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BOROUGH COUNCIL FOR BOROUGH MILLBOURNE v. BARGAINING COMMITTEE MILLBOURNE BOROUGH POLICE BY CHRIS SCHIPANI AND JOHN OTTAVIANO (09/22/87)

decided: September 22, 1987.

THE BOROUGH COUNCIL FOR THE BOROUGH OF MILLBOURNE, APPELLANT
v.
BARGAINING COMMITTEE OF THE MILLBOURNE BOROUGH POLICE BY CHRIS SCHIPANI AND JOHN OTTAVIANO, TRUSTEES AD LITEM, APPELLEES



Appeal from the Order of the Court of Common Pleas of Delaware County, in case of Bargaining Committee of the Millbourne Borough Police by Chris Schipani and John Ottaviano, Trustees Ad Litem v. The Borough Council for The Borough of Millbourne, No. 85-8478, in mandamus.

COUNSEL

Francis M. Milone, with him, Jean S. Konowalczyk, Of Counsel: Morgan, Lewis & Bockius, for appellant.

Alexander A. DiSanti, Richard, DiSanti, Hamilton, Gallagher & Paul, for appellees.

Judges MacPhail and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 109 Pa. Commw. Page 475]

The Borough Council for the Borough of Millbourne (Council) has appealed from an order of the Court of Common Pleas of Delaware County which granted mandamus relief to the Bargaining Committee of the Millbourne Borough Police (Bargaining Committee). The court's order requires the Council to comply with the provisions of an interest arbitration award entered pursuant to the Act of June 24, 1968 (Act 111), P.L. 237, 43 P.S. ยงยง 217.1-217.10.

Unfortunately, we are unable to reach the merits of the issues raised in this appeal since we conclude that those issues have not been properly preserved for our review. The basis for our ruling is the fact that the Council failed to file a motion for post-trial relief pursuant to Pa. R.C.P. No. 227.1 following the trial judge's initial adjudication in this matter, thereby rendering appellate review impossible.

We note preliminarily that trials in mandamus are to be conducted pursuant to Pa. R.C.P. No. 1038 which deals generally with non-jury trials. See Pa. R.C.P. No. 1099. Prior to January 1, 1984, Pa. R.C.P. No. 1038(d) required that exceptions be filed to the trial court's decision and that "[m]atters not covered by exceptions are deemed waived. . . ." That provision in the Rules was rescinded effective January 1, 1984 at the same time that Pa. R.C.P. No. 227.1 was adopted relating to post-trial relief. The explanatory comment to Rule 227.1 specifies that its provisions are applicable to all actions "at law or in equity . . . whether the action is tried with or without a jury." Rule 227.1(b)(2) contains language substantively similar to that of rescinded Rule 1038(d),

[ 109 Pa. Commw. Page 476]

    although the term "exceptions" is no longer employed. Rule 227.1(b)(2) provides as follows:

Post-trial relief may not be granted unless the grounds therefor,

(2) are specified in the motion. . . . Grounds not specified are deemed waived unless leave is granted upon cause shown to specify additional grounds.

(Emphasis added.) Given the relatively short time period during which Rule 227.1 has been in effect, case law interpreting its terms is limited. Based on the guidance provided by the thorough explanatory comment to Rule 227.1, however, we believe that prior practice regarding exceptions remains applicable in the new form of a motion for post-trial relief. We, accordingly, will regard ...


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