Commonwealth v. Parker

LIPEZ, Judge,

concurring:

I agree with the majority that section 5505 1 of the Judicial Code effected no change in the law so as to authorize a trial court to change a previously entered guilty verdict to a not guilty one. As cogently stated by Judge Montgomery:

In a criminal case tried without a jury, . . . the verdict rendered by the trial judge is a general verdict “. . . as if the defendant had put himself upon the inquest or country for trial, and his cause were being tried before a jury ...” Therefore, after recording such a verdict, the authority of the trial judge over it would be the same as in the case of a verdict by a jury . . .

Commonwealth v. Brown, 192 Pa.Super.Ct. 498 , 501-02 n. 1, 162 A.2d 13 , 14 n. 1 (1960); accord, Commonwealth v. Christian, 215 Pa.Super.Ct. 8, 13-14 , 257 A.2d 83, 85-86 (1969). However, rather than basing this conclusion on the majority theory that the prior case law falls within section 5505’s introductory clause (“Except as otherwise provided or *526 prescribed by law”), 2 I would simply hold that section 5505 applies only to final orders, as the Supreme Court held with respect to section 5505’s predecessor statute, the Act of June 1, 1959, P.L. 342, No. 70, § 1, 12 P.S. § 1032 (Supp. 1978-1979). 3 Commonwealth v. Bowden, 456 Pa. 278 , 282 & n. 3, 309 A.2d 714 , 717 & n. 3 (1972).

Section 5505 substantially reenacts 12 P.S. § 1032, which was repealed when section 5505 went into effect on June 27, 1978. See 42 Pa.C.S. § 5505, Official Source Note; Commonwealth v. Demby, 496 Pa. 509 , 512 n. 6, 437 A.2d 1156 , 1158 n. 6 (1981). 4 The Supreme Court’s reasoning in holding *527 that 12 P.S. § 1032 applied only to final orders, Commonwealth v. Bowden, supra, is equally applicable to section 5505. Thus section 5505 does not apply to verdicts, which are certainly not final orders. 5 Since it is wholly inapplica *528 ble to verdicts, section 5505 made no change in the law determining a trial judge’s authority over his own verdict. That authority remains as it was before passage of section 5505, i.e., once a nonjury verdict is entered, it can only be overturned for the same reasons as a jury verdict. Commonwealth v. Brown, supra; see Commonwealth v. Nelson, 245 Pa.Super.Ct. 33, 38-39 , 369 A.2d 279, 282 (1976) (concurring opinion by Spaeth, J.). Consequently, the trial judge here had no authority to change his verdict of “guilty” to “not guilty”.

. “Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.” 42 Pa.C.S. § 5505.

. It is anomalous to hold that 42 Pa.C.S. § 5505 is consistent with Commonwealth v. Christian, supra, only because section 5505 contains the introductory clause, when Christian must be consistent with section 5505’s predecessor statute, 12 P.S. § 1032 (Supp. 1978-1979), which was in effect at the time of the lower court proceedings in Christian , and which contained no similar introductory clause. See note 3, infra.

. “In any civil, criminal or equitable proceeding in which the court has heretofore been vested with the power, jurisdiction and authority to alter, modify, suspend, reinstate, terminate, amend or rescind, any order, decree, judgment or sentence only during the term of court in which the order, decree, judgment or sentence, was entered of record, the court, in addition to such power, jurisdiction and authority, shall hereafter have the same power, jurisdiction and authority to alter, modify, suspend, reinstate, terminate, amend or rescind, the order, decree, judgment or sentence for a period of thirty days subsequent to the date of entering of record the order, decree, judgment or sentence, in any instance where the term of court shall terminate prior to such thirty day period: Provided, That all parties in interest, including the district attorney in criminal cases, are notified in advance of such proposed alteration, modification, suspension, reinstatement, termination, amendment or rescission.” 12 P.S. § 1032 (Supp. 1978-1979) (repealed).

. Commonwealth v. Demby, 496 Pa. 509 , 512 & nn. 5-6, 437 A.2d 1156 , 1158 & nn. 5-6 (1981) held that a trial court could reconsider an order denying an extension of time under Rule of Criminal Procedure 1100, because the court had statutory power to reconsider under 12 P.S. § 1032, as well as inherent power to do so, relying on Commonwealth v. Cole, 437 Pa. 288 , 263 A.2d 339 (1970). Because an order denying a Rule 1100 extension is plainly interlocutory, our Supreme Court in Demby must have been unaware of its own previous holding in Commonwealth v. Bowden, supra, that 12 P.S. § 1032 applies only to final orders. The Demby opinion’s reliance on Commonwealth v. Cole, supra, also seems incorrect, since Cole merely holds that courts have inherent authority to correct errors *527 which are plain on the face of the order itself, and no such error was involved in Demby . Nevertheless, the result in Demby is correct, because a court has power to reconsider its interlocutory orders generally. See note 5, infra. The effect of interlocutory orders being outside the scope of 12 P.S. § 1032 (and its successor, 42 Pa.C.S. § 5505) is not to deprive the court of power to reconsider, but simply means such orders are not subject to the 30-day limitation. As stated in Commonwealth v. Bowden, supra, 456 Pa. at 282 n. 3, 309 A.2d at 717 n. 3: “It must be remembered judgment of sentence had not been passed in the instant case, thus, the purpose of the statute, finality, Commonwealth v. Mackley, 380 Pa. 70 , 110 A.2d 172 (1955), and barring parties from extending the appeal period, Philadelphia Suburban Transportation Co. v. DiFrancesco, 362 Pa. 326 , 66 A.2d 254 (1949), are not affected by allowing a change of an interlocutory order.”

. It is doubtful that a nonjury verdict is even an order. The Judicial Code’s general definition (“ ‘Order.’ Includes judgment, decision, decree, sentence and adjudication.” 42 Pa.C.S. § 102) is not helpful in ascertaining whether a verdict is ever an “order” for any purpose under the Code. Fortunately, we need not make this determination here, because even if entry of a nonjury verdict constituted an order, it would certainly not be a final one. See, e.g. Commonwealth v. Nugent, 291 Pa.Super.Ct. 421 , 435 A.2d 1298 (1981) (order which is only a “determination of guilt”, the equivalent of a nonjury verdict, is not a final order). This is sufficient to remove verdicts from the purview of section 5505, and therefore it is unnecessary to draw any distinction here as to whether a verdict for other purposes might be classified as either an interlocutory order or no order at all.

The distinction can be critical in other contexts, however, because the fact that section 5505 is inapplicable merely means that the court’s power to reconsider is determined by law other than section 5505, and that other law differs with respect to interlocutory orders other than verdicts. Thus unlike verdicts, which cannot be reconsidered at all once entered, interlocutory orders generally not only may be reconsidered, but reconsideration may also take place more than 30 days after entry, so long as no appeal from the order has been taken. Scharfman v. Philadelphia Transportation Company, 234 Pa.Super.Ct. 563, 569 , 340 A.2d 539, 542 (1975); see Scoumiou v. United States Steel Corporation, 293 Pa.Super.Ct. 254 , 256 n. 2, 438 A.2d 981 , 982 n. 2 (1981) (dictum).

The reason Scharfman and Scoumiou permit reconsideration beyond the time limits of 12 P.S. § 1032 and 42 Pa.C.S. § 5505, without mentioning those sections, is that sections 1032 and 5505 apply only to final orders, which I believe is the true basis for our decision in this case. Scharfman and Scoumiou do say that the court may not *528 reconsider even an interlocutory order if an appeal has been taken, and the same limitation is prescribed by section 5505. In the case of interlocutory orders, however, this limitation does not derive from section 5505, but Rule of Appellate Procedure 1701(a) (and the case law which Rule 1701 codified when it became effective on July 1, 1976). With the exceptions specified in subsections (b) and (c), Rule 1701(a) operates to deprive the lower court of jurisdiction whenever an appeal is taken, whether it is from a final order, an appealable interlocutory order, or even a nonappealable interlocutory order. See, e.g., Gordon v. Gordon, 293 Pa.Super.Ct. 491, 497-99 , 439 A.2d 683, 686 (1981), aff’d per curiam, 498 Pa. 570 , 449 A.2d 1378 (1982).