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ROBERT M. WITTIG AND JANE WITTIG v. RALPH CARLACCI AND ANNA MAE CARLACCI (02/04/88)

filed: February 4, 1988.

ROBERT M. WITTIG AND JANE WITTIG, HIS WIFE, APPELLANTS,
v.
RALPH CARLACCI AND ANNA MAE CARLACCI, HIS WIFE, APPELLEES



Appeal from Judgment of the Court of Common Pleas, Civil Division, of Lackawanna County, No. 83 Civ. 5821.

COUNSEL

William R. Lee, Scranton, for appellants.

Walter T. Grabowski, Harrisburg, for appellees.

Rowley, Wieand and Olszewski, JJ. Olszewski, J., files a concurring statement.

Author: Wieand

[ 370 Pa. Super. Page 585]

Because of a property line dispute, Robert M. Wittig and Jane Wittig, husband and wife, commenced an action in ejectment against their neighbors, Ralph and Anna Mae Carlacci. After trial without jury, the court, on December 5, 1986, found that the disputed strip of land was owned by the Carlaccis and dismissed the Wittigs' action. The Wittigs filed a motion for post-trial relief on December 23, 1986, but the motion, following argument, was denied, and judgment was entered on the adjudication of the trial court. This appeal followed by the Wittigs.

Initially, there is an issue which must be resolved regarding the timeliness of the Wittigs' motion for post-trial relief. Pa.R.C.P. 227.1(c)(2) requires that post-trial motions shall be filed within ten days after "notice of . . . the filing of the decision or adjudication in the case of a trial without jury or equity trial." Pa.R.C.P. 1038(c) requires that notice of the

[ 370 Pa. Super. Page 586]

    trial court's decision be given by the prothonotary;*fn1 and Pa.R.C.P. 236(b) requires the prothonotary to note in his docket the giving of such notice. Pursuant to these rules, the time for filing post-trial motions does not commence until such notice has been given and the date thereof recorded in the prothonotary's docket.

In the instant case, the trial court's adjudication was dated December 5, 1986. However, the prothonotary's docket fails to disclose that notice of the filing of the trial court's decision was ever given to appellants or their counsel. Under these circumstances, post-trial motions filed on December 23, 1986 were timely. See: Ruh v. Ruh, 268 Pa. Super. 82, 407 A.2d 447 (1979). See also: Karpe v. Borough of Stroudsburg, 290 Pa. Super. 559, 562 n. 2, 434 A.2d 1292, 1293 n. 2 (1981); Brodsky v. Philadelphia Athletic Club, 277 Pa. Super. 549, 554, 419 A.2d 1285, 1288 (1980); State Farm Mutual Auto Ins. Co. v. Schultz, 281 Pa. Super. 212, 214 n. 1, 421 A.2d 1224, 1225 n. 1 (1979). The trial court apparently recognized this, for its opinion states specifically that appellant's post-trial motions were filed timely. We find nothing in the record that would cause us to disagree.

The rule requiring that post-trial motions be filed within ten days after notice of filing is a procedural rule; it is not jurisdictional. A trial court has broad discretion to entertain untimely procedural motions. See: Karpe v. Borough of Stroudsburg, supra; Brodsky v. Philadelphia Athletic Club, supra 277 Pa. Super. at 553, 419 A.2d at 1287; Plato v. City of Pittsburgh, 71 Pa. Commw. 463, 466 n. 2, 454 A.2d 1196, 1198 n. 2 (1983). See also: S.N.T. Industries, Inc. v. Geanopulos, 512 Pa. 330, 516 A.2d 705 (1986) and S.N.T. Industries, Inc. v. Geanopulos, 363 Pa. Super. 97, 99-100 n. 1, 525 A.2d 736, 737-738 n. 1 (1987) (Supreme Court reversed and remanded for consideration of merits where Superior Court had declined to consider merits of appeal, even though considered by trial court, because of

[ 370 Pa. Super. Page 587]

    late filing of supplemental post-trial motions); Gutman v. Rissinger, 334 Pa. Super. 259, 482 A.2d 1324 (1984). In the instant case, the appellees neither objected nor alleged prejudice because of the date on which the post-trial motions were filed. As a result, the trial court could, as it did, consider the ...


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