Valley Forge Center Associates v. Rib-It/K.P., Inc.

MONTEMURO, J.:

This is an appeal from the Order of the Dauphin County Court of Common Pleas denying the petition of Appellant, Valley Forge Center Associates (“VFCA”), for reconsideration of the June 23,1995 Order which granted the petition of Appellee, Rib-It/K.P. Inc. (“Rib-It”), to stay and set aside a pending writ of execution. Because we conclude that this Court does not have jurisdiction, we must quash this appeal.

The facts as gleaned from the record are as follows. On August 16, 1994, VFCA entered judgment against Rib-It in the Court of Common Pleas of Montgomery County for past due rent and rent due pursuant to a sublease executed by Rib-It. On May 15, 1995, VFCA commenced execution proceedings by filing a Writ of Execution in Dauphin County and requesting that the County attach the liquor license owned by Rib-It and held by the Pennsylvania Liquor Control Board in Harrisburg. A sheriff’s sale on the writ was scheduled to take place on June 26, 1995. Three days before the sale, however, on June 23, 1995, Rib-It filed a Petition to Intervene, Stay and Set Aside the Writ of Execution, alleging the priority of First Fidelity Bank’s (“First Fidelity”) perfected security interest in the liquor license. The trial court’s Order of June 23, 1995 granting this Petition underlies the instant appeal.

On July 18,1995, VFCA filed a Petition for Reconsideration of the June 23, 1995 Order. Thereafter, the parties filed briefs and the trial court scheduled the matter for a conference. On July 20, 1995, counsel for First Fidelity entered his appearance on the Bank’s behalf, and, on August 8,1995, filed a brief addressing First Fidelity’s right to intervene and the priority of its security interest in Rib-It’s liquor license. On August 28, 1995, the trial court entered an Order denying the petition of VFCA for reconsideration, and further ordered “defendant,” Rib-It, to file an amended petition in accordance with Pa.R.C.P. 2328(a) controlling the procedure for intervention.¹ First Fidelity filed an amended petition on September 6, 1995 to which VFCA filed an answer on September 20, 1995. VFCA subsequently filed a notice of appeal on September 21,1995.

VFCA ostensibly appeals from the August 28, 1995 Order denying its petition for reconsideration of the June 23, 1995 Order. Before we may address VFCA’s challenges to the August 28, 1995 denial, however, as a threshold issue we must determine whether this Court has jurisdiction to hear the appeal. Although the jurisdiction of this Court was not challenged by either party, we note that this Court may raise this issue sua sponte. Rieser v. Glukowsky, 435 Pa.Super. 530, 535, 646 A.2d 1221, 1223 (1994). Accordingly, we must decide whether, under the applicable rules of civil procedure, VFCA properly preserved its right to appeal.

On June 23,1995 the trial court entered an Order which stated:

AND NOW, this 23 day of June, 1995, upon consideration of Rib IVK.P., Inc.’s Petition to Intervene, Stay and Set Aside Writ of Execution, it is hereby ORDERED and DECREED that said Petition is GRANTED and the Writ of Execution is hereby STAYED and SET ASIDE.

Initially, we note that a court in which execution proceedings are pending has an inherent right to stay or set aside the proceedings where it is necessary to protect the rights of the parties. Pa.R.C.P. 3121; Keystone Savings Ass’n v. Kitsock, 429 Pa.Super. 561, 564, 633 A.2d 165, 167 (1993). The appealability of such orders, i.e., the jurisdiction of this Court, however, depends upon the character of the order, as the Superior Court has appellate jurisdiction of all appeals from final orders of the Court of Common Pleas. 42 Pa.C.S.A. § 742.

Generally, ‘“a determinative order relating to execution is in character a judgment, which, when of final nature, is appeal-able.’ ” Cherry v. Empire Mutual Ins. Co., 417 Pa. 7, 10, 208 A.2d 470, 471 (1965)(quoting In re Opening of Parkway, 267 Pa. 219, 225, 110 A. 144, 146 (1920)). Typically, an order staying execution is deemed interlocutory, and, therefore, unappealable because it is granted to maintain the status quo pending the further disposition of other court proceedings or investigations. Goodrich-Amram § 3121(c):5 at 246. See Cherry, 417 Pa. at 12, 208 A.2d at 472 (holding order staying execution interlocutory as it stayed execution “until' further order” to permit interested party to enter appearance before court made final determination); Jenkintown National Bank v. T.L. Fulmor, 124 Pa. 387, 17 A. 2 (1889)(holding interlocutory a stay of execution since it was ordered merely to allow for further investigation of an issue before the court). An order staying execution becomes final and appealable, however, if granted for an indefinite duration. Cherry, 417 Pa. at 11, 208 A.2d at 471; National Council of Junior Order of United American Mechanics of U.S. v. Roberson, 214 Pa.Super. 9, 16, 248 A.2d 861, 865 (1969). Therefore, the finality and appealability of a stay order depends either upon the duration of the order or the reason for which it was entered. Cherry, 417 Pa. at 11, 208 A.2d at 471.

Alternatively, an order setting aside a writ of execution is a permanent remedy and constitutes a more drastic form of relief from execution. Goodrich-Amram § 3121(d):! at 247. Accordingly, an order setting aside a writ is generally a final order subject to immediate appeal. Goodrich-Amram § 3121(d):6 at 251; Cherry, 417 Pa. at 12, 208 A.2d at 472. Cf. Rodgers v. Yodock, 309 Pa.Super. 154, 454 A.2d 1129 (1983)(hold-ing unappealable order which “set aside” writ of execution since, by its terms, was not meant to be in effect for more than thirty days). Therefore, to determine whether an order staying or setting aside a writ is final and appealable, we must examine the language of the order itself. Rodgers, 309 Pa.Super. at 157, 454 A.2d at 1131.

Interestingly, in the instant case, the language of the June 23, 1995 Order states that the writ of execution is both “STAYED and SET ASIDE.” Because an order staying execution is generally interlocutory, and an order setting aside a writ is typically final and appealable, the language of the instant Order lends itself to confusion regarding its character. In accordance with caselaw, however, we must conclude that the language of this Order renders it final and appealable. As illustrated above, the directives contained in the Order are mutually exclusive; an execution cannot be both temporarily stayed and permanently set aside.

Moreover, the Order is devoid of any limiting language and, as such, is of indefinite duration. Had the Order merely stayed the execution, its lack of specificity regarding the duration of the stay would have rendered it final and appealable. Cherry, 417 Pa. at 11, 208 A.2d at 471; Rodgers, 309 Pa.Super. at 157, 454 A.2d at 1131; Roberson, 214 Pa.Super. at 16, 248 A.2d at 865. Alternatively, had the Order only set aside the writ of execution, without any durational limit, the permanent nature of that directive would have rendered it final and appealable. See Cherry, 417 Pa. at 12, 208 A.2d at 472 (stating that “[i]f the 00121!; had intended to make a final disposition of the matter it ... would have ... set aside the writ of execution pursuant to Rule 3121(d).”) (footnote omitted) (emphasis in original). Accordingly, we conclude that the permanent nature of the setting aside directive coupled with its indefinite duration rendered this Order final and appealable.

In order to preserve the right to appeal from a final order of the Court of Common Pleas, a notice of appeal must be filed within 30 days after the date of entry of that order. Pa.R.A.P. 903(a); First Seneca Bank v. Sunseri, 449 Pa.Super. 566, 576, 674 A.2d 1080, 1084, appeal denied, 546 Pa. 655, 684 A.2d 557 (1996). This Court is without jurisdiction to excuse a failure to file a timely notice, as the 30-day period must be strictly construed. In re Greist, 431 Pa.Super. 188, 191, 636 A.2d 193, 195 (1994). Further, we note that an untimely appeal divests this Court of jurisdiction. Brown v. Brown, 433 Pa.Super. 577, 579, 641 A.2d 610, 611, appeal denied, 538 Pa. 660, 648 A.2d 790 (1994).

Although the entry of a final order triggers the 30-day appeal period, this period may be tolled if the trial court expressly grants a motion for reconsideration. Pa. R.A.P. 1701(b)(3). Generally, either the lapse of 30 days beyond the date of entry of an original order, or the filing of a notice of appeal will vitiate the jurisdiction of the trial court to modify, alter, or otherwise proceed further in the matter. Pa.R.A.P. 1701(a); In re Deed of Trust of McCargo, 438 Pa.Super. 570, 585, 652 A.2d 1330, 1337 (1994), appeal denied, 543 Pa. 693, 670 A.2d 141 (1995). Rule 1701, however, allows the trial court to view its order for up to thirty days, even after an appeal has been filed, if a pai’ty 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. Pa.R.A.P. 1701(b)(3)®, (ii).

The mere filing of a motion for reconsideration, however, is insufficient to toll the appeal period. Moore v. Moore, 535 Pa. 18, 26, 634 A.2d 163, 167 (1993). Rule 1701 is very clear: the 30-day appeal period is tolled only by a timely order “expressly granting” reconsideration; the establishment of a briefing schedule, hearing date, or issuance of a rule to show cause does not suffice. Valentine v. Wroten, 397 Pa.Super. 526, 528, 580 A.2d 757, 758 (1990), appeal denied, 521 Pa. 650, 593 A.2d 422 (1991); Schoff v. Richter, 386 Pa.Super. 289, 291, 562 A.2d 912, 913 (1989). If a trial court fails to grant reconsideration expressly within the prescribed 30 days, it loses the power to act upon both the petition and the original order. Schoff, 386 Pa.Super. at 291, 562 A.2d at 913; Leonard v. Andersen Corp., 300 Pa.Super. 22, 26, 445 A.2d 1279, 1281 (1982). Therefore, as the comment to Pa.R.A.P. 1701 explains, although a party may petition the court for reconsideration, the simultaneous filing of a notice of appeal is necessary to preserve appellate rights in the event that either the trial court fails to grant the petition expressly within 30 days, or it denies the petition. The comment states:

[Rule 1701](b)(3) is intended to handle the troublesome question of the effect of application for reconsideration on the appeal process.... The better procedure under this rule will be for a party seeking reconsideration to file an application for reconsideration below and a notice of appeal, etc. If the application lacks merit the trial court ... may deny [it] by the entry of an order to that effect or by inaction. The prior appeal paper will remain in effect, and appeal will have been taken without the necessity to watch the calendar for the running of the appeal period.

Pa.R.A.P. 1701, Note.

In the instant case, the trial court entered a final, appealable Order on June 23, 1995, granting Rib-It’s Petition to Intervene, Stay and Set Aside the Writ of Execution. VFCA did not file an appeal from this Order, and, instead, chose only to file a petition for reconsideration on July 18, 1995. Although the trial court set a hearing date and ordered the submission of briefs, it failed to “expressly grant” VFCA’s petition for reconsideration within the 30-day appeal period following the June 23 Order. In fact, it was not until August 28, 1995, over one month after the appeal period had lapsed, that the trial court acted on VFCA’s petition by entering a denial Order. Since the trial court failed to expressly grant reconsideration within the 30 days, the appeal period was not tolled, and, as a result, the trial court was deprived of jurisdiction both to act upon the petition for reconsideration, and/or to alter, modify, or amend the original June 23 Order.

Thus, the lack of jurisdiction renders the August 28 Order denying VFCA’s petition for reconsideration a nullity, as the trial court did not have the power to enter it, and VFCA’s instant appeal from this nugatory Order is improper.² Further, because VFCA failed to file a timely notice of appeal from the June 23 Order, thereby preserving its appellate rights, we are without jurisdiction, and, therefore, compelled to quash this appeal as improper and untimely.

Appeal quashed.³

JOHNSON, J., files a dissenting opinion.

1 . Although the first paragraph of the August 28, 1995 Order specifically refers to Rib-It, the second paragraph refers only to the "defendant.” While the Order is not clear, we assume that, because Rib-It filed the original petition for intervention, the trial court was referring to Rib-It when it ordered, the "defendant” to file an amended petition. We note that Pa.R.C.P. 2327 provides that "[a]t any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein-” Pa.R.C.P. 2327 (emphasis added). Since, as the defendant, Rib-It was already a party, the question of how it could intervene in its own action remains inexplicable.

2 . We note that, even if the August 28 Order denying reconsideration was valid, VFCA’s appeal from this denial would have been improper. See Provident Nat'l Bank v. Rooklin, 250 Pa.Super. 194, 378 A.2d 893 (1977) (holding order denying petition for reconsideration unappeala-ble, therefore, it is of no consequence that appeal was taken 30 days from denial order; consequence that appeal was taken 30 days from denial order; although grant of reconsideration may toll appeal period, to preserve appellate rights, timely appeal must be taken from original final order).

3 . Although not directly related to this appeal, we note that Rib-It pursued a separate appeal from the order of the Common Pleas Court of Montgomery County denying its petition to open the confessed judgment entered by VFCA. This Court affirmed the order in Valley Forge Center Assoc, v. Rib-It/K.P., Inc., 451 Pa.Super. 669, 679 A.2d 860 (1996).

We stress that, in the instant case, we address only the propriety of an appeal from the order denying reconsideration of an order staying and setting aside the writ of execution on Rib-It’s liquor license. We do not address the validity of either the underlying judgment or writs of execution issued upon other Rib-It property.