DZIENGIELEWSKI v. SCHOOL DISTRICT, 314 Pa. 24 (1934)

170 A. 268

Dziengielewski, Appellant v. Dickson City School District.

Supreme Court of Pennsylvania.January 22, 1934.
January 30, 1934.

Appeals — Time of taking — Writ of certiorari — Statutory period — Explanation of delay — Act of May 19, 1897, P. L. 67.

Where an appeal affidavit is filed with the prothonotary within the three months prescribed by the Act of May 19, 1897, P. L. 67, as amended, but the writ of certiorari is not lodged with the prothonotary, nor is notice given, until after the expiration of the statutory period, the appeal will be quashed, in the absence of a satisfactory reason in explanation of the delay.

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Argued January 23, 1934.

Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

Appeal, No. 102, Jan. T., 1934, by plaintiff, from order of C. P. Lackawanna Co., November T., 1931, No. 276, in case of Stanley Dziengielewski v. The School District of the Borough of Dickson City. Appeal quashed.

Trespass for damage to property. Before LEACH, J.

The opinion of the Supreme Court states the facts.

Nonsuit. Rule to take it off discharged. Plaintiff appealed.

Error assigned, inter alia, was discharge of rule to take off nonsuit, quoting record.

Clarence J. Wing, with him Frederick E. Scott and James G. McDonough, for appellant.

Walter W. Harris of O’Malley, Hill, Harris Harris, with hi Leo G. Knoll, for appellee.

PER CURIAM, January 30, 1934:

In this case the final judgment of the court below was entered of record on June 28, 1933. The appeal affidavit was filed with the prothonotary of the Supreme Court on September 16, 1933, which was within the three months prescribed by the Act of May 19, 1897, P. L. 67, as amended, but the writ of certiorari was not lodged with the prothonotary of the lower court, nor was notice given until November 25, 1933. The appeal was consequently not perfected until nearly two months after expiration of the statutory period. Appellant has offered no satisfactory reason in explanation of this delay and we are of opinion the appeal should be quashed for the reason the writ of certiorari was not filed within the prescribed three months or a reasonable time thereafter. See Donley v. Semans, 260 Pa. 88, and Real Estate

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Mtg. Company v. Duquesne Light Co., 99 Pa. Super. 222.

Appeal quashed at appellant’s costs.