Opinion
January 11, 1962.
March 20, 1962.
Appeals — Timeliness — Municipalities — Townships — Township supervisors' accounts — Audit — Judgment against supervisors — Acts of May 11, 1927, P. L. 972 and July 10, 1947, P. L. 1481.
1. An appeal taken to the Supreme Court from a judgment of a court of common pleas entered on the audit of the accounts of township supervisors (pursuant to the Act of July 10, 1947, P. L. 1481, § 7, which provides "Any person interested may except to the rulings of the court, and may appeal therefrom to the Superior or Supreme Court as in other cases") must be perfected within the three calendar months from the entry of the judgment which is prescribed for other appeals by the Act of May 11, 1927, P. L. 972, § 1. [642-3]
2. The statutory period for taking an appeal cannot be extended by applying for a rule to open or vacate the judgment and assigning as error the discharge of such a rule. [643]
3. The time for appeal from a judgment runs from the date of its entry and not from the date of the discharge of a rule to open or vacate it, unless there is an order staying proceedings pending consideration of the rule. [643]
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN and O'BRIEN, JJ.
Appeal, No. 470, Jan. T., 1961, from order of Court of Common Pleas of Luzerne County, May T., 1958, No. 458, in re appeal from report of audit of Hazle Township for 1957. Appeal quashed.
Proceedings on appeal from audit of accounts of township supervisors. Before TREMBATH, P. J., specially presiding.
Adjudication filed directing judgment in favor of Township of Hazle and against township supervisors, petition by township supervisors to open judgment denied and order entered. Township supervisors appealed.
John E. Cotsack, with him Robert J. Gillespie, and Morton Gordon, for appellants.
Leroy Long, for appellees.
On the appeal of certain taxpayers of Hazle Township from the audit of the supervisors' accounts for the year 1957, the Court of Common Pleas of Luzerne County entered judgment against the supervisors, in January, 1961. In February, the supervisors petitioned the court to open the judgment and permit them to enter into a defense to the merits, and, further, to stay all further proceedings. Following an argument on the court's power to grant the rule which was held in March before the court en banc, an opinion was handed down denying the petition. The supervisors then filed exceptions which, after argument before the court were dismissed in July. This appeal followed.
Regarding the procedure for taking an appeal from the report of the auditors of a second class township, The Second Class Township Code provides that after judgment has been entered by the court of common pleas, "Any person interested may except to the rulings of the court, and may appeal therefrom to the Superior or Supreme Court as in other cases." Act of 1947, July 10, P. L. 1481, § 7, 53 P. S. § 65562.
A similar provision is found in The First Class Township Code — Act of 1949, May 27, P. L. 1955, § 24, 53 P. S. § 56018. The prototype of the above provisions is found in the Act of 1901, May 11, P. L. 185, § 1, 12 Pa.C.S.A. § 1106 wherein is established the right and procedure of appeal from auditor reports which has been incorporated into all county, borough and township laws. It is, therefore, well engrained in the law of this Commonwealth that the time for appealing from a judgment entered in a court of common pleas from the report of the auditors is identical with the time limitation applicable in appealing other cases from a court of common pleas — three calendar months — Act of 1927, May 11, P. L. 972, No. 464, § 1, 12 Pa.C.S.A. § 1136.
It is equally clear that the statutory period cannot be extended by applying for a rule to open or vacate the judgment and assigning as error the discharge of such a rule, Levine v. Roth, 276 Pa. 244, 120 A. 115 (1923). The time for appeal from a judgment runs from the date of its entry, Simpson v. Pennsylvania Turnpike Commission, 384 Pa. 335, 337, 121 A.2d 84 (1956), and not from the date of the discharge of such rule, Levine v. Roth, supra, unless there is an order staying proceedings pending consideration of the rule, Chester School District v. Richardson Luce, Inc., 320 Pa. 438, 182 A. 500 (1936). See generally, 9 Stan. Pa. Prac. § 216, p. 173 (1936).
The time for appealing in this case, therefore, was three calendar months from the date that the judgment was entered in January, 1961 — i.e., April, 1961. Consequently, this appeal filed in August, 1961, violates the Act of 1947 (53 P. S. § 65562) into which is incorporated the three month limitation found in the Act of 1927 (12 Pa.C.S.A. § 1136).
Appeal quashed.