Mozier v. Commonwealth

Dissenting Opinion by

Senior Judge Barbieri:

I respectfully dissent, The order appealed from states:

AND NOW, this 15th day of August, 1986, the Request for Reconsideration filed by the appellant is denied because the Request for Reconsideration was not timely filed.

(Appellants Brief at Appendix A). The sole issue before this Court is the validity of this order. Appellant admits that her request for reconsideration was filed one day *83beyond the fifteen day time limit imposed by 55 Pa. Code §275.4(h)(4)(ii). Since there is no dispute that the request for reconsideration was untimely filed, the appeal should be dismissed. The reason advanced by Appellant for filing the request for reconsideration late, namely that a secretary failed to mail it on the day she was instructed to, is not sufficient to excuse Appellant from the mandatory requirements of 55 Pa. Code §275.4(h)(4)(h). Altieri v. Pennsylvania Board of Probation and Parole, 88 Pa. Commonwealth Ct. 592, 495 A.2d 213 (1985); Hentz v. Civil Service Commission of City of Philadelphia, 85 Pa. Commonwealth Ct. 358, 481 A.2d 998 (1984).

This Court cannot, as the majority suggests, estop DPW from invoking a jurisdictional deadline. Miller v. Unemployment Compensation Board of Review, 505 Pa. 8, 476 A.2d 364 (1984). A Court has no power to extend a time limitation for appeal or to allow an appeal nunc pro tunc in the absence of fraud, or its equivalent, or some breakdown in the courts operation. Phares v. Unemployment Compensation Board of Review, 85 Pa. Commonwealth Ct. 475, 482 A.2d 1187 (1984). Lack of jurisdiction because of the untimeliness of the reconsideration request cannot be waived by this Court. DPW’s final order of August 15, 1986, should be affirmed.