stating that, Pennsylvania Rule of Appellate Procedure 1701 “allows the trial court to view its order for up to thirty days, even after an appeal has been filed, if a party files a petition for reconsideration within the 30-day appeal period and the trial court files an order ‘expressly granting’ reconsideration within the same period”
How later courts described this case
- stating that, Pennsylvania Rule of Appellate Procedure 1701 “allows the trial court to view its order for up to thirty days, even after an appeal has been filed, if a party files a petition for reconsideration within the 30-day appeal period and the trial court files an order ‘expressly granting’ reconsideration within the same period”
- stating that trial court could retain its ability to review its order for thirty days only if a petition for reconsideration has been timely filed and the court has entered an order expressly granting the motion
- interpreting Pa.R.A.P. 903(a) and explaining that the time limitation of Pa.R.A.P. 903 is jurisdictional in nature and must be strictly construed
- interpreting Rule 903(a) and explaining that “[t]his Court is without jurisdiction to excuse a failure to file a timely notice [of appeal]”
Written by the judges who cited it.
The opinion
JOHNSON, Judge,
dissenting:
The Majority holds that we have no jurisdiction and must therefore quash this appeal. Because I disagree, and conclude that we do have jurisdiction over this appeal and also conclude that the second half of the order from which this appeal has been brought, namely, the August 28,1995 order, should be reversed, I dissent.
If the August 28, 1995 order did nothing more than deny reconsideration of a previous order, I could join my esteemed colleagues. However, the order here under review does not stop at denying reconsideration. It goes on to order and direct the defendant to take a future action which, after analysis, is not authorized by law. I cannot agree that we are without jurisdiction to examine that new directive that goes beyond the original order of June 23,1995.
The order that is before this Court on this appeal sets forth in its entirety:
AND NOW, this 28 day of August, 1995, plaintiffs petition for reconsideration of the Order dated June 23, 1995, granting defendant’s petition to intervene, stay and set aside the writ of execution is denied. AND FURTHER, defendant is hereby ordered to file an amended petition, in compliance with Pa.R.C.P. No. 2328(a), within 15 days of the date of this Order.
BY THE COURT:
s/ William W. Lipsitt
William W. Lipsitt, Senior Judge
Order, entered August 28,1995. The Majority begins its Opinion by asserting that we have no jurisdiction. Maj. Op. at 243. I disagree.
This Court has jurisdiction over appeals filed within thirty days of the entry of an order by the court of common pleas. 42 Pa.C.S. § 742; Pa.RA.P. 903(a). In this ease, Valley Forge Center Associates (“Valley Forge”) appealed from the August 28 order on September 21, 1995, which is within thirty days of that order’s entry. Notice of Appeal, Docket Entry No. 14. The Majority cites no statute or rule that divests us of jurisdiction from a timely filed appeal, such as this. Nowhere in its Opinion does the Majority state why the order of August 28, 1995 is not appealable.
The Majority’s conclusion that we lack jurisdiction results from an analysis devoted entirely to the order entered on June 23, *247 1995. Valley Forge, however, has not appealed from that order; therefore, the ap-pealability of that order is not dispositive on the question of whether we have jurisdiction in this case. The sole question relevant to our jurisdiction is whether the appeal from the August 28 order was timely. The Majority’s analysis, therefore, is driven by the faulty premise that the order of June 23 controls our jurisdiction over an appeal taken from the August 28 order. Because the appeal was timely, and because the order contains matter not previously ruled upon by the trial court, I would hold that the order is appealable and we have jurisdiction over this appeal.
I agree that Rule of Appellate Procedure 1701(b)(3) bars us from reviewing the first half of the August 28 order, which denied Valley Forge’s motion to reconsider the order of June 23. Schoff v. Richter, 386 Pa.Super. 289, 291 , 562 A.2d 912, 913 (1989) (quashing appeal from order that trial court lacked authority to enter under Rule 1701(b)(3)); accord Provident Nat’l Bank v. Rooklin, 250 Pa.Super. 194, 202 , 378 A.2d 893, 897 (1977) (“Pennsylvania case law is absolutely clear that the refusal of a trial court to reconsider ... a final decree is not reviewable on appeal.”). There are, however, two parts to the August 28 order. While the Majority has ignored the second half of that order, I conclude that we must analyze each half of that order separately, as though each half was a freestanding order. See Sanders v. Sanders, 384 Pa.Super. 311, 315-16 , 558 A.2d 556, 558 (1989).
Before reaching the merits, I note that Rule 1701(b)(3) does not affect our authority to review the second half of the August 28 order. Rule 1701(b)(3) governs only the effect of an application for reconsideration on the appellate process. Pa.R.A.P. 1701, Note. The second half of the August 28 order, however, directed the defendant to file an amended petition; that portion of the order was unrelated to and separate from the denial of Valley Forge’s motion for reconsideration. Order, August 28, 1995. Thus, Rule 1701(b)(3) does not bar us from reviewing the second part of the August 28 order.
On the merits, I conclude that the trial court clearly erred by directing the defendant to file an amended petition to intervene. Order, August 28, 1995. The original petition to intervene was filed by the defendant, Rib-It/KP., Inc. (“Rib-It”), and not by First Fidelity Bank, N.A. (“First Fidelity”). Pa. R.C.P. 2327 provides, in pertinent part, that “[a]t any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein_” (emphasis added). Because Rib-It already was a party to the action in its capacity as defendant, it could not properly file a petition to intervene. See Pa.R.C.P. 2327.
If, however, the court was referring to First Fidelity when it ordered the “defendant” to file an amended petition — as my review of the record seems to indicate — then the court’s order violated the Pennsylvania Rules of Civil Procedure. Rule 2328(a) states that “[ajpplication for leave to intervene shall be made by a petition_” Pa. R.C.P. 2328(a). Again, Rule 2327 provides that the petition must be filed by “a person not a party” to the action. Pa.R.C.P. 2327. The only petition to intervene that was filed prior to the August 28 order was filed by the defendant, Rib-It. Docket Entry No. 3. Because that petition was filed by a party to the action, rather than First Fidelity, it was an invalid vehicle to join First Fidelity as an intervenor. Pa.R.C.P. 2327. Although First Fidelity did file, on August 4, 1995, a brief that argued that it had a right to intervene, it did not file a petition for intervention until September 6, 1995 — well after the August 28 order here under review. First Fidelity, therefore, could not properly be ordered to file an “amended” petition to intervene because it had never filed an original petition to intervene. To the extent that the order was intended to correct the original error of erroneously granting the stay and setting aside the writ of execution, it clearly constitutes a new action by the trial court and is reviewable.
My colleagues seemingly believe that this Court is without jurisdiction to review the August 28,1995 order because an appeal had not been taken from the June 23, 1995 order. In effect, the Majority would leave Valley *248 Forge without any recourse against a clearly erroneous order, even though an appeal was taken from that order within thirty days and contained matter which lies outside the motion for reconsideration. Valley Forge could not have anticipated that the trial court would attempt to cure the errors committed in entering the June 23 order by issuing an equally erroneous order on August 28. The Majority concludes that since no appeal was taken from the June 23 order, we are powerless to review and correct errors subsequently made. I cannot agree. I would reverse that portion of the August 28 order directing the defendant to file an amended petition for intervention and remand for further proceedings consistent with this analysis.
Because I conclude that we have jurisdiction over this appeal and that we should reverse the second half of the August 28 order, I respectfully dissent.