No. 129 Misc. Docket 1978, Petition for Leave to File Appeal Nunc Pro Tunc from the Commonwealth Court at No. 16 T.D. 1977.
Robert A. Rovner, Philadelphia, for appellant.
Stanley I. Slipakoff, Asst. Atty. Gen., Philadelphia, for appellees.
Eagen, C. J., and Roberts, Nix, Manderino and Larsen, JJ. O'Brien, J., did not participate in the consideration or decision of this case. Nix, J., filed a concurring opinion. Roberts, J., filed a dissenting opinion in which Eagen, C. J., joined.
Appellant, Shirley Lillian Bass, seeks leave to file an appeal nunc pro tunc from the order of the Commonwealth Court. The facts which gave rise to appellant's original suit are as follows. On July 11, 1975, Stanley Bass was killed by one Charles Jackson who was then AWOL from a weekend furlough from Graterford Prison. Appellant, the victim's
wife and executrix of his estate, filed a complaint in trespass in the Court of Common Pleas against Julius Cuyler, Superintendent of Graterford Prison, William Robinson, Commissioner of the Bureau of Corrections, Larry Reid, Director of Treatment at Graterford, and John Doe.
The action was transferred to the Commonwealth Court and in preliminary objections the defendants raised official immunity as a complete defense to the action. The Commonwealth Court sustained the objection as to the Commissioner of the Bureau of Corrections finding him entitled to absolute immunity under the applicable law. The other defendants were held not to be officers of the Commonwealth and that action was transferred back to the Court of Common Pleas for want of jurisdiction.
Appellant decided to file an appeal in this Court from the order of Commonwealth Court. Appellant's counsel prepared the necessary appeal papers which were typed up by his secretary and were ready for filing on Friday, July 7, six days prior to the expiration of the time allowed for filing the appeal. The papers were placed in a folder on the corner of the secretary's desk, along with other papers to be taken to the courthouse for filing. During the late afternoon of that Friday, the secretary became sick and left work. She was out sick during the entire following week, returning to work on Monday, July 17. Although the normal office procedure was to have a secretary check the desk of a secretary who was ill, in this case the secretary who was ill was the one who routinely did this checking. The ill secretary, in her deposition concerning this matter, stated that she was too sick to think about calling the office. During her illness, she was treated by a physician.
When the secretary returned to the office, she became aware that the appeal had not been filed and immediately took steps to correct the situation. A petition for permission to file an appeal nunc pro tunc was filed in this Court on Monday, July 17, four days after the normal appeal period had expired. Appellee concedes that the delay in filing the appeal was caused by the secretary's illness. Under the
circumstances recited, we conclude that appellant's petition for permission to file an appeal nunc pro tunc should be granted.
We have often said that the time for taking an appeal cannot be extended as a matter of grace or mere indulgence. West Penn Power Co. v. Goddard, 460 Pa. 551, 333 A.2d 909 (1975); Dixon Estate, 443 Pa. 303, 279 A.2d 39 (1971). Furthermore, we have previously limited the extension of the time of filing an appeal to cases where "there is fraud or some breakdown in the court's operation." West Penn Power Co. v. Goddard, 460 Pa. 551, 556, 333 A.2d 909, 912 (1975).
The negligence of an appellant, or an appellant's counsel, or an agent of appellant's counsel, has not been considered a sufficient excuse for the failure to file a timely appeal.
In this case, however, we are presented with a non-negligent failure to file a timely appeal after the client had made a decision to appeal.
Appellant, in contending that we should grant this petition, recognizes that, in the past, extension of a statutory period during which an appeal must be filed has been justified only where there is "fraud or some breakdown in the court's operation through a default of its officers." Nixon v. Nixon, 329 Pa. 256, 260, 198 A. 154, 157 (1938); West Penn Power Co. v. Goddard, supra. Appellant argues that we should equate the failure to file a timely appeal in this case as "in fact a negligent act of a court official." Appellant also argues that "mere inadvertence" should not prevent an appellant from access to the appellate process. It is true that in our system of law an attorney, in a sense, serves both as an ...