NO. 930 Philadelphia, 1980, Appeal from the Order dated March 25, 1980 of the Court of Common Pleas of Chester County, Domestic Relations Division at No. 1477-N, 1979.
C. Richard Morton, West Chester, for appellant.
Lee Ruslander, Assistant District Attorney, West Chester, for appellee.
McEwen, Cirillo and Hoffman, JJ.
[ 316 Pa. Super. Page 72]
Appellant has taken this appeal from an order directing him to pay support to his wife and daughter in the amount of Two Hundred Dollars ($200.00) per week. Since the order appealed from is not a final order of support, we are compelled -- as the parties themselves concede we must -- to quash the appeal.
Appellee filed a complaint under the Civil Procedural Support law against appellant on December 27, 1979, seeking support for herself and her child. After a hearing on March 20, 1980, the Court of Common Pleas entered an order dated March 25, 1980, directing appellant to pay Two Hundred Dollars ($200.00) per week for the support of his wife and one child and directing that he receive credit toward the full amount of the support order for payments made on the mortgage, taxes and insurance in connection with the family home. Appellant thereafter filed a petition
[ 316 Pa. Super. Page 73]
for reconsideration and requested a rehearing but the court refused this application by order dated April 3, 1980. The order granted appellant the right to file, within ten (10) days, exceptions to the proceedings of March 20 and to the order of March 25, 1980 but also directed appellant to continue to pay support in compliance with the order of March 25, 1980. Appellant filed timely exceptions to the order and a hearing was set for June 11, 1980. However, prior to the scheduled hearing, counsel for appellant filed an appeal to this court from the support order, the effect of which was to divest the Common Pleas Court of jurisdiction to further proceed with the adjudication of the merits of those exceptions. See Pa.R.A.P. 1701(a). It is well established that an order of court dismissing exceptions following a non-jury trial which has not been reduced to judgment and docketed is interlocutory and non-appealable. Goldberg v. Goldberg, 292 Pa. Super. 318, 437 A.2d 64 (1981); Murray v. Abcon, Inc., 291 Pa. Super. 428, 435 A.2d 1301 (1981). An appeal from such an order is premature and must be quashed since this court lacks jurisdiction to consider it. The same is also true when an appeal is taken following a non-jury trial but before the court en banc has ruled on exceptions. "In an action tried without a jury, an appeal is premature if entered before exceptions have been disposed of . . ." Goodrich-Amram 2d § 1038(e). See Pa.R.C.P. 1038. Thus, there exists no appealable order in this case and we must quash this appeal as one having been taken from an interlocutory order. See Commonwealth ex rel. Nixon v. Nixon, 312 Pa. Super. 313, 458 A.2d 976 (1983); Paul v. Paul, 281 Pa. Super. 202, 211, 421 A.2d 1219, 1223-24 (1980).
We are further constrained to observe that disposition of the exceptions and the entry of a final and appealable order of support will not cure the inadequacy of the record before us. At the time of the proceedings in the Common Pleas Court, the practice in non-support hearings was to refrain from making a stenographic record unless counsel for either party requested that a stenographic
[ 316 Pa. Super. Page 74]
record be made. In Mansfield v. Lopez, 288 Pa. Super. 567, 432 A.2d 1016 (1981), this court declared that practice improper and contrary to the Act of May 1, 1907, P.L. 135, § 3, 17 P.S. § 1804 which provides:
The official stenographers of the several courts of common pleas, when engaged in such courts or in the courts of oyer and terminer, general jail delivery and quarter sessions of the peace, shall take full stenographic notes of the testimony in all judicial proceedings in any trial of fact, at law or in equity, together with the judge's charge, and of any and every ruling, order, or remark of the trial judge, or judges, relating to the case on trial, made in the presence of the jury, in any stage of the proceedings, to which ruling, order or remark either party may except in the same manner and with the same effect as is now practiced in relation to the judge's charge; and upon any trial without a jury, shall likewise report the proceedings, including the testimony of all witnesses examined and matters offered in evidence, and the rulings of the court upon the admission or rejection thereof, and the findings of ...