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COMMONWEALTH PENNSYLVANIA EX REL. ELMER J. WALTMAN AND CHARLES RAUDENBUSH v. JOHN GRACZYK AND THOMAS TRAVERSE (06/09/83)

decided: June 9, 1983.

COMMONWEALTH OF PENNSYLVANIA EX REL. ELMER J. WALTMAN AND CHARLES RAUDENBUSH, SR., APPELLANTS,
v.
JOHN GRACZYK AND THOMAS TRAVERSE, APPELLEES



No. 81-3-369, Appeal from the Order entered February 3, 1981 of the February 3, 1981 of the Court of Common Pleas of Bucks County, Pennsylvania, Civil Action-Law Division, at No. 80-1131-05-6.

COUNSEL

Daniel J. Lawler, Feasterville, for appellants.

James M. McMaster, Feasterville, for appellees.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Zappala, J., files a concurring opinion.

Author: Flaherty

[ 501 Pa. Page 245]

OPINION OF THE COURT

After a hearing in the Court of Common Pleas of Bucks County on an action in quo warrantor involving the claim of appellant Charles Raudenbush to the seat on the Lower Southhampton Township Municipal Authority then held by appellee Thomas Traverse, the lower court entered a judgment in favor of Traverse and against Raudenbush. Raudenbush took a direct appeal challenging the propriety of the lower court's ruling, to this Court pursuant to the Act of July 9, 1976, P.L. 586, No. 142, § 2, eff. June 27, 1978, as amended, 42 Pa.C.S.A. § 722(2), which confers on this Court the exclusive jurisdiction of appeals from final orders of Courts of Common Pleas in cases involving the right to public office.

[ 501 Pa. Page 246]

Traverse urges this appeal be quashed as premature on the basis that no final judgment was entered pursuant to Pa.R.C.P. 1038(e). Rule 1038(e) provides in pertinent part:

The prothonotary shall, on praecipe, enter final judgment on the decision if no exceptions have been filed within the ten (10) day period or if a waiver in writing of the right to file exceptions signed by all parties has been filed . . . .

It is true that neither of the parties praeciped for entry of final judgment under Rule 1038(e). However, Traverse overlooks Pa.R.C.P. 1039, which provides:

In addition to the provisions of any Rule of Civil Procedure or Act of Assembly authorizing the prothonotary to enter judgment upon praecipe of a party, the prothonotary shall enter judgment ...


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