decided: April 7, 1988.
LEGRASSHA MURKEY AND DAVID MURKEY, APPELLANTS
DONALD CORBIN, SIDNEY KOLITZ AND CITY OF PHILADELPHIA, APPELLEES
115 Pa. Commw. 258.
Norman A. Oshtry, Esq., Joel E. Oshtry, Esq., Philadelphia, Pa., Attorneys for appellant.
Donald Corbin, Philadelphia, Pa., Sidney Kolitz, Philadelphia, Pa., FOR CITY OF PHILADELPHIA: Miriam B. Brenaman, Esq., Philadelphia, Pa., Attorneys for appellee.
Honorable John A. MacPHAIL, Honorable Madaline Palladino, JJ., Honorable Emil E. Narick, Senior Judge
Author: Per Curiam
[ 115 Pa. Commw. Page 261]
Per Curiam Supplemental Opinion:
Appellants' application for reconsideration of the opinion and order of this Court filed November 23, 1987, was granted. We now confirm the order of this Court quashing Appellants' appeal.
Appellants contend that inasmuch as the trial court granted reconsideration of its order of July 24, 1984, which order granted City's motion for summary judgment, its appeal to this Court was timely.
Pa. R.A.P. 1701(b)(3) provides that a trial court may grant reconsideration of an order under certain circumstances, if an appeal has been filed. Here, as our previous opinion noted, no appeal was taken from the order granting judgment to the City. That Rule, therefore,
[ 115 Pa. Commw. Page 262]
does not have the effect of extending the commencement of the 30-day appeal period to the entry of the order denying reconsideration.
We now look at the trial court's order which, Appellants argue, granted reconsideration of the order of July 24, 1984 and thus extended the commencement of the 30-day appeal period.*fn1 The order in question reads as follows:
AND NOW, this 1st day of August, 1984, upon consideration of the foregoing Petition for Reconsideration and on motion of Joel E. Oshtry, Esquire, attorney for Petitioners, a Rule is granted, granting reconsideration of the Order of July 24, 1984 and requiring defendant to show cause why the Petitioners' Petition should not have been granted.
RULE RETURNABLE on the 28th day of August, 1984, in Courtroom 336 at 9:00 A.M. All proceedings to stay meanwhile.
In In Re: Appeal of Sgro, 67 Pa. Commonwealth Ct. 304, 447 A.2d 325 (1982), we observed that although Rule 1701 becomes operative only after an appeal has been taken, we have looked to that Rule, "as confirmation that, only if reconsideration is actually granted, will the appeal period restart when the reconsideration request is decided." Id. at 309, 447 A.2d at 327. In Hook v. Athens Area School Dist., 50 Pa. Commonwealth Ct. 420, 413 A.2d 1151 (1980), we held that a show-cause order was insufficient to constitute a grant of reconsideration. There we said, "[i]t is well settled that a show-cause order does not grant or deny the relief sought but merely affords the nonmoving party an opportunity
[ 115 Pa. Commw. Page 263]
to be heard on the issue." Id. at 423, 413 A.2d at 1153 (citations omitted). It is also clear that a stay order will not extend the appeal period. See Commonwealth v. Gordon, 329 Pa. Superior Ct. 42, 477 A.2d 1342 (1984), and comment to Pa. R.A.P. 1701.
In short, nothing less than an unconditional order which expressly grants reconsideration entered within 30 days of the initial appealable order, will be sufficient to effectuate a new 30-day appeal period commencing with the date a final order on the merits is entered. See 1 Darlington, McKeon, Schuckers and Brown, Pennsylvania Appellate Practice § 1701:19.
Applying those legal principles to the order of August 1, 1984 quoted above, we must conclude, as we did initially, that that order does not expressly and unconditionally grant reconsideration, nor does it have the effect of giving Appellants additional time in which to file their appeal to this Court. As the comment to Rule 1701 clearly advises, the most certain way for a party to avoid the consequences of an untimely appeal is to file the application for reconsideration and a notice of appeal within 30 days of the date of the initial appealable order. Then, irrespective of what the trial court does, the appeal rights are timely preserved.
Per Curiam Order
The order of this Court entered November 23, 1987 is confirmed.