# Commonwealth Ex Rel. Waltman v. Graczyk

> Supreme Court of Pennsylvania · June 9, 1983 · 501 Pa. 244

URL: https://www.frixlaw.com/law-library/cases/9757839

## Case

- **Full name:** COMMONWEALTH of Pennsylvania Ex Rel. Elmer J. WALTMAN and Charles Raudenbush, Sr., Appellants, v. John GRACZYK and Thomas Traverse, Appellees
- **Court:** Supreme Court of Pennsylvania
- **Decided:** June 9, 1983
- **Citations:** 501 Pa. 244; 460 A.2d 1098; 1983 Pa. LEXIS 588
- **Precedential status:** Published
- **Opinion:** Concurrence by Zappala
- **Judges:** Roberts, Nix, Larsen, Flaherty, McDermott, Zappala
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9757839

## Opinion text

ZAPPALA, Justice,
concurring.
I concur in the result reached by the majority opinion. I cannot accept the finding that it was not necessary to file exceptions in order to obtain appellate review on the issues.
Rule of Civil Procedure 1038(d) provides that:
“Within ten (10) 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.”
I would read the rule so as to require exceptions.
The majority cites Jones v. State Automobile Insurance Association, - Pa.Super. -, 455 A.2d 710 (1983), in support of the proposition that the filing of exceptions was not necessary. In that case, the plaintiff brought an action for no-fault insurance benefits by means of a Petition and Rule to Show Cause. The Superior Court held that the proper procedure was to file a praecipe for a writ of summons, a complaint, or an agreement for an amicable action. However, any objection to the procedure was waived by not being raised. The Court held that the failure of the plaintiff to file exceptions to a decision adverse to her was *250 excusable because there was confusion as to the proper procedure to be followed on a Petition and Rule. In other cases, the Superior Court has consistently taken the position that exceptions must be filed to preserve issues for appellate review. See, e.g., Zvonik v. Zvonik, 291 Pa. Super. 309 , 435 A.2d 1236 (1981). In E.J. McAleer & Co., Inc. v. Iceland Products, Inc., 475 Pa. 610 , 381 A.2d 441 (1977), we held that the trial court acted properly in not allowing exceptions to be filed beyond the prescribed time. The weight of authority indicates that it is necessary to file exceptions to preserve issues for appeal. I would adhere to that principle in the instant case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9757839. Public record. Not legal advice.