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07/15/97 KRISTINE WALTER v. DEPARTMENT PUBLIC

July 15, 1997

KRISTINE WALTER, PETITIONER
v.
DEPARTMENT OF PUBLIC WELFARE (POLK CENTER), RESPONDENT



Appealed From No. 171. State Agency Department of Public Welfare.

Before: Honorable Dan Pellegrini, Judge, Honorable Jim Flaherty, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Judge Flaherty.

The opinion of the court was delivered by: Flaherty

OPINION BY JUDGE FLAHERTY

FILED: July 15, 1997

Kristine Walter (Walter) petitions for review of the November 14, 1996, order of the Department of Public Welfare (DPW), Bureau of Hearings and Appeals (Bureau) which dismissed as untimely her appeal from DPW's denial of benefits under Act 534. *fn1 We affirm.

Walter is an employee at Polk Center (Polk), a state mental hospital. On May 18, 1993, she sustained a work-related injury and began receiving benefits under Act 534. In accordance with Act 534, Walter received her full salary in lieu of workers' compensation benefits. *fn2 Walter eventually returned to work with Polk on a modified basis.

Walter subsequently filed for a modification of her workers' compensation benefits, alleging a recurrence of her condition as of September 1, 1994, seeking benefits for total disability. Polk's workers' compensation insurance carrier, Pennsylvania Insurance Management Company (PIMCO), denied the allegation of a recurrence because it believed Walter's disability, as of September 1, 1994, was not a result of her work injury.

On September 28, 1994, Polk's personnel director sent a letter to Walter notifying her that, because PIMCO denied the allegation in her modification petition, DPW was also denying her Act 534 benefits as of September 1, 1994. Walter was advised, in this letter, that she had the right to appeal DPW's actions by filing an appeal to the Bureau within 30 days after receipt of the letter. *fn3 The letter also advised Walter to contact the personnel office at Polk if she wanted assistance in the matter. No appeal was taken within the 30 day time limit and no evidence exists of record that Walter requested assistance.

Walter subsequently alleged another recurrence of total disability and sought a second modification of her benefits. Polk's personnel director, after receiving notification from PIMCO that it was also denying this second modification claim by Walter because it believed that there was no medical reason for her absence, advised Walter via letter of February 27, 1995, that DPW was also denying a modification of her Act 534 benefits beginning on January 29, 1995. Walter was additionally advised in this letter that she had the right to appeal this determination to the Bureau within 30 days from the date of the letter, and that personnel at Polk would assist her in the matter if she desired. Again, no appeal was taken within the 30 day time limit and no evidence exists of record that Walter requested assistance.

On June 28, 1996, Walter filed an appeal to the Bureau contesting the September 28, 1994, and February 27, 1995, denials of her Act 534 benefits. On November 14, 1996, the Bureau granted DPW's request to dismiss Walter's appeal as untimely. Walter now appeals to this court. *fn4 On appeal, Walter argues that the Bureau erred in dismissing her appeal as untimely; specifically, that she should be allowed an appeal nunc pro tunc. *fn5

We initially note that "the traditional grounds for the allowance of an appeal nunc pro tunc are fraud, duress or coercion which causes a delay in the filing of the appeal." Sewickley Valley Hospital v. Department of Public Welfare, 121 Pa. Commw. 337, 550 A.2d 1351, 1353 (Pa. Commw. 1988), petition for allowance of appeal denied, 524 Pa. 614, 569 A.2d 1372 (1989).

In Bass v. Bureau of Corrections, 485 Pa. 256, 401 A.2d 1133 (1979), our Supreme Court extended the traditional grounds for allowing an appeal nunc pro tunc. In that case, counsel for Bass was to file an appeal. Counsel's secretary prepared the appeal papers but, because of a week-long illness, was unable to file them in a timely fashion. The secretary, upon returning to the office after her illness, "immediately took steps to correct the situation." Id. at 258, 401 A.2d at 1134. The appellee conceded that the delay in filing the appeal was due to the secretary's illness. The Bass Court held that members of the public should not lose their day in court because of their counsel's non-negligent conduct, and granted Bass leave to file an appeal nunc pro tunc.

Walter cites to Cook v. Unemployment Compensation Board of Review, 543 Pa. 381, 671 A.2d 1130 (1996) for support of her position that she should be allowed an appeal nunc pro tunc. In Cook, our Supreme Court, in granting an appeal nunc pro tunc, extended the holding in Bass to also include non-negligent conduct on the part of the appellant. The Cook Court held that:

where an appeal is not timely because of non-negligent circumstances, either as they relate to appellant or his counsel, and the appeal is filed within a short time after the appellant or his counsel learns of and has an opportunity to address the untimeliness, and the time period which elapses is of very short duration, and ...


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