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PARLIAMENT INDUSTRIES v. WILLIAM H. VAUGHAN & CO. (04/27/83)

decided: April 27, 1983.

PARLIAMENT INDUSTRIES, INC., APPELLANT,
v.
WILLIAM H. VAUGHAN & CO., INC., APPELLEE



No. 81-3-472, Appeal from the Orders of the Superior Court of Pennsylvania, dated December 1, 1980 & June 12, 1981, at Nos. 2309 & 2310 October Term, 1978. Court of Common Pleas, Civil Div. of LEHIGH COUNTY, at Nos. 77-7882 and 77-8230, 287 Pa. Super 458, 430 A.2d 981 (1980)

COUNSEL

Harry A. Dower, Dower & Co., Allentown, for appellant.

Anthony W. Novasitis, Jr., Philadelphia, for appellee.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., and Nix, J., concur in the result.

Author: Flaherty

[ 501 Pa. Page 3]

OPINION OF THE COURT

On December 27, 1977 Parliament, appellant herein, filed a complaint in confession of judgment in the Court of

[ 501 Pa. Page 4]

Common Pleas of Lehigh County.*fn1 Attached to the complaint were four promissory notes, each in the amount of $87,533, maturing respectively on December 28 of 1977, 1978, 1979, and 1980. The notes specify that each was to be paid in four equal installments commencing on March 28 of the year in which each note was due. The second, third and fourth notes specify additionally that interest on the unpaid balance of each is "payable beginning March 28, 1977 and each succeeding quarterly period thereafter until the principal is paid . . . ." At the time the complaint was filed, two quarterly payments on the first note had been made in the amount of $43,766.50, the complaint alleged defaults in payment of principal on the first note and defaults in payment of interest on the others, and presumably because of an acceleration clause also contained in each of the notes, the amount of the judgment entered was $306,365.50, which represented the unpaid balance of all four notes.

Vaughan, appellee herein, filed a petition to strike and/or open judgment, and on August 2, 1978 the Court of Common Pleas denied the petition to strike and Vaughan appealed to the Superior Court. On December 1, 1980 the Superior Court reversed in part and affirmed in part, reducing the confessed judgment by the principal amounts of the second, third and fourth notes, that is, by the amount of $262,599, thus reducing the amount of judgment to $43,766.50, which represented the unpaid balance of the first note. Parliament petitioned for reargument and on April 23, 1981 the Superior Court ordered the original panel to reconsider its final order. On June 12, 1981 the Superior Court panel reaffirmed its original final order. From this reaffirmance Parliament petitioned for allowance of appeal and we granted allocatur.

The initial matter raised by Vaughan is whether Parliament's petition to this Court for allowance of appeal was timely filed. Vaughan argues that Pa.R.A.P. 1113(a)

[ 501 Pa. Page 5]

    provides that a petition for allowance of appeal shall be filed within 30 days, or, if an order under Rule 2545 has been entered, within 60 days of the entry of the order of the Superior Court.*fn2 Since Parliament's petition for allowance of appeal was not filed until July 15, 1981, Vaughan asserts that Parliament was at least five months late, since the first order of the Superior Court was entered on December 1, 1980. Parliament, on the other hand, asserts that it is appealing from the second order of the Superior Court, entered June 12, 1981, and that as to the June 12, 1981 order, its appeal is timely.

Our determination of the timeliness of the appeal has not been made easier by the fact that Parliament has conducted the procedural aspect of its appellate case somewhat recklessly. Pursuant to Pa.R.A.P. 1701, an appellant ordinarily would preserve the timeliness of his petition for appellate review and his petition for reconsideration by filing two simultaneous petitions, one for allowance of appeal and one for reconsideration or reargument.*fn3 If this had been done,

[ 501 Pa. Page 6]

Rule 1701 would protect the appellant regardless of what the lower court did: if the lower court entered its order for reconsideration within the time allowed for appeal, the appeal period would begin to run anew from the entry of the order after reconsideration (thus, giving appellant a chance to file an appeal from the reconsideration order); but if the lower court failed to enter an order granting or denying reconsideration within the appeal period, the petition for allowance of appeal already filed would become operative. Thus, appellant's right to appeal would be preserved even if (as in this case) the lower court did not enter an order within the appeal period.*fn4

[ 501 Pa. Page 7]

Parliament, however, did not file simultaneous petitions for allowance of appeal and for reargument, but instead filed only for reargument. Had the Superior Court not granted reconsideration (which we treat as a grant of reargument), Parliament would have been unable to pursue this appeal, for the time for petitioning for allowance of appeal from the December 1, 1980 order (January 30, 1981) had long passed by the time Parliament filed its petition for allowance of appeal on July 15, 1981, and there would have been no second order to appeal from. It was, therefore, fortunate for Parliament that the Superior Court granted reconsideration, thus giving Parliament a second order, that filed after reconsideration, to appeal from. Absent that fortuitous event, Parliament would now be out of court.

Arguably, appeals such as the instant one should be regarded as untimely on the grounds that the rules contemplate an appellate practice in which orderliness requires a timely filing for allowance of appeal from the first order of the Superior Court either by filing for allowance of appeal only or by filing for reconsideration and for allowance of appeal under old Rule 1701. Such an argument is particularly plausible in this case since Parliament's brief in the "Order in Question" section states that both orders are involved in the appeal; and because Parliament in its "Statement of the Case" section declares: "The appeal to the Supreme Court is only on the Order of the Superior ...


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