANTS
v.
JOSEPH KASSAB AND E. ELIZABETH KASSAB, APPELLEES



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Joseph Kassab and Elizabeth Kassab v. Board of School Directors, Wallingford-Swarthmore School District et al., No. 78-09721.

COUNSEL

David A. Gradwohl, with him Martin R. Lentz and Gary D. Fry, Pelino & Lentz, P.C., for appellants.

R. Scott Aldridge, for appellees.

President Judge Crumlish, Jr. and Judges Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 69 Pa. Commw. Page 67]

Appellants*fn1 appeal here from a final decree of the Court of Common Pleas of Delaware County, sitting in equity, which permitted Appellants to erect lights at their athletic field but imposed certain restrictions and conditions regarding their use. In addition to the appeal on the substantive issues, there is also before us for disposition Appellees'*fn2 motion to quash the appeal.

Appellees filed a complaint in equity seeking an injunction which would prohibit Appellants from erecting poles upon which electric lights were to be placed to illuminate the high school athletic field. The complaint was filed June 30, 1978. At the same time, a petition for a preliminary injunction was filed in response to which the trial court set July 5, 1978 at 10:00 AM as the time for hearing on that petition. On July 11, 1978, Honorable John V. Diggins, Senior Judge, presided at what he and counsel agreed was to be a hearing to determine if a preliminary injunction should be allowed. Appellants, at the same time, filed responsive pleadings and Appellees filed an amended complaint. An answer to the amended complaint was filed July 24. The hearing which commenced July 11 was continued until August 15 and again, to August 16. At the conclusion of the proceedings on August 16, counsel for Appellants moved to have the petition for a preliminary injunction dismissed. That motion was denied. Counsel then moved for a non-suit on the underlying suit in equity. That, too, was denied.

Thereupon, from the bench, the learned judge entered an order which permitted the erection of the

[ 69 Pa. Commw. Page 68]

    lights but prescribed conditions and restrictions under which they could be used. At the conclusion of the bench order, the trial judge said, "and that is the Decree. Unless exceptions thereto are filed within ten days, it shall become the final Decree."*fn3

The trial judge's oral adjudication was reduced to writing and duly filed to comply with the provisions of Pa. R.C.P. No. 1517(b).

Nothing transpired thereafter until February 6, 1980, when Appellees filed a praecipe pursuant to the provisions of Pa. R.C.P. No. 1519(a) in response to which the prothonotary entered the decree nisi as a final decree. Within 30 days thereafter, the appeal to this Court was filed.*fn4

Appellants contend to us that the trial court erred in failing to apply the correct legal principles to this case, that the trial court lacked jurisdiction to decide the case and that the adjudication is a nullity because it failed to comply with Pa. R.C.P. No. 1517(a). In addition, ...


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