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STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. HELEN SCHULTZ (09/19/80)

filed: September 19, 1980.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
v.
HELEN SCHULTZ, ADMINISTRATRIX OF THE ESTATE OF MARY D. TERRELL AND FRANK TERRELL, APPEALS OF HELEN SCHULTZ, ADMRX. OF THE ESTATE OF MARY D. TERRELL, DECEASED



Nos. 395 & 556 April Term 1979, Appeal from the Orders in the Court of Common Pleas of Butler County, Civil Action - Law, A.D. No. 79 - 144.

COUNSEL

Irving M. Portnoy, Pittsburgh, for appellant.

Leo M. Stepanian, Butler, for State Farm, appellee.

Richard L. McCandless, Butler, for Frank Terrell, appellee.

Spaeth, Hoffman and Van der Voort, JJ.

Author: Spaeth

[ 281 Pa. Super. Page 214]

Appellant, the executrix of the estate of Mary D. Terrell, has filed two appeals in this court. Both appeals arise from a declaratory judgment proceeding brought by the decedent's insurer to determine the proper payee of benefits payable under the terms of the decedent's insurance policy. The appeals have been consolidated, and this opinion will dispose of both.

The first order from which appellant appeals holds that appellee, Mary Terrell's husband, is the proper payee. That order was entered by the clerk of the lower court on March 27, 1979.*fn1 Appellant, however, did not file her notice of appeal in the lower court until Friday, April 27, 1979. Appellant claims in her brief that her appeal was taken two days earlier on April 25, but she is mistaken. At the time of appellant's filing, Pa.R.A.P. 905(a) provided:

The notice of appeal shall be filed with the clerk of the lower court. Upon receipt of the notice of appeal the clerk shall immediately stamp it with the date of receipt, and that date shall constitute the date when the appeal was taken, which date shall be shown on the docket.*fn2

[ 281 Pa. Super. Page 215]

The date stamped by the clerk of the lower court on the notice of appeal and the date of appeal that appears in the docket is April 27, 1979.

Under Pa.R.A.P. 903(a), appellant had thirty days from the entry of the March 27 order in which to file notice of appeal. Neither the lower court nor this court may enlarge the time for the filing of this notice. Pa.R.A.P. 105(b);*fn3 see Washington v. Liberi, 273 Pa. Super. 48, 416 A.2d 1082 (1979). Furthermore, since our jurisdiction to hear the appeal is predicated upon the timely filing of the notice of appeal, this court is required to raise the untimeliness of an appeal sua sponte. Commonwealth v. Gottshalk, 276 Pa. Super. 102, 419 A.2d 115 (1980); Commonwealth v. Dorman, 272 Pa. Super. 149, 414 A.2d 713 (1979); 42 Pa.C.S.A. § 704(b)(1) (1979 Pamphlet); Pa.R.A.P. No. 741(b)(1).

In determining whether appellant's appeal is timely, we must exclude from our computations the date the lower court's order was entered, but include the final day of the thirty day period. 1 Pa.C.S.A. § 1908 (Supp. Pamphlet 1964-78). Because appellant did not file notice of appeal until the thirty-first day after the entry of the lower court's order, her appeal from that order is untimely and must be quashed. Commonwealth v. Thompson, 277 Pa. Super. 267, 419 A.2d 765 (1980); In re Gorham, 272 Pa. Super. 145, 414 A.2d 712 (1979); Fingles v. Green, 269 Pa. Super. 131, 409 A.2d 99 ...


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