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decided: September 19, 1978.


Appeal from the Order of the Court of Common Pleas of Lackawanna County in case of In Re: Controller's Annual Report for year 1972 of Lackanna County, No. 139 September Term, 1973.


Ervin Hohensee and Gene Basalyga, appellants, for themselves.

James J. Ligi and Brian J. Cali, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by Judge MacPhail.

Author: Macphail

[ 37 Pa. Commw. Page 582]

On September 14, 1973, thirteen (13) persons alleged to be taxpayers of Lackawanna County "on their own behalf and on behalf of all taxpayers of said county" filed an appeal from the Controller's Report of 1972 which had been filed June 13, 1973. Inasmuch as the statute which authorizes such appeals, Section 2805, The County Code, Act of August 9, 1955 (Code), P.L. 323, as amended, 16 P.S. § 2805, requires that such appeals be entered within ninety (90) days after the filing of the report, the Commissioners of Lackawanna County moved to dismiss the appeal. The taxpayers then sought leave to file the appeal nunc pro tunc under the authority of Unangst's Appeal, 333 Pa. 489, 5 A.2d 201 (1939). In a preliminary order the Court of Common Pleas of Lackawanna County allowed the appeal "to afford the taxpayers an opportunity to investigate the existence of fraud or its concealment."

After a three day hearing on the issue of fraud and the filing of depositions and stipulations, the court found no fraud or concealment and held that since the appeal was untimely filed, it should be dismissed.*fn1

[ 37 Pa. Commw. Page 583]

On January 23, 1978, Ervin Hohensee and Gene Basalyga (appellants), who were not among the thirteen (13) taxpayers who filed the original appeal in the Lackawanna Court of Common Pleas, filed a notice of appeal in the Commonwealth Court from the "opinion" of the lower court. The Commissioners of Lackawanna County (Commissioners) and the Controller filed a motion to dismiss and a motion to quash the appellants' appeal. On March 10, 1978, this Court entered an order directing that the motion to dismiss be denied and that the motion to quash be submitted on brief. Briefs have been filed and the issues raised therein are ready for disposition.

Commissioners and Controller contend that their motion should be granted because: (1) the appeal was untimely filed in violation of Pa. R.A.P. 903, (2) the appellants lack standing to bring the appeal since they were not parties to the initial proceeding and (3) the appellants lack standing to appeal because they are not aggrieved parties. The appellants answer that their appeal was late because the court house was closed on the last day for filing due to inclement weather, that they are among the taxpayers included in the original suit and that the fact that the county was not reimbursed for $24,935.00 makes them aggrieved parties. The issues are somewhat novel.

Timeliness of the Appeal

In the instant case, Pa. R.A.P. 903, (which was based upon Section 502 of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, 17 P.S. § 211.502), required that the appeal

[ 37 Pa. Commw. Page 584]

    from the order of Lackawanna Court be filed within thirty (30) days after the entry of that order. There is no dispute that this appeal was filed on the thirty-third (33) day.*fn2 Our courts have been consistent in holding that where a time limit has been fixed for the filing of an appeal, the time may not be extended as a matter of indulgence. Nardo v. Smith, 448 Pa. 38, 292 A.2d 377 (1972) and Hafetz v. Redevelopment Authority of the City of Wilkes-Barre, 19 Pa. Commonwealth Ct. 202, 339 A.2d 644 (1975). There are two exceptions to the general rule: (1) fraud or a breakdown in the court's operation through the fault of its officers to the prejudice of a party, Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938) and (2) when the defendant in a criminal case fails to file a timely appeal because of the unconstitutional deprivation of the assistance of counsel. Commonwealth ex rel. Light v. Cavell, 422 Pa. 215, 220 A.2d 883 (1966). The failure to timely file an appeal deprives an appellate court of jurisdiction. Duggan v. Environmental Hearing Board, 13 Pa. Commonwealth Ct. 339, 321 A.2d 392 (1974).

At the outset, it must be noted that although appellants set forth in their answer to the motion to quash that the reason they were late in filing this appeal was because the court house was closed due to bad weather, we have no admission by the movants that that factual allegation is correct; nor is there any affidavit, deposition or testimony to that effect. Unless the appellants can bring themselves within the "breakdown of the court" exception set forth in Nixon v. Nixon, supra, this appeal must be dismissed as untimely. However, if the facts alleged by the appellants are correct, we believe a strong case may be

[ 37 Pa. Commw. Page 585]

    made out to allow the appeal notwithstanding its untimeliness. It is noteworthy that the Commissioners do not mention the alleged court house closing in their brief, notwithstanding the fact that it was alleged in appellants' answer to the motion to quash.

Since the factual basis necessary for us to agree with appellants' position has not been firmly established by the record now before us, we will not decide this issue but rather base our final order upon our disposition of the other grounds raised by the motion to quash.

Standing of the Appellants

(a) Not Parties to the Original Proceedings

Here, factually we are faced with somewhat less of a problem than we were in our discussion of the previous issue. We have the record from Lackawanna County and upon examination of the original appeal from the Controller's report we are satisfied that the appellants were not among the thirteen (13) taxpayers who signed that appeal. Conversely, none of the original signators on the appeal to the Lackawanna court are appellants here.

Commissioners rely heavily upon Borough of Malvern v. Agnew, 11 Pa. Commonwealth Ct. 285, 314 A.2d 52 (1973) in contending that appellants have no standing in this appeal. In that case certain citizens of the Borough of Malvern challenged the legality of two borough ordinances but their appeal was denied by the lower court. Thereafter, relying upon the court's adjudication, certain parties applied for building permits and the Zoning Hearing Board declared the ordinances invalid. The Board's adjudication was set aside by the lower court. At that point, the Borough and two citizens who had not been among the

[ 37 Pa. Commw. Page 586]

    original objectors in the court below appealed to this Court. Pertinently, this Court held:*fn3

The MPC in effect at the time these appeals were taken governs who can appeal. Section 914 of the MPC, 53 P.S. § 10914, provided that an aggrieved person may file an appeal, in writing, with the Board. We reiterate that the record does not indicate that either Kenney or Scott was a party before the Board. Section 1003 of the MPC, 53 P.S. § 1103 [11003], provided that 'any party before the board' could appeal to court. Section 1006 of the MPC, 53 P.S. § 1106 [11006], provided for intervention. Even assuming arguendo that Kenny and Scott were parties before the Board, neither one appealed or intervened in the matter before the lower court. We cannot declare either to be a party at any place in the proceedings below, and therefore, they have no right to take an appeal to this Court.

Borough of Malvern v. Agnew, supra, at 290, 314 A.2d at 54.

See also Appeal of Dethlefson, 434 Pa. 431, 433, 254 A.2d 6, 7 (1969) where the Court said "[t]here is but one way to become a party litigant in a court and that is by appearing in the proceedings."

[ 37 Pa. Commw. Page 587]

It is the contention of the Commissioners and Controller here that the language in Section 2805 of the Code is controlling where it states "[i]n all such appeals, the courts of common pleas may direct an issue to be tried by a jury, upon whose verdict final judgment shall be entered, reserving the right to all Page 587} parties to appeal, as provided in other appeals." (Emphasis added.) Since the appellants here were not "parties" below, the Commissioners and Controller argue that they should have no standing here. We agree.

Appellants contend that the initial appeal was filed "on behalf of all the taxpayers of the county" and that therefore they were at least nominal if not actual parties in the proceedings below. Again, the language of Section 2805 of the Code must be observed. It says: "Subject to the proviso hereinafter made, any ten or more taxpayers of the county may, in behalf of such county, appeal from the report of its county auditors or controller to the court of common pleas. . . ." (Emphasis added.) Although the proceeding below was brought "on their own behalf and on behalf of all taxpayers of said county," the only authority the appellants below had was to file their appeal on behalf of Lackawanna County. Accordingly, we would hold that the mere identification of the appeal as being "on behalf of all taxpayers" is not controlling.

The same section (2805) of the Code also requires that, "[ a]ll of the appellants shall enter into recognizance with two sufficient sureties, conditioned that the appellants shall prosecute said appeal with effect and pay all costs that may accrue thereon in case they fail to obtain a final decision more favorable to the county than the report from which such appeal is taken." (Emphasis added.) Such a bond has been filed and all of the original appellants are signators but the appellants before us are not. While the question of costs is not before us at this moment, the obvious purpose of the bond is to discourage spurious appeals and require that those filing an appeal shall be financially responsible in the event of a ruling adverse to them. Since they have not entered into a recognizance as required by the statute, the present appellants

[ 37 Pa. Commw. Page 588]

    could not have proceeded in the court below without amending the bond filed there.*fn4 If they could not proceed in the court below, they cannot proceed here.

Because they were not actual parties in the original proceedings in the Court of Common Pleas of Lackawanna County, we conclude that appellants have no standing in this appeal.

(b) Not Aggrieved Parties

In Lansdowne Borough Board of Adjustment's Appeal, 313 Pa. 523, 525, 170 A. 867, 868 (1934), the Supreme Court of Pennsylvania, held:

'A cardinal principle, which applies alike to every person desiring to appeal, whether a party to the record or not, is that he must have a [direct] interest in the subject-matter of the [particular] litigation, otherwise he can have no standing to appeal. And not only must a party desiring to appeal have a [direct] interest in the particular question litigated, but his interest must be immediate and pecuniary, and not a remote consequence of the judgment. The interest must also be substantial.'

See also William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975).

Appellants argue in their brief that they have been "defrauded out of $24,935.00 which was wrongfully, wilfully and knowingly, misappropriated by the County Commissioners and which amount was not reimbursed to the County Treasury." As we have previously noted, the court below did find that the $24,935.00 was not reimbursed to the County, but that the reason for the non-reimbursement was "Federal bureaucratic regulations."

[ 37 Pa. Commw. Page 589]

    from audit? Since they were not parties initially, we hold that the court's adjudication was not adverse as to them, but only as to the parties who filed the initial appeal. Also, we hold that the detriment to the appellants before us as individual taxpayers is too remote, there being no evidence that they will be specially or directly affected by the alleged loss to the county of these funds. Their interest is limited to the interest of all citizens in having others comply with the law. William Penn Parking Garage, Inc. v. City of Pittsburgh, supra. Accordingly, we conclude that appellants are not aggrieved parties.

Because we do not feel that the appellants have standing to appeal from the order of Lackawanna Court of Common Pleas, we will sustain the motion to quash filed by the Commissioners and the Controller of Lackawanna County.


And Now, this 19th day of September, 1978, the motion of the Controller and County Commissioners for Lackawanna County to quash the instant appeal is granted. Costs of this appeal to be paid by Ervin Hohensee and Gene Basalyga.


Motion to quash granted.

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