Commonwealth v. WydoCommonwealth v. Wydo
- Reporters:
- , ,
- Before:
- Ervin
Opinion
Per Curiam,Section 4 of the Act of May 19, 1897, P. L. 67, as amended,
In this case the court entered an order sustaining defendant’s demurrer to the evidence which reads as follows: “And now, June 17, 1964, the Court, upon due consideration of the Demurrer tо evidence, sustains motion and discharges the Jury from further attendance upon this Court and all witnessеs in this case discharged and costs placed upon the County of Greene.” The Commonweаlth moved to strike and on November 16, 1964, after heаring and argument, the trial court affirmed the entry of the demurrer. The Commonwealth appealеd on December 18, 1964.
The Commonwealth has the right of appeal from an order sustaining a demurrer as an exception to the general rule. Commonwealth v. Heller, 147 Pa. Superior Ct. 68, 24 A. 2d 460 (1942). This, however, was *64not a timely appeal. Tlie appеal time began to run on June 17, 1964, the date when the оrder sustaining the demurrer was entered. The provisiоns of appeal statutes are mandatоry whether or not the opposite party mоves to quash. Commonwealth v. Nicosia, 184 Pa. Superior Ct. 440, 136 A. 2d 135 (1957). There is no room for the exercise of discretion. An order sustaining a demurrer is final and the Commonwealth has the right to appeal without any further action on the part of the сourt below. Where no timely appeal is tаken the matter becomes res judicata. Commonwealth v. Fox, 181 Pa. Superior Ct. 292, 124 A. 2d 628 (1956). Thе statutory period is not extended by the filing of a mоtion for a new trial. A defendant’s motion for a nеw trial filed two days after sentence, where the court below did not set aside the sentence, open the judgment or otherwise stay the proceedings, did not prevent the running of the forty-five day appeal period. Com. v. Jackson, 196 Pa. Superior Ct. 539, 176 A. 2d 178 (1961). See also: Com. v. Samolsky, 202 Pa. Superior Ct. 406, 195 A. 2d 818 (1963). Similarly, in this case, where no stay of proceedings appears in the record, the Commonwealth’s motion tо strike did not extend the appeal periоd.
The trial judge in his opinion said: “. . . it is fair to state that аt the time the demurrer was entered, counsel fоr defendant, the District Attorney, and the trial judge werе of the opinion that the order sustaining the demurrer could be reviewed by the trial judge after the rеcord was transcribed and after further argument.” Evеn if this were true the mandatory time of appеal from the order could not be extended. “Thе fact that an order sustaining a demurrer is final for purposes of appeal precludes any further action on the matter by the lower court. Unless set aside *65on appeal, the matter becomes res judicata.” Com. v. Fox, supra, at page 299.
The appeal is quashed.