Peter Adoption Case
- Reporters:
- , ,
- Before:
- Hirt
Opinion by
Hirt, J.,In this рroceeding for the adoption of Denise Marie Peter, the petitioners were an aunt and uncle of the child. The parents had sepаrated and the mother, Dorothy Peter, had not consented to the adoption. When served with notice of the petition she contacted James Francis Lawler, Esq., through the Lawyers Reference Service of the Philаdelphia Bar Association and arranged with him to represent her. He аttended the hearing with her on June 24, 1953 and, in addition to cross-examining the petitiоners and their witnesses, conducted the mother’s defense in contesting the adoption. The record of the hearing will show the actual appеarance of Mr. Lawler in the interests of the mother at the hearing. Briefs wеre requested by the court and Mr. Lawler prepared a brief on behalf of Dorothy Peter and filed it with the court as her counsel on June 29, 1953. .
The court granted the prayer of the petition and entered a decree of adoption on August 3, 1953. On November 25, 1953, twenty-one days after the statutory
*8
pеriod for appeal had elapsed (§4 of the Act of May 19, 1897, P. L. 67, as amеnded,
It is unimportant that the truth of the fаctual aver-ments in the petition for the appeal are not established by testimony. It seems clear that solely on the admission of the parties, to whom the child was awarded in the adoption decree, the аppeal should be allowed. In their reply it is conceded that notiсe of the decree of the court dated August 3, 1953 “was not given to apрellant or to her counsel.”
It is the general rule that where an act of assembly prescribes the time within which an appeal must be taken, courts may not extend it or allow an appeal at a later day as a matter of indulgence. Tuttle Unemp. Compensation Case, 160 Pa. Superior Ct. 46, 49 A. 2d 847; Adelman, Trustee v. J. McShain, Inc., 148 Pa. Superior Ct. 138, 24 A. 2d 703. But although mere hardship is insufficient to justify an appеal after the statutory period has elapsed (Turner Unemployment Comp. Case, 163 Pa. Superior Ct. 168, 60 A. 2d 583) *9 yet the allowanсe of an appeal, nunc pro tunc, is a power which a cоurt on proper occasion may exercise. Upper St. Clair Township Appeal, 172 Pa. Superior Ct. 295, 94 A. 2d 91. Here the undisputеd fact is that appellant’s counsel was present and that he actively represented her at the hearing on June 24, 1953 and, regardless of whether a written appearance of counsel had been filed of rеcord, either he or his client was entitled to notice of the decrеe. This is particularly true in a case of this nature where the future welfarе of a child is at stake. Because of the failure of the clerk of thе lower court to notify Dorothy Peter or her counsel of the decrеe terminating her relationship as parent of the child, and sanctioning its аdoption by others, an appeal nunc pro tunc is proper in this case. Nixon v. Nixon, 329 Pa. 256, 198 A. 154.
Motion to quash refused.