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

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. ...


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