Opinion
Argued October 27, 1975
November 20, 1975.
Appeal — Timeliness of appeal — Appellate Court Jurisdiction Act of 1970, Act 1970, July 31, P.L. 673 — Petition for reargument.
1. The appeal period mandated by the Appellate Court Jurisdiction Act of 1970, Act 1970, July 31, P.L. 673, is not tolled by the filing of a petition for reargument in the lower court which is denied. [42-3]
Argued October 27, 1975, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.
Appeal, No. 1643 C.D. 1974, from the Order of the Court of Common Pleas of Erie County in case of Pennsylvania Labor Relations Board v. Doctors Osteopathic Hospital, No. 481-A-1974.
Unfair labor practices charges filed with Pennsylvania Labor Relations Board. Charges dismissed. Employer appealed to the Court of Common Pleas of Erie County. Appeal dismissed. MCCLELLAND, J. Petition for reargument and reconsideration filed and dismissed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Appeal quashed. Petition for reargument filed and denied.
Richard H. Zamboldi, with him Elderkin, Martin, Kelly, Messina Zamboldi, for appellant.
Raymond W. Cromer, Assistant Attorney General, with him James F. Wildeman, Assistant Attorney General, and James L. Crawford, Assistant Attorney General, for appellee.
Miriam L. Gafni, with her Richard Kirschner, Neal Goldstein, and Markowitz Kirschner, for intervening appellee.
On February 14, 1974, Doctors Osteopathic Hospital (appellant) filed an appeal from an adverse ruling of the Pennsylvania Labor Relations Board (PLRB) with the Erie County Court of Common Pleas. By opinion and order dated October 3, 1974, that court dismissed the appeal. On October 7, 1974, appellant petitioned the Erie County court for reargument. However, appellant neither requested nor was granted a stay of the proceedings pending the lower court's decision on the merits of appellant's petition. Thereafter, on December 4, 1974, reargument was denied. The instant appeal was filed with this Court on December 20, 1974, a date beyond the thirty day appeal period (as measured from the date of entry of the lower court's order dismissing the appeal, or October 3, 1974) mandated by the Appellate Court Jurisdiction Act of 1970. This factor precipitated the filing of a motion to quash, for untimeliness, by the PLRB.
Section 502 of the Act of July 31, 1970, P. L. 673, as amended, 17 Pa.C.S.A. § 211.502.
Our disposition of the motion to quash is clearly controlled by our recent decision in Bucher v. American Federation of State, County and Municipal Employees, 21 Pa. Commw. 602, 347 A.2d 497 (1975). There, we were confronted with the question of whether the mere filing of a petition for reargument, which is subsequently denied, effects a tolling of the thirty day appeal period. There, we were cognizant of the Supreme Court's decision in Alco Parking Corporation v. Pittsburgh, 453 Pa. 245, 307 A.2d 851 (1973), rev'd on other grounds, 417 U.S. 369 (1974), in which the Court held that the granting of a petition for reargument within the thirty day appeal period acted as a tacit stay of the proceedings and, thus, tolled the thirty day appeal period pending a resolution after reargument. Finally, there, we distinguished Alco and found that neither the Supreme Court's holding nor its rationale had any application where a petition for reargument is denied. This case is Bucher "revisited," and it merits identical treatment.
The above appeal is quashed as untimely filed.