*2 SPAETH, Before LIPEZ, WICKERSHAM and JJ. LIPEZ, Judge: 2,
On 1973, October plaintiff filed this assumpsit action, which went to compulsory arbitration. The board of arbitration filed an award in favor of defendants. The award was entered on the lower court’s docket on December 9, 12, 1975. 1976, On January the time limit filing appeal from the award having expired,1 plaintiff filed in the time, days. 1. At that May Corpora- limit was 20 See Turner v. tion, 241, Pa.Super. 244, 1, 203, 204, 285 (1981) (citing n. n.l applicable statutes). 27, 1978, Effective June the limit became 30 Id., 245, days. Pa.Super. 285 427 A.2d at 205-09. The time for an begins from an arbitration award when it is entered on the Wintermeyer, 150, Pa.Super. docket. Acri v. 285 (1981). Entry 152 of the award on the docket occurred here on 9, plaintiff’s petition December Since for allowance of 12, January 1976, beyond filed on day would be either a 20 or 30
39 for allowance petition below a court pleas common held an below 5, the court February On tunc. dated an order In petition. hearing on evidentiary granted court 21, 1979,2 the May аnd filed 11, 1978 October order from that appeal3 took this Defendants petition. 18, on June 1979.4 any time, possible retroactive effect consider we need not (effective February 30-day Civil Procedure 247.1 time Rule of the 2, 1980, 15, May superseded (1980), effective 10 Pa.Bull. 458 1078, 1308, 1079 at 249 Cf. 11 Pa.Bull. new Rule of Civil Procedure n. Corporation, supra, May Turner v. at 207 5.
A.2d n. entry The that the October 1978 order was docket indicates May 21, entry previous is “Re-filed” on but there no docket indicating order ever been filed before that date. The last had entry May is on when the docket testimony before March February May hearing filed. from entry only containing first and one the notation that the entry given, required notice of of the order had been as Rule of 236(b). appeal began Thus the time for this Civil Procedure *3 21, 108(b). May run on Pa.R.A.P. to 1979. appealed 3. While the order interlocutory, appealable from is it is question concerning jurisdiction because it a raises of the cause of 23, 1, action under the Act 672, of March § P.L. 12 P.S. § repeal 27, before of that statute May on June 1980. Turner v. Corporation, supra, 3, 1 note 285 at 246 & n. 427 A.2d By &205 n. 3. holding part reason of its that the of the Act of 1925 dealing January 28, 1980, jurisdiction with of the applicable cause of action was on rejected necessarily argument, Turner the which has been raised number of past years times in this court in the two quash, in motions to that Act supplanted by entire of was 1925 Appellate 311, new Rule Pa.Bull. 22, of April Procedure effective 1979. 8 3636, (1978). Instead, subpara- Turner concluded that graph (a)(7) operated to leave respect ques- the Act intact with cоncerning jurisdiction action, tions of the cause of at least until the 27, repeal Act’s June this apply date. Thus we the Act of 1925 to 18, filed on June perhaps There was May Corporation, technical in error Turner v. relying 27, January 1980 as the date that “docketed,” if docketing that was meant to refer in this An court. appeal is taken when the notice of is filed the lower court. 903(a); Pa.R.A.P. Schultz, see State Farm Mut. Auto. Ins. Co. v. Pa.Super. 212, (1980); but cf. Recommendation No. 11 by Advisory Appellate Rules, proposed Committee on Court 905(a), revision to (1980). However, Pa.R.A.P. 10 Pa.Bull. 2865 regardless of what was meant in Turner that statement “the present aрpeal 28, 1980,” January was docketed on holding is interlocutory appeal “question clear that an jurisdiction of a ... of page 4. See note 4 on In its opinion 14, filed on 1979, November the court below discussed the evidence as follows:
The docket entries in this case and the intro- testimony duced at the hearing on the Petition reveals the following: Plaintiff was represented at the hearing before the Arbi- tration Board by Attorney Patrick Washington. The Pro- thonotary of Cambria County, instead of mailing Notice of the Award of the Board to Mr. Washington, mailed it to son, Plaintiff’s who in turn gave the Notice to 14, Plaintiff on December (the Award was entered 9, December 1975). Plaintiff, who was 84 years old and ill at the time the Notice of the him, Award reached attempted, through his daughter, Cleo Shope, to contact Mr. Washington for the purpose filing an Appeal from the Award. Mrs. Shope spoke with Mr. Washington’s father (who resides in Cambria County) and was provided with an address in Harrisburg, Pennsylvania, for Mr. Washington. Mrs. Shope then wrote a letter to Mr. Washington and mailed it to the Harrisburg address on approximately December 1975. The letter was re- turned to Mrs. Shope postal service. A second the cause of action” could be taken under the Act of 1925 even after April provided it was taken before June as this appeal was. 3(b) Act, Judiciary Repealer also that section We note of the Act 20003(b), portion dealing P.S. does not save the of the Act of 1925 § jurisdiction beyond with of the cause of action the date of June Pennsylvania Appellate because of Rulе of Procedure 5101(f)(2). adopting (1980). Paragraph 10 Pa.Bull. 3 of the order 5101(f)(2) provides govern Rule that it “shall ... insofar as However, just practicable, pending.” in matters then this is plainly jurisdiction not intended to overturn the settled rule *4 see, g., determined as of the time institution of the e. Turner May Corporation, supra, merely changеs brought v. but that means by may applied pending appeals change about the order be appeal to if the governs stage yet completed, provided a of the not this impractical unjust. neither nor filed, timely 4. This was because effective June the 20-day period filing appeal interlocutory for from orders was re- placed by Leasing 30-day period. Keystone a See Drozdowski v. Truck Company, 277 57 n. n. day began This was filed on the 28th after the time May supra. run on 1979. See note registered letter was sent mail the or by by Plaintiff the Plaintiff’s to Mr. Washington’s son office address Har- letter risburg. postal That was not returned the by service. Washington Shope Mr. did not contact Mrs. until 16, 1976, when January he telephoned her. In the mean- time, Plaintiff, from having illness, recovered his contact- ed his counsel on present January (five after days the expiration the appeal period) and retained statutory him for the purpose Appeal this filing Nunc Pro Tunc. found, The court facts, below based the on foregoing plaintiff’s failure to file a appeal from timely the arbitration failure, award was a non-negligent which was corrected time, very short during which minimal if prejudice, any, resulted to the defendants. the Therefore court concluded that an appeal tunc should be allowed under the Commonwealth, of Bass standards Pa.
1133 (1979).
The pertinent facts in Bass were stated in opinion the lead Justice by Manderino:
Appellant decided to file in this from Court the order of Commonwealth Court. counsel Appellant’s prepared the necessary appеal papers typed which were up his and secretary were for filing Friday, on ready July 7, six days prior the of the expiration time allowed for filing the appeal. placed were papers in a on folder desk, corner of the secretary’s along papers with other to be taken to courthouse filing. the late During afternoon of that sick Friday, secretary became left work. was during She out sick following entire week, returning to work Monday, July Although procedure normal office towas have a secretary check the desk ill, of a secretary who in this case the was ill secretary who was the оne who did this routinely ill checking. The in her deposition concerning secretary, matter, this stated that too she was sick to think about calling illness, During office. her she was treated physician. *5 the secretary office,
When returned to the she became aware that the appeal had not been filed and immediately took steps correct the situation. A petition for permis- to file appeal sion an tunc was filed in this Court four Monday, July after the days normal appeal had period expired. Appellee concedes that the in delay filing the caused the secretary’s illness. recited, Under the circumstances we conclude that appel- lant’s petition permission to file an appeal nunc pro tunc should be granted. Commonwealth,
Bass v. 258-59, 401 Pa. at A.2d at 1134-35.
Although the law was settled totally that extensions of time could be in granted only cases of fraud or e. West Penn court, breakdown in the of g., operation the Goddard, Power v. Company 551, 556, 460 Pa. (1979), (of three-member majority five partici-
pating justices) established a new category of “non-negli-
gent” failure to file an appeal, and used this as a basis for
extending
time.
Justice Manderino’s lead opin-
ion,
Larsen,
joined by Justice
held that
the above-quoted
facts fell within the
of this new
scope
fоr “non-
exception
negligence,” because the situation was akin
case in
which an attorney driving to the prothonotary’s office has
unexpected
attack,
an
heart
resulting in loss of control of his
vehicle,
to a
injury
bystander, and failure to file an appeal.
While the majority’s opinions are not too
concerning
clear
meaning
scope
concept
“non-negligence,”5
we need not determine how to
this
apply
“vague, standard-
less, and undеfined exception”6 to the facts of this case.
Assuming arguendo
3-2 decision in Bass creates
Note,
generally
Temp.L.Q.
5. See
648-51
Commonwealth,
Bass
485 Pa.
(1979) (Roberts, J., dissenting
reargument).
from denial of
binding precedent,7 we nevertheless hold that
the new ex-
ception for “non-negligence”
cannot be applied retroactive-
*6
Justice,
Justice,
now Chief
O’Brien
in
stated
Commonwealth v.
Mason,
602, 604,
357,
(1974):
456 Pa.
322 A.2d
358
“Whatever the
opinion supported by
effects of an
majority
less than a
of those
justices
be,
participating may
there can be no doubt that when a
majority
justices
opinion,
of those
participating in the
it becomes
binding precedent
Pennsylvania.”
on the courts of
If we were to
question
precedential
determine
decision,
of the
effect of the Bass
binding
us,
Mason would
construing
be
applying
but in
its
very
discussion,
brief
keep
we
generally
would have to
in mind that
precedential
only
even a
controlling
decision is
to thе extent that its
pronouncement
necessary
to the resolution of the case. See
Adamski,
456,
13,
Pa.Super.
Mackey
28,
465 n.
v.
286
429 A.2d
32 n.
(1981).
13
precedential
Mason concerned the
effect of Common-
Armao,
325,
(1972), which,
wealth v.
Bass,
446 Pa.
like
decision,
Bass,
represent
was a 3-2
change
but unlike
did not
a
in
long
law which had
opiniоns.
been settled
earlier unanimous
In a
cases,
series of recent
this court has refused to follow cases which
normally
binding precedent,
ground
would create
on the
that those
precedent
cases were
higher
inconsistent with earlier
at an even
Mackey Adamski, supra,
Pa.Super.
463,
level.
286
Timeliness of an appeal, whether it is to an appel late court or a de novo pleas court, commоn is a Turner v. May Corporation, jurisdictional question. Pa.Super. 427 A.2d Rights jurisdictional matters are determined the law in force at the time of the institution of the action. Kilian v. Allegheny Distributors, County 350-51, 409 Pa.
(1962); Turner v. May Corporation,
Pa.Super. at
246 n.
When the time for appeal from the 'arbitration award expired case, in this an extension could only be for granted fraud or breakdown in the operation of the court. Plaintiff has never even contended that his failure file a timеly resulted from fraud or breakdown in the court’s operation, and he presented no evidence of either at in the hearing court below.9 there was no Accordingly, basis managed thorny our problems court. We have to avoid these in this through holding nonretroactivity, point may case our on we raise оurselves, although argued by appellant, not because it involves the jurisdiction generally of the court below. See Commonwealth v. Boerner, 515 n. 588-89 n. 11 Supreme Bass, Unless the Court soon clarifies the effect of however, long causing just it will not be it before of chaos kind predicted by dissenting dissenting opinion opiniоn Justice Roberts in his and reargument. from the denial of opinion 9. The lower court’s states that when the arbitrators’ award prothonotary was entered on December the award to mailed of notice son, plaintiffs gave plaintiff who the notice to testimony hearing vague December on the 1975. The from the is rather point, determine, plaintiff but as best we can it seems and his delivery addresses, son have identical names and rural so that the prothonotary really son, did not send the notice to the but it was mistakenly however, assuming, delivered to him. Even that the prothonotary son, assuming sent the notice to the and that this prоcesses, constituted a breakdown in the court’s there would be no extending basis for time. There is no indication that the time, extension order allowing an appeal tunc from the arbitrator’s award must be vacated.
Order vacated. WICKERSHAM, J., files a dissenting statement. WICKERSHAM, Judge, dissenting: I dissent.
I believe Commonwealth, that Bass v. 485 Pa. (1979) A.2d 1133 сreates a new category “non-negligent” failure to file an appeal. The lower court applied Bass in decision, rendering its and the court’s use of Bass not retroactive application of that case. Pennsylvania,
COMMONWEALTH of Gregory SCHEPNNER, Appellant. Carlton
Superior Court of Pennsylvania.
Submitted Nov.
Filed June *8 receipt filing son’s of the notice caused the late since gave plaintiff son the notice with most time still remaining. Keystone Leasing Company, See Drozdowski Truck 58-59, note at