263 A.2d 344

Fortieth Street and Fairmount Avenue Church of God v. Hawes, Appellant.

Supreme Court of Pennsylvania.January 28, 1970.
March 20, 1970.

Appeals — Timeliness — Perfection — Filling of writ of certiorari in lower court — Acts of March 5, 1925, P. L. 23, and May 19, 1897, P. L. 67.

1. An appeal, other than that filed under the Act of March 5, 1925, P. L. 23, must be perfected within a reasonable time. [408]

2. The Act of May 19, 1897, P. L. 67, § 2, specifically provides that an appeal is not perfected until the writ of certiorari is filed in the court below. [408]

3. In this case, in which it appeared that the writ of certiorari was not lodged in the lower court until more than eight months after the appeal was filed, it was Held that the appeal had to be quashed.

Argued January 28, 1970. Before BELL, C. J., JONES, COHEN, EAGEN, O’BRIEN, ROBERTS and POMEROY, JJ.

Appeal, No. 392, Jan. T., 1969, from decree of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1967, No. 1594, in case of Fortieth Street and Fairmount Avenue Church of God and General Assembly of the Church of God v. Horace A. Hawes. Appeal quashed.

Equity. Before SAYLOR, J.

Adjudication and decree entered granting to plaintiff equitable relief requested. Defendant appealed.

Harold L. Randolph, with him Nix, Randolph Watson, for appellant.

Herman Blumenthal, with him Fine, Staud, Silverman and Grossman, for appellees.

OPINION PER CURIAM, March 20, 1970:

This is an appeal from a final decree in equity entered in the court below on April 23, 1969. The appeal was filed in this Court on April 25, 1969, but an

Page 408

examination of the record discloses that the writ of certiorari issued by this Court was not lodged in the court below until January 16, 1970. Under such circumstances, the appeal must be quashed.

An appeal, other than that filed under the Act of March 5, 1925, P. L. 23, 12 Pa.C.S.A. § 672-12 Pa.C.S.A. § 675,[1]
must be perfected within a reasonable time: Matthews Estate, 431 Pa. 616, 246 A.2d 412 (1968); Hodge v. Me-Bee Co., Inc., 429 Pa. 585, 240 A.2d 818
(1968); Fenerty Disbarment Case, 356 Pa. 614, 52 A.2d 576
(1947), cert. denied, 332 U.S. 773, 68 S.Ct. 89 (1947). And the Act of May 19, 1897, P. L. 67, § 2, 12 Pa.C.S.A. § 1134, specifically provides that an appeal is not perfected until the writ of certiorari is filed in the court below.

In Matthews Estate, supra, we ruled that an appeal perfected eight and one-half months after it was filed was not perfected within a “reasonable time.” In other cases, wherein even a shorter period of time elapsed between the entry of the appeal and the lodging of the writ in the lower court, we also ruled that the appeal was not perfected within a “reasonable time.” See Hodge v. Me-Bee Co., Inc., supra, [six months]; Fenerty Disbarment Case, supra, [four months]; and Dziengielewski v. Dickson City School District, 314 Pa. 24, 170 A. 268 (1934) [two months].

In view of the above authorities, it is clear that the instant appeal was not perfected within the required period and, therefore, must be quashed.

It is so ordered. Each side to pay own costs.

[1] An appeal filed under the Act of March 5, 1925, P. L. 23, 12 Pa.C.S.A. § 672-12 Pa.C.S.A. § 675, must be taken and perfected within fifteen days from the date the order appealed from is entered: Scientific Living, Inc. v. Hohensee, 427 Pa. 320, 235 A.2d 393 (1967).

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