Sarver v. North Side Deposit Bank

Superior Court of Pennsylvania

Sarver v. North Side Deposit Bank

433 A.2d 902, 289 Pa. Super. 472, 1981 Pa. Super. LEXIS 3188

CourtSuperior Court of Pennsylvania

DecidedAugust 14, 1981

Docket427

StatusPublished

Cited by5 cases

This text of 433 A.2d 902 (Sarver v. North Side Deposit Bank) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sarver v. North Side Deposit Bank, 433 A.2d 902, 289 Pa. Super. 472, 1981 Pa. Super. LEXIS 3188 (Pa. Ct. App. 1981).

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Opinions

SPAETH, Judge:

This appeal is from a judgment in an action in assumpsit that was tried without a jury. Since we cannot tell whether exceptions were timely filed, we shall reverse and remand for further proceedings.

The trial was on December 6, 1979. The opinion and finding of the lower court are dated December 28, 1979; the docket entries state that they were filed January 2, 1980. The docket entries further state that appellant filed exceptions on January 22, 1980. Appellee North Side Deposit Bank filed a motion to quash the exceptions (in which it is said that the exceptions were filed January 18, 1980) on the [474]*474ground that Pa.R.C.P. 1038(d) requires that exceptions be filed within ten days after notice of the decision. By order of April 7, 1980, the lower court denied the motion to quash the exceptions “since said Exceptions were filed within the period limited by Pa.R.C.P. § 1038(d),” and dismissed the exceptions as “being without legal merit.” On May 7, 1980, a praecipe for final judgment was filed and this appeal was taken.

It is not apparent what the lower court meant by its statement that the exceptions “were filed within the period limited by Pa.R.C.P. § 1038(d).” Rule 1038(d) provides:

(d) Within ten (10) days after notice of the filing of the decision, exceptions may be filed by any party to the decision or any part thereof, to rulings on objections to evidence or to any other matters occurring during the trial. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to final judgment, leave is granted to file exceptions raising these matters. No motion for a new trial, for judgment non obstante veredicto, in arrest of judgment or to remove a nonsuit may be filed.

If the lower court meant, as it seems to have, that appellant was allowed, as of right, to file exceptions at the time she did, it may have been mistaken. The docket entries show that appellant’s exceptions were not filed within ten days of the filing of the court’s decision. These entries do not indicate, however, when appellant received notice of the filing of the court’s decision.¹ It is therefore possible that appellant did file her exceptions within the required number of days. We cannot tell from a review of the record. Then too, appellant could, with leave of court, have filed exceptions more than ten days after receiving notice of the filing of the lower court’s decision. Perhaps the lower court gave her leave, or intended to. Since the lower court did not [475]*475provide us with an explanation of its decision, we are unable to determine the basis of the decision.

In these circumstances we have concluded that the most useful action we can take is to vacate the judgment and remand the case to the lower court with instructions to start all over. First the court should reconsider its ruling on the motion to quash the exceptions. If it finds that appellant filed her exceptions within ten days of receiving notice of the filing of its decision, the court should reinstate its order dismissing the exceptions and also reinstate its judgment. However, the court should state on the record the date such notice was given. If the exceptions were filed late, and no leave was granted to file them late, the court should quash the exceptions and reinstate the judgment, for appellant waived any error committed by the lower court by failing to file timely exceptions specifying the error. If leave was granted to file the exceptions late, the court should reinstate its order dismissing the exceptions and also, reinstate the judgment, accompanying these actions with an opinion explaining the reasons for dismissing the exceptions. Given the delay that has already occurred, we trust the lower court will accomplish the foregoing in the immediate future. Any new appeal must be taken from the judgment as reinstated.

Reversed and remanded for further proceedings consistent with this opinion.

SHERTZ, J., files a dissenting opinion.

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SPAETH, Judge:

This appeal is from a judgment in an action in assumpsit that was tried without a jury. Since we cannot tell whether exceptions were timely filed, we shall reverse and remand for further proceedings.

The trial was on December 6, 1979. The opinion and finding of the lower court are dated December 28, 1979; the docket entries state that they were filed January 2, 1980. The docket entries further state that appellant filed exceptions on January 22, 1980. Appellee North Side Deposit Bank filed a motion to quash the exceptions (in which it is said that the exceptions were filed January 18, 1980) on the [474]*474ground that Pa.R.C.P. 1038(d) requires that exceptions be filed within ten days after notice of the decision. By order of April 7, 1980, the lower court denied the motion to quash the exceptions “since said Exceptions were filed within the period limited by Pa.R.C.P. § 1038(d),” and dismissed the exceptions as “being without legal merit.” On May 7, 1980, a praecipe for final judgment was filed and this appeal was taken.

It is not apparent what the lower court meant by its statement that the exceptions “were filed within the period limited by Pa.R.C.P. § 1038(d).” Rule 1038(d) provides:

(d) Within ten (10) days after notice of the filing of the decision, exceptions may be filed by any party to the decision or any part thereof, to rulings on objections to evidence or to any other matters occurring during the trial. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to final judgment, leave is granted to file exceptions raising these matters. No motion for a new trial, for judgment non obstante veredicto, in arrest of judgment or to remove a nonsuit may be filed.

If the lower court meant, as it seems to have, that appellant was allowed, as of right, to file exceptions at the time she did, it may have been mistaken. The docket entries show that appellant’s exceptions were not filed within ten days of the filing of the court’s decision. These entries do not indicate, however, when appellant received notice of the filing of the court’s decision.¹ It is therefore possible that appellant did file her exceptions within the required number of days. We cannot tell from a review of the record. Then too, appellant could, with leave of court, have filed exceptions more than ten days after receiving notice of the filing of the lower court’s decision. Perhaps the lower court gave her leave, or intended to. Since the lower court did not [475]*475provide us with an explanation of its decision, we are unable to determine the basis of the decision.

In these circumstances we have concluded that the most useful action we can take is to vacate the judgment and remand the case to the lower court with instructions to start all over. First the court should reconsider its ruling on the motion to quash the exceptions. If it finds that appellant filed her exceptions within ten days of receiving notice of the filing of its decision, the court should reinstate its order dismissing the exceptions and also reinstate its judgment. However, the court should state on the record the date such notice was given. If the exceptions were filed late, and no leave was granted to file them late, the court should quash the exceptions and reinstate the judgment, for appellant waived any error committed by the lower court by failing to file timely exceptions specifying the error. If leave was granted to file the exceptions late, the court should reinstate its order dismissing the exceptions and also, reinstate the judgment, accompanying these actions with an opinion explaining the reasons for dismissing the exceptions. Given the delay that has already occurred, we trust the lower court will accomplish the foregoing in the immediate future. Any new appeal must be taken from the judgment as reinstated.

Reversed and remanded for further proceedings consistent with this opinion.

SHERTZ, J., files a dissenting opinion.

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433 A.2d 902, 289 Pa. Super. 472, 1981 Pa. Super. LEXIS 3188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sarver-v-north-side-deposit-bank-pasuperct-1981.

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