Matczak v. Matczak

275 Pa. Superior Ct. 164 (1980)

418 A.2d 663

Rosemarie MATCZAK, Appellant, v. Edward MATCZAK.

Superior Court of Pennsylvania.

Submitted June 13, 1979.

Filed February 1, 1980.

*165 John L. Walder, Norristown, for appellant.

Paul Tressler, Franconia, for appellee.

Before SPAETH, STRANAHAN and SUGERMAN, JJ.[*]

PER CURIAM:

Appellee filed an action in assumpsit against appellant and the matter proceeded to arbitration. The arbitrators ruled in favor of appellee and against appellant in the amount of $1,000. Appellee appealed to the Court of Common Pleas of Montgomery County and, after a trial before a judge sitting without a jury, a decision was entered in his favor in the amount of $4,200. Appellant did not file exceptions to the decision of the court below within ten days as required by Pa.R.Civ.Pro., No. 1038. Instead, appellant filed a direct appeal to this court some twenty days after the decision.

The appeal must be quashed. See Blake v. Mayo Nurs. & Convales. Home, 245 Pa.Super. 274, 369 A.2d 400 (1976). Appellant argues that she could not file timely exceptions because the transcript of testimony was not available. Appellant might have filed a petition with the lower court, asking that it extend the ten day period because the transcript was unavailable. See E.J. McAleer & Co., Inc. v. Iceland Prods., 475 Pa. 610, 381 A.2d 441 (1977). However, appellant filed no such petition until after she had appealed to this court.

The appeal is quashed.

[*] President Judge John Q. Stranahan, of the Court of Common Pleas of Mercer County, Pennsylvania, and Judge Leonard Sugerman, of the Court of Common Pleas of Chester County, Pennsylvania, are sitting by designation.