Purdy v. Zaver

TAMILIA, Judge,

dissenting.

I respectfully dissent to the disposition of the majority as I believe we are without jurisdiction to review this matter. By ignoring Pa.R.C.P. 1517(a), which requires a timely adjudication prior to entry of a decree nisi, the trial court failed to provide appellant the opportunity to properly prepare to argue its case before it, and despite a subsequent supporting memorandum, the trial court has not provided this Court the type of record required for review by 1517(a). My reading of Thompson v. Thompson, 451 Pa. 546, 301 A.2d 644 (1973), and Balin v. Pleasure Time Inc., 243 Pa.Super. 61, 364 A.2d 449 (1976), leads me to conclude Rule 1517(a) must be strictly construed, and the language of the rule permits no other interpretation. A memorandum after exceptions are filed is not a substitute for the necessary findings prior to a decree nisi. To proceed with appellate review under the procedural posture of this case would establish a precedent which nullifies Rule 1517(a) and overrules Thompson and Pleasure Time Inc., supra.

I would vacate the decree of the trial court and remand for adjudication in conformity with Rule 1517(a).