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filed: June 12, 1981.


No. 570 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Cambria County, No. 1973-303, Civil Action - Law.


Robert B. Mitinger, Jr., Bellefonte, submitted a brief on behalf of appellants.

Francis J. Leahey, Jr., Ebensburg, for appellee.

Spaeth, Wickersham and Lipez, JJ. Wickersham, J., files a dissenting statement.

Author: Lipez

[ 288 Pa. Super. Page 38]

On October 2, 1973, plaintiff filed this assumpsit action, which went to compulsory arbitration. The board of arbitration filed an award in favor of defendants. The award was entered on the lower court's docket on December 9, 1975. On January 12, 1976, the time limit for filing an appeal from the award having expired,*fn1 plaintiff filed in the

[ 288 Pa. Super. Page 39]

    common pleas court below a petition for allowance of appeal nunc pro tunc. On February 5, 1976 the court below held an evidentiary hearing on the petition. In an order dated October 11, 1978 and filed May 21, 1979,*fn2 the court granted the petition. Defendants took this appeal*fn3 from that order on June 18, 1979.*fn4

[ 288 Pa. Super. Page 40]

In its opinion filed on November 14, 1979, the court below discussed the evidence as follows:

The docket entries in this case and the testimony introduced at the hearing on the Petition reveals the following: Plaintiff was represented at the hearing before the Arbitration Board by Attorney Patrick Washington. The Prothonotary of Cambria County, instead of mailing the Notice of the Award of the Board to Mr. Washington, mailed it to Plaintiff's son, who in turn gave the Notice to Plaintiff on December 14, 1975 (the Award was entered December 9, 1975). The Plaintiff, who was 84 years old and ill at the time the Notice of the Award reached him, attempted, through his daughter, Cleo Shope, to contact Mr. Washington for the purpose of filing an Appeal from the Award. Mrs. Shope spoke with Mr. Washington's father (who resides in Cambria County) and was provided with an address in Harrisburg, Pennsylvania, for Mr. Washington. Mrs. Shope then wrote a letter to Mr. Washington and mailed it to the Harrisburg address on approximately December 16, 1975. The letter was returned to Mrs. Shope by the postal service. A second

[ 288 Pa. Super. Page 41]

    letter was sent by registered mail by the Plaintiff or the Plaintiff's son to Mr. Washington's office address in Harrisburg. That letter was not returned by the postal service. Mr. Washington did not contact Mrs. Shope until January 16, 1976, when he telephoned her. In the meantime, Plaintiff, having recovered from his illness, contacted his present counsel on January 5, 1976 (five days after the expiration of the statutory appeal period) and retained him for the purpose of filing this Appeal Nunc Pro Tunc.

The court below found, based on the foregoing facts, that plaintiff's failure to file a timely appeal from the arbitration award was a non-negligent failure, which was corrected in a very short time, during which minimal prejudice, if any, resulted to the defendants. Therefore the court concluded that an appeal nunc pro tunc should be allowed under the standards of Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979).

The pertinent facts in Bass were stated in the lead opinion by Justice Manderino:

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.

[ 288 Pa. Super. Page 42]

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.

Bass v. Commonwealth, supra, 485 Pa. at 258-59, 401 A.2d at 1134-35.

Although the law was totally settled that extensions of appeal time could be granted only in cases of fraud or breakdown in the operation of the court, e. g., West Penn Power Company v. Goddard, 460 Pa. 551, 556, 333 A.2d 909, 912 (1979), the three-member majority (of the five participating justices) established a new category of "non-negligent" failure to file an appeal, and used this as a basis for extending the appeal time. Justice Manderino's lead opinion, joined by Justice Larsen, held that the above-quoted facts fell within the scope of this new exception for "non-negligence," because the situation was akin to a case in which an attorney driving to the prothonotary's office has an unexpected heart attack, resulting in loss of control of his vehicle, injury to a bystander, and failure to file an appeal. 485 Pa. at 260, 401 A.2d at 1135. Justice Nix's concurring opinion was "substantially in accord" with this reasoning in reaching the conclusion that the failure to file an appeal in Bass was "non-negligent."

While the majority's opinions are not too clear concerning the meaning and scope of the concept of "non-negligence,"*fn5 we need not determine how to apply this "vague, standardless, and undefined exception"*fn6 to the facts of this case. Assuming arguendo that the 3-2 decision in Bass creates

[ 288 Pa. Super. Page 43]

    binding precedent,*fn7 we nevertheless hold that the new exception for "non-negligence"*fn8 cannot be applied retroactively

[ 288 Pa. Super. Page 44]

    to allow an appeal when the appeal time had run out before the date of the Bass decision.

Timeliness of an appeal, whether it is to an appellate court or a de novo appeal in common pleas court, is a jurisdictional question. Turner v. May Corporation, 285 Pa. Super. 241, 245, 427 A.2d 203, 205 (1981). Rights in jurisdictional matters are determined by the law in force at the time of the institution of the action. Kilian v. Allegheny County Distributors, 409 Pa. 344, 350-51, 185 A.2d 517, 520 (1962); Turner v. May Corporation, supra, 285 Pa. Super. at 246 n. 3, 427 A.2d at 205 n. 3. This rule has specifically been held applicable in determining whether the jurisdictional requirements for an appeal from an arbitration award have been met. Drozdowski v. Keystone Truck Leasing, 277 Pa. Super. 55, 58 n. 2, 419 A.2d 657, 659 n. 2 (1980).

When the time for appeal from the arbitration award expired in this case, an extension could only be granted for fraud or breakdown in the operation of the court. Plaintiff has never even contended that his failure to file a timely appeal resulted from fraud or breakdown in the court's operation, and he presented no evidence of either at the hearing in the court below.*fn9 Accordingly, there was no basis

[ 288 Pa. Super. Page 45]

    for an extension of the appeal time, and the order allowing an appeal nunc pro tunc from the arbitrator's award must be vacated.

Order vacated.

WICKERSHAM, Judge, dissenting:

I dissent.

I believe that Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979) creates a new category of "non-negligent" failure to file an appeal. The lower court applied Bass in rendering its decision, and the court's use of Bass was not a retroactive application of that case.

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