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FREDERICK R. STORTI v. MINNESOTA MUTUAL LIFE INSURANCE COMPANY (05/09/84)

argued: May 9, 1984.

FREDERICK R. STORTI, APPELLANT,
v.
MINNESOTA MUTUAL LIFE INSURANCE COMPANY



No. 3066 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Montgomery County, No. 80-09183.

COUNSEL

Mark Ryan, Norristown, for appellant.

William H. Bradbury, III, Norristown, for appellee.

Wickersham, Wieand and Lipez, JJ.

Author: Wieand

[ 331 Pa. Super. Page 28]

Frederick R. Storti has appealed from a declaratory judgment construing in favor of the insurer a group disability policy of insurance issued by Minnesota Mutual Life Insurance Company. After careful review, we affirm.

[ 331 Pa. Super. Page 29]

The provisions of Pa.R.C.P. 1601(a) require that in an action for declaratory judgment "[t]he practice and procedure shall follow, as nearly as may be, the rules governing the Action in Equity." This Court, in Hertz v. Hertz, 302 Pa. Super. 259, 448 A.2d 626 (1982), interpreted the rule to require "an adjudication in accordance with Pa.R.C.P. 1517, the filing of exceptions thereto and subsequent disposition by a court en banc under Pa.R.C.P. 1518 . . . ." Id., 302 Pa. Superior Ct. at 261, 448 A.2d at 627. In the usual declaratory judgment proceeding, this Court will refuse to consider an issue which has not been preserved by the filing of exceptions to the order or decree entered by the trial court. In this case, however, the order from which the appeal was taken contained no findings of fact, no conclusions of law, and no language to suggest that the order was anything but a final order or that the parties were required to file exceptions to perfect a right of appeal. Where an order neither comports with the requirements of Pa.R.C.P. 1517 nor contains a suggestion that exceptions must be filed in order to preserve a right of appeal, the failure to file exceptions will be excused. Commonwealth v. Derry Page 29} Township, 466 Pa. 31, 41-42, 351 A.2d 606, 611 (1976); Barton v. Penco, 292 Pa. Super. 202, 204, 436 A.2d 1222, 1223 (1981); Greenwood Township v. Kefo, Inc., 52 Pa. Commw. 367, 370, 416 A.2d 583, 584-585 (1980). The failure to file exceptions in the instant case, therefore, will not defeat appellate review.

The substantive issues involved in this action were well stated and correctly decided by the learned trial judge. We adopt the following portions of his opinion. "In January, 1975 Frederick B. Storti was issued an insurance certificate by Minnesota Mutual Life Insurance Co. (Minnesota) by which he was assured his mortgage payments would be paid should he become disabled. It was a group policy, with the master policy on file with the First Federal Savings & Loan Association of Lansdale, his mortgagee. The policy provided:

Such payments shall be subject to the maximum benefit period which is determined by the following schedule:

Attained Age on Maximum Benefit

Date of Disability Period

Under age 50 ...


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