Opinion
Argued January 7, 1975
February 10, 1975.
Pennsylvania Securities Commission — Appellate Court Jurisdiction Act of 1970, July 31, P.L. 673 — Time of appeal — General Rules of Administrative Practice and Procedure — Administrative Agency Law, Act 1945, June 4, P.L. 1388 — Date of entry — Date of mailing — Saturday, Sunday or holiday — Extending appeal period — Petition for rehearing — Pennsylvania Securities Act of 1972, Act 1972, December 5, P.L. ___ No. 248.
1. The Appellate Court Jurisdiction Act of 1970, Act 1970, July 31, P.L. 673, requires that appeals be filed from orders of the Pennsylvania Securities Commission within thirty days from the date of entry of the contested order. [367-8]
2. The General Rules of Administrative Practice and Procedure, made applicable to the Pennsylvania Securities Commission by the Administrative Agency Law, Act 1945, June 4, P.L. 1388, in the absence of the promulgation by the Commission of its own rules, provide that, when computing appeal times, the date of issuance or entry of an order is the date the order was mailed or delivered to the parties, and, when the appeal period ends on a Saturday, Sunday or holiday, it is extended to the next day which is not a Saturday, Sunday or holiday. [368-9]
3. It is not a prerequisite to judicial review, but a permissible preliminary thereto, to apply to the Pennsylvania Securities Commission for a rehearing under the Pennsylvania Securities Act of 1972, Act 1972, December 5, P.L. ___ No. 248, and failure to request a rehearing is not fatal to an appeal from a Commission order. [369-70]
Argued January 7, 1975, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.
Appeal, No. 724 C.D. 1974, from the Order of the Pennsylvania Securities Commission in case of In the Matter of the Pioneer Finance Company.
Proceeding to revoke registration exemptions and restrict operation of securities business before Pennsylvania Securities Commission. Revocation order entered. Company affected appealed to the Commonwealth Court of Pennsylvania. Commission filed motion to quash appeal. Held: Motion to quash denied.
Alan Z. Lefkowitz, with him Kaplan, Finkel, Lefkowitz, Roth Astrow, for appellants.
James P. Deeley, Assistant Attorney General, with him Carl F. Safanda, Deputy Attorney General, for appellee.
The Pennsylvania Securities Commission has moved to quash appeals from its order made pursuant to the Pennsylvania Securities Act of 1972 revoking the registration exemptions of the Pioneer Finance Company and prohibiting the participation of the individual appellants in certain aspects of the securities business in this Commonwealth.
Act of Dec. 5, 1972, P.L. ___, No. 284, eff. Jan. 1, 1973, 70 P. S. § 1-101 et seq. (Supp. 1974-1975).
The Commission's order bears the date April 30, 1974. It was mailed to the appellants on May 2, 1974. The appeals were filed in this court on June 3, 1974.
The Commission first contends that the appeal was untimely filed.
Section 502 of the Appellate Court Jurisdiction Act of 1970 provides that appeals shall be filed within thirty days from the date of entry of the contested order. However, the phrase "date of entry" is not defined. The Commission argues that date of entry in this case was April 30, 1974, the date appearing on the order, and the appeal filed June 3, 1974 was untimely. However, controlling provisions of the General Rules of Administrative Practice and Procedure, 1 Pa. Code § 31.1 et seq., provide otherwise. Section 31.13(c) reads: "The date of issuance of an order shall be deemed to be the date of entry thereof for the purposes of computing the time for appeal under Section 502 of the Appellate Court Jurisdiction Act of 1970 (1[7]P. S. § 211.502) or under any other statute relating to judicial review of agency action."; and Section 31.13(a) provides in pertinent part: "In computing any period of time involving the date of the issuance of an order by an agency, the day of issuance of an order shall be the day the office of the agency mails or delivers copies of the order to the parties. . . . The day of issuance of an order may or may not be the day of its adoption by the agency. In any event, the office of the agency shall clearly indicate on each order the date of its issuance." The Commission argues that April 30, 1974, the date it placed on the order, is the date of issuance and the date of entry by reason of the final sentence of Section 31.13(a), although the order was mailed two days later. To the contrary, Section 31.13(c) clearly provides that date of issuance is the date of entry for the purpose of computing the time for appeal and Section 31.13(a) equally clearly provides that the date of issuance (and therefore date of entry) is the date of mailing. The date of the issuance and entry of the instant order is the acknowledged mailing date, May 2, 1974.
Act of July 31, 1970, P.L. 673, No. 223, § 502, 17 Pa.C.S.A. § 211.502 (Supp. 1974-1975).
No entry docket is maintained by the Pennsylvania Securities Commission.
Section 51(a)(26), as amended, of the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, 71 P. S. § 1710.51(a)(26) (Supp. 1974-1975) subjects the Pennsylvania Securities Commission to the provisions of that Law. Section 35, as amended, of the Administrative Agency Law, 71 P. S. § 1710.35 (Supp. 19741975) gives the agencies and commissions of the Commonwealth authority to adopt regulations prescribing practice and procedure before them. Absent adoption of its own regulation, the Commission's practice and procedure is governed by the General Rules. 1 Pa. Code § 31.1.
Section 31.12 of the General Rules prescribes the manner in which the thirty day period is to be computed: "Except as otherwise provided by law, in computing any period of time prescribed or allowed by this Part or by the regulations of the agency or any other provision of law, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is Saturday, Sunday, or a legal holiday in this Commonwealth, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday nor a holiday. . . . Intermediate Saturdays, Sundays, and holidays shall be included in the computation."
Hence, the first day of the appeal period here was May 3, 1974 and the last day June 1, 1974. June 1, 1974 was, however, a Saturday and the period was therefore extended to the next day which was neither a Saturday, Sunday or legal holiday. Monday, June 3, 1974, the date on which the appeals were here filed, was that day.
The Commission cites Purolator Courier Corp. v. Pennsylvania Public Utility Commission, 13 Pa. Commw. 444, 319 A.2d 688 (1974), as supportive of its position. There, we determined that Section 502 of the Appellate Court Jurisdiction Act of 1970 superseded a conflicting section of the Public Utility Law as to the time for appeals from orders of the Public Utility Commission. Here, there is no such conflict. As President Judge BOWMAN indicated in Purolator: ". . . [The] decision in this case should not be assumed as controlling in similar issues involving different statutory histories. . . ." 13 Pa. Commw. at 449, 319 A.2d at 691.
The Commission also supports its motion to quash by the suggestion that the appellants, by failing to apply for a rehearing under Section 607(b) of the Pennsylvania Securities Act of 1972, 70 P. S. § 1-607(b) (Supp. 1974-1975), have not exhausted their available administrative remedies and have therefore appealed prematurely. However, Section 607(b) only provides that: "Within thirty days after any order has become effective after a hearing, any interested party may apply to the Commission for a rehearing. . . ." (Emphasis supplied.) The Commission's contention that application for rehearing is a prerequisite rather than a permissive preliminary to judicial review of a Commission order is plainly without merit. See Colteryahn Sanitary Dairy v. Milk Control Commission, 332 Pa. 15, 1 A.2d 775 (1939); Commonwealth v. Ziegler Dairy Co., 139 Pa. Super. 224, 11 A.2d 669 (1939).
The Commission's motion to quash is denied.