J. A34019/14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

JUDE M. GAYDOS                                  :    IN THE SUPERIOR COURT OF
                                                :          PENNSYLVANIA
                         v.                     :
                                                :
JOHN A. CARPENTER, ESQUIRE,                     :             No. 251 MDA 2014
                                                :
                              Appellant         :


                   Appeal from the Order Entered January 2, 2014,
              in the Court of Common Pleas of Northumberland County
                        Civil Division at No. CV-2005-00143


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STABILE, JJ.


CONCURRING MEMORANDUM STATEMENT BY FORD ELLIOTT, P.J.E.:

                                                              FILED MARCH 09, 2015

        I respectfully concur in the result reached by the Majority to quash this

appeal, because I cannot join in the determination that the appeal is

untimely      as   not    taken   from    the   denial   of   summary   judgment   on

September 13, 2013.

        Rather, no appeal time can begin to run from the September 14th

order because it was never a final order and therefore cannot be the basis

for an untimely appeal.            Rather, appellant appropriately filed a timely

application for a determination of finality under Pa.R.A.P. 341(c).1 The trial


1
    Pa.R.A.P. 341(c) reads as follows:

        (c)    Determination of finality. When more than one claim
               for relief is presented in an action, whether as a claim,
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          counterclaim, cross-claim, or third-party claim or when
          multiple parties are involved, the trial court or other
          governmental unit may enter a final order as to one or
          more but fewer than all of the claims and parties only upon
          an express determination that an immediate appeal would
          facilitate resolution of the entire case. Such an order
          becomes appealable when entered. In the absence of such
          a determination and entry of a final order, any order or
          other form of decision that adjudicates fewer than all the
          claims and parties shall not constitute a final order. In
          addition, the following conditions shall apply:

          (1)   The trial court or other governmental unit is
                required to act on an application for a
                determination of finality under subdivision (c)
                within 30 days of entry of the order. During
                the time an application for a determination of
                finality is pending the action is stayed.

          (2)   A notice of appeal may be filed within 30 days
                after entry of an order as amended unless a
                shorter time period is provided in Rule 903(c).
                Any denial of such an application shall be
                reviewable only for abuse of discretion
                pursuant to Chapter 15.

          (3)   Unless the trial court or other governmental
                unit acts on the application within 30 days of
                entry of the order, the trial court or other
                governmental unit shall no longer consider the
                application and it shall be deemed denied.

          (4)   The time for filing a petition for review will
                begin to run from the date of entry of the
                order    denying    the    application     for    a
                determination of finality or, if the application is
                deemed denied, from the 31st day. A petition
                for review may be filed within 30 days of the
                entry of the order denying the application or
                within 30 days of the deemed denial unless a
                shorter time period is provided by Rule
                1512(b).


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court was then required to act on the application within 30 days of the

September 13th order. If the trial court fails to act, then the application is

deemed denied.     In this case, the application was deemed denied on

Monday, October 14, 2013. Appellant had 30 days from October 14th to file

a Chapter 15 Petition for Review. It is on this basis that I would quash the

appeal.

      However, I agree with the Majority that no appeal lies from a denial of

reconsideration of the trial court’s order in this case or that the denial of

summary judgment in this case meets the requirements of a collateral order.




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