Luckenbaugh v. Shearer
Luckenbaugh v. Shearer
Opinion of the Court
On April 28, 1983, the plaintiffs commenced a lawsuit against the defendant, John Shearer, Jr. and one Mary Straley, by filing praecipe for writ of summons. The summons was properly served and on July 31, 1984, the plaintiffs’ complaint was filed seeking damages from the defendants averring that the defendants either jointly or severally, by applying chemicals to land which they either owned or farmed, had damaged the plaintiffs’ well and drinking water supply.
Subsequently, the defendant, Mary Straley, filed preliminary objections in the nature of a demurrer, and the trial court by order of November 16, 1984 sustained the preliminary objections and granted the demurrer. No appeal was filed from that order and Mary Straley is no longer a party in this litigation.
On March 20, 1985, the defendant moved for sanctions and the trial court entered an order dismissing the plaintiffs’ case with prejudice for failure to answer the interrogatories.
On April 1, 1985, the plaintiffs filed a petition to strike the dismissal, open judgment and motioned for rule to show cause. On that same date, the trial court issued a rule on the defendant to show cause why its order of dismissal should not be stricken and judgment opened. Subsequently, the defendant filed an answer to the plaintiffs’ motion. Both plaintiffs’ and defense counsel filed affidavits in support of their respective positions and on August 8, 1985, the trial court entered an order striking the dismissal and opening the judgment that it previously entered as a sanction for the plaintiffs’ failure to timely file answers to interrogatories. From this August 8, 1985 judgment, the defendant appeals.
Initially, it should be noted that Pennsylvania Rule of Appellate Procedure 311(a) establishes the right of the defendant to appeal from the order entered. Rule 311(a) provides that “an appeal may be taken as of right from: (1) [a]n order opening, vacating or striking off a judgment____” The trial court’s order, which purported to “open” and “strike” its judgment was appealable. See Simpson v. Allstate Insurance Co., 350 Pa.Super. 239, 504 A.2d 335 (1986); Hunter v. Employers Insurance Co. of Wausau, 347 Pa.Super. 227, 500 A.2d 490 (1985).
A judgment entered in a contested proceeding which ends the litigation must either be appealed within thirty days or the trial court must expressly grant reconsideration within thirty days from the entry of the judgment. Pa.R.A.P. 1701, 42 Pa.C.S.A.
Here, the trial court’s action was well beyond the thirty-day time period in which it had to act to grant reconsideration. Also, the granting of rule to show cause is not a grant of reconsideration and, therefore, did not operate to prevent the thirty-day appeal period from expiring. Hook v. Athens Area School Dist., 50 Pa.Comwlth.Ct. 420, 413 A.2d 1151, 1153 (1980).
In this Court’s decision in Simpson, we restated that: Although the inability of a court to grant relief from a judgment entered in a contested action after the appeal period has expired is not absolute, the discretionary power of the court over such judgments is very limited. Generally, judgment regularly entered in adverse proceedings cannot be opened or vacated after they have become final, unless there has been fraud or some other circumstances “so grave or compelling as to constitute ‘extraordinary cause’ justifying intervention by the court ... (citations omitted).
Simpson v. Allstate, 350 Pa.Super. at 245, 504 A.2d at 337.
As in Simpson, the trial court in the case sub judice did not act on a request to reconsider its judgment,
In the instant case, the Appellees were aware of the entry of the judgment well within the time prescribed for filing an appeal.
In the Dissenting Opinion by President Judge Cirillo it must be pointed out that the dissent confuses what might have been a sufficient reason for the court’s acting within the appeal time to open the judgment, namely “postal oversight” and an excuse for failure to act or file an appeal as required within thirty days of the entry of that final judgment. Also, the dissent’s reference to Great American Credit Corp. v. Thomas Mini Markets, Inc., 230 Pa.Super. 210, 326 A.2d 517 (1974) is misplaced. There, our court affirmed the action of the trial court in opening a final judgment well beyond the time allowed for two main reasons. One, through oversight on the part of the court or its staff, the Appellant’s request for an extension of time previously made was misplaced and not granted while the
Moreover, the delay between entering the first order and the second was, in part, occasioned by the fact that Appellee never received notice that the Motion for Summary Judgment had been granted. He had filed an answer and was apparently under the impression that the court was considering the case on the merits as presented in the motion and answer.
230 Pa.Super. at 214, footnote 5, 326 A.2d 517.
In the case sub judice it is obvious that the Appellees knew of the entry of the March 20, 1985 order entering the final judgment well within the appeal period since on April 1, 1985 they filed their petition to strike the dismissal and open the judgment.
As we have repeatedly stated, once a final order or judgment is entered, an appeal must be filed within thirty days or, the trial court must expressly grant reconsideration within thirty days. If either of these two events do not occur, the judgment is final and except for “extraordinary cause” is not subject to collateral attack by virtue of a petition to open and/or strike.
Therefore, we vacate the order of the trial court dated August 8, 1985 opening the judgment and striking its order of dismissal and reinstate the trial court’s order of March 20, 1985 dismissing the case with prejudice.
Dissenting Opinion
dissenting:
I respectfully dissent. I would affirm the trial court’s order striking the dismissal and opening the judgment.
Although I have no quarrel with the majority’s statement of the law, I disagree with their application of the law to these facts. The trial court’s order of August 8, 1985 striking the dismissal and opening the judgment was a
The trial court based its decision to strike the dismissal and open the judgment upon the affidavits by counsel for both parties and the possibility of error by the postal system. In his affidavit, counsel for appellees averred that on the evening of March 11, 1985, he personally placed in a mailbox an envelope containing a cover letter and three copies of the answers to appellant’s interrogatories. After a hearing on the matter and review of affidavits, the trial court accepted this averment as fact and determined it to be a “reasonable excuse for the default.” The court did so despite the fact that the original answers were not received by the trial court prothonotary until April 11, 1985, and then only as an exhibit to appellees’ petition, and despite the contrary averment of appellant’s counsel that no such forwarding occurred and that the items were never received. We are bound by the trial court’s finding of fact unless it is not based upon competent evidence. Allegheny County v. Monzo, 509 Pa. 26, 35-37, 500 A.2d 1096, 1101 (1985). Here, the trial court’s finding was based in part upon evidence in the form of affidavits.
While we are bound by the trial court’s findings of fact, we are in no way bound by its conclusions of law. 2401 Pennsylvania Ave. Corp. v. Federation of Jewish Agencies of Greater Philadelphia, 507 Pa. 166, 171-72, 489 A.2d 733, 736 (1985). To the contrary, a reviewing court is free to draw its own inferences and conclusions from the facts as established. Minteer v. Wolfe, 300 Pa.Super. 234, 237-38, 446 A.2d 316, 318 (1982).
Based upon the trial court’s express finding of possible oversight by the postal system, I would conclude that a showing of extraordinary cause has been made, and that
In sum, because the majority fails to conclude that extraordinary cause was present in this case, I cannot join in their opinion.
Dissenting Opinion
dissenting:
I join President Judge Cirillo in his dissent as I agree with him that we may not look behind the finding of fact of the trial court, based on competent evidence, and substitute our own.
Reference
- Full Case Name
- Donald LUCKENBAUGH and Nancy Luckenbaugh, His Wife v. John SHEARER, Jr., Appellant
- Cited By
- 36 cases
- Status
- Published