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MICHAEL MACKANICK v. ROSE RUBIN (12/15/76)

decided: December 15, 1976.

MICHAEL MACKANICK, A MINOR, BY HIS PARENT AND NATURAL GUARDIAN, NATALIE MACKANICK AND NATALIE MACKANICK, IN HER OWN RIGHT,
v.
ROSE RUBIN, APPELLANT



Appeal from the Order dated January 8, 1975, of the Court of Common Pleas, Trial Division, Law, of Philadelphia County at No. 198 May Term, 1975. No. 923 October Term, 1976.

COUNSEL

Robert M. Ruzzi, Philadelphia, for appellant.

Melvin Alan Bank, Philadelphia, with him John J. D'Angelo, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting opinion, in which Van der Voort and Spaeth, JJ., join.

Author: Jacobs

[ 244 Pa. Super. Page 469]

This is an appeal from an order granting plaintiffs-appellees' petition for allowance to file an appeal nunc pro tunc from a Report and Award of Arbitrators.

On May 5, 1975 appellee instituted a suit in trespass against appellant Rose Rubin, alleging that appellant negligently caused injury to the minor plaintiff when appellant's vehicle and minor Michael MacKanick's bicycle collided at Verree Road and Greymont Street, Philadelphia. An arbitration hearing was held on October 28, 1975*fn1 and a Report and Award of Arbitrators in favor of defendant-appellant Rubin was filed on October 29, 1975. Counsel for plaintiffs received the report and award and it was docketed on October 30, 1975. Counsel prepared an appeal and obtained an appeal bond the same day. However, the appeal was not filed until December 4, 1975, some 35 days later, and the prothonotary rejected it as untimely.*fn2 On December 9, 1975, judgment

[ 244 Pa. Super. Page 470]

    was entered on the award of the arbitrators, in favor of appellant.

On January 12, 1975, counsel for plaintiffs filed a petition for allowance to file an appeal from the report and award of arbitrators nunc pro tunc, averring that the appeal was not timely entered because of a busy schedule and because the papers were given to a secretary for processing. The petition further alleged that the secretary became ill on November 19, 1975, that she was out of counsel's office from November 19th to November 21st, that the Thanksgiving holidays intervened and that the oversight was not discovered until the secretary's return.

The court below, cited the reasoning of our decision in Poluka v. Cole, 222 Pa. Super. 500, 295 A.2d 132, allocatur refused, 222 Pa. Super. xxxii (1972), granted plaintiffs leave to appeal nunc pro tunc, holding that mere inadvertence of counsel should not operate to turn plaintiffs out of court. Appellant's claim is that this action exceeded the lower court's powers. We agree. Poluka v. Cole, supra, which reversed a lower court's discretion in entering a judgment of non pros for want of due diligence in prosecuting an action within a reasonable time, is inapposite to the instant circumstance involving a statutory limitation on time for appeal.

The principles of law which are applicable to this case and which limit the discretion of the court below in a case such as this are well-settled. Generally, where a statute fixes the time within which an appeal may be taken, the time may not be extended as a matter of indulgence or grace, West Penn Power Co. v. Goddard, 460 Pa. 551, 333 A.2d 909 (1975); Commonwealth v. Horner, 449 Pa. 322, 296 A.2d 760 (1972); Dixon Estate, 443 Pa. 303, 279 A.2d 39 (1971); Commonwealth v. Bey, 437 Pa. 134, 262 A.2d 144 (1970), and ...


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