J-S60017-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SUSQUEHANNA BANK, SUCCESSOR BY IN THE SUPERIOR COURT OF
MERGER COMMUNITY BANKS, PENNSYLVANIA
Appellee
v.
LAURA E. COOPER A/K/A LAURA
ELIZABETH LONG A/K/A LARA
ELIZABETH COOPER A/K/A LAURA E.
LONG,
Appellant No. 271 MDA 2014
Appeal from the Order Entered January 10, 2014
In the Court of Common Pleas of Berks County
Civil Division at No(s): 12-2302
BEFORE: OTT, STABILE, and JENKINS, J.J.
CONCURRING MEMORANDUM BY JENKINS, J.: FILED JANUARY 13, 2015
I respectfully concur in the result. In my view, the proper remedy is
to quash this appeal instead of affirming the order denying Appellant’s
petition to open or strike the judgment.
On January 30, 2013, the trial court entered summary judgment
against Appellant. Over nine months later, on October 10, 2013, Appellant
filed a petition to open or strike the judgment claiming that she never
received Susquehanna Bank’s motion for summary judgment. On January
10, 2014, the trial court denied Appellant’s petition. On February 7, 2014,
Appellant filed a notice of appeal. On the same date, Appellant filed a
motion for reconsideration. On February 24, 2014, the trial court denied the
motion for reconsideration.
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Because the trial court entered summary judgment against Appellant
on January 30, 2013, she was required to file a notice of appeal within thirty
days after entry of judgment on the docket, or by Friday, March 1, 2013. 42
Pa.C.S. § 5571; Pa.R.A.P. 903. Appellant did not file a notice of appeal until
February 7, 2014. This appeal is untimely on its face and should be
quashed.
In my view, Appellant had no right to file a petition to open or strike
the summary judgment order. A petition to open or strike is the proper
procedure for challenging a default judgment, not summary judgment.
Following summary judgment, an appellant can only do the following:
1. The appellant can file a motion for reconsideration in the trial court.
The court may grant the motion for reconsideration within thirty days after
entry of summary judgment on the docket. After the thirtieth day, the court
loses jurisdiction to grant reconsideration. 42 Pa.C.S. § 5505; Simpson v.
Allstate Ins. Co., 504 A.2d 335, 338 (Pa.Super.1986) (en banc). Here,
Appellant did not file a motion for reconsideration.
2. As stated above, the appellant can file a notice of appeal within
thirty days after entry of summary judgment on the docket. Appellant failed
to take this step.
3. More than thirty days after entry of summary judgment on the
docket, the appellant can file a motion for leave to appeal nunc pro tunc in
the trial court. Criss v. Wise, 781 A.2d 1156, 1159 (Pa.2001). The court
may grant this motion where the appellant proves that: (1) the appellant's
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notice of appeal was filed late as a result of non-negligent circumstances,
either as they relate to the appellant or the appellant's counsel; (2) the
appellant filed the notice of appeal shortly after the expiration date; and (3)
the appellee was not prejudiced by the delay. Id. Applying this test, I
conclude that Appellant failed to prove that she filed her appeal late due to
non-negligent circumstances. Appellant is responsible for her failure to
receive the Bank’s motion for summary judgment due to her failure to
endorse all pleadings and legal papers with an address where they may be
served. Therefore, I conclude that this appeal should be quashed as
untimely.
Here, more than thirty days after entry of summary judgment,
Appellant filed a petition to open/strike instead of filing a motion for leave to
appeal nunc pro tunc. In my view, the trial court should have reviewed (and
denied) this petition under the test articulated in Criss instead of petition to
open/strike standards. But because the court declined to award Appellant
relief, I do not find any harm arising from its application of the incorrect
standards. Thus, I respectfully concur in the result.
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