decided: July 2, 1970.
ERIE REDEVELOPMENT AUTHORITY
Appeal from order of Court of Common Pleas of Erie County, No. 1121A of 1968, in case of Redevelopment Authority of City of Erie v. Achilles C. Pulakos.
Edwin L. R. McKean, with him Knox, Graham, Pearson & McLaughlin, for appellant.
John M. Quinn, with him Quinn, Plate, Gent, Buseck & Leemhuis, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Pomeroy concurs in the result. Mr. Justice Roberts dissents.
[ 439 Pa. Page 158]
In this condemnation case, the condemnee filed preliminary objections to the declaration of taking which were overruled in the court below on September 11, 1969. On October 21st, the condemnee filed a petition with the court to open, vacate and set aside its order of September 11th, and to grant a rehearing. This petition was denied on October 23rd. The instant appeal was filed on October 28th. It will be quashed.
The Eminent Domain Code, Act of June 22, 1964, Spec. Sess., P. L. 84, Art. V, § 523, 26 P.S. § 1-523 (Supp. 1970), provides for an appeal "to the Supreme or Superior Court as the case may be, from any final order or judgment of the court of common pleas within 45 days from the entry thereof." (Emphasis added.)
Since the court below did not grant a stay of proceedings in connection with condemnee's petition of October 21st, the running of the time for taking an appeal was not postponed: Francis v. Brashear School District, 435 Pa. 589, 258 A.2d 509 (1969); Erie v. Piece of Land, 341 Pa. 310, 17 A.2d 399 (1941). Hence, the time provided by the Code for taking the present appeal began to run on September 12th and the 45th day thereafter was October 26th. Since this day fell on a Sunday, the final day for taking the appeal was automatically extended to Monday, October 27th. The Statutory Construction Act, Act of May 28, 1937, P. L. 1019, Art. III, § 38, as amended, August 11, 1959, P. L. 691, § 1, 46 P.S. § 538. Cf. Alexander Unemployment Compensation Case, 398 Pa. 551, 159 A.2d 689 (1960). An appeal filed thereafter was untimely and the statutorily prescribed period may not be judicially extended or obviated. Jones v. Unguriet, 364 Pa. 200, 71 A.2d 240 (1950).
[ 439 Pa. Page 159]
In his brief, the appellant states that the appeal "was filed with the Supreme Court on October 23, 1969." This is incorrect. An examination of the record discloses that the signature on the appeal form was verified by affidavit dated October 23, 1969, and sometime thereafter (the record does not disclose the date), the appeal form was mailed in Erie, addressed to the Prothonotary's Office for the Western District of the Supreme Court in Pittsburgh. But, it was not received in the Prothonotary's Office until October 28th. The appeal was docketed the very same day. This is the determinative day as to when the appeal was filed. Cf. Malis v. Lieberman, 439 Pa. 602, 266 A.2d 745 (1970), and Burdett Oxygen Co. v. I. R. Wolfe & Sons, Inc., 433 Pa. 291, 249 A.2d 299 (1969).
*fn* : On January 11, 1971, the Supreme Court of the United States denied a petition for a writ of certiorari.