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
_________________________

*Retired Senior Judge assigned to the Superior Court.
J-S10020-15


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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