Opinion
Nos. 54 MM 2009, 55 MM 2009, 56 MM 2009, 57 MM 2009, 58 MM 2009.
August 6, 2009.
ORDER
AND NOW, this 6th day of August, 2009, the Petition for Leave to File a Cross Petition for Allowance of Appeal Nunc Pro Tunc is DENIED.
Justice TODD files a Dissenting Statement.
By per curiam order, the Court has denied the Petition for Leave to File a Cross Petition for Allowance of Appeal Nunc Pro Tunc filed by Wegmans Food Markets, Inc. ("Wegmans"). For the reasons below, I would grant the petition; accordingly, I dissent.
At issue is the timeliness of Wegmans' cross-petition for allowance of appeal, filed in response to the petition for allowance of appeal ("PAA") filed by several beer distributors ("Beer Distributors") in the above actions. In its petition, Wegmans concedes it filed its cross-PAA 17 days after Beer Distributors filed their PAA. The Prothonotary, presumably relying on Pa.R.A.P. 1113(b), which states that a cross-PAA must be filed "within 14 days of the date on which the first [PAA] was filed," rejected the cross-PAA as untimely. Nevertheless, in its present petition, Wegmans contends its cross-PAA was timely, citing the interaction of Rule 1113 and Pa.R.A.P 121.
Noting that it filed its cross-PAA by mail, Wegmans relies on the three-day extension in Rule 121(e), which is applicable "[w]henever a party is required or permitted to do an act within a prescribed period after service of a paper upon that party (other than an order of a court or other government unit) and the paper is served by United States mail or by commercial carrier." Pa. R. A. P. 121(e). Indeed, although Rule 1113 measures the 14-day period from the filing of the first PAA, and Rule 121(e) speaks of service of a paper upon a party, Rule 121(e) otherwise arguably applies to Wegmans' filing. See West's Pennsylvania Practice § 1113:9 (suggesting that Rule 121(e) "would seem to be applicable to Rule 1113(b)"); cf. Coney Island, II, Inc. v. Pottsville Area School Dist., 497 Pa. 373, 378, 441 A.2d 747, 749 (1982) (finding Rule 121(e) applies to extend analogous 14-day period allowed by Pa.R.A.P. 302(b) for filing cross-notices of appeal). Moreover, Rule 121(e) excepts from the rule service of an order, which a PAA is not.
The comment to Rule 121 further confuses the matter. The Comment states:
Subdivision (e) of the rule does not apply to the filing of a notice of appeal, a petition for allowance of appeal, a petition for permission to appeal, or a petition for reconsideration or re-argument, since under these rules the time for filing such papers runs from the entry and service of the related order, nor to the filing of a petition for review, which is governed by similar considerations.
Pa.R.A.P 121, Cmt. First, this comment does not explicitly mention cross-PAAs. More importantly, though, its stated rationale is inapplicable to the filing of a cross-PAA: while it states that subsection (e) does not apply, inter alia, to PAAs because "under these rules the time for filing such papers runs from the entry and service of the related order," there is no such "related order" for a cross-PAA; rather, the time for filing a cross-PAA is triggered by the earlier-filed PAA.
Given these arguable ambiguities concerning the interaction between Rules 1113(b) and 121(e), I cannot find Wegmans' interpretation of the rules to be unreasonable. Accordingly, I would grant its petition for nunc pro tunc relief.