Application for Certification pursuant to 42 Pa.C.S. § 702(b); Timeliness

Commonwealth v. Wilson, No. 49 MDM 2020 (order entered Dec. 2, 2020), allocatur granted Aug. 26, 2021, appeal dockets 65 & 66 MAP 2021

This case arises from Superior Court’s denial of Wilson’s Petition for Interlocutory Appeal By Permission of an interlocutory order entered by the trial court. Superior Court denied the petition as untimely because it was filed over 30 days after the trial court’s entry of the interlocutory order, notwithstanding the fact that Wilson filed within 30 days of the trial court’s order denying reconsideration. Superior Court’s order provides:

The Petition for Permission to Appeal is hereby DENIED. See Mente Chevrolet, Oldsmobile, Inc. v. Swoyer, 710 A.2d 632, 633 (Pa. Super. 1998) (An application for certification pursuant to 42 Pa.C.S. § 702(b) must be filed within 30 days after the entry of an interlocutory order, not from the denial of reconsideration).

In Mente, cited in the order, the Superior Court recognized that in situations involving final orders the best procedure for a party seeking reconsideration of a final order is to file both a motion for reconsideration and a notice of appeal; if reconsideration is timely granted, appeal becomes inoperative, but if reconsideration is denied, appellate rights are still preserved. The Mente court went on to conclude that:

… the same reasoning should apply when reconsideration and § 702(b) certification are sought for an interlocutory order. If the court were to grant reconsideration then there would be no need to certify the order at that time. If reconsideration were denied then the court could, within thirty (30) days of the original order, still certify the order under § 702(b). In the absence of certification, the party may file a petition for review under Chapter 15 of the Rules of Appellate Procedure. See Pa. R.A.P. 1311(b) and Notes following. By using this procedure, the trial court’s right to reconsider an interlocutory order would only be curtailed in the event interlocutory review is permitted in the Superior Court. See Pa.R.A.P. 1701(d)(filing petition for review will not affect power of trial court to proceed further).

Mente, 710 A.2d at 633.

The Supreme Court granted allocatur as to the following issue:

Should the Supreme Court reverse the Superior Court’s denial of Petitioner’s Petition for Interlocutory Appeal By Permission because said Superior Court’s reliance on Mente Chevrolet, Oldsmobile, Inc. v. Swoyer, 710 A.2d 632, 633 (Pa. Super. 1998) is reversibly erroneous . . . in that Mente, supra, is substantially factually distinguishable and substantially legally distinguishable from the case at bar?

For more information, contact Kevin McKeon or Dennis Whitaker.