Cook v. Unemployment Compensation Board of Review

OPINION OF THE COURT

FLAHERTY, Justice.

The issue raised by this case is whether an appellant before the unemployment compensation board who files an appeal four days late because he was hospitalized may be allowed to appeal nunc pro tunc.

*383Appellant Cook worked for Hussey Copper Corporation from April 1984 until April 1992, when he was terminated. He applied for unemployment compensation benefits and was denied on the grounds that his termination was based on willful misconduct. He was given notice that he had fifteen days, or until May 8,1992, to appeal the denial of benefits to a referee.

Cook contacted an attorney and scheduled an appointment for May 5, 1992, but on May 3, 1992, he collapsed and was taken to a hospital in East Liverpool, Ohio. He was placed in the cardiac care unit for two days. After his release from cardiac care, he remained in the hospital until May 9, 1992, one day after his time for appeal expired. Three days after his release Cook filed an appeal to the referee of the denial of benefits.

The referee dismissed the appeal as untimely, Cook appealed to the Unemployment Compensation Board of Review, which affirmed the denial. The board held that when Cook was hospitalized but not in the cardiac care unit, he was alert, able to read, write and receive visitors, and should therefore have pursued his appeal during this time.

Commonwealth Court, on appeal, held that this court’s decision in Bass v. Commonwealth Bureau of Corrections, et al., 485 Pa. 256, 401 A.2d 1133 (1979) requires that appeals may not be filed late except where “there is fraud or some breakdown in the court’s operation” or where the appellant’s lawyer, because of a non-negligent cause, failed to file the appeal in a timely fashion. Applying that rule to this case, Commonwealth Court held that the appeal in this case was properly denied.

Cook petitioned for allowance of appeal and we granted allocatur in order to address the propriety of Commonwealth Court’s treatment of our decision in Bass. For the reasons that follow, we reverse.

Generally, an appeal nunc pro tunc may be allowed when a delay in filing the appeal is caused by extraordinary circumstances involving “fraud or some breakdown in the *384court’s operation through a default of its officers.” Bass, 485 Pa. at 259, 401 A.2d at 1135, citing Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938) and West Penn Power Co. v. Goddard, 460 Pa. 551, 556, 333 A.2d 909, 912 (1975). Bass itself, however, added another exception to the general prohibition against late appeals: the non-negligent conduct of the appellant’s attorney or his staff.1

In Bass, appeal papers were prepared and typed six days before the expiration of the time allowed for appeal. The appeal was to this court from the order of Commonwealth Court. However, the secretary in the law office who was responsible for filing the appeal became ill shortly after the appeal was prepared, and left the office without filing it. The appeal papers remained on her desk unfiled. When the secretary returned a week later, the appeal period had expired. This error was not discovered because the secretary was also the person in the office who was responsible for checking to make sure that all secretarial work was performed. This court held that where an appeal is untimely because of non-negligent conduct of the attorney or his staff, an appeal nunc pro tunc may be permitted.

In applying Bass to the present case, Commonwealth Court held that. Bass applies only to situations involving the non-negligent acts of a third party. Although we respect Commonwealth Court’s diligent effort not to misconstrue our holding, we believe that this reading of Bass is too narrow. It would be anomalous, as the dissent below points out, to allow an appeal nunc pro tunc because of the non-negligent acts of a third party but not allow it in the case of non-negligent acts of appellant himself. We believe a better statement of the rule in Bass is that where an appeal is not timely because of non-*385negligent 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, the court may allow an appeal nunc pro tunc.

In this case, Cook testified in a hearing before a master on October 2, 1992 that he was hospitalized from May 3 to May 9,1992, that he was in intensive care from May 3 to May 5, and that he was in ordinary care from May 6 to May 9. He also testified that he was unable to leave the hospital of his own free will and that he did not have his notice of determination with him. This testimony was accompanied by a discharge summary prepared by a physician which stated a discharge diagnosis as follows:

1. Syncopal attack, possible cardiac in origin.
2. Hypertension.
3. Obesity.
4. ST segment changes possibly due to ischemia.
5. Questionable seizure disorder.

The referee’s decision was that the provisions of section 501(e) of the Unemployment Compensation Law, 43 P.S. § 821(e), are mandatory, that an appeal must be filed within the fifteen day period following notice that compensation will or will not be paid, and that the referee had “no jurisdiction to allow an appeal filed after the expiration of the statutory appeal period.” On appeal from the referee’s decision, the board agreed with the referee that it had no jurisdiction and added:

Claimant had receive [sic] the determination and was aware of it. Claimant was alert, able to read, write, and receive visitors during the appeal period. Claimant could have timely filed an appeal.

Our standard of review of an agency decision is as follows:

After hearing, the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the *386constitutional rights of the appellant, or is not in accordance with law, or that the provisions of Subchapter A of Chapter 5 (relating to practice and procedure of Commonwealth agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence.

McGovern’s Estate v. State Employees’ Retirement Board, 512 Pa. 377, 382, 517 A.2d 523, 525 (1986) (emphasis in original), citing 2 Pa.C.S. § 704.

Here, there is no substantial evidence of record to support the board’s conclusion that Cook was able to conduct his appeal from his hospital bed. He was hospitalized following a collapse; he was placed in intensive care for three days followed by four days in ordinary care; he was unable to leave the hospital; he did not have with him his notice of determination; and the diagnosis upon discharge supported his claim that he was seriously ill when admitted to the hospital. This raises the inference that Cook was unable to perfect his appeal while he was hospitalized. There was no evidence to the contrary except for Cook’s admission that he was able to read and write and receive visitors after his release from intensive care. Cook met his heavy burden of proving an adequate excuse under Bass for failing to file the appeal, and the contrary evidence did not rebut the inference raised by Cook’s evidence. Additionally, Cook pursued his appeal promptly upon release from the hospital and there is nothing of record to indicate that the lateness, four days, prejudiced the appel-lee.

Commonwealth Court is reversed, the appeal is granted nunc pro tunc, and the case is remanded for a hearing on the merits of the claim.

MONTEMURO, J., who was sitting by designation, did not participate in the decision of this case. ZAPPALA, J., files a dissenting opinion in which CASTILLE,J., joins.

. We are aware that one panel of Superior Court construed our opinion in In re Vacation of Portion of Dorney Park Road, 503 Pa. 67, 468 A.2d 462 (1983) as a sub silentio overruling of Bass. See In re Adoption of J.A.S., 330 Pa.Super. 151, 479 A.2d 8 (1984). J.A.S. is in error. We have not overruled Bass. As another panel of Superior Court pointed out in In re Interest of C.K., 369 Pa.Super. 445, 535 A.2d 634 (1987), although Domey Park did not mention Bass in the course of deciding a matter concerning a late appeal, Domey Park was factually and legally distinguishable from Bass.