Provident Nat. Bank v. Rooklin
Decision Date | 06 October 1977 |
Citation | 250 Pa.Super. 194,378 A.2d 893 |
Parties | PROVIDENT NATIONAL BANK v. Jerome S. ROOKLIN, Appellant. |
Court | Pennsylvania Superior Court |
Argued June 13, 1977.
Wilbur Greenberg, Philadelphia, for appellant.
Henry W. Asbill, Philadelphia, with him Tyson W. Coughlin, Philadelphia, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, VAN der VOORT and SPAETH, JJ.
Appellant contends that the lower court erred in granting appellee's motion for summary judgment and in denying his petition for reconsideration. Because appellant failed to appeal from the grant of summary judgment, we do not reach the merits of that contention. We affirm the denial of appellant's petition for reconsideration.
On December 3, 1974, Provident National Bank, appellee, filed a complaint in assumpsit against appellant which sought judgment on three promissory notes totaling $113,881.64 including principal and interest. After taking depositions and filing interrogatories, appellee moved for summary judgment on June 16, 1976. After argument on the motion, the lower court granted summary judgment to appellee on September 21, 1976. On October 20, 1976, appellant filed a petition for reconsideration with the lower court. The court denied the petition in an order dated October 21, 1976. On November 15 1976, appellant filed notice of an appeal from the October 21 order.
Appellant contends that the lower court erred in granting appellee's motion for summary judgment. Appellee responds that our Court has no jurisdiction to consider the merits of the grant of summary judgment because appellant failed to take an appeal within the statutorily mandated time period. [1] The docket entries reveal that appellant did not file an appeal within 30 days from the entry of summary judgment.
Prior to the adoption of the Pennsylvania Rules of Appellate Procedure (Pa.R.A.P.), 42 Pa.C.S., Pennsylvania case law was unequivocal on the effect of a failure to perfect a timely appeal. Commonwealth v. Lord, 230 Pa.Super. 96, 100, 326 A.2d 455, 458 (1974), summarized the applicable case law:
Pennsylvania courts have consistently held that an untimely appeal must be quashed. West Penn Power Co. v. Goddard, 460 Pa. 551, 333 A.2d 909 (1975); Nardo v. Smith, 448 Pa. 38, 292 A.2d 377 (1972); Luckenbach v. Luckenbach, 443 Pa. 417, 281 A.2d 169 (1971); Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 214 A.2d 203 (1965); Kellman v. McShain, 369 Pa. 14, 85 A.2d 32 (1951).
Moreover, Pennsylvania courts have repeatedly held that a petition for reconsideration, rehearing, or reargument does not affect the final judgment unless the court retains control, as for example by staying all proceedings. A motion for reconsideration or for a rehearing and proceedings thereon does not have the effect of tolling the appeal statute when no stay has been granted pending the rule. Merrick Estate, 432 Pa. 450, 247 A.2d 786 (1968); Cumberland Val. S. & L. Assn. v. Myers, 396 Pa. 331, 153 A.2d 466 (1959); Baily Petition, 365 Pa. 613, 76 A.2d 645 (1950); Seem's Estate, 341 Pa. 198, 19 A.2d 60 (1941); Henry's Estate, 290 Pa. 537, 139 A. 198 (1927); Silver, Lovitz & Atkinson v. Scaltrito, 239 Pa.Super. 253, 361 A.2d 705 (1976). In Silver, appellee took a default judgment on January 7, 1975. Appellant filed a petition to open which the lower court denied on February 27, 1975. On April 7, 1975, appellant filed a petition for reconsideration of its petition to open. On April 9, 1975, the lower court denied the petition for reconsideration. On April 22, 1975, appellant filed an appeal to our Court. We quashed the appeal and stated: " Silver presented a factual situation almost identical to the case at bar. However, the Pennsylvania Supreme Court has subsequently adopted the Rules of Appellate Procedure which became effective on July 1, 1976, and are applicable to the instant case. We must, therefore, determine whether the new Rules mandate a different result.
Rule 903(a) prescribes the time for filing an appeal.
"Except as otherwise prescribed by this rule, the notice of appeal required by Rule 902 ( ) shall be filed within 30 days after the entry of the order from which the appeal is taken."
Rule 105(b) expressly prohibits an appellate court from enlarging the time for filing a notice of appeal. It states:
"An appellate court for good cause shown may upon application enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time, but the court may not enlarge the time for filing a notice of appeal, a petition for allowance of appeal, a petition for permission to appeal, or a petition for review."
The comment to subdivision (b) makes it clear that courts retain the power to grant relief in the case of fraud or breakdown in the processes of a court. Rule 903(b) is based upon section 502(a) of the Appellate Court Jurisdiction Act. [2] See Comment to Rule 903. The new Rules do not manifest an intent to depart from prior law with respect to the effect of an untimely appeal. In fact, the Rules simply restate the requirements of the prior law. Untimely appeals continue to raise a jurisdictional issue. Therefore, we reiterate our prior position and hold that when a statute requires that an appeal be filed within a certain period of time, an untimely filing will not perfect the appeal. Thus, the effect of the failure to comply with 903(a), is that the appeal must be quashed.
We now consider what effect the filing of a petition for reconsideration will have upon the running of the appeal time under the new Rules. Rule 1701 provides, in pertinent part:
As the comment to § 1701(b)(3) indicates, this subdivision is intended to resolve the question of the effect of an application for reconsideration on the...
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