*1 Ordеr of the Superior Court vacated and the case remanded to that court for further consistent proceedings with this opinion.
Bass, Deceased, Appellant, Pennsylvania, al., Robinson, COMMONWEALTH of et William Corrections, Larry Reid, Commissioner of Bureau of Director Prison, Department, City of Treatment of Graterford Police Philadelphia, Cuyler, Superintendent Julius T. of Graterford Prison, Doe, Jackson, John Charles and the Estate of Charles Jackson.
Supreme Pennsylvania. Court of 18,
Argued Jan. 1979. 3,May Decided 1979. Reargument June Denied 1979. Dissenting Opinion June 1979. *2 Rovner,
Robert A. for Philadelphia, appellant. Gen., Stanley Slipakoff, I. Asst. Atty. Philadelphia, appellees. EAGEN, J., ROBERTS, NIX,
Before C. MANDERI- LARSEN, NO and JJ.
OPINION MANDERINO, Justice.
Appellant, Bass, to file an Lillian seeks leave Shirley appeal nunc pro tunc from the order of the Commonwealth Court. The gave appellant’s original facts which rise to suit 11, 1975, are as follows. Stanley On Bass was killed July one Charles Jackson who was then AWOL from a weekend furlough from the victim’s Appellant, Graterford Prison. estate, trespass a complaint his filed
wife and executrix of Super- Julius against Cuyler, Pleas in the of Common Court Robinson, Prison, Commis- William of Graterford intendent Corrections, Reid, Director Larry the Bureau of sioner of Graterford, Doe. and John Treatment at Court to the Commonwealth transferred The action was official raised the defendants objections and in preliminary The Com- action. defense to the complete as a immunity Commis- as to the objection sustained the monwealth Court entitled to finding him Bureau of Corrections sioner of the The other law. applicable under the immunity absolute of the Common- to be officers defendants were held not the Court back to that action was transferred wealth and jurisdiction. for want of Common Pleas this from Court decided to file Appellant prepar- counsel Appellant’s Court. order of Commonwealth *3 his up by were typed which appeal papers ed the necessary 7, six Friday, July for on ready filing and were secretary filing allowed for of the time days prior expiration to the on the in a folder were papers placеd the appeal. to be desk, papers with other along secretary’s corner of the after- the late filing. During for taken to the courthouse left sick and became secretary noon the Friday, week, following during the entire work. was out sick She the nor- Although 17. Monday, July to work on returning the desk check secretary was to have a procedure mal office ill, in who secretary who was this case of a secretary The ill checking. did this routinely ill was the one who matter, stated concerning this deposition in her secretary, the office. calling sick to think about that she was too illness, physician. treated During by her she was office, became she When returned secretary immediately not been filed and aware that the had appeal for permission situation. A steps petition took to correct the оn this Court tunc was filed in appeal pro to file an nunc 17, period the normal appeal four after Monday, July days filing in delay that the had concedes expired. Appellee illness. Under appeal secretary’s was caused 259 recited, appellant’s petition we conclude that circumstances should be nunc tunc permission appeal pro to file an granted. an taking apрeal
We have often said that the time for
or mere
grace
indulgence.
cannot be extended as a matter of
551,
Goddard,
Appellant, contending grant peti- that we should tion, that, recognizes in the еxtension of a past, period during which an must be filed has been justified only where there is “fraud or some breakdown in operation court’s a default of its officers.” through Nixon, 256, 260, (1938); Nixon v. Pa. 198 A. Goddard, Penn argues West Power supra. Appellant Co. that we should equate timely appeal the failure to file a this case as “in fact a act of a court official.” negligent should not Appellant argues also that “merе inadvertence” prevent an from appellant appellate process. access to the *4 sense, It is true that in of in a attorney, our law an system serves both as an for his client and as an officer of advocate the court. law It has been recently recognized by that an is a officer. The Judicial Code attorney public provides: specifically the courts of this
“Persons admitted to the bar of general Commonwealth law to practice pursuant and to rules shall hold the office of at law.” thereby attorney Code, The Judicial 2521. Pa.C.S.A. § conclude, however, the office of We are unable to that with the term is to be for all attorney equated purposes fact, however, officer.” overlook the that “court We cannot law, group at a client from a limited attorney аn chosen client, is represent to the an persons legally of entitled To justice. and of our of integral part system necessary a officer completely non-public view a citizen’s as attorney justice that reality system would be the our ignoring the not function without tra- efficiently could properly client, not a attorney represents ditional view that an only Therefore, the at but is in a sense an offiсer of court. least failure involving non-negligent in those the to circumstances lose an should not their appeal, public file members any in court. doubt the the day passage Without is not during timely which an period appeal briefest time to would make difficult arrive at a conclusion filed it most that the failure Under cir- non-negligent. to file however, we case, any cumstances of this fail to find basis attorney secretary or his acted concluding that either negligently. exceptions, ordinarily non-negli- there
Although are some conduct, results in to another not gent injury its although by assuming actionable. This can be illustrated principle attorney, way Prothonotary’s that an while on his file an heart attack or Office to has unexpected vehicle, other illness him to lose of his which causes control other injure bystander. attornеy (or any person) a would not be the courts have Society held liable. occur because of unex- recognized events sometimes Just as would not pected non-negligent attorney causes. be liable for from his damages bystander resulting client because non-negligent his should not suffer driving, illness, as a to file attorney, result of his was unable given we have is akin to the case appeal. example befоre us. There failure to file a non-negligent has been time, short timely appeal very which was corrected within a during any which to the other side of the contro- prejudice versy would minimal. be necessarily granted.
Petition *5 O’BRIEN, J., did not participate in the or consideration decision of this case.
NIX, J., filed a concurring opinion.
ROBERTS, J., filed a dissenting opinion EAGEN, in which J., joined. C.
NIX, Justice, concurring.
I agree with the result reached by and I am majority, in substantially accord with the reasoning еmployed to reach that Nevertheless, result. I believe a further response required because of the dissenting opinion filed Mr. by Justice Roberts. Hence this concurring statement.
Both the
majority
agree
dissent
that the uncontro-
verted facts in this appeal would not
of
justify
finding
“fraud or some breakdown in the court’s
West
operation.”
Penn Power
Goddard,
Co. v.
Pa.
The uncontroverted evidence establishes that the omission secretary this case was as a result debilitating of a illness and not sloth or neglect. Thus if is to be found, it must spring from a determination that the attor- ney’s offiсe procedures did not adequately reasonably provide for such contingencies. Here the record establishes that the office routinely provided for a “check” to ascertain whether the secretarial assignments were being promptly performed. case, In this regrettably, it was the who person also
had these “checks” that responsibility making file the and who became assigned papers question *6 it cannot be persuasively ill. In view of the size of the office avoiding that the for argued regular procedures employed hearing Thus since the inadequate. such omissions were court not to the uncontrovert- obliged arbitrarily reject Estate, 454 Pa. 534, 538-39, see Smith 314 testimony, ed Will, Cline 543, 547, 252 A.2d (1974), A.2d 21 433 Pa. quoting on (1969), there is no basis for finding part agents. the or her appellant dissent, In I am of the view that a response not sup- result would be contrary punitive, arbitrary legiti- rule or a result could be ported by precedent. Such mately jurispru- assailed as violence to our doing system dence. Justice,
ROBERTS, dissenting. of Civil the abandons this Court’s Rules Today majority awards an appeal Procedure and also its case law and prior counsel at all pro represented by nunc tunc to an appellant, times, timely failure to file a relеvant who admits that litigants, as all other appeal neglect. Appellant, was due to failed had in which to file an thirty days appeal. Appellant nonetheless, this Court argues to do so. before Appellant, that be because for seven appellant appeal should allowed an of those was sick thirty days, appellant’s lawyer’s secretary her instructions. Unlike carry employer’s failеd to out that her suggest does not to majority, appellant attempt which, example, situation is to one in comparable down disease by on his to file is struck attorney way papers relief on the basis grants or accident. yet, majority And unargued theory. of this unraised and “act of God” majority signal litigants Is not action a today’s is established requirements firmly the timeliness abandoning our and decisional law by Pennsylvania fit, relief it based not on rules of court and will as sees grant rather on what is asserted to be law or precedent office? it is attorney’s Today staff situation in an majority says claimed of an which the employee illness illness of a the claimed persuasive. Tomorrow will it not be the reasons member or whatever employee’s family Will for an or other irrelevance? any absence employee’s unnеcessary layer not result create a new and today’s whenever an delay, mandating special inquiry judicial adversary filed? An effective untimely appellate under equal justice cannot function as a tribunal of system law the law noncompliance when it excuses with negligent therefore, know, on an whether ad hoc basis. Who is to to all will be available today’s newly majority created rule litigants aрpellant-li or whether its is for application today’s alone, ticket, for this tigant good day “a restricted railroad 649, 669, 64 and train only?” Allwright, Smith v. U.S. 757, 768, not the 88 L.Ed.2d Does S.Ct. *7 constitute an requirements failure to enforce the timeliness require timeliness litigants invitation to to the disregard administra ments and thus affect the evenhanded adversely justice? tion of 11, 1976, Bass was
Appellant Stanley avers that on July the Jackson, killed that at the time of by Charles offense, from furlough Jackson was AWOL from a weekend Graterford a four to ten prison, serving year where he was sentence for armed robbery. estate, on
Appellant, the victim’s wife and executrix of his 12, 1976, Pleas of Mont- July filed in the Court of Common The action was gomery County complaint trespass. transferred to Commonwealth Court. subsequently objections. Commonwealth Court sustained preliminary from the Appellant decided to take an to this Court appeal appel- order of alleged the Commonwealth Court. It papers, lant’s began prepare necessary appeal counsel to the the thirty was never filed. A week before appeal his counsel asked day filing period expire, appellant’s was to file those documents and to secretary type appeal did not file papers secretary within the week. The ill, into work for a papers became did not come immediately, week, had run. appeal period and returned one after the day her Appellant petition appeal filed this for leave to file 264 later, days after thirty-three
“nunc
tunc” two
pro
days
rendered.
Court was
decision of
Commonwealth
ofAct
Court Jurisdiction
502(a)
Appellee
Sectiоn
903
1970,
673,
II,
502(a),
17
and Pa.R.A.P.
P.L.
art.
P.S. §
filed. Cf.
an
be
provide
appeal may
which
thirty days
Cir.,
(3d
Club,
Here the dixit majority’s ipse mandate, prior also to statutory specific only requirements fixed with the dealing of the Court decisions judicial such just It is proceedings. in judicial оf timeliness case law and statutory Pennsylvania refusal to observe minds of in the uncertainty and which creates confusion major- today’s more bench, damaging, Even public. bar and for, the in, respect confidence destroys decision ity last resort. in a court of process of the decisional integrity I dissent.
EAGEN, J., dissenting opinion. in this joins C. FOR REARGUMENT APPLICATION
DENIAL OF ROBERTS, Justice, dissenting. refusal majority’s unsupportable
I dissent from the reargument. for grant appliсation General’s Attorney ample sets forth of the General application Attorney reargu- granting for grounds meritorious and persuasive jurisprudential, practical ment cogently presents deci- erroneous majority’s reasons to correct the compelling sion. General reaf- Attorney cited controlling cases rule, the law long well-established
firm and
reemphasize
Commonwealth,
in this
that extensions
where there
justified
are
period
filing
appeals
“only
West
operation.”
in the court’s
fraud or some breakdown
556,
909,
A.2d
Goddard,
Penn Power Co. v.
460 Pa.
Estate,
303,
“In this the Court has extended this dramatically exception ‘non-negligent’ delays by to include [to rule] . . liti- by counsel. . new rule invites abuse [T]his gants places an unworkable burden upon appellate whether, courts ... to determine or not a particular of that lawyer negligent given all the circumstances case.” particular creates, “a new majority’s unnecessary decision
layer of whenever an delay, mandating special inquiry appeal is filed.” Bass v. of Penn- untimely Commonwealth (1979) (Dissent- 485 Pa. sylvania, A.2d Roberts, J., not ing Opinion, joined J.).C. “Is by Eagen, is today’s signal litigants majority action a abandoning requirements firmly timeliness established our by Pennsylvania statutory and decisional law and fit, rules of court and will relief as it sees not on grant based law or on to be the precedent rather what assertеd staff situation in an it is the attorney’s Today office? claimed illness of an which the employee majority says persuasive. Tomorrow will it not be the claimed illness of a member of the reasons family or whatever the employee’s for an Id. any absence or other irrelevance?” employee’s
In has control- reality, majority disregarded long ling rule and has instead substituted its own thirty day for extensions exceрtion standardless, and undefined vague, *10 in the now or anyone Can appeal period. the thirty day of days for thirty judgment unappealed whether a say future excep- new majority’s under appealable final or is still majority’s rule? The day of the thirty tion to and extension time prescribed statutorily to enforce the refusal in this case apply failure to majority’s and the filing limit for creates case law announсed long our clear and previously of and the administration procedures in appeal confusion Bass, (Dissenting Opinion). supra justice. generally, See applica- General’s sum, Attorney In in the argument flies decision majority establishes that the tion conclusively limiting mandate specific legislative in the face of the integrity and the wisdom appeals. Jurisprudential time for decision majority’s dictate that appellate process of the with the comply corrected to be withdrawn and of this Court. case law requirements controlling General’s least, Attorney At the and in very light this a vital interest in that “the Commonwealth has position if hundred[s], matter in that it is a not thousands party application cases and meritorious annually,” worthy reargument should be Attorney granted General ordered.
Decided 1979.