Cook v. Unemployment Compensation Board of Review

ZAPPALA, Justice,

dissenting.

I dissent. I agree with the majority that the Commonwealth Court’s limitation of Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979), to non-negligent acts of a third party, as distinguished from non-negligent acts of a party himself, leads to anomalous results. Rather than broaden the application of Bass to remove the anomaly, however, I would hold that Bass was wrongly decided and should not be used as a reference point for determining whether circumstances warrant the allowance of an appeal nunc pro tunc.¹

Prior to Bass, it was uniformly held that an appeal nunc pro tunc would only be allowed where the failure to make a timely filing was due to “extraordinary circumstances involving fraud or some breakdown in the Court’s operation.” Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938). Superior Court used language such as “extenuating circumstances” and “something more than mere hardship” in deciding several unemployment compensation cases when such matters were within that court’s jurisdiction. See Ankeny Unemployment Compensation Case, 182 Pa.Super. 361, 128 A.2d 110 (1956); Tuttle Unemployment Compensation Case, 160 Pa.Super. 46, 49 A.2d 847 (1946). However, it does not appear that this described a less stringent standard, as the court did not actually permit a nunc pro tunc filing in any case on a showing of facts less than breakdown in the administrative process or fraud or its equivalent. See, e.g., McKinney Unemployment Compensation Case, 190 Pa.Super. 470, 154 A.2d 337 (1959); Abrams Unemployment Compensation Case, 180 Pa.Super. 580, 119 A.2d 656 (1956).

Bass introduced the concept of “non-negligent happenstance” as a basis for allowing the filing of an appeal nunc pro tunc. With today’s decision the Court confirms that rule, distilling four conditions for its application:

where an appeal is not timely because of non-negligent circumstances, either as they relate to appellant or his counsel, and

the appeal is filed within a short time after the appellant or his counsel learns of and has an opportunity to address the untimeliness, and

the time period which elapses is of very short duration, and appellee is not prejudiced by the delay____

Opinion at 383-84.

Justice Roberts, dissenting in Bass, queried:

Will not today’s result create a new and unnecessary layer of delay, mandating a special inquiry whenever an appeal is untimely filed? ... Does not the failure to enforce the timeliness requirements constitute an invitation to litigants to disregard the timeliness requirements and thus adversely affect the evenhanded administration of justice?

485 Pa. at 263, 401 A.2d at 1137. Dissenting again from the denial of reargument, Justice Roberts observed

In reality, the majority has disregarded the long controlling thirty day rule and has instead substituted its own vague, standardless, and undefined exception for extensions of the thirty day appeal period. Can anyone now or in the future say whether a judgment unappealed for thirty days is final or is still appealable under the majority’s new exception to and extension of the thirty day rule? The majority’s refusal in this case to enforce the statutorily prescribed time limit for filing an appeal and the majority’s failure to apply our long announced case law creates confusion in appeal procedures and the administration of justice.

Id. at 266-67, 401 A.2d at 1139.

Decisions such as In re Interest of C.K, 369 Pa.Super. 445, 535 A.2d 634 (1987), Typinski v. Unemployment Compensation Board, of Review, 105 Pa.Commw. 560, 524 A.2d 1086 (1987), and Ho v. Unemployment Compensation Board of Review, 106 Pa.Commw. 154, 525 A.2d 874 (1987), reflect that the confusion alluded to by Justice Roberts has come to pass, but the majority seems blissfully ignorant of this state of affairs.

The essential difficulty with the rule is its ad hoc character, the complete lack of guidance for assessing whether given circumstances will be deemed “non-negligent”. In Gallardy v. Ashcraft, 288 Pa.Super. 37, 43, n. 8, 430 A.2d 1201, 1204, n. 8 (1981), Judge Lipez of Superior Court wrote bluntly:

the majority in Bass applied its “non-negligence” standard to a set of facts which plainly seemed to involve negligence under any traditional meaning of the term. The confusion is compounded by the lack of any standard procedure in making a “non-negligence” determination, as well as the lack of a standard of review where, as here, we review the lower court’s finding of “non-negligence,” rather than make our own determination as to the timeliness of an appeal to our court.

Here, the majority purports to resolve the standard of review problem by applying the standard applicable to agency adjudications generally, i.e., whether constitutional rights have been violated, the adjudication is in accordance with the law, and findings of fact necessary to support the adjudication are supported by substantial evidence. It seems impossible to me that the “substantial evidence” test can be meaningfully applied to a determination that a party could (or could not) have filed a timely appeal.

The referee and the Board here concluded that the Appellant, though hospitalized, was not so incapacitated that he could not follow through with his intention to appeal, either by communicating through visitors or the telephone with someone who could accomplish this end. The majority determines that there is no substantial evidence to support this conclusion and reaches a contrary result. But where is the substantial evidence to support the majority’s conclusion? I see nothing more than a substitution of this majority’s judgment for that of the referee and the Board.²

For the foregoing reasons, I would not apply the rule of Bass to this case, and would affirm the decision of the Board.

CASTILLE, J., joins in this Dissenting Opinion.

1 . To be precise, I would hold that Bass, which involved this Court's decision to exercise its authority to allow the nunc pro tunc filing of an appeal from an order of the Commonwealth Court, does not directly control the question whether a referee or the Unemployment Compensation Board of Review has authority, or should exercise the authority, to allow a late appeal from a decision of the Office of Employment Security. At most, Bass can be cited as an example of the type of circumstances in which a late appeal has been considered permissible in the judicial system. It is not proper, however, to impose the "rule” of Bass on administrative proceedings such as these.

The legislature has established that the "time for filing an appeal ... shall be governed by general rules.” 42 Pa.C.S. § 5571(a). It is at least arguable that since the appeal period is not entirely fixed by statute but also by action of the Court, the Court has inherent authority to provide for exceptions to the general rule of 30 days adopted in Pa.R.A.P. 903(a), 1113(a), 1311(b), and 1512(a). But see Pa.R.A.P. 105(b) (court may not enlarge the time for filing a notice of appeal, a petition for allowance of appeal, a petition for permission to appeal, or a petition for review.) It does not follow, however, that the Court has the same interpretive authority over the time period for appeals within an administrative agency. In this context, the longstanding rule that “where an act of Assembly fixes the time within which an appeal may be taken, courts have no power to extend it, or to allow the act to be done at a later day, as a matter of indulgence,” Tuttle v. Unemployment Compensation Board of Review, 160 Pa.Super. 46, 47, 49 A.2d 847, 848 (1946), takes on even greater force.

I would also note that in the context of the Workers’ Compensation Act, the General Assembly has specifically provided that "[t]he board may, upon cause shown, extend the time provided in this article [20 days] for taking such appeal or for the filing of an answer or other pleading,” 77 P.S. § 853. Similar power has not been granted to the Unemployment Compensation Board of Review. The majority’s approach glosses over this statutory difference and would allow for the equivalent of extensions of time in any administrative appeal.

2 . The parly seeking consideration of a late appeal bears the burden of proving that circumstances warrant such relief. I believe the Board's determination that this burden has or has not been met in a particular case is entitled to some deference, akin to an abuse of discretion standard, in the same manner as similar procedural decisions of the intermediate appellate courts (e.g., denying permission to appeal an interlocutory order under Pa.R.A.P. 1311) are reviewed. Here, the uncontested facts found by the referee were that prior to his release from the hospital the claimant was alert, could read and write, and could receive visitors. Under the abuse of discretion standard, or even under the substantial evidence standard, I find no error in the Board’s decision.