dissenting.
I respectfully dissent. I believe that Claimant is entitled to appeal nunc pro tunc to the Unemployment Compensation Board of Review.1
An historical review surrounding the allowance of appeals nunc pro tune reveals that originally the standard permitting such appeals was one limited to “delays resulting from extraordinary circumstances involving fraud or some breakdown in the court’s operations.” Nixon v. Nixon, 329 Pa. 256,198 A. 154 (1938).
This well settled standard was expanded, however, by our Supreme Court’s decision in Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979), a detañed examination of which should be persuasive to be controlling here.
The Supreme Court begins its analysis in Bass by restating the basic tenet surrounding the allowance of appeals nunc pro time:
The negligence of an appellant, or an appellant’s counsel, or an agent of appellant’s counsel, has not been considered a sufficient excuse for the faüure to file a timely appeal.
Id. at 259, 401 A.2d at 1135.
From this, the Supreme Court deduces that:
[A]t least in those circumstances involving the non-negligent faüure to file an appeal, members of the public should not lose their day in court.
Id. at 260, 401 A.2d at 1135.
After assessing the factual situation in Bass from the perspective of this standpoint, the Supreme Court makes the determination that “we are presented with a non-negligent faüure to file a timely appeal after a [claimant] made a decision to appeal.” Id.
The Supreme Court reasons that since “society and the courts have recognized that events occur sometimes because of unexpected, non-negligent causes” consideration of the example of “an attorney [who], whüe on his way to the Prothonotary’s Office to file an appeal has an unexpected heart attack or other illness” must lead to the conclusion that “[the claimant] should not suffer because the attorney, as a result of his illness, was unable to file an appeal.” Id.
I believe this reasoning should be disposi-tive and sets the post-M*ore standard for aUowing appeals nunc pro tunc since it, along with the rest of the opinion in Bass, is clearly indicative of the fact that the result reached in Bass is intended to create an exception to protect those, who by no fault of their own, miss an appeal deadline after making the decision to appeal.
The Supreme Court addresses the issue of whether or not prejudice can result from a *696decision to permit an appeal nunc pro tunc and proposes this guideline:
Without doubt the passage of any but the briefest period of time during which an appeal is not timely filed would make it most difficult to arrive at a conclusion that the failure was non-negligent.
Id.
In consideration of this guideline, the Supreme Court2 ultimately concludes that with regard to Mrs. Bass’s case:
There has been a non-negligent failure to file a timely appeal which was corrected within a very short time, during which any prejudice to the other side of the controversy would necessarily be minimal.
Id.
Based on the foregoing language, reasoning and conclusions, I am of the view that Bass established an exception which controls the instant case. It must be concluded that Claimant was in a situation beyond his control which ultimately resulted in his non-negligent failure to file an appeal after making the decision to appeal. Evidence in the record supports the conclusion that before his hospitalization, Claimant had already made at least the decision to speak with his attorney concerning whether he should appeal — which is yet another factual element found in the instant case which parallels the parameters set forth in Bass.3
Claimant avoided any prejudice to the opposing party by filing his appeal three days after his release from the hospital, and four days after expiration of the statutory time, period. Further, it must be concluded that it is unreasonable to require a claimant to conduct the appeal process from a hospital bed or to file an appeal as close to the first day of an already short appeal period in anticipation of circumstances like those in the instant case.
In its decision to deny Claimant’s appeal nunc pro tunc, the majority places much weight on the opinion in Bass, and from it concludes that
our Supreme Court liberalized that [Nixon ] rule to the extent that the non-negligent conduct of an appellant’s attorney which results in an untimely appeal may provide grounds which permit an appellant to appeal nunc pro tunc.
In response to this conclusion, I contend that the majority misinterprets Bass. A proper application of the reasoning in Bass requires that the issues of negligence and prejudice dictate the result reached in deciding whether to allow an appeal nunc pro tunc. There is no language in Bass to indicate or even suggest that the. Supreme Court’s expanded standard is intended to delineate between the non-negligent behavior of the claimant’s attorney and that of the claimant.
In its reasoning, the majority elevates form over substance and in doing so places more emphasis on the factual situation in Bass than on its language and intent. By following reasoning by the majority, one must conclude that an unexpected illness of a claimant’s attorney or agent which prevents the filing of a claimant’s appeal is a sufficient excuse to allow an appeal nunc pro tunc, but the unexpected illness of the claimant himself which prevents filing is insufficient. Such is bootstrap logic which ignores Bass’s intent and has the effect of giving a claimant’s agent greater allowance than the claimant himself.
An examination of the cases heard before our court in which we have addressed this issue reveals that the reasoning in Bass has, however unintentionally, been followed.
The majority cites Guat Gnoh Ho v. Unemployment Compensation Board of Review, *697106 Pa.Commonwealth Ct. 154, 525 A.2d 874 (1987), to support its argument that “this Court rejected an appellant’s argument to further expand the application in Bass.” Id. at 156, 525 A.2d at 875. While it is true that this court did reject that appellant’s excuse as legally insufficient, it is also true that the appellant in that ease had control over the situation which caused her failure to file in time; Ho left the country with the knowledge that she could or would miss the statutory deadline.
Ho can hardly be compared with the instant case for the obvious reason that Claimant had no control over his collapse and subsequent hospitalization during the last six days of the fifteen day statutory appeal period. Ho is further distinguishable from the instant case since the appellant did not attempt to appeal nunc pro tunc until two months after the expiration of the statutory deadline, whereas Claimant filed three days after he was released from the hospital, and four days after the expiration of the appeal period.
The majority cites Finney v. Unemployment Compensation Board of Review, 81 Pa.Commonwealth Ct. 101, 472 A.2d 752 (1984), (quoting Roderick v. State Civil Service Commission, 76 Pa.Commonwealth Ct. 329, 332-33, 463 A.2d 1261, 1263 (1983)), wherein it is stated that:
Now, non-negligent conduct of the appellant’s attorney, which results in an untimely appeal, may also suffice for the grant of an appeal nunc pro tunc.
Id. at 103, 472 A.2d at 753.
After comparing this statement with the analysis set forth in Bass, it must be concluded that this statement is an inadequate and incorrect explanation of that opinion’s reasoning and result since in Bass there is no language which indicates or suggests that only the conduct of non-negligent attorneys was intended to be protected.
Further, I disagree with the majority’s decision to overrule Typinski v. Unemployment Compensation Board of Review, 105 Pa.Commonwealth Ct. 560, 524 A.2d 1086 (1987). The majority seeks to overrule that case on the grounds that the decision
inflates that term [adequate excuse] to encompass mental incapacity of the litigant himself. Such an expansion goes beyond the narrow exception that the Bass line of eases intended to permit. Therefore, we now overrule Typinski and hold that the term ‘adequate excuse’, in reference to the filing of an appeal nunc pro tunc, includes only fraud, a breakdown in a court’s operations, or the unusual factual circumstances in the Bass line of cases. Specifically, circumstances involving action or inaction on the part of the litigant himself will not provide an ‘adequate excuse’.
I disagree for two reasons. First, the correct result was reached in Typinski in accordance with Bass’s reasoning that only evidence of non-negligent conduct which is beyond a claimant’s or a claimant’s agent is protected by the exception.
In Typinski, the appellant was unable to produce adequate evidence to prove either that his alleged illness existed during the statutory appeal period or that illness was the actual reason for his failure to file.
I also disagree with the grounds upon which the majority seeks to base its overruling of Typinski. The majority writes:
[T]he Typinski decision inflates that term [adequate excuse] to encompass mental incompetency of the litigant himself. Such an expansion goes beyond the narrow exception that the Bass line of cases intended to permit.
Here, the majority employs an incorrect conclusion regarding the reasoning set forth in Bass. The language in Bass was not intended to preclude non-negligent behavior by a litigant which causes him to miss an appeal deadline and, as such, the majority misconstrues Bass in holding that:
Specifically, circumstances involving action or inaction on the part of the litigant himself will not provide an ‘adequate excuse’ [to allow an appeal nunc pro tunc].
Finally, the majority contends that by granting Claimant’s appeal nunc pro tunc, we will open the floodgates to litigation to requests for appeals nunc pro tunc by claimants who seek the allowance of such appeals after offering “any reasonable excuse.” The *698majority hypothesizes that permitting the within appeal will “result in a new and unnecessary delay, mandating a special inquiry whenever an appeal is untimely filed.” I am of the view that permitting Claimant’s appeal results in a holding that is not so broad as to substantiate the fears of the majority, and further, that the guidelines of non-negligent behavior and prejudice will effectively weed out undeserving appellants.
In response to the majority, I am of the view that a contrary result, in the words of our Supreme Court Justice Nix, would be “punitive, arbitrary and not supported by rule or precedent.”4
Accordingly, I would vacate the Board’s order and remand for a hearing on the merits.
. The issue in this case is whether Claimant should be permitted to file an appeal as a result of our Supreme Court’s decision in Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979) which expanded the original nunc pro tunc rule.
. Mrs. Bass’s appeal was filed four days after the statutory time period had expired. The court considered this fact along with evidence that the attorney's secretary’s illness was the actual cause of the need to file after the appeal period expired.
. Claimant was immediately taken to the hospital after collapsing on May 3, 1992. The statutory time period expired on May 8, 1992. Claimant was discharged from the hospital on May 9, 1992, and filed his appeal on May 12, 1992. (R. Item No. 7.) Claimant had scheduled an appointment with an attorney for May 5, 1992 before his collapse on May 3, 1992, which supports the conclusion that Claimant intended to make a decision about his appeal before he was incapacitated and unable to file. (Exhibit No. 3, R. Item No. 5.)
. As written by Justice Nix in his concurring opinion in Bass.