submitted under third circuit rule 12(6): May 7, 1990.
Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. Civ. No. 88-00153.
Becker, Greenberg, and Van Dusen, Circuit Judges.
VAN DUSEN, Circuit Judge.
Plaintiff-appellant, Michael Vianello, appeals from an order of the United States District Court for the Middle District of Pennsylvania denying his Fed. R. App. P. 4(a)(5) motion to extend the time for filing a notice of appeal. For the reasons which follow, we will reverse and remand to the district court for further consideration.
The relevant facts in this case are straightforward and uncontested. Plaintiff is a resident of Brodheadsville, Pennsylvania. On January 29, 1988, he brought the underlying 42 U.S.C. § 1983 civil rights action against various Pennsylvania officials in the district court. On March 31, 1989, the district court dismissed plaintiff's action for failure to timely prosecute and follow the rules of court, and for failure to state a claim upon which relief can be granted. Plaintiff thereupon timely moved the district court for reconsideration of its order. This motion was denied on September 6, 1989.
On November 3, 1989, twenty-eight days after the thirty-day deadline for appealing,*fn1 plaintiff filed a notice of appeal of the March 31, 1989, and September 6, 1989, orders, and a Fed. R. App. P. 4(a)(5) motion for extension of time to file the notice of appeal. As a basis for his assertion that he should be granted an extension of time to file his appeal, plaintiff asserted that he had not been informed by the court Clerk that his motion for reconsideration had been denied, and that he was unaware of the fact until October 31, 1989, when he called the Clerk's office to check on the status of his motion for reconsideration.
On December 1, 1989, the district court denied plaintiff's motion for an extension of time to file an appeal. The district court did so because it concluded that Fed.R.Civ.P. 77(d) precluded it from granting plaintiff's motion because it specifically provides that "[lack] of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed." Plaintiff's appeal from the district court's March 31 and September 6, 1989, orders was then dismissed by another panel of this court because it was not filed within the time allowed for filing an appeal.*fn2
Plaintiff now appeals from the district court's December 1, 1989, order denying his motion for an extension of time to file an appeal.
Fed. R. App. P. 4(a)(1) provides that a notice of appeal must be filed within thirty days after the entry of the judgment or order appealed from Fed. R. App. P. 4(a)(5) provides that the district court may, upon a showing of excusable neglect or good cause, extend the time for filing a notice of appeal upon a motion filed not later than thirty days after the expiration of the time prescribed in the rule. Here, plaintiff filed his motion for extension of time to file notice of appeal on November 3, 1989, within thirty days of the expiration of the time to file an appeal, and the only issue presented for our consideration is whether the district court erred by denying it.
To the degree that the district court makes its ruling in granting or denying a Fed. R. App. P. 4(a)(5) motion for extension of time to file an appeal based upon a precept of law, our review is plenary; otherwise it is for abuse of discretion. Consolidated Freightways Corp. of Del. v. Larson, 827 F.2d 916, 918 (3d Cir. 1987), cert. denied, 484 U.S. 1032, 108 S. Ct. 762, 98 L. Ed. 2d 775 (1988). As noted, in the present case, the district court based its decision on the fact that Fed.R.Civ.P. 77(d) specifically provides that "[lack] of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed."*fn3 Accordingly, because the district court's decision was based upon a precept of law, our review is plenary.
Applying plenary review, we note that, while Fed.R.Civ.P. 77(d) does indeed contain the language the district court noted, it also continues on to provide "except as permitted in Rule 4(a) of the Federal Rules of Appellate ...