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									Source: Pa. Law Weekly
Published: 2002-09-02

Better Late Than Never?
A look at the timeliness of appeals under Pennsylvania's appellate rules of procedure

By Barbara S. Magen special to the Law Weekly

As we transition into the fall season, one might be prone to reminisce about the summer now
passing and reflect on the things which somehow never got done, despite the best of intentions.
Whether it's the neighborhood barbeque which never quite came to fruition or that extra day at
the beach which somehow escaped your grasp, wouldn't it be nice to bend the rules of nature,
just once, extending the summer beyond its natural boundaries?

It seems, after all, a human instinct to wish to circumvent the laws of reality, as long as there are
no consequences to our actions. So, too, in the legal arena, attorneys have granted themselves
their own "loophole" with which to seek to lengthen deadlines. A lawyer's version of extending
time is the doing of something "nunc pro tunc," which, in its literal translation from the Latin,
means "now for then." In more elementary terms, one might think of this action simply as
graciously asking the reviewing tribunal for some sort of "do-over." The obtaining of such relief,
in the appellate field, however, has proven to be anything but simple.

In order to perfect an appeal in a timely fashion, a party must stringently adhere to the statutory
provisions for the filing of an appeal. Pennsylvania Rule of Appellate Procedure 903 specifies
that a notice of appeal "shall be filed within 30 days after the entry of the order from which the
appeal is taken." This 30-day appeal period is authorized by 42 P.S. §5571(a). Significantly, the
running of the 30-day time frame is triggered by the entry of the trial court's order (as opposed to
the date of its execution). In other words, the date of the order is not controlling for purposes of
filing a notice of appeal. It is the entry date of the order that sparks the running time for an
appeal. Without the actual entry of the order in controversy, the appeal period does not begin to
move forward.

Notably, the appellate directive that addresses the waiver and modification of the rules in
general, Rule 105, espouses that the rules are to be "liberally construed" so as to "secure the just,
speedy and inexpensive determination of every matter to which they are applicable." Liberal
construction, however, specifically excludes the deadlines set for appeal periods. Rule 105(b)
directly advises that a court may not enlarge the time for filing a notice of appeal.

Rule 903, however, does include its own exceptions or exclusions. For example, if one party to
litigation files a timely notice of appeal, any other party may file its own notice of appeal within
14 days of the date on which the initial notice of appeal was filed. Additionally, certain appeals
following orders must actually be taken within 10 days of the entry of the underlying order in
issue. These include orders that change venue or venire in criminal proceedings, orders
emanating from the state Election Code and orders arising from statutory matters concerning
public debt.

A party should clearly not seek or expect to lengthen the designated appeal periods lightly.

Despite the seeming inflexibility of the time constraints set by Rule 903, the official note which
complements Rule 105 provides certain circumstances where a tribunal may allow an untimely
appeal to be filed. These situations are extremely limited and involve those scenarios whereby
parties have sought to file appeals, nunc pro tunc, having missed the deadline otherwise
designated within the appellate rules. The official note provides that in situations where there has
either been fraud or a breakdown in the processes of a court, a tribunal has the power to grant
nunc pro tunc relief pertaining to the filing of a notice of appeal. As the Supreme Court
cautioned over 20 years ago in West Penn Power Co. v. Goddard, 333 A.2d 909 (Pa. 1975), the
time for taking an appeal cannot be, and will not be, extended as a matter of grace of mere
indulgence. A party should clearly not seek or expect to lengthen the designated appeal periods

Another 'Excuse'

        In addition to the exceptions relating to fraud and general breakdown in the functioning
of the courts, yet another "excuse" has been carved out by case law, although it has not been
recognized by the official commentary contained within the appellate rules. In Bass v.
Commonwealth Bureau of Corrections, 401 A.2d 1133 (Pa. 1979), the Supreme Court concluded
that where a moving party appellant, an appellant's counsel or an agent of counsel failed to
timely file a notice of appeal due to non-negligent circumstances, the appellant should not lose a
day in court. The tribunal in Bass expanded the limited exceptions for permitting an appeal nunc
pro tunc to allow an appeal where the moving party proves the following:

· The notice of appeal was filed late due to non-negligent circumstances relating to the appellant
or appellant's counsel;

· the notice of appeal was filed shortly after the date for filing the appeal expired; and

· the opposing party was not caused to suffer prejudice by the delay.

The special exception permitted in Bass for non-negligent conduct presented an immediate, and
ongoing, problem with respect to determining the scope of the unique exclusion. For this reason,
the case was largely overruled or limited by virtue of the Superior Court's later finding addressed
through In re Adoption of J.A.S., 479 A.2d 8 (Pa. Super. 1984). However, in the Supreme Court's
more recent ruling in Criss v. Wise, 781 A.2d 1136 (Pa. 2001), that tribunal included a discussion
of the Bass Court's finding and noted that the exception for non-negligent circumstances is meant
to have application "only in unique and compelling cases," where the appellant clearly
establishes that he or she attempted to file an appeal but unforeseeable and unavoidable events
precluded the actual filing. In Criss, for example, the Supreme Court held that since delays in the
U.S. mail are both predictable and avoidable, the failure of a party to anticipate a potential delay
in the mail did not rise to the level of constituting a non-negligent circumstance such that an
appeal nunc pro tunc should be granted.

The lesson learned from a review of the appellate rules, as well as interpretive case law, is not to
"put off 'til tomorrow what you can do today." When in receipt of an adverse order, don't wait
until the eleventh hour before filing your notice of appeal. Obtaining unc pro tunc relief, like a
true Indian summer, is a rare occurrence.

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