dissenting:
I dissent because I should find appellant entitled to a hearing on his petition to appeal nunc pro tunc.
In Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979), the Supreme Court reiterated that the period for filing an appeal may be extended where there is fraud or breakdown of the court’s operation. In addition, the Court held that the non-negligent failure of an attorney to file a timely appeal may also provide a basis for allowing an appeal nunc pro tunc. Id., 485 Pa. at 260, 401 A.2d at 1135. Cf. Commonwealth v. Keys, 313 Pa.Super. 410, 460 A.2d 253 (1983) (applying Bass to criminal case but finding that untimely filing was not due to non-negligent conduct). “[I]t has also now been held that where the appellant has not been negligent, negligent acts by a third party not part of the litigation process will also excuse an untimely filing and permit an appeal nunc pro tunc. Walker v. Commonwealth, Unemployment Compensation Board of Review, 75 Pa.Cmwlth. 116, 461 A.2d 346 (1983) (failure of post office to forward notice of referee’s decision allegedly resulted in untimely filing of appeal).” Roderick v. Commonwealth, State Civil Service Commission, 76 Pa. Cmwlth. 329, 332, 463 A.2d 1261, 1263 (1983).
*16On July 18, 1984, appellant filed a Petition for Permission to File a Notice of Appeal Nunc Pro Tunc from the April 30, 1984, order denying him relief under the Post Conviction Hearing Act, 42 Pa.C.S. § 9541 et seq. Appellant alleged that “he had mailed a request to counsel in May, 1984 asking for an appeal to the Superior Court”, and that “[cjounsel did not receive the letter dated May 12, 1984, until he received the June 30, 1984, letter from Mr. Smith [appellant].” Petition, Till 4, 5. Attached to the petition were copies of correspondence between appellant and his counsel. In his letter of June 30, 1984, appellant wrote his counsel:
I cannot understand how this letter [letter of May 12, 1984, requesting counsel file appeal] failed to reach your Office. I had placed this letter in the Institution’s [where appellant was incarcerated] Mail Box., somehow, this communique has been lost or misplaced. This of course is not my fault.
Petition, Exhibit C.
In these circumstances I believe that the trial court should have held a hearing on whether appellant’s appeal had been untimely filed because someone in the prison where appellant was incarcerated had been negligent in mailing appellant’s letter to counsel asking that counsel file an appeal. Bass v. Commonwealth, supra; Roderick v. Commonwealth, State Civil Service Commission, supra; Walker v. Commonwealth, Unemployment Compensation Board of Review, supra. If the May 12th letter failed to reach counsel due to the negligence of prison personnel, the court should allow an appeal nunc pro tunc.
The case should be remanded for a hearing consistent with this opinion.