76 Pa. Commw. 329 | Pa. Commw. Ct. | 1983
Opinion by
This is an appeal by Mario L. Roderick (Petitioner) from an order of the State Civil Service Commission (Commission) denying her petition for an allowance of an appeal nunc pro tunc.
Petitioner was employed by the Bureau of Employment Security, now Office of Employment Security (OES) in Allentown. On April 15, 1981, the BES’s personnel director sent Petitioner a letter notifying her that, pursuant to Section 806 of the Civil Service Act,
Previously, an appeal nunc pro tunc was properly allowed only in those circumstances where it was shown that the delay in taking the appeal was the result of wrongful, negligent or fraudulent conduct on the part of the administrative agency involved. Avon Grove School District Board of Directors v. Department of Education, 31 Pa. Commonwealth Ct. 89, 375 A.2d 851 (1977). It is this standard which the Commission relies upon in arguing that Petitioner has not stated grounds for a hearing on her entitlement to a nunc pro tunc appeal. In recent years, however, the courts have somewhat liberalized this rigid standard. Now, non-negligent conduct of the appellants’ attorney which results in an untimely appeal, may also suffice for the grant of an appeal nunc pro tunc.
In the case at bar, Petitioner has clearly alleged misdirection by the appointing authority with respect to her efforts to appeal her termination. Such conduct cannot be. condoned nor can it be considered wholly obviated by the presence of counsel for Petitioner. See Tarlo v. University of Pittsburgh, 66 Pa. Commonwealth Ct. 149, 443 A.2d 879 (1982). The OES ostensibly knew Petitioner was pursuing the wrong avenue of appeal from shortly after April 23, 1981 until May 1.1, 1981, and chose not to divulge the error to her until after several contacts had been made by Petitioner’s lawyer. This compounds the alleged transgression. In light of this, and the recent case law above referenced, we find that Petitioner has made allegations that warrant a hearing and appropriate findings of fact and conclusions of law pertaining to the reasons for the untimely appeal and whether they justify the grant of an appeal nunc pro tunc. See Walker.
Accordingly, the order of the Commission is vacated and the matter is remanded for further proceedings consistent with this opinion.
Order
Now, August 12, 1983, the order of the State Civil Service Commission in the above captioned matter, dated June 18, 1981, is hereby vacated and the matter is remanded for further proceedings consistent with the opinion. Jurisdiction is relinquished.
Petitioner also raises an alternative argument that, her letter to her office manager appealing for reinstatement was sufficient to effect a timely appeal with the Commission. We must reject this argument as being without merit. Dinsmore v. Department of Agriculture, 27 Pa. Commonwealth Ct. 342, 366 A.2d 634 (1976).
The Commission posits that Petitioner could have also pursued a grievance within the BBS. We find no evidence of this on the record, however, and such a statement seems inconsistent with the BES’s subsequent refusal to act on her internal appeal and direction to file with the Commission.
The long standing rule that negligence by an attorney which results in an untimely appeal does not warrant the allowance of an appeal nunc pro tunc remains intact. See Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938) ; Rostosky v. Department of Environmental Resources, 26 Pa. Commonwealth Ct. 478, 364 A.2d 761 (1976).