dissenting.
Today the majority abandons this Court’s Rules of Civil Procedure and also its prior case law and awards an appeal nunc pro tunc to an appellant, represented by counsel at all relevant times, who admits that the failure to file a timely appeal was due to neglect. Appellant, as all other litigants, had thirty days in which to file an appeal. Appellant failed to do so. Appellant, nonetheless, argues before this Court that appellant should be allowed an appeal because for seven of those thirty days, appellant’s lawyer’s secretary was sick and failed to carry out her employer’s instructions. Unlike the majority, appellant does not attempt to suggest that her situation is comparable to one in which, for example, an attorney on his way to file papers is struck down by disease or accident. And yet, the majority grants relief on the basis of this unraised and unargued “act of God” theory.
Is not today’s action a signal to litigants that the majority is abandoning the timeliness requirements firmly established by Pennsylvania statutory and decisional law and by our rules of court and will grant relief as it sees fit, based not on law or precedent but rather on what is asserted to be the staff situation in an attorney’s office? Today it is the *263claimed illness of an employee which the majority says is persuasive. Tomorrow will it not be the claimed illness of a member of the employee’s family or whatever the reasons for an employee’s absence or any other irrelevance? Will not today’s result create a new and unnecessary layer of delay, mandating a special inquiry whenever an appeal is untimely filed? An effective appellate judicial adversary system cannot function as a tribunal of equal justice under law when it excuses negligent noncompliance with the law on an ad hoc basis. Who is to know, therefore, whether today’s newly created majority rule will be available to all litigants or whether its application is for today’s appellant-litigant alone, “a restricted railroad ticket, good for this day and train only?” Smith v. Allwright, 321 U.S. 649, 669, 64 S.Ct. 757, 768, 88 L.Ed.2d 987, 1000 (1944). Does not the failure to enforce the timeliness requirements constitute an invitation to litigants to disregard the timeliness requirements and thus adversely affect the evenhanded administration of justice?
Appellant avers that on July 11, 1976, Stanley Bass was killed by Charles Jackson, and that at the time of the offense, Jackson was AWOL from a weekend furlough from Graterford prison, where he was serving a four to ten year sentence for armed robbery.
Appellant, the victim’s wife and executrix of his estate, on July 12, 1976, filed in the Court of Common Pleas of Montgomery County a complaint in trespass. The action was subsequently transferred to Commonwealth Court. The Commonwealth Court sustained preliminary objections.
Appellant decided to take an appeal to this Court from the order of the Commonwealth Court. It is alleged that appellant’s counsel began to prepare the necessary appeal papers, but the appeal was never filed. A week before the thirty day filing period was to expire, appellant’s counsel asked his secretary to type the appeal documents and to file those papers within the week. The secretary did not file the papers immediately, became ill, did not come into work for a week, and returned one day after the appeal period had run. Appellant filed this petition for leave to file her appeal *264“nunc pro tunc” two days later, thirty-three days after the decision of the Commonwealth Court was rendered.
Section 502(a) of the Appellee Court Jurisdiction Act of 1970, P.L. 673, art. II, 17 P.S. § 502(a), and Pa.R.A.P. 903 provide thirty days in which an appeal may be filed. Cf. Broome v. Antlers’ Hunting Club, 595 F.2d 921 (3d Cir., 1979) (“appellant’s wrongful death action was barred by Pennsylvania’s one year statute [of limitations] because it had been filed a day after the time limit had elapsed.”). It is established that “the time for taking an appeal cannot be extended as a matter of grace. The extension of a statutory period providing for the period of time during which an appeal may be filed is only justified where there is fraud or some other breakdown in the court’s operation.” [citations omitted.] West Penn Power Co. v. Goddard, 460 Pa. 551, 556, 333 A.2d 909, 912 (1975). Appellant does not allege fraud. Rather she asserts negligence. But “the mere neglect of counsel cannot justify the granting of an appeal nunc pro tunc.” Rostosky v. Commonwealth of Pa., D. E. R., 26 Pa.Cmwlth. 478, 482, 364 A.2d 761, 763 (1972).* The negligence here alleged is just that — there has been no fraud or breakdown in the courts. See Restatement (Second) of Torts § 302A; Restatement (Second) of Agency § 213. See also, Dominguez v. United States, 583 F.2d 615 (2d Cir.), cert. denied, 439 U.S. 1117, 99 S.Ct. 1023, 59 L.Ed.2d 76 (1979) (office cave-in of attorney occurring after motion due did not excuse failure to file in a timely fashion). Appellant’s argument that her attorney’s admitted negligence was a breakdown in the operation of the court must be rejected. Compare Commonwealth v. Horner, 449 Pa. 322, 296 A.2d 760 (1972) (appeal “nunc pro tunc” granted Commonwealth where it had no independent notice of filing of court order and appeal filed within statutory period of erroneous date in that court order). See also Estate of Shelly, 463 Pa. 430, 345 A.2d 596 (1975). The negligence of appellant’s attorney, and *265bis employee, in failing to meet the statutory requirement is in no way sufficient to ignore the law mandating the timely filing of appeals.
Here the majority’s ipse dixit result is plainly contrary not only to the specific statutory mandate, but also to prior decisions of the Court dealing with the fixed requirements of timeliness in judicial proceedings. It is just such judicial refusal to observe Pennsylvania statutory and case law which creates confusion and uncertainty in the minds of the bench, bar and public. Even more damaging, today’s majority decision destroys confidence in, and respect for, the integrity of the decisional process in a court of last resort.
I dissent.
EAGEN, C. J., joins in this dissenting opinion.DENIAL OF APPLICATION FOR REARGUMENT
Even a cursory reference to any volume of Pennsylvania State Reports will reveal many instances in which appeals were dismissed because not timely filed, but no case in which such an untimely appeal, as here, was permitted.