Commonwealth v. Moir

• Decision Date: 21 December 2000
• Citation: 766 A.2d 1253
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. William J. MOIR, Appellant.
• Court: Pennsylvania Superior Court

766 A.2d 1253

COMMONWEALTH of Pennsylvania, Appellee, v. William J. MOIR, Appellant.

Superior Court of Pennsylvania.

Submitted September 18, 2000.

Filed December 21, 2000.

Reargument Denied March 2, 2001.

Robert H. Bascom, State College, for appellant.

Ray F. Gricar, Asst. Dist. Atty., Bellefonte, for Com., appellee.

Before CAVANAUGH, STEVENS and BROSKY, JJ.

BROSKY, J.:

¶ 1 William J. Moir filed a notice of appeal from the trial court's denial of reconsideration of his convictions under the Pennsylvania Game and Wildlife Code, 34 Pa.C.S.A. §§ 101-2965, all of which related to licensing violations. As we conclude that we are without jurisdiction, we quash the appeal. ¶ 2 Appellant's convictions followed a summary appeal hearing on August 24, 1999. Entry of the orders adjudging him guilty and imposing fines was made on the docket on August 27, 1999. Because the underlying violations are summary offenses, he was precluded from filing post-sentence motions. 34 Pa.C.S.A. § 2711(b); Pa.R.Crim.P. 1410(D). Counsel did, however, file a Motion for Reconsideration on September 7, 1999. See Note following Pa.R.Crim.P. 1410 ("Although there are no post-sentence motions in summary appeals following the trial de novo pursuant to Section (D), nothing in this rule is intended to preclude the trial judge from acting on a defendant's petition for reconsideration [pursuant to 42 Pa.C.S.A. § 5505].") The trial court did not expressly grant reconsideration, although it entered an order on September 20, 1999 scheduling oral argument on the motion for October 12, 1999. Argument was held, and the trial court denied reconsideration on that same date. This appeal followed on November 12, 1999.

¶ 3 The question of timeliness of an appeal is jurisdictional. Lee v. Guerin, 735 A.2d 1280 (Pa.Super.1999). In order to preserve the right to appeal a final order of the trial court, a notice of appeal must be filed within thirty days after the date of entry of that order. Pa.R.A.P. 903(a); Valley Forge Center v. Rib It/K.P., Inc., 693 A.2d 242, 245 (Pa.Super.1997)(citing First Seneca Bank v. Sunseri, 449 Pa.Super. 566, 674 A.2d 1080, 1084 (1996).)

¶ 4 It is well-settled that, upon the filing of a motion for reconsideration, a trial court's action in granting a rule to show cause and setting a hearing date is insufficient to toll the appeal period. Valentine v. Wroten, 397 Pa.Super. 526, 580 A.2d 757 (1990). Rather, the trial court must expressly grant reconsideration within thirty days of entry of its order. Pa.R.A.P. 1701. "Failure to `expressly' grant reconsideration within the time set by the rules for filing an appeal will cause the trial court to lose its power to act on the application for reconsideration." Schoff v. Richter, 386 Pa.Super. 289, 562 A.2d 912, 913 (1989); Cheathem v. Temple University Hospital, 743 A.2d 518 (Pa.Super.1999). "Therefore, as the comment to Pa.R.A.P. 1701 explains, although a party may petition the court for reconsideration, the simultaneous filing of a notice of appeal is necessary to preserve appellate rights in the event that either the trial court fails to grant the petition expressly within 30 days, or it denies the petition." Valley Forge Center, supra, 693 A.2d at 245. Moreover, we have consistently held that an appeal from an order denying reconsideration is improper and untimely. Valentine, supra.

¶ 5 In the instant case, the final, appealable order was entered on August 27, 1999. The trial court's September 20, 1999 order scheduling oral argument on Appellant's motion for reconsideration did not expressly grant reconsideration within the thirty day appeal period. Indeed, the trial court did not act on the motion for reconsideration by denying it until October 12, 1999, more than thirty days after entry of the final appealable order. By that time, the trial court was without authority and lacked jurisdiction to act upon the motion for reconsideration or to amend or modify the August 27, 1999 order. See 42 Pa.C.S.A. § 5505;¹ Valley Forge Center, supra; see also Commonwealth v. Holden, 358 Pa.Super. 238, 516 A.2d 1273 (1986).

¶ 6 Therefore, because Appellant did not file a timely appeal from the August 27, 1999 order, thereby preserving his appellate rights, we are without jurisdiction to entertain the appeal. Valley Forge Center, supra. We thus conclude we must quash this appeal as untimely and improper.

¶ 7 Appeal quashed.

¶ 8 CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, J., dissenting:

¶ 1 I respectfully dissent. I would find that we have jurisdiction to consider appellant's issues and would reverse on the merits.

¶ 2 On May 8, 1995, appellant was found guilty of unlawfully killing a white-tail deer. At a meeting on February 7, 1996, the Game Commission suspended appellant's privilege to hunt and to secure a hunting license for a period of three years effective July 1, 1996. Appellant was given no notice of the right to appear before the Game Commission during the meeting in which his privilege was suspended.² The Game Commission sent a letter to inform appellant of his suspension and his right to appeal that determination within 30 days. However, the Game Commission failed to properly address the letter to appellant.³ The letter was eventually returned undelivered.⁴ Appellant was unaware of his suspension. Thereafter, during the period of suspension, he purchased a general hunting license, a bear license, an archery license, a migratory game bird license, and an antlerless deer license. Appellant correctly and accurately supplied all personal information necessary to obtain these licenses including his name and address.

¶ 3 In 1998, Michael Ondik of the Game Commission reviewed computerized records which revealed that appellant purchased an antlerless deer license. Ondik recognized appellant's name as being under suspension. Ondik initiated an investigation in which it was learned that appellant had recently reported to the Commission that he had taken a black bear. Within a matter of days from the start of the investigation, Ondik spoke with appellant who freely disclosed that he held a variety of licenses and permits, but that he did not know his hunting privilege had been revoked.

¶ 4 As a result of the investigation, appellant was charged with six Game and Wildlife Code offenses under 34 Pa.C.S.A. §§ 2307(a) and 2711(a)(10): one for each license he purchased and one for the bear he killed during the period his hunting privileges were suspended. District justices found appellant guilty of all six criminal informations and assessed fines in excess of $1000 during three hearings in early 1999. Appellant appealed from his summary convictions and on August 24, 1999, a consolidated de novo trial was held, non-jury, before the Court of Common Pleas of Centre County.

¶ 5 At trial, appellant presented evidence which tended to show that the Game Commission never gave him notice that his privilege to purchase licenses and to hunt was suspended. The court concluded that appellant's actions demonstrated his lack of knowledge of the revocation in that when appellant purchased the licenses, he freely disclosed who he was and where he could be found, and when he killed the bear, he properly presented it at the check-station. Nonetheless, the court reluctantly found appellant guilty of all six offenses and ordered him to pay the fines assessed by the district justices. The court stated on the record that it was compelled to convict despite the lack of actual notice of suspension. The court opined that the notice provision as contained within the Game and Wildlife Code may be unconstitutional and is confusing for outdoorsmen in this Commonwealth. The court, on the record, opined that the instant matter might eventually be appealed to this court for resolution.

¶ 6 On September 7, 1999, appellant filed a motion for reconsideration for all six offenses. On September 20, 1999, the court scheduled argument on the motion for October 12, 1999. At the conclusion of the hearing on October 12, 1999, the court denied appellant's motion for reconsideration, and erroneously stated, on the record, that denial of reconsideration was necessary for appellant to perfect an appeal to this court. The court then amended its previous order of August 27th to reflect a change in the section of the Game and Wildlife Code that appellant had been convicted of violating. The amended order was docketed October 25, 1999. Appellant appeals from the amended order.⁵

¶ 7 Appellant raises the following issues on appeal:

1. Whether the Commonwealth proved beyond a reasonable doubt that the notice of suspension was mailed to [appellant's] last known address?

2. Did the court err in overruling [appellant's] hearsay objection concerning notice of suspension sent via certified mail?

The Commonwealth informed us that it finds appellant's issues to be of merit and accordingly, that it has declined to file a brief in opposition.

¶ 8 As a threshold issue, the majority claims we have no jurisdiction because appellant did not file a timely appeal from the August 27, 1999, order. Notice of appeal must be filed within 30 days of the entry of an order to preserve the right of appeal. Pa.R.A.P. 903(a); Valley Forge Center v. Rib-It/K.P., Inc., 693 A.2d 242, 245 (Pa.Super.1997). However, appellant does not appeal from the August 27, 1999, order, but from the amended order of October 12, 1999, docketed October 25, 1999, which amended the section of which appellant was convicted.⁶ Since appellant appealed within 30 days of the date the order was docketed, I would conclude we have jurisdiction. Jara v. Rexworks, Inc., 718 A.2d 788, 791 (Pa.Super.1998), appeal denied, 558 Pa. 620, 737 A.2d 743 (1999).

¶ 9 The majority concludes that the court below did not have jurisdiction on October 12, 1999, to amend the August 27, 1999, order. However, I believe that when the court scheduled argument on appellant's reconsideration...