Moring v. Dunne

• Decision Date: 04 June 1985
• Citation: 342 Pa.Super. 414,493 A.2d 89
• Parties: Joseph D. MORING and Mary Alice Moring v. William DUNNE and City of Philadelphia. Appeal of William DUNNE. Joseph D. MORING and Mary Alice Moring v. Detective William DUNNE and City of Philadelphia. Appeal of CITY OF PHILADELPHIA.
• Court: Pennsylvania Superior Court

Page 89

493 A.2d 89

342 Pa.Super. 414

Joseph D. MORING and Mary Alice Moring v. William DUNNE and City of Philadelphia.

Appeal of William DUNNE.

Joseph D. MORING and Mary Alice Moring v. Detective William DUNNE and City of Philadelphia.

Appeal of CITY OF PHILADELPHIA.

Superior Court of Pennsylvania.

Argued June 2, 1983.

Filed April 26, 1985.

Petition for Reargument Dismissed

June 4, 1985.

Richard M. Sanders, Philadelphia, for appellant (at 3204) and for appellee (at 658).

Sarah Makin, Philadelphia, for appellant (at 658) and for appellee (at 3204).

Keith S. Erbstein, Philadelphia, for appellees.

Before ROWLEY, WIEAND and BECK, JJ.

BECK, Judge.

The threshold issue on appeal is whether the lower court properly granted appellants' petitions for leave to file a notice of appeal nunc pro tunc. We hold that these petitions were erroneously granted and therefore quash the appeals as untimely filed.

On October 23, 1973, at approximately 11:45 p.m., in the Allan's Alley bar in Philadelphia, Joseph Moring was shot and critically wounded by William Dunne, a Philadelphia police officer, following a series of physical confrontations between the two men. Moring filed a complaint in trespass against Dunne and the City of Philadelphia seeking damages for his injuries. The matter was heard without a jury before the lower court on May 8-9, 1980. On May 20, 1980, the court made findings of fact on liability in favor of Moring and against the defendants, jointly and severally, in the amount of $200,000. The defendants then filed exceptions to these findings. On May 15, 1981, the lower court dismissed the exceptions and directed the Prothonotary to enter judgment in Moring's favor in the amount of $211,880.43. Both Dunne and the City subsequently appealed from the May 15, 1981 order. ^*

With regard to Dunne's appeal, sometime after September 22, 1981, Dunne filed a petition for leave to file a notice of appeal nunc pro tunc in the lower court. On November 18, the lower court entered an order permitting Dunne "to file a notice of appeal from the Order of this Court dated June 15, 1981." On December 9, Dunne filed a notice of appeal "from the Order entered in this matter on the 15th day of June, 1981, as per order of Judge Wilson dated 11/18/81." On December 10, the lower court amended its November 18 order to read: "In consideration of the Petition filed by defendant, William Dunne and upon good cause shown, it is hereby ORDERED and DECREED that defendant William Dunne shall be permitted to file a notice of appeal from the Order of this Court dated May 15, 1981." On December 16, Dunne filed an Amended Notice of Appeal from the May 15, 1981 order. This appeal was docketed on December 17, 1981.

With regard to the City's appeal, on June 23, 1981, the City filed a petition for leave to file a notice of appeal nunc pro tunc in the Superior Court. On September 8, this Court denied that petition without prejudice to the City to file it in the Court of Common Pleas. The City then filed a petition in the lower court and, on November 2, 1981, the lower court granted this petition. The City's notice of appeal from the May 15, 1981 order was filed on or about February 24, 1982 and was docketed on March 2, 1982.

Pennsylvania Rule of Appellate Procedure 903(a) expressly provides that a notice of appeal "shall be filed within 30 days after the entry of the order from which the appeal is taken." Pa.R.A.P. 105(b) states that:

An appellate court for good cause shown may upon application enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time; but the court may not enlarge the time for filing a notice of appeal....

(Emphasis added). It is well-established that the extension of the filing period or the allowance of an appeal nunc pro tunc will be permitted only in extraordinary circumstances, namely, fraud or some breakdown in the processes of the court. Pa.R.A.P. 105(b) note; West Penn Power Co. v. Goddard, 460 Pa. 551, 556, 333 A.2d 909, 912 (1975); Commonwealth v. Englert, 311 Pa.Superior 78, 81, 457 A.2d 121, 123 (1983); Maxton v. Philadelphia Housing Authority, 308 Pa.Superior 444, 448, 454 A.2d 618, 620 (1982); Conrad v. Kemmerer, 301 Pa.Superior 410, 412, 447 A.2d 1032, 1034 (1982); Marcinak v. Lavery, 286 Pa.Superior 92, 96, 428 A.2d 587, 589 (1981); International Brotherhood of Electrical Workers, 259 Pa.Superior 65, 67, 393 A.2d 718, 719 (1978); Provident National Bank v. Rooklin, 250 Pa.Superior 194, 199, 378 A.2d 893, 895 (1977); McKanick v. Rubin, 244 Pa.Superior 467, 470-71, 368 A.2d 815, 817 (1976); Leveto v. National Fuel Gas Distribution Corp., 243 Pa.Superior 510, 516, 366 A.2d 270, 273 (1976); Scharfman v. Philadelphia Transportation Co., 234 Pa.Superior 563, 571 n. 7, 340 A.2d 539, 543 n. 7 (1975); Riley's Grille Liquor License Case, 213 Pa.Superior 46, 48, 245 A.2d 725, 726 (1968); Southwest Philadelphia Plumbing Supply v. Catanzaro, 181 Pa.Superior 209, 212, 124 A.2d 476, 477 (1956); Perin v. Gochnauer, 173 Pa.Superior 609, 612, 98 A.2d 755, 756-57 (1953). Additionally, the mere neglect or mistake of the appellant or his counsel is not considered a sufficient excuse for failure to file a timely appeal. State Farm Mutual Automobile Insurance Co. v. Schultz, 281 Pa.Superior 212, 218 n. 7, 421 A.2d 1224, 1227 n. 7 (1980); International Brotherhood of Electrical Workers, supra, 259 Pa.Superior at 67, 393 A.2d at 720; McKanick v. Rubin, supra, 244 Pa.Superior at 470-71, 368 A.2d at 818; W.W. Grainger, Inc. v. Ruth, 192 Pa.Superior 446, 449, 161 A.2d 644, 646 (1960).

However, in 1979, our Supreme Court held that a non-negligent failure to file a timely appeal would be grounds for allowing an appellant to file an appeal nunc pro tunc where the appeal was filed within a very short time, during which any prejudice to the other party would necessarily be minimal. Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979). In Bass, the appeal papers had been typed up and were ready for filing on Friday, July 7, six days prior to the expiration of the time allowed for filing the appeal, and the papers were placed in a folder on the corner of the secretary's desk in the law office, along with other papers to be filed. However, during the late afternoon on that day, the secretary became ill and left work. She was out because of illness during the entire following week and returned to work on Monday, July 17. Although normal office procedure was to have another secretary check the desk of a secretary who was ill, in this case, the secretary who was ill was the one who routinely did the checking. The petition for permission to appeal nunc pro tunc was filed on Monday, July 17, four days after the appeal period had expired. On these facts, the Court concluded that neither the attorney nor the secretary acted negligently. Id. at 258-60, 401 A.2d at 1135. By way of analogy, the Supreme Court cited the example of an attorney who has a heart attack or other illness on the way to the Prothonotary's Office to file an appeal, thereby causing him to lose control of his vehicle and injure a bystander: "Just as the attorney would not be liable for damages to the bystander resulting from his non-negligent driving, his client should not suffer because the attorney, as a result of his illness, was unable to file the appeal." Id. at 260, 401 A.2d at 1135.

The Bass exception has not been readily applied by this Court. In State Farm Mutual Automobile Insurance Co. v. Schultz, supra, we quashed an untimely appeal where the notice of appeal was not filed until the 31st day after the entry of the lower court's order. In reconciling this result with Bass, we concluded that, in Schultz, "[t]here [was] no indication in the record that the late filing ... was caused by non-negligent happenstance." 281 Pa.Superior at 218 n. 7, 421 A.2d at 1227 n. 7. Similarly, in Commonwealth v. Keys, 313 Pa.Superior 410, 460 A.2d 253 (1983), where the error was the omission of the bill or information number on the notice of appeal, we quashed the appeals because "[t]here [was] no indication in the record that the late filing here was caused by non-negligent happenstance." Id. at 414, 460 A.2d at 254-55. Finally, in Gallardy v. Ashcraft, 288 Pa.Superior 37, 430 A.2d 1201 (1981), this Court declined to apply retroactively the Bass exception for "non-negligence" to allow an appeal when the appeal time had expired prior to the date of the Bass decision. Id. at 43-44, 430 A.2d at 1203-04. Moreover, we commented that the "Bass majority applied its 'non-negligence' standard to a set of facts which plainly seemed to involve negligence under any traditional meaning of the term." Id. at 43 n. 8, 430 A.2d at 1204 n. 8.

Here, both appeals were filed several months late. Because there is no allegation or evidence of fraud or court breakdown, we must determine if appellants have satisfied the...