Concurring and Dissenting Opinion by Wieand, J.
How later courts described this case
- Concurring and Dissenting Opinion by Wieand, J.
Written by the judges who cited it.
The opinion
BROSKY, Judge,
concurring:
I concur in the lead opinion’s affirmance of the order below. I also concur in the resolution of the issues presented in the husband’s appeal. However, with respect to the wife's appeal, I would decline to reach the merits of the issues presented, as it is my position that the wife has failed to preserve any issues for appellate review.
Pa.R.C.P. 1920.55(a) sets forth the following requirements for the filing of exceptions to the Master’s report:
Rule 1920.55 Master's Report. Notice. Exceptions. Final Decree.
(a) Within ten days after notice of the filing of the master’s report has been mailed, exceptions may be filed by any party to the report or any part thereof, to rulings on objections to evidence, to statements or findings of fact, to conclusions of law, or to any other matters occurring during the hearing. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to entry of the final decree, leave is granted to file exceptions raising those matters.
(Emphasis supplied). In the matter sub judice, the wife did not request leave of court for an extension of time to file her exceptions, but merely obtained the consent of the husband to said extension. The wife then filed her exceptions two days after the expiration of the ten-day period specified in the rule. The trial court made no reference to the late filing, but merely denied all exceptions in its order of November 12, 1986.
A panel of this Court has held that, where the lower court has proceeded to address exceptions that have been filed untimely without prior leave of court, this Court must conclude that a waiver of the issues raised in those exceptions has taken place. See Sipowicz v. Sipowicz, 358 Pa.Super. 319 , 517 A.2d 960, 962 (1986) (Wieand, J. Concurring *161 and Dissenting). Moreover, even where the opposing party has failed to raise the fact of waiver, it is incumbent upon this Court to raise the issue sua sponte, as one of appealability and jurisdiction. Id.
It is not, however, my intention to depreciate the gravity of the issue presented in the wife’s appeal pertaining to the trial court’s denial of an award of counsel fees flowing from the Florida proceeding. I am patently aware of the view that has been expressed, by way of dicta, by my colleague Judge Beck in her lead opinion, and the dissenting view expressed by my colleague Judge Wieand. Certainly, the propriety of awarding counsel fees incurred in a separate lawsuit for equitable reasons is an issue which must be resolved at some time. However, as the matter sub judice shall not be yielding a precedential resolution of the issue, and in light of my position that the issue has been waived, I do not wish to add further dicta, which can only be confusing to the bench and bar. I, therefore, decline to discuss the merits of the Florida counsel fees issue.