J-S32008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                         Appellant

                    v.

JASON KRANER,

                         Appellee                     No. 1164 WDA 2014


                    Appeal from the Order July 16, 2014
             In the Court of Common Pleas of Lawrence County
            Criminal Division at No(s): CP-37-CR-0000333-2013


BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                                 FILED JULY 10, 2015

     The Commonwealth purports to appeal from the trial court’s pre-trial

order, entered July 16, 2014, denying the Commonwealth’s motion for

reconsideration. Notice of Appeal, 7/17/14, at 1. For reasons that follow,

we quash the appeal.

     In this case, Jason Kraner (“Appellee”) was charged with eight

offenses, stemming from an altercation with another individual and his

subsequent arrest. Appellee filed a pretrial habeas corpus petition asserting

that the Commonwealth failed to establish a prima facie case as to these

charges.   Appellee also filed a petition for the return of property that was

seized upon his arrest.    The trial court, by order entered May 2, 2014,

granted Appellee’s petition for habeas corpus relief as to seven of the eight

charges    and   granted   Appellee’s   petition    for   return   of   property.
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Subsequently, on May 7, 2014, the Commonwealth filed a motion for

reconsideration of the trial court’s May 2, 2014 order, granting Appellee’s

petition for habeas corpus as to seven of the eight charges and Appellee’s

petition for return of property. Commonwealth’s Motion for Reconsideration,

5/7/14, at 1-2.

        The trial court issued an order on May 27, 2014, scheduling a hearing

on the motion for reconsideration for June 6, 2014. Order, 5/27/14, at 1. A

motion for continuance by defense counsel was filed and, by order entered

June 3, 2014, the trial court continued the hearing on the motion to July 7,

2014.    Order, 6/3/14, at 1.    On July 16, 2014, the trial court denied the

Commonwealth’s motion for reconsideration.           The Commonwealth filed its

notice of appeal on July 17, 2014, “from an Order entered by the Court of

Common Pleas in the Matter on the 16th day of July, 2014. The July Order

was issued upon Motion for Reconsideration of an original order entered on

the 2nd day of May, 2014.” Notice of Appeal, 7/17/14, at 1.

        The   question   of   timeliness   of   an    appeal   is   jurisdictional.

Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000).                 Time

limitations on appeal periods are strictly construed and cannot be extended

as a matter of grace. Commonwealth v. Perez, 799 A.2d 848, 851 (Pa.

Super. 2002); see also Pa.R.A.P. 105(b) (stating that, although an

appellate court may enlarge the time prescribed in the rules of appellate

procedure for good cause shown, the court may not enlarge the time for

filing a notice of appeal).

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      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).     Although the entry of a final order triggers

the thirty-day appeal period, this period may be tolled if the trial court

expressly grants a motion for reconsideration within the thirty-day period.

Pa.R.A.P.   1701(b)(3).      Although   a   party   may    file   a   motion   for

reconsideration pursuant to Pa.R.A.P. 1701, a trial court’s “[f]ailure 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.” Moir, 766 A.2d at 1254. The mere filing of a motion for

reconsideration is insufficient to toll the appeal period.   Moore v. Moore,

634 A.2d 163, 167 (Pa. 1993).       Rule 1701 is very clear:      the thirty-day

appeal period is tolled only by a timely order “expressly granting”

reconsideration; the establishment of a briefing schedule, hearing date, or

issuance of a rule to show cause does not suffice. Valley Forge Center

Associates v. Rib-It, K.P., Inc., 693 A.2d 242, 245 (Pa. Super. 1997);

see Moir, 766 A.2d at 1254 (holding that the trial court’s action of granting

a rule to show cause and setting a hearing date on a motion for

reconsideration was insufficient to toll the appeal period.) “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.”

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Moir, 766 A.2d at 1254; Pa.R.A.P. 1701, Cmt.                Moreover, we have

consistently held that an appeal from an order denying reconsideration is

improper and untimely. Moir, 766 A.2d at 1254.

       In the instant case, the final, appealable order was entered on May 2,

2014. Neither the trial court’s May 27, 2014 order scheduling the hearing on

the Commonwealth’s motion for reconsideration, nor the trial court’s June 3,

2014 order continuing the hearing expressly granted reconsideration within

the thirty-day appeal period.         Indeed, the trial court did not act on the

motion for reconsideration by denying it until July 16, 2014, 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.1 Moir, 766 A.2d at 1254.

       Therefore, because the Commonwealth did not file a timely appeal

from the May 2, 2014 order, thereby preserving its appellate rights, we are

without jurisdiction to entertain the appeal. Moir, 766 A.2d at 1254. We

thus conclude we must quash this appeal as untimely and improper.

       Appeal quashed.




____________________________________________


1
  We note that this case is procedurally distinguishable from those in which
post-sentence or post-trial motions may be filed. Here, the trial court’s
order disposed of pretrial matters. As such, the motion for reconsideration
cannot be construed as a post-sentence or post-trial motion.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2015




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