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.
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.
[ 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. § 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 ...