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BERNADETTE ZIMMERMAN v. FREDERICK ZIMMERMAN (05/27/83)

SUPERIOR COURT OF PENNSYLVANIA


filed: May 27, 1983.

BERNADETTE ZIMMERMAN
v.
FREDERICK ZIMMERMAN, APPELLANT

NO. 1980 PHILADELPHIA, 1981, Appeal from the Order of July 7, 1981 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 78-03345.

COUNSEL

Joseph J. Carlin, Philadelphia, for appellant.

Bernard E. Zbrzeznj, Philadelphia, for appellee.

Wieand, Beck and Montemuro, JJ. Wieand, J., files a concurring statement.

Author: Per Curiam

[ 314 Pa. Super. Page 390]

Appellant, Frederick Zimmerman, and appellee, Bernadette Zimmerman are divorced and a support order was entered on July 7, 1978 against appellant in the amount of $45.00 per week. Appellee filed on July 7, 1981 a petition for an increase in support for their son, Frederick Zimmerman, who was twelve-years-old at the time of that petition. On that date, the lower court increased the support order to $120.00 per week.

No exceptions were filed to that July 7, 1981 order modifying support, and this Court has held previously that such failure constitutes a waiver of objections to that order.*fn1 E.g., Commonwealth ex rel. White v. White, 303 Pa. Super. 329, 449 A.2d 712 (1982); Paul v. Paul, 281 Pa. Super. 202, 421 A.2d 1219 (1980). The docket entry for July 7, 1981, however, does not indicate that notice of entry of the order modifying support was mailed as required by Pa.R.C.P. Nos. 236 and 1038(c), and in such a case, we will not find appellant's objections to be waived.

Accordingly, we remand for the filing of exceptions nunc pro tunc. Jurisdiction is relinquished.

WIEAND, Judge, concurring:

For reasons appearing in Nixon v. Nixon, 312 Pa. Super. 313, 458 A.2d 976 (1983), I concur in the decision to remand for the filing of exceptions nunc pro tunc.


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