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CONEY ISLAND v. POTTSVILLE AREA SCHOOL DISTRICT (03/10/82)

decided: March 10, 1982.

CONEY ISLAND, II, INC., ET AL., APPELLANT,
v.
POTTSVILLE AREA SCHOOL DISTRICT, ET AL.



No. 80-3-754, Appeal from an Order entered by the Commonwealth Court at No. 2403 C.D. 1979 granting the Motion to Quash the Cross-Appeal.

COUNSEL

James J. Riley, Pottsville, submitted on paper book, for appellants.

Alvin B. Marshall, Richard Thornburg, Pottsville, for appellees.

O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Roberts and Hutchinson, JJ., concurred in the result.

Author: Nix

[ 497 Pa. Page 375]

OPINION

The instant appeal raises the question as to the timeliness of a cross-appeal sought to be filed by appellant, Coney Island, II, Inc. (Coney). Specifically, we are being called upon to determine whether the 14-day period specified in Pa.R.A.P. 903(b) for the filing of a cross-appeal is extended by the terms of Pa.R.A.P. 121(e) where service of the notice of appeal was made by mail. A collateral question raised is whether the 14-day time period provided by Pa.R.A.P. 903(b) relates only to the first notice of appeal filed where more than one party to the action files a notice of appeal.

Coney, in conjunction with a number of other retail and wholesale merchants transacting business within the confines of the Pottsville Area School District (School District), appellees, and the Township of Norwegian (Township), instituted an action in equity challenging certain of the local tax ordinances.*fn1 The Court of Common Pleas of Schuylkill County entered a final decree on October 15, 1979 granting partially the relief sought by Coney.

On October 24, 1979, nine (9) days after the entry of the court's decree, Township filed a notice of appeal to the Commonwealth Court pursuant to the provisions of Pa.R.A.P. 903(a). On November 13, 1979, twenty-nine (29) days after the entry of the final order by the trial court, School District filed its notice of appeal. Notice of appeal filed by the School District was served upon Coney by first class mail, dated November 13, 1979. On November 28, 1979 (15 days after the filing of the School District's notice of appeal), Coney filed a cross-appeal on the issue of its liability for School District taxes for the year 1976.*fn2

[ 497 Pa. Page 376]

On December 17, 1979, the School District filed a motion to quash the cross-appeal filed by Coney on the grounds that it was not within the time constraints of Pa.R.A.P. 903(b). By order of January 7, 1980, the Commonwealth Court (per Bowman, P.J.) granted the School District's motion to quash. We granted Coney's request to review the order quashing its cross-appeal.

The general rule for the taking of an appeal requires that the notice of appeal must be filed within thirty (30) days after the entry of the order from which the appeal was taken. See Pa.R.A.P. 903(a). It is conceded that Coney's attempt to appeal from the order below was not within the 30-day period from the date of the trial court's order. It is Coney's position that its filing of the cross-appeal was timely under Pa.R.A.P. 903(b). Rule 903(b) in pertinent part provides:

It is first argued that Coney is not entitled to calculate the 14-day period allowed by rule 903(b) from the date of the filing of the last of the two notices of appeal. In this case, Township which first filed the notice of appeal served that notice upon Coney by first class mail dated October 24, 1979. It is obvious that if the 14-day period permitted by rule 903(b) must be computed from that point, the section would be of no avail to Coney in this ...


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