The plaintiff-appellant, E.J. McAleer & Co., Inc., trading and doing business under the name of Mrs. Paul's Kitchens ("Mrs. Paul's") is a processor of frozen foods, primarily fish, for sale in the retail home market. In 1970 Mrs. Paul's instituted a suit against the defendant-appellees, Iceland Products, Inc., a New York corporation engaged in the processing of fish and having its principal office and place of business in Camp Hill, Pa., and Samband Isl. Samvinnufelaga, a cooperative of the Republic of Iceland and a worldwide marketer of frozen fish, alleging a breach of certain
Twenty-nine days later, on June 5, 1974, counsel for Mrs. Paul's obtained court permission, by order entered that day,
Appellant asserts that a trial court may, under appropriate circumstances, grant leave to file exceptions to a judge's decision notwithstanding that the 20-day period for doing so under Rule 1038(d) has expired. We agree with this proposition but nevertheless affirm the order below.
The narrow issue presented by this case is the proper interpretation of paragraph (d) of Pa.R.Civ.P. 1038:
It is true, as appellees assert, that a literal reading of the underscored portion of the above paragraph might preclude a filing of any exceptions beyond the 20-day period unless some exceptions are first timely filed, and leave is then obtained to file additional exceptions as to matters not covered by the initial exceptions. Thus if no exceptions are filed within the first 20 days, all rights under the rule are waived. A reading so literal would not comport with the liberality of construction which should attend the Rules of Civil Procedure,
We thus hold that it is within the discretion of the trial court to allow exceptions under Rule 1038(d) to be filed out of time in a case where the particular circumstances indicate that there are good and sufficient reasons for so doing.
We see no reason why the construction of the rule here adopted should in any material way delay the termination of
Having concluded that in appropriate circumstances a trial court may extend the 20-day period of Rule 1038(d), it remains to be seen whether good and sufficient reasons for doing so existed in the instant case. No excuse was given by appellant for failing to file exceptions to the decision of Judge Gates. The failure was explained, however, by the frank acknowledgment of "inadvertence". Speaking for the court en banc below, Judge Gates noted:
We agree with the court below that the appellant, Mrs. Paul's, has failed to present any legally cognizable reason for the failure to comply with Rule 1038(d). We therefore find no abuse of discretion in the lower court's refusal to allow the untimely filing of exceptions.
Order of the Superior Court affirmed.
PACKEL, J., files a dissenting opinion in which ROBERTS, J., joins.
PACKEL, Justice, dissenting.
The trial court, in this controversy involving in excess of four million dollars, concluded that it was without authority
ROBERTS, J., joins in this dissenting opinion.
"(d) Within twenty (20) 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."
On April 21, 1977, this Court promulgated a new Rule of Civil Procedure, (Rule 227.1) and amendments to Rules 1038 and 1518 fixing a uniform time of 10 days for the filing of post-trial motions in all civil cases. Our reasoning in the instant case would be equally applicable to the amended Rule 1038(d), effective 90 days following its publication.