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JAMES M. BARNES v. COMMISSIONER STATE POLICE (02/27/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 27, 1981.

JAMES M. BARNES, PETITIONER
v.
COMMISSIONER OF STATE POLICE, RESPONDENT

Appeal from the Order of the Commissioner of the State Police in case of James M. Barnes, dated April 23, 1979.

COUNSEL

Michael E. Dunlavey, for petitioner.

Francis X. O'Brien, Jr., Assistant Attorney General, with him Andrew B. Kramer, Assistant Attorney General, and John L. Heaton, Chief Counsel, for respondent.

Judges Mencer, Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 57 Pa. Commw. Page 179]

In this petition for review filed by Trooper Barnes from an Order of the State Police Disciplinary Board suspending him for three days, the Board has presented a motion to quash the appeal as not timely taken. Because we hereby find it necessary to grant the motion and dismiss the appeal, we need not review the substantive merits of the action.

The incident which precipitated this case took place on October 4, 1978. The record indicates that a physical altercation erupted between two off-duty officers, both of whom were consuming alcohol at a social gathering. After an internal department investigation, the appellant was charged with an infraction of the Pennsylvania State Police Field Regulations,*fn1 and was given a one day suspension. He appealed that decision to the Regional Disciplinary Board, which sustained the determination of impropriety, and increased the suspension to three days. Barnes appealed again.

On April 23, 1979, the Commissioner of the State Police issued an order affirming the decision of the Regional Board. Thirty-six days later, the appellant filed his appeal to this Court.

Pa. R.A.P. No. 1512(a)(1) reads as follows:

(1) A petition for review of a quasijudicial order, or an order appealable under 42 Pa. C.S. ยง 763(b) (awards of arbitrators) or under any other provision of law, shall be filed with

[ 57 Pa. Commw. Page 180]

    the prothonotary of the appellate court within 30 days after the entry of the order.

The timeliness of an appeal goes to the jurisdiction of this Court to hear and act upon that appeal. Coshey v. Beal, 27 Pa. Commonwealth Ct. 440, 366 A.2d 1295 (1976).

Because the petitioner failed to file his appeal within the prescribed period, this Court cannot take jurisdiction over the matter, and must grant the motion to quash.

Order

And Now, this 27th day of February, 1981, the Court hereby grants the respondent's motion to quash the above-captioned appeal as not timely filed.

Disposition

Motion to quash appeal granted.


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