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filed: August 31, 1979.


No. 883 October Term, 1978, Appeal from the Order in the Court of Common Pleas of Philadelphia County, Civil Action--Law, No. 863 July Term, 1970.


John A. Fitzpatrick, Philadelphia, for appellants.

Anne M. Dixon, Philadelphia, for appellees.

Price, Spaeth and Watkins, JJ.

Author: Price

[ 269 Pa. Super. Page 133]

This is an appeal from the order of the court of common pleas denying appellants' motion for reconsideration. We conclude that because the appeal was not filed in a timely fashion, it must be quashed.

The salient facts and dates are not in dispute. On July 9, 1970, appellees filed a complaint in trespass alleging that appellants negligently caused an accident on February 13, 1970, which resulted in personal injuries to appellees. After an answer had been filed, appellees failed to pursue the action, with the result that on May 22, 1974, it was dismissed with prejudice pursuant to Philadelphia Local Rule 1047A.*fn1 The dismissal was docketed on May 29, 1974.

On September 3, 1976, appellees filed an application for reinstatement of the case as provided by the identical local rule.*fn2 After consideration, the court below vacated its prior order of May 22, 1974, and reinstated the matter on September 20, 1976. On October 7, 1976, appellants petitioned to vacate the September 20, 1976 order, which petition was

[ 269 Pa. Super. Page 134]

    subsequently denied on October 22, 1976. This last order permitted appellants to file a motion for a judgment of non pros, and this was done on December 15, 1976. Following oral argument, the motion was denied on January 20, 1977. Appellants next filed a motion for reconsideration on January 12, 1978, which was denied on January 17, 1978. The instant appeal was filed on February 8, 1978.

Pursuant to Pa.R.A.P. 903(a), the notice of appeal to this court "shall be filed within 30 days after the entry of the order from which the appeal [was] taken." Such limitations have been strictly construed by the courts of this Commonwealth. See, e. g., Commonwealth v. Wilkinson, 260 Pa. Super. 77, 393 A.2d 1020 (1978); Provident National Bank v. Rooklin, 250 Pa. Super. 194, 378 A.2d 893, allocatur denied, 250 Pa. Super. xxxv (1977); Commonwealth v. Lord, 230 Pa. Super. 96, 326 A.2d 455 (1974). Appellants instantly purport to appeal from the decision of the court below on January 17, 1978, refusing to reconsider its final order of January 20, 1977, and this appeal was indeed filed within thirty days of that refusal. Pennsylvania case law, however, is clear that the refusal of a trial court to reconsider, rehear, or permit reargument of a final decree is not reviewable on appeal. Provident National Bank v. Rooklin, supra, 250 Pa. Super. at 202, 378 A.2d at 897. Thus, appellants' appeal may be considered by this court only if filed in a timely fashion with respect to the January 20, 1977 order dismissing the motion for judgment of non pros.

Obviously, this was not done. The actual filing date was far in excess of the thirty-day maximum promulgated by our rules of appellate procedure. Moreover, the fact that appellants petitioned for reconsideration does not toll the running of the limit. We addressed precisely that problem in Provident National Bank v. Rooklin, supra. In that case, the plaintiff was granted summary judgment on September 21, 1976. On October 20, 1976, he petitioned the lower court for reconsideration. This was denied on October 21, 1976, and a notice of appeal to this court was filed on November 15, 1976. In quashing the appeal as untimely we noted:

[ 269 Pa. Super. Page 135]

"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)."

Id., 250 Pa. Super. at 197-98, 378 A.2d at 894-95 (emphasis added).

We further observed that Pa.R.A.P. 1701 did not demand a contrary result.*fn3 Indeed, the new rule, "expressly

[ 269 Pa. Super. Page 136]

    embodies the prior rule that, absent a stay or order granting reconsideration issued by the lower court, a petition for reconsideration does not toll the statutorily mandated appeal time. To hold otherwise would permit a party to employ dilatory tactics as a strategy." Id., 250 Pa. Super. at 201, 378 A.2d at 896.

Clearly, appellants have failed to comport with these provisions, and consequently, this appeal is not properly before us.

Appeal quashed.

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