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EDWARD C. HOOK AND CORAL HOOK v. ATHENS AREA SCHOOL DISTRICT (04/10/80)

decided: April 10, 1980.

EDWARD C. HOOK AND CORAL HOOK, APPELLANTS
v.
ATHENS AREA SCHOOL DISTRICT, CHARLES UTTER AND ARLENE UTTER, HIS WIFE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Bradford County in case of Edward C. Hook and Coral Hook, his wife v. Athens Area School District, Charles Utter and Arlene Utter, his wife, No. 78-8E.

COUNSEL

John Kocsis, of Dowd and Kocsis, for appellants.

Daniel J. Barrett, of Beirne and Barrett, for Athens Area School District, appellee.

Frank J. Niemiec, of Davis, Murphy and Niemiec, for Charles Utter and Arlene Utter, appellees.

Judges Crumlish, Jr., Mencer and MacPhail, sitting as a panel of three. Opinion by Judge Mencer. President Judge Bowman and Judge DiSalle did not participate in the decision in this case.

Author: Mencer

[ 50 Pa. Commw. Page 421]

Edward C. Hook and Coral Hook (Hooks) appeal an order of the Court of Common Pleas of Bradford County sustaining the preliminary objections of the Athens Area School District (District) and dismissing the Hooks' amended complaint in equity. Upon the District's motion, we quash the appeal as untimely.

On March 2, 1978, the Hooks, taxpayers and residents of the District, filed suit to set aside a transfer of District realty to Charles and Arlene Utter,*fn1 alleging that the District failed to comply with Section 707(3) of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. ยง 7-707(3) (sale of unused and unnecessary school property). The transfer, involving approximately 0.2 acre of land, was part of a court-approved settlement of four lawsuits between the Utters and the District. On July 26, 1978, the lower court dismissed the Hooks' complaint for lack of standing and failure to state a cause of action. The Hooks filed a petition to reconsider on August 7, 1978. In response, the lower court issued, on August 14, 1978, a show-cause order why the petition should not be granted. Subsequently and without entering a rule absolute, the lower court reaffirmed its July dismissal by order dated November 27, 1978. The Hooks' appeal then followed.

[ 50 Pa. Commw. Page 422]

Pa. R.A.P. 903 requires that an appeal "shall be filed within 30 days after the entry of the order from which the appeal is taken." It is undisputed that the appeal period commenced with the lower court's July order and that the Hooks did not file any appeal until December 26, 1978. Thus, it would appear that their appeal was untimely and must be quashed. Provident National Bank v. Rooklin, 250 Pa. Superior Ct. 194, 378 A.2d 893 (1977).

The Hooks argue, however, that, pursuant to Pa. R.A.P. 1701(b)(3), the initial appeal period, triggered by the July dismissal, was stayed by their petition for reconsideration and the lower court's grant of a show-cause order and thus the appeal period ran anew from the date the lower court reaffirmed its dismissal. We disagree.

Pa. R.A.P. 1701(b)(3) provides:

(b) Authority of lower court or agency after appeal. After an appeal is taken or a petition for allowance of appeal is filed in a matter or review of a quasijudicial order is ...


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