Reed v. Reed

DEL SOLE, Judge,

concurring and dissenting:

Following the trial court’s order of November 8, 1984, dismissing exceptions to the Master’s recommendations, the only thing left for the court to do was to enter a final decree. Pennsylvania Rule of Civil Procedure 1920.55(c) provides as follows:

If exceptions are filed, the court shall hear argument on the exceptions and enter an appropriate final decree. No Motion for Post-Trial Relief may be filed to the final decree.

The procedural morass in this case was occasioned by the trial court’s failure to enter a decree once it dismissed the exceptions.

I would vacate all of the orders entered from November 6, 1984 and remand the matter to trial court for the purposes of entering a final decree.

Further, a review of the record reveals an order entered on February 6, 1985, which reads as follows:

And now, on this 6th day of February, 1985, the petition for reconsideration filed on behalf of the defendant is hereby granted and the case is remanded to the Master for reconsideration consistent with this discussion and order.
And further, the preliminary objections of the plaintiff are hereby dismissed, however, reserving to the plaintiff the right of immediate appeal to the Superior Court from this order because of the importance of the order to this case, if the plaintiff so desires.

It is pointed out that the trial court can not make an order appealable to the Superior Court.1 The Superior *291Court can only hear appeals from final orders or from certain interlocutory orders made appealable by rule of the Supreme Court of Pennsylvania.

A trial court may certify an order containing a controlling question of law then it becomes incumbent upon parties to petition the court for permission to appeal, no appeal exists of right to from such an order.

Therefore, I would vacate all orders entered since November 6, 1984 and remand to the trial court for the purpose of entering a final decree as should have been done when the exceptions were dismissed.

. It is well settled that the mere certification of an issue by the lower court under [42 Pa.C.S.A. § 702(b)] will not alone establish jurisdic*291tion with our Court in a given case. Gellar v. Chambers, 292 Pa.Super. 324, 437 A.2d 406 (1981); See Commonwealth v. Pfender 280 Pa.Super. 417, 421 A.2d 791 (1980). A necessary procedural step ... is found under Rule 1311(b) of the Pennsylvania Rules of Appellate Procedure. This rule in pertinent part provides:

(b) Petition for permission to appeal. Permission to appeal from an interlocutory order containing the statement prescribed by 42 Pa.C.S.A. Sec. 702(b) may be sought by filing a petition for permission to appeal with the prothonotary of the appellate court within 30 days after the entry of such order in the lower court or other government unit with proof of service on all other parties to the matter in the lower court or other government until and on the government unit or clerk of courts, who shall file the petition or record in such lower court ...

Vendale Coal Co., Inc. v. Voto Manufacturing Sales Company, 353 Pa.Super. 635, 638, 510 A.2d 1246, 1247 (1986).