Big Bear Oil Co. v. Zoning Board of Adjustment of Greenville , 2 Pa. Commw. 33 ( 1971 )

Opinion by

Judge Mencee,

On July 23, 1970, the Court of Common Pleas of Mercer County rendered a decision dismissing the appeal of Big Bear Oil Company (Big Bear) from the decision of the Zoning Board of Adjustment of Green-ville, Pennsylvania. The decision of the lower court was in the form of an order dated July 23, 1970, dismissing Big Bear’s appeal, with an allowance of exceptions to the court’s ruling and an opinion in support of the order entered by the court. On the same day, July 23, 1970, the court’s order and exceptions were docketed and entered of public record in the office of the Prothonotary of Mercer County.

On August 25, 1970, the attorney for Big Bear filed a praecipe with the Prothonotary requesting entry of judgment in favor of the Zoning Board of Adjustment of Greenville, Pennsylvania, in accordance with the opinion and order of the lower court entered July 23, 1970. Judgment was entered in accordance with the praecipe on August 26, 1970. On August 31, 1970, Big Bear took an appeal to the Supreme Court and there followed a motion to quash the appeal as untimely filed.

Under the authority of Section 507 (b) of the Appellate Court Jurisdiction Act of July 31, 1970, P. L.

, ,17 P.S. §§211.101-211;510,.this appeal and the motion to quash were transferred to the Commonwealth Court for hearing and disposition pursuant to Section 402(4) of the Appellate Court Jurisdiction Act of 1970.

TMs appeal is subject to tbe provisions of tbe act known as the “Pennsylvania Municipalities Planning Code”. Act of July 31, 1968, P. L. , No. 247, 53 P.S. §10101 et seq. Article X, §1012 of that Act, 53 P.S. §11012, provides as follows: “Appeals from decisions of courts made under this act shall be taken to the Supreme Court of Pennsylvania in the manner provided for other civil cases, but no such appeal shall be entertained unless it is filed within thirty days after the date of entry of the decision of the lower court.”

Since the decision of the lower court was entered on July 23, 1970, and Big Bear did not take its appeal until August 31, 1970, thirty-eight days after entry of the decision by the lower court, the motion to quash the appeal must be granted. Kravitz v. Zoning Board of Adjustment, 415 Pa. 97, 202 A. 2d 64 (1964); Blank v. Board of Adjustment, 390 Pa. 636, 136 A. 2d 695 (1957). This appeal was filed eight days beyond the statutorily prescribed time for taking an appeal. The timeliness of ah appeal and compliance with the statutory provisions which grant the right of appeal go to the jurisdiction of a court and its competency to act. See Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 214 A. 2d 203 (1965). Courts are without the power to enlarge or extend the time provided by statute for taking an appeal. Commonwealth v. Simon, 413 Pa. 609, 198 A. 2d 583 (1964). The only exceptions to this rule are those involving fraud or a breakdown in a court’s operation whereby a party has been injured or in a criminal case where the failure of a defendant to take an appeal within the period allowed has resulted from lack of counsel in violation of the defendant’s constitutional rights. See Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938); Commonwealth ex rel. Newsome v. Myers, 422 Pa. 240, 220 A. 2d 886 (1966).

Big Bear contends that the appeal period should commence on August 26, 1970, when judgment was entered in accordance with its praecipe. It relies on Simpson v. Pennsylvania Turnpike Commission, 384 Pa. 335, 121 A. 2d 84 (1956) for this contention. However, Simpson is inapposite since it dealt with a trial in which the jury returned a verdict in favor of the plaintiffs of $14,600. The defendant moved for a new trial and the court below overruled the motion and the defendant thereupon took his appeal prior to entry of judgment on the verdict of the jury. Here there is no jury verdict to enter judgment upon and it does not follow that appeals can be taken only from judgments.

Rule 20% of the Supreme Court of Pennsylvania indicates clearly that appeals may be taken, not only from a judgment, but from a sentence, order or decree. Here the appeal lies clearly from the order of the lower court dismissing Big Bear’s appeal from the decision :of the Zoning Board of Adjustment.

Section 1009 of the Act, 53 P.S. §11009, states that the final decision of each zoning appeal from the decisions of the zoning hearing board shall be made by the court or a judge thereof. There can be no doubt in the instant case that the order of July 23, 1970, by the lower court was its decision and that, when it was entered and docketed the same date, the time period within which to appeal commenced and entry of judgment was not appropriate or necessary.

In Burdett Oxygen Company v. I. R. Wolfe and Sons, Inc., 433 Pa. 291, 249 A. 2d 299 (1969), it was held that the date upon which the order is docketed should be the starting date for the appeal time to run. Here the order, being the decision of the lower court, was docketed and entered July 23, 1970, and the statutory deadline for taking an appeal therefrom would have been thirty days thereafter. This appeal, filed eight days beyond the statutory deadline, must therefore be quashed. Big Bear simply hibernated during the time when it could have brought to bear its right of appeal.

The appeal is quashed.