Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Goldie Tarlo v. University of Pittsburgh, No. SA-1067 1980.
Gary M. Davis, for appellant.
Ronald F. Talarico, for appellee.
President Judge Crumlish, Jr. and Judges Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig. Judge Palladino did not participate in the decision in this case.
[ 66 Pa. Commw. Page 150]
Goldie D. Tarlo appeals from an Allegheny County Common Pleas Court order quashing her statutory appeal. We reverse.
Tarlo's sex discrimination complaint against the University of Pittsburgh was dismissed by Pittsburgh's Commission on Human Relations (Commission) on August 13, 1980. By a letter dated August 19, 1980, and received by Tarlo and her attorney on August 21, 1980, the Commission's Director advised that an appeal could be filed with the Common Pleas Court within thirty (30) days of the letter's receipt.*fn1 A statutory appeal*fn2 was filed on September 22, 1980, within the time prescribed in the Commission's letter.*fn3
[ 66 Pa. Commw. Page 151]
The University, relying on 42 Pa. C.S. §§ 5571(b) and 5572,*fn4 which require an appeal to be filed within thirty days after entry of the order appealed, has moved to quash the appeal as being untimely.
Timeliness of an appeal, whether to an appellate court or common pleas court, is a jurisdictional question. Gallardy v. Ashcroft, 288 Pa. Superior Ct. 37, 44, 430 A.2d 1201, 1204 (1981). An extension of a statutory appeal period cannot be granted as a matter of grace or mere indulgence. Dixon Estate, 443 Pa. 303, 279 A.2d 39 (1971). Traditionally, such an extension has been limited 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). Negligence on the part of an appellant or counsel cannot justify the granting of an appeal nunc pro tunc. See, e.g., Rostosky v. Department of Environmental Resources, 26 Pa. Commonwealth Ct. 478, 364 A.2d 761 (1976). However, extension may be granted where the delay in filing was caused by a non-negligent failure of the appellant's counsel. See Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979). In Bass,*fn5 the court acknowledged that "at least in those
[ 66 Pa. Commw. Page 152]
circumstances involving the non-negligent failure to file an appeal, members of the public should not lose their day in court." Bass at 260, 401 A.2d at 1135.
Here, Tarlo's counsel relied on the written statement of the Commission's Director -- official but erroneous -- that the appeal was to be filed within thirty days of the letter's receipt. We conclude that this case is governed by the principle of Layton v. Unemployment Compensation Board of Review, 156 Pa. Superior Ct. 225, 40 A.2d 125 (1944), and Gill v. Unemployment Compensation Board of Review, 165 Pa. Superior Ct. 605, 70 A.2d 422 (1950); in both of those cases, appeals nunc pro tunc were granted where the claimants missed ...