City of Philadelphia v. Housing Improvement Corp.

JOHNSON, Judge,

dissenting:

I dissent. My review of the record convinces me that appellant’s appeal was not timely filed, and therefore, should be quashed.

- When, on April 5, 1983, the trial court dismissed appellant’s petition to redeem property, appellant was for all intents and purposes out of court. This order was therefore a final order. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). As such, an appeal was required to have been filed within 30 days of this order. Pa.R.A.P. 903(a). Appellant’s appeal was not filed until August 12, 1983, more than four months after the final order. Clearly the appeal was not timely.

Appellant now attempts to circumvent the time constraints set forth in the rules by asserting that the Motion to Vacate filed by appellant on June 18, 1983, was in the nature of a motion to strike a judgment. A motion to strike a judgment is a challenge to those judgments that are voidable because of a defect apparent from the record. Malakoff v. Zambar, Inc., 446 Pa. 503, 288 A.2d 819 (1972); International Lands, Inc. v. Fineman, 285 Pa.Super. 548, 428 A.2d 181 (1981); Slaughter v. Gruntz, 227 Pa.Super. 164, 323 A.2d 152 (1974). Such a motion is not required to be filed within a set time, but need only be filed within a reasonable time. Osttowski v. Smith, 315 Pa.Super. 321, 461 A.2d 1301 (1983).

Appellant contends that the order of the trial court granting appellee’s motion to dismiss appellant’s petition to redeem property was the “equivalent” of a facially defective judgment because the court’s order was entered before appellant filed a reply to appellee’s answer and new matter. I do not find this argument to be persuasive. The answer *89and new matter filed by appellee was not endorsed with a notice to plead. Accordingly, the assertions contained therein were deemed to be denied by appellant and no responsive pleadings were required. Pa.R.C.P. 1026, 1029(a). See also Slaughter v. Gruntz, supra. Therefore, the trial court’s order is not facially defective on the record and should not be stricken.

I am in agreement with the trial court’s conclusion that appellant’s Motion to Vacate was, in reality, a motion to reconsider. It is well settled that the filing of a petition for reconsideration from an order of the court of common pleas does not operate to toll the appeal period. Boden v. Tompkins, 306 Pa.Super. 494, 452 A.2d 833 (1982).

Therefore, I would quash appellant’s appeal as being untimely.