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decided*fn*: March 15, 1989.


Appeal from the Order of the Superior Court entered November 17, 1987 at Nos. 2604 PHL 1986, 1364 PHL 1987 and 1582 PHL 1987 quashing the appeals from the Orders of the Court of Common Pleas of Philadelphia County entered September 11, 1986, April 20, 1987 and June 3, 1987, respectively at No. 5744 June Term, 1984. Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Stout, J., concurs in the result.

Author: Mcdermott

[ 521 Pa. Page 464]


In this matter relief is sought from the order of the Superior Court which quashed appeals filed from the orders of the Court of Common Pleas of Philadelphia County. Appellant, the firm of Sidkoff, Pincus & Green, P.C.,*fn1 filed a lawsuit seeking damages for an alleged breach of a comprehensive "Businessowners" policy issued by appellee, the Pennsylvania National Mutual Casualty Insurance Company ("National Mutual"). Appellee had refused to pay a portion of appellant's claim, which had been filed as a result of a fire at the firm's offices. The insurance carrier made partial payment on the claim, but declined that portion of the claim relating to the replacement of acoustical ceiling tiles found within the office. Appellee's position, as stated in its answer to the complaint, was that the cost of replacing the ceiling tiles was excluded from coverage under the policy.

Following discovery, appellant filed a motion for summary judgment on April 29, 1986, pursuant to Rule 1035 of the Pennsylvania Rules of Civil Procedure. This motion asserted that the insurer was liable under two separate provisions of the policy and that the clear language required payment of the claim. National Mutual again denied liability based on the exclusion contained in the policy.

On June 25, 1986, the Honorable Alfred J. DiBona, Jr., denied appellant's motion for summary judgment. Additionally,

[ 521 Pa. Page 465]

    he stated that National Mutual was not liable under the policy:


AND NOW, this 25th day of JUNE, 1986, upon consideration of plaintiff's answer thereto, it is hereby ORDERED AND DECREED that plaintiff's motion is denied.

This Court having reviewed the pleadings, depositions, and exhibits finds as a matter of law that plaintiff and defendant agreed that no liability should rest upon defendant in accordance with section II, E4 of the parties [sic] insurance contract which provide [sic] for exclusions of liability for certain other contracts entered into by plaintiff as follows:

'. . . liability assumed by the insured under any contract of agreement accept [sic] a contract is [sic] defined in this policy; . . .'

'contract means any written contract or agreement wherein the named insured has expressly assumed liability for damages to which this policy applies . . .'

Accordingly, since plaintiff entered into a lease agreement with landlord Penn Mutual for the latter to install specific accoustical [sic] tiles, the nature of which were fixtures; this Court finds defendant is not liable for the resulting loss and/or damage.

Given the sophistication of plaintiff, a law firm and defendant, we will not rewrite the contract of insurance to impose liability where none was intended. Hionis v. Northern Mutual Insurance Co., 230 Pa. Super. 511, 327 A.2d 363 (1974).

By the Court:

Alfred J. DiBona, Jr., J.

The parties interpreted this order to mean that judgment was being entered in favor of National Mutual, despite the fact that National Mutual had not filed a motion for summary judgment. This order was docketed on July 2, 1986.

[ 521 Pa. Page 466]

The procedural road becomes twisted at this point. On July 3, 1986, appellant filed a motion for reconsideration, and requested the court to stay the proceedings pending a disposition of the motion. The court granted the requested stay on July 8, 1986, and stated that the appeal period would not expire until thirty days after the disposition of appellant's motion for reconsideration.

On September 11, 1986 the court denied appellant's motion and reinstated the summary judgment "Order and Opinion" of June 25, 1986.

On September 17, 1986, relying on the court's stay order, appellant filed its first appeal to the Superior Court docketed at No. 2604 Philadelphia 1986. In its reply brief National Mutual for the first time urged the Superior Court to quash the appeal as having been filed outside the appeal period. In support of its position National Mutual argued that on August 4, 1986, the appeal period ran from the July 2, 1986, docketing of the June 25, 1986, order. Appellant then asked leave to file a brief in response to National Mutual's request to quash the appeal. Superior Court denied this request. Meanwhile, appellant was informed by the Superior Court that there was no appealable order entered on the lower court's docket. Accordingly, on April 20, 1987, judgment was entered on the September 11, 1986, order denying reconsideration. Appellant then filed a timely appeal from the April entry of judgment. This was appellant's second appeal docketed at No. 1364 Philadelphia 1987.

On April 28, 1987, following oral argument before the Superior Court, appellant filed another petition to permit a post-submission response to National Mutual's motion to quash. This request was refused by the Superior Court on June 2, 1987.

The following day, June 3, 1987, appellant filed a praecipe to reduce to judgment the June 25, 1986, order. Appellant then filed its third appeal to the Superior Court on June 4,

[ 521 Pa. Page 4671987]

. This appeal was taken from the June 3, 1987, entry of judgment. It was docketed by the Superior Court at No. 1582 Philadelphia 1987.

On June 16, 1987, the Superior Court granted appellant's motion for consolidation of its three appeals. Subsequently, on November 17, 1987, the court quashed all three appeals, holding that the two appeals filed from the trial court's September 11, 1986, order were improper since they were filed from a denial of reconsideration,*fn2 and the third appeal was held to have been filed beyond the thirty day appeal period, which the court interpreted as running from the docketing of the June 25, 1986, order denying summary judgment, 369 Pa. Super. 35, 534 A.2d 1066.*fn3

Thereafter, on January 11, 1988, the Superior Court denied appellant's petition for reargument. Appellant then sought allowance of appeal, which was granted. We now reverse the order of the Superior Court.

[ 521 Pa. Page 468]

In this appeal the parties address a number of issues; however, at this juncture only one is germane: whether the Superior Court was correct in quashing the various appeals filed by appellant.

In resolving this issue we must first examine the basis of the Superior Court's actions. In each instance the Superior Court quashed appellant's appeal because the court perceived the appeal to have been improperly filed; and therefore the court deemed itself to be without jurisdiction.

The proposition that absent fraud or a breakdown in the courts the failure to timely appeal an order divests the appellate court of jurisdiction is irrefutable. See West Penn Power Co. v. Goddard, 460 Pa. 551, 333 A.2d 909 (1975). However, this rule is dependent upon a predicate, which is that the order in question must have been final and properly entered; for an appeal period cannot begin to run absent a valid order. See Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985). Unfortunately, for all concerned,*fn4 this requirement was never fulfilled in this case.

In this case there was only one motion for summary judgment filed, that of appellant. Despite the fact that National Mutual did not file a motion for summary judgment, Judge DiBona sought to finally dispose of the matter in National Mutual's favor. This he was not empowered to do.

Rule 1035 of the Pennsylvania Rule of Civil Procedure provides that summary judgment can be entered only in favor of a moving party. The rule provides that:

The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that

[ 521 Pa. Page 469]

    the moving party is entitled to a judgment as a matter of law.

Pa.R.Civ.P. 1035(b) (Emphasis added). There exists no provision in the rules for summary judgment to be entered in favor of a non-moving party. Recently, we emphasized this point in Bensalem Township School District v. Commonwealth, 518 Pa. 581, 544 A.2d 1318 (1988), wherein we stated:

Nothing in this rule intimates that a court may grant summary judgment in favor of a non-moving party. In fact, the rule expressly limits the courts' power to grant summary judgment to those situations where 'the moving party is entitled to a judgment as a matter of law.' Pa.R.Civ.P. 1035(b) (emphasis added). Additionally, no decision of this Court has ever authorized the entry of summary judgment in favor of the non-moving party under Rule 1035.

Id., 518 Pa. at 585, 544 A.2d at 1320.*fn5

In this case, as was the case in Bensalem, once the court ruled adversely to the party seeking summary judgment the court's authority to rule further was terminated. Everything thereafter was a nullity.

Consequently, when appellant sought to appeal this order it was in effect interlocutory.*fn6 Therefore, all the procedural wranglings that have occurred over the last two and one-half years were for naught, and the present procedural posture of this case is that a plaintiff's motion for summary judgment has been denied, period!

This Order and Opinion of the learned trial judge is the bete noire of the case. There is no doubt that the order can

[ 521 Pa. Page 470]

    be read as a summary judgment given to a non-moving party. As stated above, we have recently held that such cannot be done. Summary judgment cannot benefit a party that did not seek it. Bensalem Township School District v. Commonwealth, supra. There is no appeal from a summary judgment denied a moving party. Such a ruling is interlocutory as the party remains in court. There is an appeal from a summary judgment by a non-moving party when summary judgment ends the litigation and removes that party from court.

There is, as here, a nagging question of what a displaced party should do after they suffer summary judgment. A petition for reconsideration of itself does not toll the time for appeal. Before an appeal period can be tolled the petition must be granted and a hearing on that petition ordered. Things being what they are in overcrowded dockets, a petition may, for any number of reasons, not be acted upon by the trial court. Meanwhile, the appeal period is ineluctably running. Unless the trial court grants the petition for reconsideration the appeal period is not tolled. To put the matter as succinctly as possible; if they intend an appeal they must do both. That is, they must first perfect their appeal and if they chose, file for reconsideration. The period of appeal runs from the judgment and an unacted upon petition for reconsideration does not toll that period. That is to say, that a trial court cannot stay any or all proceedings unless they grant the motion for reconsideration.

In the instant case, had the trial judge granted the motion for reconsideration, the appeal period would be extended until a new order of the trial court was issued. The rule is explicit upon this point.

Therefore, this case is remanded to the Court of Common Pleas of Philadelphia County for proceedings consistent with this opinion.


*fn* This decision was considered and rendered prior to March 7, 1989.

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