J-A21009-14


                                  2014 PA Super 193

FRANK E. GARDNER AND THOMAS C.                    IN THE SUPERIOR COURT OF
COSTEA,                                                 PENNSYLVANIA

                            Appellees

                       v.

CONSOLIDATED RAIL CORPORATION
AND NORFOLK SOUTHERN RAILWAY
COMPANY,

                            Appellants            Nos. 1211 & 1212 EDA 2013


                    Appeal from the Order Dated April 10, 2013
              In the Court of Common Pleas of Philadelphia County
               Civil Division at No(s): June Term, 2012, No. 04013


BEFORE: BOWES, OTT, and STRASSBURGER,* JJ.

OPINION BY BOWES, J.:                            FILED SEPTEMBER 09, 2014

       Consolidated Rail Corporation and Norfolk Southern Railway Company

appeal from the April 10, 2013 order that granted reconsideration of a final

appealable order entered on February 19, 2013. As the court was without

jurisdiction to modify its February 19, 2013 order, we vacate the order dated

April 10, 2013 and remand for entry of an order transferring this action to

the Court of Common Pleas of Blair County.

       Appellees, Frank E. Gardner and Thomas C. Costea, instituted this

action on June 29, 2012 by writ of summons. In their September 14, 2012

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*
    Retired Senior Judge assigned to the Superior Court.
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complaint, Appellees alleged that this lawsuit was brought pursuant to the

                                                    et seq. and that, due to



bodily injury during the course of their employment with Appellants.

Mr. Gardner allegedly sustained degenerative joint disease in his right

shoulder and osteoarthritis of the right knee during his employment with

Appellants, while Mr. Costea purportedly contracted degenerative disc and

joint disease and other similar injuries performing services for them.

Appellants filed an answer and new matter, including a request that the case

be transferred due to improper venue.

      After Appellees filed a response to the new matter, Appellants filed a

motion to transfer venue of this matter based upon forum non conveniens

pursuant to Pa.R.C.P. 1006(d)(1).    Appellants averred that Appellees lived

and worked in Blair County during the course and scope of their employment

with Appellants. In an order dated February 19, 2013 and entered February

20, 2013, the trial court granted the motion to transfer venue. The docket

establishes that notice of the February 19, 2013 order was given by the

prothonotary pursuant to Pa.R.C.P. 236.        Appellees filed a motion for

reconsideration on February 21, 2013, but they failed to file a direct appeal.

On April 10, 2013, the trial court granted the motion for reconsideration and

vacated its February 19, 2013 order.          This timely appeal followed.

Appellants raise the following contentions:


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             1. Whether the trial court erred in considering and granting
      Plaintiffs' Motion for Reconsideration of its February 19, 2013
      Order of Court transferring this matter to Blair County,
      Pennsylvania more than thirty (30) days after entering this
      Order?

            2. Whether the trial court erred in vacating its initial
      decision to grant the Railroad Defendants Motion to Transfer this
      case to Blair County, Pennsylvania, when it issued its reversal
      order more than thirty (30) days after initially granting
      Defendants' Motion, in violation of 42 Pa. C.S. § 5505?



      We agree that on April 10, 2013, the trial court no longer had

jurisdiction to reconsider and vacate its order transferring venue since more

than thirty days had lapsed since entry of the order. We therefore vacate

the April 10, 2013 order and remand this case for transfer to the Court of

Common Pleas of Blair County. Initially, we note that a motion granting a

                                                    forum non conveniens is a

final appealable order.     Bratic v. Rubendall, 43 A.3d 497, 499 n.2

(Pa.Super. 2012) reversed on other grounds, 2014 WL 4064028 (Pa. 2014);



civil action or proceeding changing venue . . . on the basis of forum non

conveniens.                    (g)(1)(ii) ( Where an interlocutory order is

immediately appealable under this rule, failure to appeal . . . shall constitute

a waiver of all objections to jurisdiction over the person or over the property

involved or to venue, etc. and the question of jurisdiction or venue shall not




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                    t 4.1

       The February 19, 2013 order, which was adverse to Appellees, had to

be appealed within thirty days. Pa.R.A.P. 903(a). The failure to file a timely

appeal from a final order results in that order becoming res judicata on the

issue decided therein.       In re Estate of Karschner, 919 A.2d 252, 256



renders the doctrine of res judicata

       Additionally, it is well-settled that a motion for reconsideration, unless

expressly granted within the thirty-day appeal period, does not toll the time

period for taking an appeal from a final, appealable order.           Valley Forge

Center Associates v. Rib-It/K.P., Inc., 693 A.2d 242 (Pa.Super. 1997).

As   we   noted     in   Valley Forge             ere   filing   of   a    motion   for



               -

                                                                          Id. at 245.

Co

original order, or the filing of a notice of appeal will vitiate the jurisdiction of


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1
  We note that Appellees cite to a Delaware case in arguing that the order
granting the motion to change venue was not a final order.



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J-A21009-14


Id                rial court fails to grant reconsideration expressly within the

prescribed 30 days, it loses the power to act upon both the petition [for

                                            Id.; see also PNC Bank, N.A. v.

Unknown Heirs, 929 A.2d 219, 226 (Pa.Super. 2007). These principles are

premised upon application of 42 Pa.C.S. § 5505, which is invoked by



may modify or rescind any order within 30 days after its entry . . . if no

appea

      In this case, the February 19, 2013 order transferring venue was

entered on February 20, 2013, and proper notice was sent to the parties

that day. Thus, the trial court herein lost jurisdiction to alter the February

20, 2013 order after March 22, 2013.       On April 10, 2013, the trial court

could no longer grant the petition for reconsideration of the February 20,

2013 order, nor did it have the power to change that order. The April 10,

2013 order is invalid since it was entered after the trial court was divested of

jurisdiction to act in this case.

      The April 10, 2013 order is vacated. This action is to be transferred to

the Court of Common Pleas of Blair County pursuant to the February 19,

2013 order. Case remanded. Jurisdiction relinquished.




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J-A21009-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2014




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