J-S60017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SUSQUEHANNA BANK, SUCCESSOR BY                IN THE SUPERIOR COURT OF
MERGER COMMUNITY BANKS,                             PENNSYLVANIA

                        Appellee

                   v.

LAURA E. COOPER A/K/A LAURA
ELIZABETH LONG A/K/A LARA
ELIZABETH COOPER A/K/A LAURA E.
LONG,

                        Appellant                  No. 271 MDA 2014


              Appeal from the Order Entered January 10, 2014
               In the Court of Common Pleas of Berks County
                       Civil Division at No(s): 12-2302

BEFORE: OTT, STABILE, and JENKINS, J.J.

CONCURRING MEMORANDUM BY JENKINS, J.:           FILED JANUARY 13, 2015

      I respectfully concur in the result. In my view, the proper remedy is

to quash this appeal instead of affirming the order denying Appellant’s

petition to open or strike the judgment.

      On January 30, 2013, the trial court entered summary judgment

against Appellant. Over nine months later, on October 10, 2013, Appellant

filed a petition to open or strike the judgment claiming that she never

received Susquehanna Bank’s motion for summary judgment.        On January

10, 2014, the trial court denied Appellant’s petition. On February 7, 2014,

Appellant filed a notice of appeal.   On the same date, Appellant filed a

motion for reconsideration. On February 24, 2014, the trial court denied the

motion for reconsideration.
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      Because the trial court entered summary judgment against Appellant

on January 30, 2013, she was required to file a notice of appeal within thirty

days after entry of judgment on the docket, or by Friday, March 1, 2013. 42

Pa.C.S. § 5571; Pa.R.A.P. 903. Appellant did not file a notice of appeal until

February 7, 2014.     This appeal is untimely on its face and should be

quashed.

      In my view, Appellant had no right to file a petition to open or strike

the summary judgment order.       A petition to open or strike is the proper

procedure for challenging a default judgment, not summary judgment.

Following summary judgment, an appellant can only do the following:

      1. The appellant can file a motion for reconsideration in the trial court.

The court may grant the motion for reconsideration within thirty days after

entry of summary judgment on the docket. After the thirtieth day, the court

loses jurisdiction to grant reconsideration. 42 Pa.C.S. § 5505; Simpson v.

Allstate Ins. Co., 504 A.2d 335, 338 (Pa.Super.1986) (en banc).           Here,

Appellant did not file a motion for reconsideration.

      2.   As stated above, the appellant can file a notice of appeal within

thirty days after entry of summary judgment on the docket. Appellant failed

to take this step.

      3.   More than thirty days after entry of summary judgment on the

docket, the appellant can file a motion for leave to appeal nunc pro tunc in

the trial court. Criss v. Wise, 781 A.2d 1156, 1159 (Pa.2001). The court

may grant this motion where the appellant proves that: (1) the appellant's

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notice of appeal was filed late as a result of non-negligent circumstances,

either as they relate to the appellant or the appellant's counsel; (2) the

appellant filed the notice of appeal shortly after the expiration date; and (3)

the appellee was not prejudiced by the delay.        Id.   Applying this test, I

conclude that Appellant failed to prove that she filed her appeal late due to

non-negligent circumstances.      Appellant is responsible for her failure to

receive the Bank’s motion for summary judgment due to her failure to

endorse all pleadings and legal papers with an address where they may be

served.     Therefore, I conclude that this appeal should be quashed as

untimely.

      Here, more than thirty days after entry of summary judgment,

Appellant filed a petition to open/strike instead of filing a motion for leave to

appeal nunc pro tunc. In my view, the trial court should have reviewed (and

denied) this petition under the test articulated in Criss instead of petition to

open/strike standards.    But because the court declined to award Appellant

relief, I do not find any harm arising from its application of the incorrect

standards. Thus, I respectfully concur in the result.




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