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PROVIDENT NATIONAL BANK v. JEROME S. ROOKLIN (10/06/77)

decided: October 6, 1977.

PROVIDENT NATIONAL BANK
v.
JEROME S. ROOKLIN, APPELLANT



No. 391 October Term, 1977, Appeal from the Order of the Court of Common Pleas, Trial Division, Law, of Philadelphia County, at No. 271 December Term, 1974.

COUNSEL

Wilbur Greenberg, Philadelphia, for appellant.

Henry W. Asbill, Philadelphia, with him Tyson W. Coughlin, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Van der Voort and Spaeth, JJ. Price, J., did not participate in the consideration or decision of this case.

Author: Hoffman

[ 250 Pa. Super. Page 196]

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.*fn1 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

[ 250 Pa. Super. Page 197]

    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:

"In taking an appeal, the appellant must comply with all applicable statutory requirements. Massachusetts Bonding & Insurance Company v. Johnston & Harder, Inc., 330 Pa. 336, 199 A. 216 (1938). Pursuant to the Act of July 31, 1970, P.L. 673, No. 223, art. V, § 502 (17 P.S. § 211.502(a)) an appeal to this court 'from any order shall be filed within thirty days of its entry.' Time limitations for the taking of appeals have been strictly construed by Pennsylvania courts in the past. See, e. g., Commonwealth v. Peters, 178 Pa. Super. 82, 113 A.2d 327 (1955); Commonwealth v. Schneiderman, 162 Pa. Super. 461, 58 A.2d 196 (1948). It is also recognized that '[w]hen an Act of Assembly fixes the time within which an appeal may be taken, courts have no power to extend it or to allow an appeal nunc pro tunc, except where there is a showing of fraud or its equivalent.' Commonwealth v. Wright, 187 Pa. Super. 39, 42, 142 A.2d 336, 337 (1958). See also Ifft v. Hunter, 202 Pa. Super. 487, 489, 198 A.2d 436, 437 (1964) ('we [Superior Court] must take notice of the defect [untimely appeal] and there is no room for the exercise of discretion on our part'); Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 214 A.2d 203 (1965) (cases cited therein); Commonwealth ex rel. Nicosia v. Nicosia, 184 Pa. Super. 440, 136 A.2d 135 (1957)."

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 ...


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