Cooney v. Pennsylvania Osteopathic Ass'n
| Decision Date | 09 May 1969 |
| Citation | 434 Pa. 358,253 A.2d 256 |
| Parties | Dr. Richard W. COONEY v. PENNSYLVANIA OSTEOPATHIC ASSOCIATION, a Pennsylvania non-profit corporation, Appellant. |
| Court | Pennsylvania Supreme Court |
Thomas D. Caldwell, Jr., Caldwell, Fox & Stoner, Harrisburg, for appellant.
J. S. Jiuliante, Jr., Erie, for appellee.
Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS, and POMEROY, JJ.
In this action the plaintiff sought and gained a decree in the court below declaring him to be a valid honorary member of the Pennsylvania Osteopathic Association. For the reasons which follow, the decree must be vacated.
The action was instituted by the filing of a petition for a rule to show cause. This procedure was improper. A complaint in equity was the correct course to pursue. Garrett v. McHenry, 403 Pa. 451, 170 A.2d 363 (1961), and 2 Pennsylvania Standard Practice, 473 et seq. Cf. also, Hemphill v. Lenz, 413 Pa. 9, 195 A.2d 780 (1963).
But since the aggrieved party entered no objection to the form of the action, and since in its brief it indicates that it treated the action as one in equity, we, too, shall so consider it. However, another obvious defect then appears in the record.
The chancellor entered a final decree from which the present appeal was entered. A chancellor must first file an adjudication which includes a decree nisi to which either party may file exceptions within twenty days, and if such are filed, these exceptions must then be reviewed by the court en banc before a final decree is entered. See Goodrich-Amram Procedural Rules, § 1517--1, 6 and §§ 1518 and 1519. An appeal does not lie from the decree of the chancellor, but rather from the final decree. Sessa v. Melnick, 420 Pa. 257, 216 A.2d 56 (1966).
Since the chancellor failed to file a proper adjudication, and denied the parties the opportunity of filing exceptions thereto and a review thereof by the court en banc, the decree will be vacated and the record remanded with directions to proceed in accordance with the Rules of Civil Procedure.
It is so ordered. Costs to abide the result.
In Commonwealth v. Dauphin County, 354 Pa. 556, 562, 47 A.2d 807 (1946), Justice Linn, in commenting upon the institution of an action by a petition for a rule to show cause, said:
...
To continue reading
Request your trial
-
Grasso v. Thimons
...Only after reviewing the merits of these arguments may the chancellor enter a final Decree. [Cooney v. Pennsylvania Osteopathic Association, 434 Pa. 358, 359, 253 A.2d 256, 257 (1969) ] "The right of appeal lies from the final decree entered by the court." Bogosian at 399 A.2d 410. Id. at 1......
-
Holt's Cigar Co. v. 222 Liberty Associates
...appellate court. See, e.g., Community Sports, Inc. v. Oakland Oaks, 429 Pa. 412, 240 A.2d 491, (1968); Cooney v. Pennsylvania Osteopathic Association, 434 Pa. 358, 253 A.2d 256 (1969); Patrick & Wilkins Co. v. Adams, 456 Pa. 566, 322 A.2d 341 (1974); In re Involuntary Term of Parental Right......
-
Reading Anthracite Co. v. Rich
...Co. v. Adams, 456 Pa. 566, 322 A.2d 341 (1974); Thompson v. Thompson, 451 Pa. 546, 301 A.2d 644 (1973); Cooney v. Pennsylvania Osteopathic Association, 434 Pa. 358, 253 A.2d 256 (1969); Commonwealth ex. rel. Costa v. Boley, 441 Pa. 495, 272 A.2d 905 (1971); Pubusky v. DMF, 428 Pa. 461, 239 ......
-
Petition of Pennsylvania Crime Commission
...County, 354 Pa. 556, 47 A.2d 807 (1946). 8 See also Hartmann v. Peterson, 438 Pa. 291, 265 A.2d 127 (1970); Cooney v. Pa. Osteopathic Ass'n, 434 Pa. 358, 253 A.2d 256 (1969). Appellants acknowledge that the petition and rule, with which they were personally served, gave them adequate notice......