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DENISE LITES v. ARNOLD BERMAN (12/26/89)

filed: December 26, 1989.

DENISE LITES, APPELLANT,
v.
ARNOLD BERMAN, APPELLEE



Appeal from the Order of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 7497 March Term 1987.

Before: Wieand, Beck and Montgomery, JJ. Wieand, J. files a Dissenting Opinion.

MEMORANDUM

This is an appeal from an order of the trial court granting appellee's petition to open a default judgment. Appellant instituted this action by summons on April 3, 1987. On May 2, 1988, appellant filed a complaint in negligence alleging that she sustained personal injuries when struck by a toilet door on the seventh floor of a building owned by appellant. The premises in which the accident occurred was subject to a lease between appellee and his lessee, Program Systems Institute of Philadelphia, Inc. Pursuant to the lease agreement, Program Systems agreed to indemnify and hold harmless appellee for his own negligence. Appellee's insurer contacted counsel for appellant to inform him of the lease agreement prior to the filing of the complaint. On July 14, 1988, a praecipe for judgment was filed, and a judgment by default was entered against appellee. Appellee then filed a petition to open judgment. The trial court granted the petition finding that appellee bad presented the court with a reasonable excuse for his failure to timely respond to the complaint, that the petition to open was timely filed, and that appellee had, indeed, presented a meritorious defense.

On appeal, appellant argues that appellee, in his petition, failed to establish a reasonable excuse for his failure to answer the complaint. We need not decide this issue, however, because we find that no appeal as of right may be taken from the trial court's order opening the default judgment. Pa.R.A.P., Rule 311(a)(1), 42 Pa.C.S.A., See also, Joseph Palermo Development Corp. v. Thomas Bowers, Pa. Super. , A.2d (No. 01875 Pittsburgh 1988, filed Octobcr 11, 1989).

While neither party has raised the issue of the propriety of this appeal, it is well settled that this court may sua sponte raise a question regarding its own jurisdiction. Brady Contracting Co., Inc. v. West Manchester Township, 338 Pa. Super. 144, 487 A.2d 894 (1985). Pursuant to Pa.R.A.P. 311(a)(1) as amended, effective July 1, 1989, only an order refusing to open, vacate or strike off a judgment is immediately appealable. In Joseph Palermo Development Corp. v. Thomas Bowers, supra, our court held that Pa.R.A.P. 311(a)(1) applies to all cases pending on appeal on the effective date unless to deny review would result in the irrevocable loss of a litigant's rights.

Here, as in Palermo, the order opening the default judgment does not end the litigation, nor preclude participation by certain parties in the litigation, nor result in the irreparable loss of the the claim. Accordingly, we find that the order opening the default judgment is not a final order, and, therefore, the appeal should be quashed.

Disposition

Appeal quashed and case remanded to the trial court. Jurisdiction is relinquished.

ING OPINION BY WIEAND, J.:

The majority has dutifully followed the holding of a panel of this Court in Joseph Palermo Development Corp. v. Thomas Bowers, Pa. Super. , 564 A.2d 996 (1989) and has sua sponte quashed this appeal even though the appeal, when filed, was proper under Pa.R.A.P. 311(a)(1) and not then subject to being quashed. Because I am of the opinion that Palermo was incorrectly decided, I respectfully dissent.

The appeal in this case was filed on December 22, 1988, and sought review of an order of the trial court which had opened a default judgment. Such an appeal was authorized by Pa.R.A.P. 311(a)(1), which provided specifically that an appeal could be taken as of right from "[a]n order opening, vacating or striking off a judgment, or refusing to open, vacate or strike off a judgment." The appeal, therefore, was a proper appeal when taken and could not properly be quashed.

Appellate Rule 311(a)(1) was amended by the Supreme Court on March 31, 1989, to allow an immediate appeal as of right only from an order refusing to open, vacate or strike off a judgment. The order of the Supreme Court which adopted the amended rule directed that the amendment "shall become effective July 1, 1989, and shall govern all matters thereafter commenced and, insofar as just and practicable, matters then pending."

The instant matter had been commenced in the trial court prior to the amendment of Rule 311(a)(1). A default judgment had been entered and also opened prior to the amendment, and an appeal therefrom had been filed at a time when the applicable rule expressly granted an immediate appeal as of right. The appellant paid a fee to file her appeal. She also prepared and filed a brief and a reproduced record. The appellee did not object to the appeal - the appeal was, as we have seen, procedurally proper - and responded by filing his own brief on the merits. For this Court to quash the appeal sua sponte because of an amended rule which became effective after the appeal had been taken is grossly unfair to counsel and the parties and is wholly unwarranted by any substantive or procedural rule of law. It is neither just nor practicable to apply the amended rule retroactively so as to throw the parties out of court without decision when their appeal, at the time when it was filed, was proper and in accordance with the specific language of the rule. To hold otherwise is to forget that the courts exist to serve the litigants and not vice versa. It is also in direct violation of Pa.R.C.P. No. 152. This rule provides specifically that when a procedural rule is amended, "the new provisions shall be construed as effective only from the date when the amendment became effective."

In Palermo, a panel of this Court acted sua sponte to quash an appeal from an order opening a confessed judgment even though the appeal had been properly filed in accordance with existing law. This, in my best judgment, was not only erroneous but a disservice to the litigants, to their attorneys, and to the members of the public. It was not only contrary to the general rule which precludes the retroactive application of procedural rules, but it is contrary to the ...


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