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COMMONWEALTH PENNSYLVANIA v. CHARLES F. DORMAN (09/10/79)

SUPERIOR COURT OF PENNSYLVANIA


submitted: September 10, 1979.

COMMONWEALTH OF PENNSYLVANIA,
v.
CHARLES F. DORMAN, APPELLANT

No. 60 October Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Berks County, Criminal Division, No. 77059501-6.

COUNSEL

Leonard J. Gajewski, Reading, for appellant.

J. Michael Morrissey, District Attorney, Reading, submitted a brief on behalf of the Commonwealth, appellee.

Cercone, President Judge, and Watkins and Lipez, JJ.

Author: Lipez

[ 272 Pa. Super. Page 151]

We here determine sua sponte that the appeal was untimely, and must be quashed.*fn1 Appellant was convicted by a jury of receiving stolen property, 18 Pa.C.S. ยง 3925. Post-verdict motions were filed and denied. On December 1, 1978, appellant was sentenced to serve one to four years in prison and pay a fine of three hundred dollars ($300). At the time of sentencing the trial judge informed appellant that he had thirty days from that date to appeal, and the judgment of sentence was entered on the lower court's docket on that same day,*fn2 making the order appealable. Pa.R.A.P. 301(a).

[ 272 Pa. Super. Page 152]

Appellant filed his notice of appeal in the lower court on January 8, 1979.*fn3 A notice of appeal must be filed within thirty days after entry of the order appealed from. Pa.R.A.P. 903(a). At the time appellant filed his notice of appeal,*fn4 Pennsylvania Rule of Appellate Procedure 108 provided that the date of entry was to be determined as follows:

"(a) General rule. Except as otherwise provided in this rule, in computing any period of time under these rules involving the date of entry of an order by a court or other government unit, the day of entry shall be the day the clerk of the court or the office of the government unit

[ 272 Pa. Super. Page 153]

    mails or delivers copies of the order to the parties, or if such delivery is not otherwise provided by law, the day the clerk or office of the government unit makes such copies public. The day of entry of an order may be the day of its adoption by the court or other government unit, or any subsequent day, as required by the actual circumstances."

This section must govern our determination of the date of entry of the order in this case, because section (b) (Civil orders) and section (c) (Emergency appeals) are clearly inapplicable.

Initially we must determine which of the two sentences in Rule 108(a) controls in appellant's case. The rule "appears to have been designed to clarify the meaning of 'entry' . . . and to make its application more equitable in terms of notice to a party by defining entry to mean the mailing or delivery of a notice rather than the mechanical act of recording an order on a docket." Sharpe v. Unemployment Compensation Board of Review, 28 Pa. Commw. 271, 275, 368 A.2d 1344, 1346 (1977) (unanimous opinion for the Commonwealth Court en banc by President Judge Bowman). In Appendix A (Highlights of Changes) to its Explanatory Note to the Pennsylvania Rules of Appellate Procedure, the Supreme Court of Pennsylvania's Advisory Committee on Appellate Court Rules states:

"Rule 108. A new rule clarifying the date of entry of an order for appeal purposes has been added." 1979 Pamphlet, Purdon's Pa.C.S.A., Rules of Appellate Procedure with Index at xvii.

The official Note to Rule 108 states: "The purpose of this rule is to fix a date from which the time period such as those set forth in Rules 903 (time for appeal), 1113 (time for petitioning for allowance of appeal), 1311 (interlocutory appeals by permission), 1512 (time for petitioning for review and 2542 (time for application for reargument) shall be computed." (Emphasis supplied). It is evident that clarity, certainty and ease of determination of the date of entry of

[ 272 Pa. Super. Page 154]

    an order are among the principal purposes of Rule 108.*fn5 The first sentence of the rule provides for three possibilities -- date of mailing, date of delivery, and date of making public -- none of which we have any way of determining from the record before us.*fn6 When we cannot use any of the three

[ 272 Pa. Super. Page 155]

    possible dates in the first sentence of section (a), that sentence requires that the date of entry be determined "as otherwise provided in this rule." Since sections (b) and (c) are inapplicable, the date of entry of the order in this case must be determined under the only remaining provision, the second sentence of section (a).*fn7

The second sentence of Rule 108(a) provides, "The day of entry of an order may be the day of its adoption by the court or other government unit, or any subsequent day, as required by the actual circumstances." We construe this broadly worded provision*fn8 to effectuate its purposes of

[ 272 Pa. Super. Page 156]

    making the date of entry clear and certain, while treating appellants equitably in terms of notice. Sharpe v. Unemployment Compensation Board of Review, supra. We hold that December 1, 1978 was the date of entry of the order in this case, since entry on the docket made the order appealable from that date, Pa.R.A.P. 301(a), and the court informed appellant when sentence was imposed on that date that appellant had thirty days from that date to appeal. This result gives full effect to all underlying purposes of Rule 108, and is consistent with previous cases decided under the Rules of Appellate Procedure. Commonwealth v. Rosmon, 477 Pa. 540, 547, n. 4, 384 A.2d 1221, 1225, n. 4 (1978); Commonwealth v. Laudenslager, 260 Pa. Super. 395, 397, 394 A.2d 985, 986-87 (1978); Commonwealth v. Wilkinson, 260 Pa. Super. 77, 79, 393 A.2d 1020, 1021 (1978); Szura v. Zoning Board of Wyoming Borough, 40 Pa. Commw. 172, 173, 397 A.2d 33, 34 (1979); Taxpayers of Lackawanna County Appeal, 37 Pa. Commw. 580, 583-85, 390 A.2d 1368, 1370 (1978); Choice v. Pennsylvania Board of Parole, 448 F.Supp. 294, 296 & n. 4 (M.D.Pa.1977); see Commonwealth v. Edwards, 264 Pa. Super. 223, 226, n. 2, 399 A.2d 747, 749, n.2 (1979); Sharpe v. Unemployment Compensation Board of Review, supra; cf. Strickler v. United Elevator Co., Inc., 257 Pa. Super. 542, 545, 391 A.2d 614, 616 (1978); Conaway v. 20th Century Corp., 256 Pa. Super. 1, 4, 389 A.2d 146, 147 (1978); Commonwealth ex rel. Milk Marketing Board v. Sunnybrook Dairies, Inc., 32 Pa. Commw. 313, 317 & n. 6, 379 A.2d 330, 333 & n. 6 (1977); see generally Provident National Bank v. Rooklin, 250 Pa. Super. 194, 378 A.2d 893 (1977) (passim).

[ 272 Pa. Super. Page 157]

Since the date of entry of the judgment of sentence was December 1, 1978, the notice of appeal filed 38 days later on January 8, 1979 was untimely. Timely filing of the notice of appeal is essential to the validity of the appeal. Pa.R.A.P. 902. An appellate court may not extend the time for filing a notice of appeal. Pa.R.A.P. 105(b).

Appeal quashed.


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