Acre v. Navy Brand Manufacturing Co.

WIEAND, Judge,

concurring.

I concur in the majority’s affirmance of the trial court’s order. I disagree with my colleagues of the majority only to the extent that they hold that the plaintiffs’ right of appeal is discretionary with this Court. The trial court’s order striking the default judgment was entered on October 24, 1988. An appeal was filed within thirty (30) days thereafter. Such an appeal was then specifically permitted by Pa.R.A.P. 311(a)(1).1 Therefore, it was not subject to being stricken or quashed. Pa.R.A.P. 311(a)(1) was not amended by the Supreme Court until March 31, 1989, and it did not become effective until July 1, 1989.2 For reasons *484more specifically set forth in my Dissenting Opinion in Lites v. Berman, 390 Pa.Super. 10, 567 A.2d 1093 (1989), I would hold that the amended rule cannot be applied retroactively to render improper an appeal filed before the amended rule became effective, much less to an appeal filed before the amendment was adopted.3 Because the appeal in this case was properly filed, our consideration of the merits thereof is not discretionary. As in all cases in which an appeal is properly filed, the Superior Court is mandated to review the substantive issues which have been preserved in the trial court and argued on appeal.

. At the time when this appeal was filed, Pa.R.A.P. 311(a)(1) provided as follows:

(a) General rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from:
(1) Affecting judgments. An order opening, vacating or striking off a judgment, or refusing to open, vacate or strike off a judgment. If orders opening, vacating or striking off a judgment are sought in the alternative, no appeal may be filed until the court has disposed of each claim for relief.

. Amended Pa.R.A.P. 311(a)(1) provides as follows:

(a) General Rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from:
(1) Affecting Judgments. An order refusing to open, vacate or strike off a judgment. If orders opening, vacating, or striking off a judgment are sought in the alternative, no appeal may be filed until the court has disposed of each claim for relief.

*484The Supreme Court order adopting the amended rule provided as follows:

The amendments ... shall become effective July 1, 1989, and shall govern all matters thereafter commenced and, insofar as just and practicable, matters then pending.

. A contrary decision by a panel of this Court in Joseph Palermo Development Corp. v. Bowers, 388 Pa.Super. 49, 564 A.2d 996 (1989), is, in my judgment, an erroneous interpretation of the order amending Pa.R.A.P. 311(a)(1).