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CADOGAN TOWNSHIP BOARD SUPERVISORS v. COMMONWEALTH PENNSYLVANIA (11/09/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 9, 1988.

CADOGAN TOWNSHIP BOARD OF SUPERVISORS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT

Appeal from the Order of the Environmental Hearing Board, in the case of Cadogan Township Board of Supervisors v. Commonwealth of Pennsylvania, Department of Environmental Resources and Kittanning Equipment, EHB Docket No. 87-440-R.

COUNSEL

Gerald G. DeAngelis, for petitioner.

Donna J. Morris, with her, George Jugovic, for Department of Environmental Resources.

Mark D. Shepard, Buchanan Ingersoll Professional Corporation, for intervenor, Kittanning Equipment Leasing Company.

Judges Barry and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 121 Pa. Commw. Page 19]

Cadogan Township Board of Supervisors (Petitioner) appeals from an order of the Environmental Hearing Board (EHB) dismissing Petitioner's appeal as untimely. We affirm.

On October 13, 1987, Petitioner's appeal of Encroachment Permit No. E03-220 issued to Kittanning Equipment Leasing Company (Kittanning) was received

[ 121 Pa. Commw. Page 20]

    by the EHB. Petitioner stated in the notice of appeal that notice of the permit's issuance appeared at 17 Pa. B. 3637 (1987) on September 5, 1987. The Department of Environmental Resources (DER) thereupon moved to dismiss the appeal on the ground that Petitioner had filed beyond the thirty day statutory time limit;*fn1 therefore, the Board was without jurisdiction to hear said appeal. The Board granted the motion to dismiss and Petitioner now appeals the Board's decision to this Court.

Petitioner's argument before the EHB as well as this Court is that its appeal should be granted nunc pro tunc because the late filing resulted from Petitioner's reliance on an erroneous address for the EHB published in the Pennsylvania Bulletin. It is undisputed that an incorrect address for the EHB appeared at 17 Pa. B. 3855 (1987), which had a publication date of September 26, 1987.

[ 121 Pa. Commw. Page 21]

The time limit on filing an appeal is a jurisdictional limitation which mandates the quashing of untimely appeals. Appeal of C.K. and L.K., 369 Pa. Superior Ct. 445, 535 A.2d 634 (1987). Generally, appeals nunc pro tunc have only been permitted in extraordinary situations involving fraud or some breakdown in the court's operation through default of its officers. C. & K. Coal Co. v. Department of Environmental Resources, 112 Pa. Commonwealth Ct. 505, 535 A.2d 745 (1988); Rostosky Page 21} v. Department of Environmental Resources, 26 Pa. Commonwealth Ct. 478, 364 A.2d 761 (1976). Negligence on the part of an appellant or counsel is not justification for an appeal nunc pro tunc. Rostosky.

However, in Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979), an appeal was filed four days late because the attorney's secretary responsible for filing the appeal had been ill. The court, in allowing the appeal, reasoned that neither the attorney nor his secretary were negligent and that an attorney is in a sense an officer of the court. But, the courts have limited the application of Bass to cases which present unique and compelling facts. See Appeal of C.K. and L.K.; Guat Gnoh Ho v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 154, 525 A.2d 874 (1987).

Appeals nunc pro tunc have also been permitted in situations where the untimely filing was due to inaccurate information provided by an official of an agency regarding the proper forum in which to file an appeal, or as to the time in which to file an appeal. See Roderick v. State Civil Service Commission, 76 Pa. Commonwealth Ct. 329, 463 A.2d 1261 (1983) (where appellant was advised by the regional director of Bureau of Employment Security that in order to seek reinstatement to her job position she should write to the manager of the office where she was employed); Tarlo v. University of Pittsburgh, 66 Pa. Commonwealth Ct. 149, 443 A.2d 879 (1982) (where appellant relied on written statement of Director of Commission on Human Relations that appeal was to be filed thirty days after receipt of letter when it should have been filed thirty days after entry of the order appealed).

Here, it is Petitioner's contention that it should be permitted to appeal nunc pro tunc the encroachment permit issued to Kittanning because it relied on an erroneous

[ 121 Pa. Commw. Page 22]

    address in the September 26, 1987 publication of the Pennsylvania Bulletin. However, this erroneous address appeared in the Pennsylvania Bulletin three weeks after the September 5, 1987 publication containing notice of the permit's issuance to Kittanning. Further, the correct address did appear in the September 5, 1987 publication.*fn2 Thus, Petitioner's reliance on an address published with respect to a notice totally unrelated to the permit it intended to appeal falls short of the extraordinary situations wherein nunc pro tunc appeals have been allowed. Therefore, we will affirm the Board.*fn3

Lastly, we will briefly address Kittanning's request for costs and reasonable attorney fees. Pursuant to Pa. R.A.P. 2744 an appellate court may award as further costs damages as may be just including reasonable attorney fees if it determines the appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious. We do not consider Petitioner's appeal to be frivolous, or taken solely for delay or that the conduct of Petitioner herein has been dilatory, obdurate or vexatious. Therefore, we will deny the request for costs and attorney fees.

Accordingly, the order of the Board is affirmed and Kittanning's request for costs and reasonable attorney fees is denied.

[ 121 Pa. Commw. Page 23]

Order

And Now, this 9th day of November, 1988, the order of the Environmental Hearing Board in the above-captioned matter is affirmed. It is further ordered that the request of Kittanning Equipment Leasing Company for costs and reasonable attorney fees is denied.

Disposition

Affirmed.


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