Luckenbach v. LUCKENBACH

Supreme Court of Pennsylvania

Luckenbach v. LUCKENBACH

281 A.2d 169, 443 Pa. 417, 1971 Pa. LEXIS 931

CourtSupreme Court of Pennsylvania

DecidedJune 28, 1971

DocketAppeal, 314

StatusPublished

Cited by36 cases

This text of 281 A.2d 169 (Luckenbach v. LUCKENBACH) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Luckenbach v. LUCKENBACH, 281 A.2d 169, 443 Pa. 417, 1971 Pa. LEXIS 931 (Pa. 1971).

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Opinion

Per Curiam,

This is an appeal from a final decree in equity.

The decree appealed from was entered in the court below on December 17, 1970. Under the “Appellate Court Jurisdiction Act of 1970”, Act of July 31, 1970, P. L. 673, No. 223, Art. V, §502(a), 17 P.S. §211.502 (effective September 11, 1970), the appeal was required, to be filed within thirty (30) days of the entry of the decree in the court below. However, the instant appeal was not filed until February 16, 1971, well beyond the statutory limit, after this Court granted a petition and entered an order permitting the appeal to be filed “nunc pro tunc.”

Upon further reflection, we conclude that the above order was improvidently entered and must he vacated. *419 Where an act of assembly fixes the time within which an appeal may be taken, the time may not be extended in the absence of fraud or its equivalent, which is not present herein. The time may not be extended as a matter of indulgence. Cf. Commonwealth v. Bey, 437 Pa. 134, 262 A. 2d 144 (1970); Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938); and Yeager v. United Natural Gas Company, 197 Pa. Superior Ct. 25, 176 A. 2d 455 (1961).

Since the appeal was untimely filed, it must be quashed.

It is so ordered. Each party to pay own costs.

Mr. Justice Jones took no part in the consideration or decision of this case.

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Opinion

Per Curiam,

This is an appeal from a final decree in equity.

The decree appealed from was entered in the court below on December 17, 1970. Under the “Appellate Court Jurisdiction Act of 1970”, Act of July 31, 1970, P. L. 673, No. 223, Art. V, §502(a), 17 P.S. §211.502 (effective September 11, 1970), the appeal was required, to be filed within thirty (30) days of the entry of the decree in the court below. However, the instant appeal was not filed until February 16, 1971, well beyond the statutory limit, after this Court granted a petition and entered an order permitting the appeal to be filed “nunc pro tunc.”

Upon further reflection, we conclude that the above order was improvidently entered and must he vacated. *419 Where an act of assembly fixes the time within which an appeal may be taken, the time may not be extended in the absence of fraud or its equivalent, which is not present herein. The time may not be extended as a matter of indulgence. Cf. Commonwealth v. Bey, 437 Pa. 134, 262 A. 2d 144 (1970); Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938); and Yeager v. United Natural Gas Company, 197 Pa. Superior Ct. 25, 176 A. 2d 455 (1961).

Since the appeal was untimely filed, it must be quashed.

It is so ordered. Each party to pay own costs.

Mr. Justice Jones took no part in the consideration or decision of this case.

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Bluebook (online)

281 A.2d 169, 443 Pa. 417, 1971 Pa. LEXIS 931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luckenbach-v-luckenbach-pa-1971.

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