Concurring Opinion by
Judge Barbieri,filed December 29, 1970:
I join in the judgment of the court, but have different reasons for reaching the same conclusion which I feel obliged to note.
I disagree with the minority because, in my opinion, the timely issuance of the writ was the vital appellate act. While the Zoning Board contends that a petition was a necessary part of the appeal, it cannot be denied that the petition is not the appeal but is only the application for the writ without which there could be no appeal. It is true that filing a timely petition would toll the running of the time for issuance of the writ. I also believe, however, that the issuance of the writ tolls the running of the time for filing the petition.
Section 14-1806 of the Philadelphia Code, providing for appeals from decisions of the City’s Zoning Board of Adjustment,1 provides: “Any person . . . aggrieved by any decision of the Board . . . may present to a Court of record a Petition . . . Such Petition shall be presented to the Court within thirty days after the filing of the decision in the office of the Board . . . Upon the presentation of such Petition, the Court may *40allow a Writ of Certiorari, directed to the Board, to review such decision . .
A review of the lower court’s docket entries reveals that the first petition for a writ was filed on April 10, 1968, and this resulted in a remand on December 17, 1968. Thereafter, the Zoning Board’s instant order was entered on July 9, 1969. The present writ was issued within the 30 days’ period on July 30, 1969, and the written formal petition was filed on August 28, 1969, some 20 days past the period for appeal. I believe that a fair construction of the quoted language in the Code is that the vital thing to perfect the appeal is the writ, and that the petition for the writ, while its filing in time may excuse issuance of the writ after the 30 days have run, it is not in itself the appeal. If the writ itself is issued in the time allowed for requesting a writ, even if pursuant to oral application, (or oral “petition”), I can see no legislative or other purpose which would justify quashing the appeal because the written application (or “petition”) for the writ came after the 30 days.
But even if my view would be questionable as a matter of legal mechanics, I would still conclude that the motion to quash should have been denied on the facts and circumstances in this case.
I would have joined with my dissenting colleagues if I could conclude as they did that this case is controlled by the Supreme Court’s decision in Commonwealth v. Philadelpiha Eagles, Inc., 437 Pa. 27, 261 A. 2d 309 (1970). If the lower court could properly disavow as unauthorized its own act in issuing the writ, the Eagles case would be controlling, because a valid appeal would not have been timely perfected. No agreement of the parties could revive such a lapsed appeal right.
The law of this Commonwealth, however, has always been that, even where the limitation is jurisdic*41tional, so that the time for taking action may not even be extended by agreement of the parties, it still may be tolled by fraud or by the negligent act of a court official. In Wise v. Cambridge Springs Boro., 262 Pa. 139, 144, 104 A. 863, 864 (1918), our Supreme Court stated: “Where a party has been prevented from appealing by fraud, or by the wrongful or negligent act of a court official, it has been held that the court has power to extend the time for taking an appeal: Zeigler’s Petition, 207 Pa. 131; York County v. Thompson, 212 Pa. 561”. (Emphasis added.) See also Guy v. Stoecklein Baking Co., 133 Superior Ct. 38, 1 A. 2d 839 (1938); Horn v. Lehigh Valley R. R. Co., 274 Pa. 42, 117 A. 409 (1922) ; Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938) ; 4 Am. Jur. 2d, Appeal and Error §298 (1962); 9 Standard Pennsylvania Practice (Rev’d) 325 (1962).
Here, even though the appellant’s lawyer could be criticized for failing to file a timely written petition, the action of the Philadelphia Common Pleas Court Prothonotary in issuing the writ without a petition’s being filed, if unauthorized, was a “wrongful or negligent act of a court official”. If he had refused to issue the writ, there was time to prepare and file a written petition. His act in issuing the writ “lulled the [appellant] into the belief that it was unnecessary for him to file a petition . . .”. Guy, supra, at 44.
It is my conclusion that under all of the peculiar circumstances in this case it was error for the lower court to quash an appeal on the basis of its own error in issuing the writ without requiring timely filing of the written application therefor.
The enabling statutory provision is in Section 8 of the Act of May 6, 1929, P. L. 1551, 58 P.S. 14769.