J-S10020-15
2016 PA Super 31
WESTFIELD INSURANCE COMPANY IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ASTRA FOODS INC., JOSE NOE
CASTILLO RAMOS, AND AMERICAN
GUARANTEE AND LIABILITY INSURANCE
COMPANY
APPEAL OF: ASTRA FOODS INC. No. 1392 EDA 2014
Appeal from the Order March 19, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): February Term, 2012 No. 00902
BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*
CONCURRING OPINION BY GANTMAN, P.J.: FILED FEBRUARY 12, 2016
After careful review of the record in this case, as well as the briefs of
the parties and the relevant law, I concur in the result, i.e., affirm summary
judgment in favor of Appellee, Westfield Insurance. I write separately to
make several points.
Initially, I observe that the trial court entered a final appealable order
granting summary judgment in favor of Westfield Insurance on December
30, 2013, from which Astra had thirty days to file an appeal. Within that
thirty-day period, Astra filed a motion for reconsideration but no notice of
appeal. In response to the motion, the court vacated its December 30 th
order and set a briefing schedule. Certainly, the court had jurisdiction and
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*Retired Senior Judge assigned to the Superior Court.
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authority to vacate its December 30th order, pursuant to 42 Pa.C.S.A. §
5505 (stating: “Except as otherwise provided or prescribed by law, a court
upon notice to the parties may modify or rescind any order within 30 days
after its entry, notwithstanding the prior termination of any term of court, if
no appeal from such order has been taken or allowed”).
When a court acts in response to a motion for reconsideration, settled
case law also states the established way to toll the appeal period is by entry
of an order expressly granting reconsideration (not necessarily the relief
requested) within the same thirty-day appeal period. See, e.g., Sass v.
Amtrust Bank, 74 A.3d 1054 (Pa.Super. 2013), appeal denied, 624 Pa.
675, 85 A.3d 484 (2013); Cheathem v. Temple University Hospital, 743
A.2d 518 (Pa.Super. 1999); Pa.R.A.P. 1701(b)(3) (requiring timely
application for reconsideration and responsive court order expressly granting
reconsideration within prescribed time in order to toll appeal period). See
also Manufacturers and Traders Trust Co. v. Greenville
Gastroenterology, S.C. et al., 108 A.3d 913 (Pa.Super. 2015).
An order expressly granting a motion for reconsideration within the
thirty-day appeal period effectively vacates the court’s prior final order or
judgment. See PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219
(Pa.Super. 2007); Pa.R.A.P. 1701(b)(3) (stating: “Where a timely order of
reconsideration is entered under this paragraph, the time for filing a notice
of appeal or petition for review begins to run anew after the entry of the
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decision on reconsideration, whether or not that decision amounts to a
reaffirmation of the prior determination of the trial court or other
government unit”).
The present case raises a different question: whether an order that, in
response to a motion for reconsideration, simply vacates a prior final order
or judgment, has the same effect as an order expressly granting
reconsideration. Without belaboring the point, appellate courts largely seem
to accept that it does. In my opinion, however, the wiser course in this
context would be for the trial court to enter an order expressly granting
reconsideration, set a briefing schedule, and decide promptly whether to
grant or deny any form of relief on the merits. See id.
Next, I recognize that the two insurance policies at issue are distinct,
that Mr. Ramos was determined to be a non-employee for purposes of
workers’ compensation insurance policy coverage, and on the other hand,
Mr. Ramos was determined to be an employee (leased worker) for purposes
of the CGL insurance policy exclusion. By virtue of the unchallenged
outcome of workers’ compensation proceeding and the CGL policy exclusion,
Astra is essentially left uninsured for Mr. Ramos’ injuries. The record makes
clear Astra argued several different forms of estoppel before the trial court
to bar the eventual outcome in this case, but Astra did not formulate an
identifiable judicial estoppel position until this appeal or develop any
standpoint based on its reasonable expectations under the policies. Astra is
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now left to bear the consequences. Accordingly, I am constrained to concur
in the result reached in this case.
Judge Platt joins this concurring opinion.
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