J-S56002-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Z.J.A.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: L.B., MOTHER :
:
:
:
: No. 806 EDA 2019
Appeal from the Order Dated February 19, 2019
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-AP-0000792-2018
IN THE INTEREST OF: Z.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: L.B., MOTHER :
:
:
:
: No. 807 EDA 2019
Appeal from the Order Dated February 19, 2019
In the Court of Common Pleas of Philadelphia County Family Court at
No(s): CP-51-DP-0000297-2017,
FID: 51-FN-000287-2017
BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY PANELLA, P.J.: FILED JANUARY 23, 2020
L.B. (“Mother”) appeals from the order denying her petition to file
appeals nunc pro tunc from the order changing the goal to adoption and
terminating her parental rights for her child, Z.J.A.B. (“Child”). Mother
contends the dependency court erred in concluding that there were no non-
negligent reasons for the late filing. We affirm.
J-S56002-19
The underlying facts of the case are not relevant to our disposition here.
What is important, and undisputed, is that on December 11, 2018, the
dependency court entered an order changing Child’s permanency goal to
adoption and a decree terminating Mother’s parental rights to Child. Under
Pa.R.A.P. 903(a), Mother had until January 10, 2019, to timely appeal the
order and decree.
Mother’s counsel testified, and the dependency court accepted as true,
that he attempted to PACFile the notices of appeal on January 9, 2019.
However, he was denied access to the case on PACFile. He tried again on
January 10, 2019, but was only able to register his notice of appearance; he
was unable to PACFile his notices of appeal. On January 11, he attempted to
hand file the notices with the court. His filings were denied as untimely.
Counsel subsequently filed a petition for permission to file the appeals
nunc pro tunc. After a hearing, the dependency court denied the petition. This
timely appeal followed.
We review the denial of permission to file an appeal nunc pro tunc to
determine whether the dependency court abused its discretion. See In re
M.S.K., 936 A.2d 103, 104 (Pa. Super. 2007). An abuse of discretion requires
more than a mere error of judgment. See id. Rather, an abuse of discretion
only occurs when (a) the law is misapplied; (b) the judgment is manifestly
unreasonable; or (c) the judgment is the result of partiality, prejudice, bias or
ill will. See id.
-2-
J-S56002-19
Allowance of an appeal nunc pro tunc lies at the sound discretion of the
trial court. See id., at 105 (citation omitted). However, a trial court may not
grant nunc pro tunc relief where the failure to timely file the appeal is due to
counsel’s negligence or counsel’s failure to anticipate foreseeable
circumstances. See id. Most importantly, in cases not involving a breakdown
in court operations, the petitioner must establish that no other party is
prejudiced by the delay. See id.
Here, Mother’s counsel concedes that the PACFile system was working
as intended at all relevant times. See Appellant’s Brief, at 8. The PACFile
system’s rejection of counsel’s filings occurred due to a system policy that had
been implemented in 2016. See id.; see also Trial Court Opinion, 6/7/19, at
4.
The dependency court found that once counsel encountered a problem
with the PACFile system on January 9, 2019, it was counsel’s responsibility to
ensure a response would be timely filed the next day. See Trial Court Opinion,
6/7/19, at 4. This responsibility included making provisions for hand-filing the
notices of appeal if the problem persisted. See id. Under these circumstances,
the court concluded that there was no breakdown in court operations. See
id., at 5. Furthermore the court found that there were no non-negligent
reasons for the late filing. See id.
Mother’s counsel argues that the failure to grant nunc pro tunc relief
effectively denies Mother of her right to counsel. He compares this denial to
-3-
J-S56002-19
criminal cases where counsel failed to file a requested appeal. He correctly
observes that in such situations, appellate courts have remanded the case for
an examination of whether the defendant’s constitutional rights were violated
by the failure to file an appeal.
However, we are bound by the decision in M.S.K. There, this Court
found that even in cases involving the termination of parental rights, a court
may not grant nunc pro tunc relief unless the petitioner can establish a
breakdown in court operations or non-negligent reasons for the late filing. See
M.S.K., 936 A.2d at 106. As a three-judge panel, we are bound by this prior
precedent. See Commonwealth v. Brigidi, 6 A.3d 995, 1001 (Pa. Super.
2010).
Furthermore, we note that Mother has not established that the delay
involved in the case would not prejudice Z.J.A.B., who has the right to
permanency and stability that is being denied so long as this litigation
continues. See In re Adoption of R.J.S., 901 A.2d 502, 507 (Pa. Super.
2006). Accordingly, we affirm the order denying nunc pro tunc relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/20
-4-