21 Pa. Commw. 602 | Pa. Commw. Ct. | 1975
Opinion,
On December 19, 1974, the Court of Common Pleas of Philadelphia County issued an order appointing a trustee ad litem to protect the interests of certain members of the public likely to be affected by the action then pending before that court involving the Civil Service Commissioners, the Personnel Director of the City of Philadelphia (appellants) and the American Federation of State, County and Municipal Employees, AFL-CIO, District Council 33 (appellee). On January 14, 1975,
The order which precipitated the instant appeal was entered on December 19,1974, but the filing of this appeal did not occur until April 22, 1975, a period well in excess of the statutorily prescribed thirty day limitation.
Appellants’ initial appeal to this Court was timely filed under Section 502 of the ACJA. Obviously, that action, when viewed at the date taken, would have ordinarily dispensed with the need for further consideration of Section 502, Because of two subsequent events, namely, the withdrawal of that appeal and the filing of appellants’ petition for reconsideration, this is not the ordinary case. We will not pursue the novel question of whether the subsequent. withdrawal of that appeal voided ab initio the January 14th filing and thereby insured the untimeliness of any later attempts by appellants to obtain review by this Court. Rather, we will assume, but only for argument’s sake, that such a result would not obtain, and treat February 27, 1975, the date of said withdrawal, as the order entry date for purposes of Section 502. There
Prior to 1973, the general rule was “well settled that a motion for a rehearing or the allowance of a rule for reargument or for a rehearing, will not have the effect of tolling an appeal statute where no stay of proceedings has been granted pending the Court’s or the administrative body’s decision thereon: . . . ,”
“To slavishly adhere ... to a rule requiring a court to also issue an order staying the proceedings would be needlessly elevating mere form over substance.” 453 Pa. at 251, 307 A.2d at 855.
The rationale behind this variation from the pre-1973 approach is obvious, namely, that by granting a petition for reargument, the granting court has recognized a certain potential for a reversal or modification of its initial decision, and, in the face of such potential, it would be senseless to require the petitioner to appeal that decision. Unfortunately for appellants, neither the Supreme Court’s holding nor its rationale has any application to appellants’ situation. Here, the petition was refused, which, under Aleo, implied an intent of the lower court not to stay the appeal period. Further, the very fact of refusal indicated a lack of recognition by the lower court that a potential existed for a reversal or modification of the December 19th order.
The above appeal is quashed as untimely filed.
. Section 502 of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, 17 P.S. §211.502 (ACJA).
. Cumberland Valley Savings and Loan Ass’n v. Myers, 396 Pa. 331, 338, 153 A.2d 466, 470 (1959). (Citations omitted.)