Valentine v. Wroten

580 A.2d 757, 397 Pa. Super. 526, 1990 Pa. Super. LEXIS 1403

• Court: Supreme Court of Pennsylvania
• Decided: July 17, 1990
• Docket: 1254
• Status: Published

Opinions

DEL SOLE, Judge.

The appellant seeks review of the trial court’s refusal to entertain a request for temporary custody of minor children at the time appellant sought a protection from abuse order. The trial court refused appellant’s request on February 8, 1989 and appellant filed a petition for reconsideration of that order. The trial court denied reconsideration on April 7, 1989 and appellant filed a notice of appeal following that denial. We find that this appeal has been untimely filed and, therefore, this court does not have jurisdiction. Thus, we quash this appeal.

In this case, following the February 8th order and within thirty days, a notice of appeal and a petition for reconsideration were filed. The trial judge did not within that thirty-day period grant reconsideration. Rather, the trial judge issued a rule to show cause why reconsideration should not be granted. Unfortunately, when this rule was issued counsel withdrew the pending appeal. The actions of the trial court in this case were not sufficient to invoke the application of Pa.R.A.P. 1701 and, further, as this court has held en banc:

The granting of a rule to show cause is not a grant of reconsideration and, therefore, did not operate to prevent the thirty-day appeal period from expiring. Hook v. Athens Area School District, 50 Pa.Cmwlth.Ct. 420, 413 A.2d 1151, 1153 (1980).

Luckenbaugh v. Shearer, 362 Pa.Super. 9, 523 A.2d 399 (1987) . Allocatur denied. 518 Pa. 626, 541 A.2d 1138 (1988) .

The fact that the trial court established a briefing schedule, hearing date and issuing a rule to show cause did not amount to an agreement to reconsider. Rule 1701 is very clear. Even though an appeal has been filed, a trial court may, within thirty days of the final appealable order expressly grant reconsideration. If the trial court expressly grants reconsideration, it has extended the time for decision. As we said in Luckenbaugh:

A judgment entered in a contested proceeding which ends the litigation must either be appealed within thirty days or the trial court must expressly grant reconsideration within thirty days from the entry of the judgment [order]. Pa.R.A.P. 1701, 42 Pa.C.S.A. See: Luckenbaugh, id., at 523 A.2d 401.

To find that the court does not have jurisdiction is not a harsh technical application of rules, particularly in this case. Here, the appellant has the relief which she sought. Namely, she has custody of her children. She, through amicus, is seeking review of the trial court’s order as it would affect future temporary custody matters arising in Protection From Abuse Act cases.

Our court has repeatedly held that appeals filed from orders denying reconsideration are improper and untimely. Fortune/Forsythe v. Fortune, 352 Pa.Super. 547, 508 A.2d 1205 (1986). The appeal in this case should have been filed within thirty days from the February 7, 1989 order or, reconsideration should have expressly been granted within thirty days of that order. Since the untimely filing of the appeal goes to the jurisdiction of this court, we have no choice but to quash the appeal. State Farm Mutual Automobile Insurance Co. v. Schultz, 281 Pa.Super. 212, 421 A.2d 1224 (1980).

Appeal quashed.

TAMILIA, J., files a dissenting opinion.