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LEGRASSHA MURKEY AND DAVID MURKEY v. DONALD CORBIN (11/23/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 23, 1987.

LEGRASSHA MURKEY AND DAVID MURKEY, APPELLANTS
v.
DONALD CORBIN, SIDNEY KOLITZ AND CITY OF PHILADELPHIA, APPELLEES

Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Legrassha Murkey and David Murkey v. Donald Corbin, and Sidney Kolitz, and City of Philadelphia, Department of Licenses and Inspection, No. 4068, June Term, 1980.

COUNSEL

Norman A. Oshtry, with him, Joel E. Oshtry, for appellants.

Miriam B. Brenaman, Assistant City Solicitor, with her, Handsel B. Minyard, City Solicitor, Norma S. Weaver, Deputy in Charge of Claims, Barbara R. Axelrod, Divisional Deputy in Charge of Appeals, for appellee.

Judges MacPhail and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 115 Pa. Commw. Page 259]

Appellants have appealed to this Court from the denial of a petition for reconsideration entered by the Court of Common Pleas of Philadelphia County. For the reason which follows, we must quash the appeal.

Appellants filed a complaint in trespass on July 8, 1980 against Donald Corbin, Sidney Kolitz and the City of Philadelphia, Department of Licenses and Inspection (City). The gravamen of the complaint is that Appellants were tenants of premises owned by Corbin. It is alleged that Corbin failed to furnish a continuous supply of adequate

[ 115 Pa. Commw. Page 260]

    heat to the premises as a result of which, Appellants aver, they sustained serious physical injuries for which they now seek money damages.*fn1

Appellants' complaint also alleged that they had complained to City and that the City, in disregard of its duty to Appellants, failed to remedy the heat problem after promising to do so.

Following discovery proceedings, City filed a motion for summary judgment which Appellants answered. After briefs were filed, the trial court on July 24, 1984, entered an order granting judgment to the City against the Appellants. No appeal was taken from that order; instead, on August 1, 1984, Appellants filed a petition for reconsideration which the trial court ultimately denied on September 5, 1985.*fn2 A timely appeal from that order*fn3 was taken by Appellants to the Superior Court of Pennsylvania which then transferred the matter to this Court pursuant to the provisions of Pa. R.A.P. 752.

Our appellate courts consistently have held that the refusal of a trial court to reconsider, rehear or permit reargument of a final decree is not reviewable on appeal. Merrick Estate, 432 Pa. 450, 247 A.2d 786 (1968), McCready v. Gans, 242 Pa. 364, 89 A. 459 (1913) and Boden v. Tompkins, 306 Pa. Superior Ct. 494, 452 A.2d 833 (1982). In the case now before us, the trial court's order of July 24, 1984 granting summary judgment against the Appellants was a final, appealable order inasmuch

[ 115 Pa. Commw. Page 261]

    as it put the Appellants "out of court" with respect to their claim against the City. See 1 Darlington, McKeon, Schuckers and Brown, Pennsylvania Appellate Practice ยง 341 (1986). Appellants, having failed to take a timely appeal from the order of July 24, 1984, have thereby foreclosed this Court's opportunity to review the merits of their appeal. Inasmuch as we are without jurisdiction to entertain the instant appeal, we have no recourse but to quash it.

Order

The appeal of Legrassha Murkey and David Murkey from the order of the Court of Common Pleas of Philadelphia filed September 5, 1985, is quashed.

Order

Now, February 5, 1988, upon consideration of appellants' application for reargument and appellee City of Philadelphia's response, we hereby grant reconsideration of our opinion and Order filed previously in this matter.

Disposition

Appeal quashed. Application for reargument filed. Reconsideration granted. Order confirmed.


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