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OLAN B. LOWREY AND MARGOT LOWREY v. EAST PIKELAND TOWNSHIP AND VALLEY FORGE SEWER AUTHORITY (08/15/89)

decided: August 15, 1989.

OLAN B. LOWREY AND MARGOT LOWREY, HIS WIFE, APPELLANTS,
v.
EAST PIKELAND TOWNSHIP AND VALLEY FORGE SEWER AUTHORITY, APPELLEES (TWO CASES)



COUNSEL

Olan B. Lowrey, Philadelphia, pro se.

James C. Sargent, Jr., Ellen M. Resinski, Lamb, Windle & McErlane, P.C., West Chester, for appellees.

Crumlish, Jr., President Judge, and Craig, Barry, Colins, Palladino, McGinley and Smith, JJ.

Author: Smith

[ 128 Pa. Commw. Page 122]

Olan B. Lowrey (Appellant)*fn1 appeals from orders of the Chester County Court of Common Pleas sustaining the motion for summary judgment of East Pikeland Township and Valley Forge Sewer Authority (Appellees) and denying Appellant's motion to time stamp notice of appeal to reflect the actual date of receipt by the prothonotary. Also pending before the Court is Appellees' motion to quash Appellant's appeal of the order granting summary judgment for failure to file a timely appeal. This Court reverses the denial of Appellant's motion to time stamp; denies Appellees' motion to quash; and affirms the trial court's order granting summary judgment.*fn2

The issues before this Court are whether the trial court abused its discretion by denying Appellant's motion to time stamp and whether the trial court erred as a matter of law or abused its discretion by granting Appellees' motion for summary judgment without allowing Appellant the opportunity to present evidence as to the reasonableness of the sewer rate charges assessed by Appellees.

Appellees filed their two-count complaint against Appellant and his wife in June of 1983, requesting that the trial court exercise its equitable powers and order Appellants to connect their property to the Valley Forge sewer system in accordance with 53 P.S. ยง 66501.1*fn3 and East Township Ordinance No. 25 (1971). Appellees also sought damages for tapping fees, connection fees, front footage assessments

[ 128 Pa. Commw. Page 123]

    and sewer rental fees. Some time after the filing of this complaint, Appellant connected his property to the sewer system rendering moot the first count of the complaint.*fn4

Appellees' motion for summary judgment was sustained by the trial court on November 25, 1986.*fn5 On December 17, 1986, Appellant mailed a notice of appeal to the prothonotary which did not include the case number. This notice was received by the prothonotary within the thirty-day time limit of Pa.R.A.P. 903 but not file stamped upon receipt. Instead, the prothonotary mailed the notice back to Appellant with a handwritten note requesting the case number. By the time the notice was returned by Appellant with the case number added, the thirty-day time period had expired.

In denying the motion to time stamp notice of appeal to reflect a date prior to December 26, 1986, the trial court found that Appellant's failure to comply with Pa.R.A.P. 904, which specifies that the file number be included on the notice of appeal, made it impossible for the prothonotary to accept and docket the appeal. This finding is not in accordance with Pa.R.A.P. 902 which states:

An appeal permitted by law as of right from a lower court to an appellate court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by Rule 903 (time for appeal). Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the ...


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