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THELMA M. MILLER v. CLARK E. MILLER AND RAY MILLER. APPEAL CLARK E. MILLER (06/16/86)

SUPERIOR COURT OF PENNSYLVANIA


submitted: June 16, 1986.

THELMA M. MILLER
v.
CLARK E. MILLER AND RAY MILLER. APPEAL OF CLARK E. MILLER

Appeal from the Judgment entered February 6, 1986 in the Court of Common Pleas of Cambria County, Civil Division at No. 1985-2533.

COUNSEL

William F. Patterson, Johnstown, for appellant.

R. Thomas Strayer, Johnstown, for appellee.

Del Sole, Montemuro and Hoffman, JJ.

Author: Del Sole

[ 359 Pa. Super. Page 184]

This appeal follows an Order entering Judgment which held Appellant was required to return various sums of money to Appellee, his mother. The Order in question stems from an equity action filed by Appellee against Appellant in which she alleged that Appellant had taken possession of various items against her will, that no Trust agreement concerning these items existed, and that monies

[ 359 Pa. Super. Page 185]

    disbursed by Appellant to his siblings should be returned to her.

Appellant raises four issues on appeal: 1. whether a valid Trust ever existed; 2. if so, whether Appellee was able to unilaterally terminate it; 3. whether Appellee authorized the disbursements made to Appellant's brothers and sisters; and 4. whether there existed a valid Family Settlement.

By her brief, Appellee aptly points out the absence of post-trial motions filed on behalf of Appellant following the trial court's Order. Pursuant to Pa.R.C.P. 227.1, post-trial relief may not be granted unless the grounds in support of such motion are specified and filed within ten days after adjudication in the equity trial. Failure to comply with these provisions results in a waiver of all issues. Pa.R.C.P. 227.1(b)(1), (2), (c)(2).

However, upon a close examination of the record, we detect a procedural irregularity which foreclosed Appellant's ability to comply with the mandates set out in Rule 227.1. The Order from which this appeal is taken is as follows:

AND NOW, this 5th day of February, 1986, in accordance with the findings of fact, conclusions of law, orders and directives hereinbefore set forth, JUDGMENT is ENTERED in FAVOR of the Plaintiff and AGAINST the Defendants, Clark Miller and Ray Miller. (Findings of Facts) (emphasis added).

This procedure was improper. It is well-established by our supreme court that a chancellor must first file a Decree Nisi. Cooney v. Pennsylvania Osteopathic Association, 434 Pa. 358, 359, 253 A.2d 256, 257 (1969).*fn1 A Decree Nisi is a non-appealable interlocutory order which is filed so that the parties may object to and reargue the issues before the trial court. Bogosian v. Foerderer Tract Committee, 264 Pa. Super. 84, 88, 399 A.2d 408, 410 (1979). Only after

[ 359 Pa. Super. Page 186]

    reviewing the merits of these arguments may the chancellor enter a final Decree. Cooney at, 434 Pa. 360, 253 A.2d 257. "The right of appeal lies from the final decree entered by the court." Bogosian at, 264 Pa. Superior Ct. 88, 399 A.2d 410.

In the instant case, the record shows that a hearing was held on December 17, 1985. On February 6, 1986 the trial court filed its Findings of Facts in which a thorough explication of the factual and legal premises of the case is found. Accompanying this document was the Order*fn2 entering Judgment in favor of Appellee instead of the appropriate Decree Nisi. On March 3, 1986 Appellee filed praecipe for judgment and judgment was again indexed and entered.*fn3 Notice of Appeal to the Superior Court was also filed in that Office.*fn4

It is apparent from this examination of the record, that Appellant was not given the opportunity to file post-trial motions. The only inroad to post-trial relief left to Appellant was in the form of a Direct Appeal to this court. In Patrick and Wilkins, Co. v. Adams, 456 Pa. 566, 568, 322 A.2d 341, 342 (1974), our Supreme Court was confronted with a similar scenario. In that case, it was determined that the chancellor's Decree be vacated and the record

[ 359 Pa. Super. Page 187]

    remanded for the purpose of allowing Appellant to file appropriate exceptions*fn5 to the chancellor's Decree.

In keeping with the directives of the Pennsylvania Supreme Court, we vacate the Order entering judgment and remand to the trial court and grant leave to the Appellant to file a Motion for Post-Trial Relief within ten days pursuant to Pa.R.C.P. 227.1.

Judgment of trial court vacated. Case remanded to trial court for proceedings consistent with this Opinion. Jurisdiction relinquished.

Disposition

Judgment of trial court vacated.


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