Cooney v. Pennsylvania Osteopathic Ass'n

253 A.2d 256, 434 Pa. 358, 1969 Pa. LEXIS 460

• Court: Supreme Court of Pennsylvania
• Decided: May 9, 1969
• Docket: Appeal, No. 84
• Status: Published

Opinions

Opinion by

Mr. Justice Eagen,

In this action the plaintiff sought and gained a decree in the court below declaring him to be a valid honorary member of the Pennsylvania Osteopathic Association. For the reasons which follow, the decree must be vacated.

The action was instituted by the filing of a petition for a rule to show cause. This procedure was improper. A complaint in equity was the correct course to pursue: Garrett v. McHenry, 403 Pa. 451, 170 A. 2d 363 (1961), and 2 Pennsylvania Standard Practice, 473 et seq. Cf. also, Hemphill v. Lenz, 413 Pa. 9, 195 A. 2d 780 (1963).

But since the aggrieved party entered no objection to the form of the action, and since in its brief it indicates that it treated the action as one in equity, we, too, shall so consider it. However, another obvious defect then appears in the record.

The chancellor entered a final decree from which the present appeal was entered. A chancellor must first file an adjudication which includes a decree nisi to which either party may file exceptions within twenty days, and if such are filed, these exceptions must then be reviewed by the court en banc before a final decree is entered. See Goodrieh-Amram Procedural Rules, §§1517-1, 6 and §§1518 and 1519. An appeal does not lie from the decree of the chancellor, but rather from the final decree. Sessa v. Melnick, 420 Pa. 257, 216 A. 2d 56 (1966).

Since the chancellor failed to file a proper adjudication, and denied the parties the opportunity of filing exceptions thereto and a review thereof by the court en banc, the decree will be vacated and the record remanded with directions to proceed in accordance with the Rules of Civil Procedure.

It is so ordered. Costs to abide the result.