Penjerdel Refrigeration Corp. v. R.A.C.S., Inc. , 296 Pa. Super. 62 ( 1982 )

HOFFMAN, Judge:

Appellants contend that appellee is not entitled to a preliminary injunction and that venue was improperly laid in Montgomery County. Because appellants have failed to perfect their appeal, we do not reach the merits of these contentions, and, instead, quash the appeal.

On January 11, 1980, appellee filed a complaint in equity and a petition for a preliminary injunction, alleging that the individual appellants, former employees of appellee, had interfered with appellee’s existing construction contracts and had utilized confidential information gained while employed to divert other construction contracts from appellee to appellant corporation. In particular, appellee sought to enjoin appellants’ performance of a particular contract between the appellant corporation and a Philadelphia supermarket. Following a hearing, the lower court granted the preliminary injunction and entered an order dated January 30, 1980, enjoining appellants from completing the work in progress, interfering with any other contracts between appellee and third parties, and using any confidential information to obtain future contracts in competition with appellee. Additionally, appellants were required to account for profits realized on their work to date. On February 12, 1980, appellants filed a petition for reconsideration of the January 30 order. The lower court promptly granted appellants’ petition for reconsideration. On February 28, 1980, appellants filed a notice of appeal to this Court concerning the order of January 30. Later that same day, the lower court issued its amended order granting appellee’s petition for a preliminary injunction. Appellants filed no new appeal from the amended order.

Timeliness of an appeal is a jurisdictional matter which can be raised by the court sud sponte. See, e.g., Commonwealth v. Molyneaux, 277 Pa.Superior Ct. 264, 266, 419 A.2d 763, 764 (1980); Commonwealth v. Gottshalk, 276 Pa.Superior Ct. 102, 104, 419 A.2d 115, 116 (1980); In re Kemmerer, 46 Pa.Commonwealth Ct. 455, 457, 405 A.2d 1108, 1109 (1979). Rule 903(a) of the Rules of Appellate Procedure provides that, in general, “the notice of appeal . . . shall be filed within 30 days after the entry of the order from which the appeal is taken.” An appellate court “may not enlarge the time for filing a notice of appeal.” Pa.R.A.P. 105(b).

The mere filing of a petition for reconsideration .. . does not operate to toll the appeal period. Provident National Bank v. Rooklin, 250 Pa.Superior Ct. 194, 378 A.2d 893 (1977). Under Pa.R.A.P. 1701(b)(3), only the timely granting of reconsideration by the lower court will affect the appeal time.

In re Kemmerer, supra, 46 Pa.Commwlth. at 456-57, 405 A.2d at 1109.

Appellants’ petition for reconsideration of the January 30 order was timely filed. Hook v. Athens Area School Disk, 50 Pa. Commonwealth Ct. 420, 423, 413 A.2d 1151, 1153 (1980), citing Pa.R.Civ.P. 1522 (petition for rehearing must be filed within period allowed for taking of appeals). The order of the lower court granting reconsideration tolled the appeal period. Pa.R.A.P. 1701(b)(3); In re Kemmerer, supra. However, that order also rendered inoperative appellants’ notice of appeal concerning the January 30 order.

A timely order granting reconsideration under this paragraph shall render inoperative any such notice of appeal . . . theretofore or thereafter filed or docketed with respect to the prior order .... Where a timely order of reconsideration is entered under this paragraph, the time for filing a notice of appeal . . . begins to run anew after the entry of the decision on reconsideration whether or not that decision amounts to a reaffirmation of the prior determination of the lower court or other governmental unit.

Pa.R.A.P. 1701(b)(3). See also Provident National Bank v. Rooklin, 250 Pa.Superior Ct. 194, 201, 378 A.2d 893, 896 (1977). Because appellants’ notice of appeal was rendered inoperative by the timely order granting reconsideration and appellants filed no new notice of appeal from the amended order issued by the court below upon reconsideration, the appeal was not timely filed and we are without jurisdiction to entertain it.

Appeal quashed.

WIEAND, J., files a dissenting opinion.