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filed: December 30, 1987.


Appeal from the Order entered on May 6, 1987, in the Court of Common Pleas of Potter County, Orphans Court, at No. 2, Adoption File 1986.


Jack E. Reagle, Northwestern Legal Services, Coudersport, for appellants.

Beck, Johnson and Hester, JJ. Johnson, J., files a concurring opinion.

Author: Beck

[ 369 Pa. Super. Page 446]

This is an appeal from the trial court's denial of appellants' Petition to File a Notice of Appeal Nunc Pro Tunc.

Appellants are natural parents whose parental rights were terminated by a final order of the Court of Common Pleas of Potter County entered on January 22, 1987. Appellants failed to appeal this order within the thirty day

[ 369 Pa. Super. Page 447]

    appeal period. Shortly after the expiration of the appeal period, counsel for appellants filed a Motion to File Appeal Nunc Pro Tunc in this Court. We issued a Per Curiam Order denying the Motion on March 20, 1987. Our Order stated that the Motion was denied without prejudice to appellants' right to seek relief in the trial court and cited In Re Adoption of J.A.S., 330 Pa. Super. 151, 479 A.2d 8 (1984).*fn1

Counsel for appellants then filed a Petition to File a Notice of Appeal Nunc Pro Tunc in the trial court. The Petition stated that the reason why a timely appeal had not been filed was that appellants' counsel's mother had suffered a massive myocardial infarction approximately three weeks after the entry of the January 22, 1987 Order. Counsel alleged that he was required to be out of his office and at his mother's side for two weeks thereafter, during which time the appeal period expired.

The trial court conducted a hearing on the Petition on April 14, 1987. At the hearing, counsel alleged that he did not learn of appellants' desire to appeal from the Order until he called his office on February 26, 1987, at which time he was informed that on February 19th, appellants had called counsel's office and told his secretary that they wished to appeal. By this time, the appeal period had already expired. Appellee, Potter County Children and Youth Services, concedes that these are the reasons for appellants' failure to file a timely appeal.

On May 6, 1987 the trial court entered a Memorandum Opinion and Order denying appellants' Petition. Appellants now appeal from the May 6, 1987 Order.

[ 369 Pa. Super. Page 448]

This case presents us with an unusual difficulty. We are often called upon to decide matters where the facts at hand are complex and difficult to fit within existing legal principles, or where the facts are straightforward but the existing law has not yet developed to the point of providing us with an answer to the issue posed. However, we are quite infrequently called upon to address a case such as this, where the facts are simple and the difficulty in resolution is the presence of too much precedent, all of which is potentially analogous, much of which is conflicting and none of which is particularly clear.

The question presented is whether, where an appeal from a trial court's order is not timely filed because of the unexcused conduct of appellants' counsel, an appeal nunc pro tunc should be allowed.

We find it beyond question that here, appellants' counsel was not attendant to his professional duties. Counsel was absent from his office for a period of several weeks, knowing that if appellants wished to appeal from the termination of their parental rights, they would have to do so during counsel's absence. Yet counsel did not provide for the clear possibility that appellants would want to appeal. He did not arrange for substitute counsel to monitor his cases. He did not notify appellants that they should seek new appellate counsel.

Realizing that counsel's inaction resulted in appellants' failure to appeal timely, we now turn to a close analysis of the precedents that define the circumstances under which an appeal nunc pro tunc can be allowed. As the Supreme Court has so many times opined, the time for taking an appeal cannot be extended as a matter of mere indulgence. An extension of such time can be permitted only in those cases where there has been fraud or some breakdown in the court's operation. West Penn Power Co. v. Goddard, 460 Pa. 551, 333 A.2d 909 (1975); Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938).

When initially coined, this statement of the applicable standard could hardly have been clearer or more easily

[ 369 Pa. Super. Page 449]

    applied. Moreover, the restrictiveness of the standard is grounded in solid legal principles. Since the Judicial Code itself addresses the time limitation for the taking of an appeal, courts have construed the thirty-day appeal limit as a legislative determination that the finality of court adjudications must be promoted by limiting the time within which they can be questioned on appeal. See Bass v. Commonwealth, 485 Pa. 256, 266, 401 A.2d 1133, 1138 (1979) (Roberts, J., dissenting to denial of reargument); 42 Pa.Cons.Stat.Ann. ยงยง 1722, 5501(a), 5504, 5571 (1982). Indeed, appellate courts regard the time limit on appeals as constituting an actual limit on their jurisdiction. Murphy v. Brong, 321 Pa. Super. 340, 468 A.2d 509 (1983) (untimely appeals present a jurisdictional question and must be quashed); Commonwealth v. Riebow, 299 Pa. Super. 458, 445 A.2d 1219 (1982); Pa.R.App.P. 105(b) (appellate court may not enlarge time for taking of appeal).

Despite these considerations supporting the establishment and maintenance of a restrictive and clear standard for the allowance of appeals nunc pro tunc, in 1979 the Supreme Court created a new species of circumstances in which such an appeal would be allowed. In Bass v. Commonwealth, supra,*fn2 counsel for appellants prepared appeal

[ 369 Pa. Super. Page 450]

    papers and apparently gave them to the secretary in his office for filing. However, the secretary, who was also in charge of monitoring the work of secretaries who might be absent from the office, became ill and did not return to work until very shortly after the appeal period had expired. A petition to appeal nunc pro tunc was then filed four days after the appeal period had expired. Id., 485 Pa. at 258, 401 A.2d at 1134. The Bass Court, while recognizing the traditional standard for appeals nunc pro tunc set forth above, nevertheless allowed the appeal. We set forth its analysis verbatim, because of its particular importance in the context of the instant case:

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 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 advocate for his client and as an officer of the court. It has recently been recognized by statutory law that an attorney is a public officer . . . . We are unable to conclude, however, that the office of attorney is to be equated for all purposes with the term 'court officer'. We cannot overlook the fact, however, that an attorney at law, chosen by a client from a limited group of people legally entitled to represent the client, is an integral part of our system of justice. To view a citizen's attorney as a completely non-public officer would be ignoring the reality that our system of justice could not function properly and efficiently without the traditional view that an attorney not only represents a client, but is in a sense an officer of the court. Therefore, at least in those circumstances involving the non-negligent failure to file an appeal, members of the public should not lose their day in court. Without doubt the

[ 369 Pa. Super. Page 451]

    passage of any but the briefest period of time during which an appeal is not timely filed would make it most difficult to arrive at a conclusion that the failure to file was non-negligent.

Although there are some exceptions, ordinarily non-negligent conduct, although it results in injury to another is not actionable. This principle can be illustrated by assuming that an attorney, while on his way to the Prothonotary's Office to file an appeal has an unexpected heart attack or other illness which causes him to lose control of his vehicle, and injure a bystander. The attorney (or any other person) would not be held liable . . . . Just as the attorney would not be held liable for damages to the bystander resulting from his non-negligent driving, his client should not suffer because the attorney, as a result of his illness, was unable to file the appeal. The example we have given is akin to the case before us.

Id., 485 Pa. at 260, 401 A.2d at 1135.

Thus, the Bass Court appeared to create a new ground for an appeal nunc pro tunc, i.e. non-negligent happenstance. Moreover, as the above-quoted language indicates, the Bass Court attempted to fit this ground within the traditional ground for the allowance of an appeal nunc pro tunc where there has been a breakdown in the operations of the court. The Court did so by viewing attorneys as officers of the court for some purposes and by analogizing an attorney's non-negligent failure to file timely to a situation where the judicial system has broken down.

Although the Supreme Court has recently cited to Bass without discussing it, Commonwealth v. Revtai, 516 Pa. 53, 532 A.2d 1 (1987), the Court has not otherwise commented on Bass and we are, therefore, unable to determine how that Court would now construe the decision's scope. Our intermediate appellate courts have somewhat differed in their application of Bass. While this Court has been quite restrictive in ...

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