31 Pa. Commw. 89 | Pa. Commw. Ct. | 1977
Opinion by
This is a petition for review filed by the Board of School Directors of Avon Grove School District (Directors) requesting appellate review of an order of the Secretary of Education (Secretary) dated June 24, 1976. The order dismissed the Directors’ untimely petition to open and for reconsideration of the Secretary’s determination that Elizabeth M. Parsons (Parsons) should be reinstated as a teacher in the Avon Grove School District. Presently before this Court are motions raised by the Commonwealth, Department of Education (Commonwealth) and Parsons, to dismiss the petition for review for want of jurisdiction or alternatively to quash it on grounds that it is untimely.
On March 16, 1976, the Secretary entered an order reinstating Parsons to her teaching position. On June 4, 1976, 80 days later, the Directors filed a petition to open and for reconsideration. The Secretary dismissed this petition on June 24, 1976, and on July 6, 1976 the Directors filed the petition for review at issue.
The Commonwealth and Parsons contend that the petition for review was filed untimely. They argue that the Secretary’s reinstatement order was entered March 16, 1976 and that the petition for review was
This Court stated in Mayer v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 244, 366 A.2d 605 (1976), that where the appeal is of the order denying the petition for reconsideration only, the appeal time in such circumstances runs from the date of the order dismissing the petition. Such a result was deemed proper even though the petition for reconsideration was filed untimely and subsequent to the time allowed for appealing the original decision. The Court’s conclusion in Mayer relied upon the language found under Subsection (d) of Regulation 35.241 of the General Rules of Administrative Practice and Procedure, 1 Pa. Code §35.241. Subsection (d) reads as follows:
(d) Action on. Unless the agency head acts upon the application for rehearing or reconsideration within 30 days after it is filed, such application shall be deemed to have been denied. The denial of rehearing or reconsideration,*92 whether by action or inaction of the agency head, shall constitute the adoption of a fresh order for the purposes of computing the time for appeal under section 502 of the Appellate Court Jurisdiction Act of 1970 (17 P.8. §211-502) or under any other statute relating to judicial review of agency action. (Emphasis added.)
Section 502 of the Appellate Court Jurisdiction Act of 1970 has been superseded by Rule 1512 of the Pennsylvania Rules of Appellate Procedure, 42 Pa. C.S. Rule 1512 provides 30 days from entry of the order in which to petition for review of an administrative determination. As the petition for review involved here was filed 12 days after the order denying the Directors’ petition to open and for reconsideration, it is timely. The motion to quash must therefore be denied.
The Commonwealth and Parsons also contend that an administrative decision to deny a petition for reconsideration is not reviewable on appeal. Support for this proposition is found in Wolford, supra, 16 Pa. Commonwealth Ct. at 260, 329 A.2d at 306. Subsection (d), however, was added to Regulation 35.241 subsequent to this Court’s decision in Wolford.
Order
And Now, this 15th day of July, 1977, the motions to dismiss and quash raised by the Commonwealth, Department of Education and Elizabeth M. Parsons are
Subsection (d) of Regulation 35.241 became effective March 14, 3976, 5 Pa. B. 475.
Appellate review of administrative discretion in matters of rehearing or reconsideration under the Public Utility Code has been