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ROBERT DILLON v. NATIONAL RAILROAD CORPORATION (AMTRAK) AND CONSOLIDATED RAIL CORPORATION (CONRAIL) AND SOUTHEASTERN PENNSYLVANIA TRANSIT (SEPTA) AND CITY PHILADELPHIA AND ANDREW L. LEWIS (08/23/85)

filed: August 23, 1985.

ROBERT DILLON, A MINOR BY HIS P/NG, DIANE DILLON AND ADOPTIVE PARENT AND GUARDIAN, THOMAS DILLON AND DIANE AND THOMAS DILLON IN THEIR OWN RIGHT, APPELLANTS
v.
THE NATIONAL RAILROAD CORPORATION (AMTRAK) AND CONSOLIDATED RAIL CORPORATION (CONRAIL) AND SOUTHEASTERN PENNSYLVANIA TRANSIT (SEPTA) AND CITY OF PHILADELPHIA AND ANDREW L. LEWIS, JR. AND JOSEPH L. CASTLE, TRUSTEES OF THE READING COMPANY AND ROBERT W. BLANCHETTE, R.C. BOND AND J.H. MCARTHUR, TRUSTEES OF PENN CENTRAL TRANSPORTATION COMPANY AND FAIRMOUNT PARK COMMISSION AND LOUIS THORNTON KLAUDER, T/A LOUIS T. KLAUDER & ASSOCIATES



Appeal from the Orders of the Court of Common Pleas of Philadelphia County, Civil, at No. 576 December, 1977.

COUNSEL

Robert J. Murphy, Philadelphia, for appellants.

Charles T. Roessing, Philadelphia, for appellees.

Montemuro, Watkins and Hoffman, JJ.

Author: Montemuro

[ 345 Pa. Super. Page 129]

This matter is before us on the appeals of plaintiffs below from the lower court's orders of March 2, 1982, and April 8, 1982.*fn1 The order of March 2, 1982, both denied appellants' motion for an extension of time in which to respond to a motion for summary judgment by appellees, the trustees of the Reading Company, and granted the motion for summary judgment as unopposed by appellants. The order of April 8, 1982, denied appellants' motion for reconsideration of the March 2, 1982, order.

[ 345 Pa. Super. Page 130]

We initially note that, while it is procedurally permissible for a party to appeal a lower court's order and at the same time request the lower court itself to reconsider such order, Pa.R.A.P. 1701, a subsequent denial of reconsideration by the lower court is not an appealable order. Geek v. Smeck, 275 Pa. Super. 259, 418 A.2d 711 (1980); Provident National Bank v. Rooklin, 250 Pa. Super. 194, 378 A.2d 893 (1977). Rule 1701 contemplates that when a motion for reconsideration is denied, the prior appeal retains its validity; however, when reconsideration is granted, the prior appeal becomes inoperative and appeal time will run anew after the lower court reconsiders the merits of the claim and enters a new order. Thus, it is clear that the lower court's April 8, 1982 order refusing reconsideration is not reviewable on appeal, and the appeal from that order is dismissed. Since appellants fortuitously filed a direct appeal from the prior order of March 2, 1982, that appeal retains its validity and is properly before us.

Two issues are presented in the appeal from the lower court's order of March 2, 1982: whether the lower court erred in denying appellants' motion for an extension of time in which to respond to appellees' summary judgment motion, and whether the lower court erred in granting the motion for summary judgment.

The underlying facts are as follows: On August 14, 1976, appellant, Robert Dillon, then aged thirteen, climbed a fifty (50') foot signal bridge on the Fox Chase branch of the commuter rail system in Philadelphia. The signal bridge had been modified for the electrification of the trains, and appellant, Robert Dillon, came in contact with one of the electrical lines. He received an electrical shock, fell from the signal bridge, and consequently suffered injuries including the amputation of his right leg above the knee.

The appellants, Robert Dillon, and his parents, filed suit on December 7, 1977, against: appellees, several other railroad entities, the City of Philadelphia and the Fairmount Park Commission. Liability against appellees was predicated on Reading Company's ownership, possession, control,

[ 345 Pa. Super. Page 131]

    operation, and maintenance of the signal bridge and the land upon which the signal bridge was located. Appellees joined as an additional defendant, Louis T. Klauder and Associates, the engineering firm which had designed, ...


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