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ELVIN WALKER AND GENE HOFFMAN D/B/A HOFFMAN & WALKER v. BRINK BUILDERS (03/11/83)

SUPERIOR COURT OF PENNSYLVANIA


March 11, 1983

ELVIN WALKER AND GENE HOFFMAN D/B/A HOFFMAN & WALKER, APPELLANTS
v.
BRINK BUILDERS, INC., A/K/A BRINK CONSTRUCTION, INC., AND B & P DEVELOPMENT, A LIMITED PARTNERSHIP, APPELLEES

No. 539 Pittsburgh, 1981, Appeal from the Judgment entered of the Court of Common Pleas, Civil Division, of Erie County, at No. 244-W-1975.

Before Brosky, Johnson and Montgomery, JJ.

MEMORANDUM

This appeal arises from the trial court's order entering judgment for the appellees, Brink Builders, Inc. (hereinafter "Brink") and B & P Development (hereinafter "B & P"). The order resulted from the finding of the trial court that a mechanics' lien waiver agreement between Brink and B & P was valid as to the third party subcontractors, appellants Hoffman & Walker. Having found that the issues raised by appellant have not been preserved for our review, we dismiss the appeal.

A complaint in this matter was filed by appellants after having received no response to their filed lien claim pursuant to the Mechanics' Lien Law of 1963*fn1 Subsequently, an answer and new matter, reply to new matter, appellant's pretrial narrative, and interrogatories to and answers by appellant were filed. Thereafter, the following occurred:

November 17, 1976: Motion for Summary Judgment filed by

B & P, appellee.

August 3, 1978: Motion to withdraw Motion for Summary

Judgment filed by B & P and granted by

     the trial court.

August 11, 1978: Motion for Summary Judgment filed by

Hoffman & Walker, appellants.

October 11, 1978: Motion filed August 11th denied by

     the trial court by Order and Opinion.

October 17, 1978: Motion for Summary Judgment filed by

B & P.

November 27, 1978: Motion to join B & P's October 17th

     motion, requesting judgment for

     appellants, filed by appellants and

     granted by trial court.

November 30, 1978: Both Motions for Summary Judgment

     denied by trial court.

June 25, 1979: Proceedings held before the trial

     court following the filing of pretrial

     narratives by Hoffman &

Walker and B & P.

April 29, 1981: Order by trial court that judgment be

     entered in favor of appellees.

Appellees assert that this appeal should be quashed as appellant failed to file exceptions to the decision of the trial court pursuant to Pa.R.C.P. 1038(d).*fn2 We agree.

Our review of the record evinces that no motion for summary judgment was before the trial court at any point in time after November 30, 1978. As a result, the proceedings held before the trial court on June 25, 1979, was a trial without jury, and not a hearing on a motion for summary judgment. The April 29, 1981 order was, therefore, a decision following trial.

Pa.R.C.P. 1038, which addresses trial without jury, reads in pertinent part:

"(d) Within ten (10) days after notice of filing of the decision, exceptions may be filed by any party to the decision or any part thereof... Matters not covered by exceptions are deemed to be waived unless, prior to final judgment, leave is granted to file exceptions raising these matters..."

In light of the clear language of Rule 1038(d), the issues raised herein by appellants have not been preserved as no exceptions to the trial judge's order were ever filed. Knisely v. Knisely, 295 Pa. Super. 240, 441 A.2d 438 (1982).

As no appeal will lie from a decision of the trial court sitting without a jury unless exceptions are filed in that court and disposed of there, Blake v. Mayo Nursing & Convalescing Homes, Inc., 245 Pa. Super. 274, 369 A.2d 400 (1976); Frankel v. Reliance Mutual Life Insurance Co. of Illinois, 199 Pa. Super. 295, 184 A.2d 305 (1962), the instant appeal is hereby quashed.


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