Opinion
May 5, 1971.
June 28, 1971.
Appeals — Timeliness — Extension of time — Fraud or its equivalent — Indulgence.
Where an act of assembly fixes the time within which an appeal may be taken, the time may not be extended in the absence of fraud or its equivalent; the time may not be extended as a matter of indulgence.
Mr. Justice JONES took no part in the consideration or decision of this case.
Argued May 5, 1971. Before BELL, C. J., EAGEN O'BRIEN, ROBERTS, POMEROY and BARBIERI, JJ.
Appeal, No. 314, Jan. T., 1971, from decree of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1965, No. 1373, in case of Yetty Luckenbach v. Yetty Luckenbach, Frank E. Luckenbach, Harry Strauss and Margaret Strauss, t/a Capra Jems and Frank E. Luckenbach, individually, and Harry Strauss and Margaret Strauss, h/w, individually. Appeal quashed; reargument refused September 20, 1971.
Equity. Before GUTOWICZ, J.
Adjudication and decree nisi filed dismissing plaintiff's complaint; exceptions thereto by plaintiff dismissed and final decree entered. Plaintiff appealed.
A. Charles Peruto, with him Henry J. Lunardi, and Lorch, Ryan, Peruto Vitullo, for appellant.
Michael H. Egnal, with him Egnal and Egnal, for appellee.
This is an appeal from a final decree in equity.
The decree appealed from was entered in the court below on December 17, 1970. Under the "Appellate Court Jurisdiction Act of 1970", Act of July 31, 1970, P. L. 673, No. 223, Art. V, § 502(a), 17 Pa.C.S.A. § 211.502 (effective September 11, 1970), the appeal was required to be filed within thirty (30) days of the entry of the decree in the court below. However, the instant appeal was not filed until February 16, 1971, well beyond the statutory limit, after this Court granted a petition and entered an order permitting the appeal to be filed "nunc pro tunc."
Upon further reflection, we conclude that the above order was improvidently entered and must be vacated. Where an act of assembly fixes the time within which an appeal may be taken, the time may not be extended in the absence of fraud or its equivalent, which is not present herein. The time may not be extended as a matter of indulgence. Cf. Commonwealth v. Bey, 437 Pa. 134, 262 A.2d 144 (1970); Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938); and Yeager v. United Natural Gas Company, 197 Pa. Super. 25, 176 A.2d 455 (1961).
Since the appeal was untimely filed, it must be quashed.
It is so ordered. Each party to pay own costs.
Mr. Justice JONES took no part in the consideration or decision of this case.