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filed: December 18, 1981.


No. 1177 Pittsburgh, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Allegheny County at GD 77-01234, Issue No. 112965.


James T. Carney, Pittsburgh, for appellant.

Dennis R. Joyce, Pittsburgh, for appellee.

Hester, Popovich and Montgomery, JJ.

Author: Popovich

[ 293 Pa. Super. Page 255]

This is an appeal from an order of the Common Pleas Court of Allegheny County dismissing Exceptions and a Petition for Reconsideration. For the following reasons, we quash the appeal.

Shorn of related proceedings not pertinent to our decision, the facts of the case are these:

On January 18, 1977, appellee, Chrisie Scoumiou, filed a praecipe for a Writ of Summons in Trespass and Assumpsit which writ was duly served upon appellant, the United States Steel Corporation, on January 24, 1977. No further action was taken, and the case was automatically dismissed pursuant to a local rule of Court, Rule 229(e) of the Court of Common Pleas of Allegheny County, which commands as follows:

[ 293 Pa. Super. Page 256]


Any matter pending in the Civil or Family Division in which there has been no activity of record for a period of two (2) years or more shall be terminated automatically by operation of law by reason of inactivity. The first period of two years is to begin on January first, 1973. The matter may be reactivated by the Court upon petition for good cause shown after such notice as the Court shall direct. The filing of a paper after automatic termination under this rule shall not reactivate the terminated matter. Adopted June 26, 1974. Eff. Jan. 1, 1975.

Note: This rule is adopted Pursuant to Rule 1901 of the Pennsylvania Rules of Judicial Administration, adopted May 10, 1973." (Emphasis added).

On May 12, 1980, appellee presented a petition to reactivate the case. After a hearing, the court issued an order on May 29, 1980, reactivating the matter and directing appellant to file a complaint within twenty days thereof. (Record, No. 4).

On June 6, 1980, appellant separately filed both a petition for reconsideration and exceptions to the order of May 29, 1980. Both the petition and exceptions set forth precisely identical reasons.*fn1 The matter then went before a court en banc which issued an opinion in support of its order of November 7, 1980, dismissing the exceptions and the petition for reconsideration.*fn2 (Record, No. 10).

Appellant thereupon filed this appeal on December 2, 1980, within thirty days of the dismissal order of November

[ 293 Pa. Super. Page 2577]

, 1980, but more than six months after the order of May 29, 1980 which reactivated the case.

The issue thus arises whether the time for appeal as prescribed by Rule 903 of the Rules of Appellate Procedure begins to run from the entry of the reactivation order of May 29, 1980, or from the order of November 7, 1980, when the lower court dismissed appellant's exceptions and petition for reconsideration.*fn3

We conclude that the 30-day appeal period began to run from the entry of the former order and had expired when the appeal to this Court was actually filed.

Pa. R.A.P. 311, the rule governing interlocutory appeals as of right, provides specifically that "[a]n order opening, vacating or striking off a judgment . . ." may be appealed as of right. Appellant does not argue that the order of May 29, 1980, was anything but an order opening a judgment of non pros. See Kennedy v. Board of Supervisors, 243 Pa. Super. 46, 364 A.2d 442 (1976). Clearly, then, appellant could have appealed the order of May 29, 1980, immediately upon its entry and within thirty days thereafter. The mere filing of a petition after the entry of the order, either in the form of exceptions or a petition for reconsideration in no way extended the running of the appeal period. See Rule 1701 Pa. R.A.P. and the commentary thereto.*fn4

This Court has said that:

[ 293 Pa. Super. Page 259]

". . . absent a stay or order granting reconsideration issued by the lower court, a petition for reconsideration does not toll the statutorily mandated appeal time. To hold otherwise would permit a party to employ dilatory tactics as a strategy."

Provident National Bank v. Rooklin, 250 Pa. Super. 194, 201, 378 A.2d 893, 896 (1977). (Emphasis added)

Appellant argues that as of May 29, 1980, the date of the first order, it had three possible courses of action: (1) to file an immediate appeal to this court; (2) to file exceptions to a court en banc; (3) to continue to litigate and raise the issue again on an appeal from a final order. Brief for Appellant, at 6. These may have been options available to appellant; however, appellant attempts to qualify the second option by providing for the right to file an appeal after exceptions are dismissed. Obviously, if that were the correct appellate procedure, then every litigant aggrieved by an appealable interlocutory order could unilaterally extend the appeal period merely by filing exceptions, and that, of course, would amount to an impermissible assault on orderly appellate procedure. Provident National Bank v. Rooklin, supra.

Therefore, the trial court's order dismissing the exceptions is not properly before us, and we do not reach the merits of the case. The appeal is quashed as untimely filed.

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