Summary
In Malis v. Lieberman, 439 Pa. 602, 266 A.2d 745 (1970), a late appeal was quashed although notice of a decision, required to be appealed within 15 days, was not provided until six days after its entry.
Summary of this case from Alger-Rau Assoc., Inc. v. Gen. State AuthOpinion
April 21, 1970.
July 2, 1970.
Appeals — Timeliness — Appeal under Act of March 5, 1925, P. L. 23 — Mandatory provision — Date upon which written order of lower court is docketed as starting date for fifteen day period — Perfection of appeal — Issuance of certiorari and filing in lower court.
1. The requirement under Section 3 of the Act of March 5, 1925, P. L. 23, that the appeal provided for must be taken and perfected within fifteen days from the date when the decision is rendered, is mandatory in all cases and admits of no exception. [603]
2. Where the decision of the lower court is announced by a written order, the date upon which the order is docketed is the starting date for the fifteen day period established in Section 3 of the Act of 1925. [604]
3. The perfection of an appeal requires, inter alia, that a writ of certiorari be issued by the prothonotary of the appellate court, directed to the inferior court, and that said writ be filed in the lower court by the appellant. [604-5]
Mr. Justice EAGEN and Mr. Justice ROBERTS concurred in the result.
Before BELL, C. J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Appeal, No. 350, Jan. T., 1970, from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1960, No. 761, in case of David B. Malis and Richard B. Malis, executors under last will and testament of Max E. Cohen, deceased, v. J. P. Lieberman and 2401 Pennsylvania Avenue Corporation. Appeal quashed.
Equity.
Preliminary objections by defendants dismissed; defendants' motion to set aside service and return of service and to quash service denied, opinion by WEINROTT, J. Defendants appealed.
Morris L. Rush, with him Irving L. Mazer, for appellants.
Richard B. Malis, for appellees.
Appellants filed preliminary objections to appellees' complaint in Equity, which were dismissed by the lower Court.
This appeal has been taken under the Act of March 5, 1925, P. L. 23, 12 Pa.C.S.A. § 672, challenging the lower Court's jurisdiction of the subject matter. The appeal must be quashed as having been taken too late.
The Act of 1925, supra, Section 3, provides: "The appeal here provided for must be taken and perfected within fifteen days from the date when the decision is rendered; . . ." This requirement is mandatory in all cases and admits of no exceptions. Colonial Pipeline Co. v. Peery, 434 Pa. 244, 252 A.2d 697; Scientific Living, Inc. v. Hohensee, 427 Pa. 320, 235 A.2d 393; Reynolds Metals Co. v. Berger, 423 Pa. 360, 223 A.2d 855; Schwartz v. Schwartz, 419 Pa. 559, 215 A.2d 614; Pennsylvania Coal Co. v. Luzerne County, 390 Pa. 143, 134 A.2d 657 (citing six Pennsylvania Supreme Court cases).
Italics throughout, ours.
The docket entries in the instant case show that the lower Court's Order dismissing appellants' preliminary objections was rendered and docketed January 8, 1970, and that certiorari from the Supreme Court was docketed January 30, 1970. In Burdett Oxygen Co. v. I. R. Wolfe Sons, Inc., 433 Pa. 291, 249 A.2d 299, this Court said (page 293): "Although as appellant points out, different considerations might apply to a decision announced in open Court in the presence of the parties, where as here, the decision is announced by written order, the date upon which the order is docketed should be the starting date for the fifteen day period established in § 3 [of the Act of March 5, 1925]." See Colonial Pipeline Co. v. Peery, 434 Pa., supra; Reynolds Metals Co. v. Berger, 423 Pa., supra. Since the time for taking appeals is computed by excluding the first day and including the last day of the prescribed period, January 23, 1970 was the last day in which this appeal could have been filed and perfected. We note that when the last day falls on a Saturday or a Sunday or any legal holiday, such day is omitted from the computation. Act of June 20, 1883, P. L. 136, Section 1, as amended by the Act of August 11, 1959, P. L. 692, Section 1, 76 P. S. § 172.
Our prior cases by implication make the word "rendered" synonymous with "docketed" in Court decisions which are announced by written Order.
The perfection of an appeal requires, inter alia, that a writ of certiorari be issued by the Prothonotary of the Appellate Court, directed to the inferior Court, and that said writ be filed in the lower Court by the appellant. Fenerty Disbarment Case, 356 Pa. 614, 52 A.2d 576, cert. denied, 332 U.S. 773.
Appellants contend that notice of the entry of the lower Court's Order was not received by appellants or their counsel until January 14, 1970, and that publication of the entry of the Order did not appear in the Legal Intelligencer of Philadelphia County until January 14. Neither of these dates is the determining date for the commencement of the appeal period.
The docket entry shows, we repeat, that the appellants did not file the writ of certiorari in the lower Court until January 30, 1970, and since the last date for said filing was January 23, the appeal must be quashed.
Appeal quashed; each party to pay own costs.
Mr. Justice EAGEN and Mr. Justice ROBERTS concur in the result.