Commonwealth v. Moir

BROSKY, J.:

¶ 1 William J. Moir filed a notice of appeal from the trial court’s denial of reconsideration of his convictions under the Pennsylvania Game and Wildlife Code, 34 Pa.C.S.A. §§ 101-2965, all of which related to licensing violations. As we conclude that we are without jurisdiction, we quash the appeal.

*1254¶2 Appellant’s convictions followed a summary appeal hearing on August 24, 1999. Entry of the orders adjudging him guilty and imposing fines was made on the docket on August 27, 1999. Because the underlying violations are summary offenses, he was precluded from filing post-sentence motions. 34 Pa.C.S.A. § 2711(b); Pa.R.Crim.P. 1410(D). Counsel did, however, file a Motion for Reconsideration on September 7, 1999. See Note following Pa.R.Crim.P. 1410 (“Although there are no post-sentence motions in summary appeals following the trial de novo pursuant to Section (D), nothing in this rule is intended to preclude the trial judge from acting on a defendant’s petition for reconsideration [pursuant to 42 Pa.C.S.A. § 5505].”) The trial court did not expressly grant reconsideration, although it entered an order on September 20, 1999 scheduling oral argument on the motion for October 12, 1999. Argument was held, and the trial court denied reconsideration on that same date. This appeal followed on November 12, 1999.

¶ 3 The question of timeliness of an appeal is jurisdictional. Lee v. Guerin, 735 A.2d 1280 (Pa.Super.1999). In order to preserve the right to appeal a final order of the trial court, a notice of appeal must be filed within thirty days after the date of entry of that order. Pa.R.A.P. 903(a); Valley Forge Center v. Rib It/K.P., Inc., 693 A.2d 242, 245 (Pa.Super.1997)(citing First Seneca Bank v. Sunseri, 449 Pa.Super. 566, 674 A.2d 1080, 1084 (1996).)

¶ 4 It is well-settled that, upon the filing of a motion for reconsideration, a trial court’s action in granting a rule to show cause and setting a hearing date is insufficient to toll the appeal period. Valentine v. Wroten, 397 Pa.Super. 526, 580 A.2d 757 (1990). Rather, the trial court must expressly grant reconsideration within thirty days of entry of its order. Pa. R.A.P. 1701. “Failure to ‘expressly’ grant reconsideration within the time set by the rules for filing an appeal will cause the trial court to lose its power to act on the application for reconsideration.” Schoff v. Richter, 386 Pa.Super. 289, 562 A.2d 912, 913 (1989); Cheathem v. Temple University Hospital, 743 A.2d 518 (Pa.Super.1999). “Therefore, as the comment to Pa.R.A.P. 1701 explains, although a party may petition the court for reconsideration, the simultaneous filing of a notice of appeal is necessary to preserve appellate rights in the event that either the trial court fails to grant the petition expressly within 30 days, or it denies the petition.” Valley Forge Center, supra, 693 A.2d at 245. Moreover, we have consistently held that an appeal from an order denying reconsideration is improper and untimely. Valentine, supra.

¶ 5 In the instant case, the final, appealable order was entered on August 27, 1999. The trial court’s September 20, 1999 order scheduling oral argument on Appellant’s motion for reconsideration did not expressly grant reconsideration within the thirty day appeal period. Indeed, the trial court did not act on the motion for reconsideration by denying it until October 12, 1999, more than thirty days after entry of the final appealable order. By that time, the trial court was without authority and lacked jurisdiction to act upon the motion for reconsideration or to amend or modify the August 27, 1999 order. See 42 Pa.C.S.A. § 5505;1 Valley Forge Center, supra; see also Commonwealth v. Holden, 358 Pa.Super. 238, 516 A.2d 1273 (1986).

¶ 6 Therefore, because Appellant did not file a timely appeal from the August 27, 1999 order, thereby preserving his appellate rights, we are without jurisdiction to entertain the appeal. Valley Forge Center, supra. We thus conclude we must *1255quash this appeal as untimely and improper.

¶ 7 Appeal quashed.

¶ 8 CAVANAUGH, J., files a dissenting opinion.

. That section provides as follows.

§ 5505. Modification of orders
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.

42 Pa.C.S.A. § 5505 (emphasis added).