Cook v. Unemployment Compensation Board of Review

641 A.2d 692, 163 Pa. Commw. 583, 1994 Pa. Commw. LEXIS 203
CourtCommonwealth Court of Pennsylvania
DecidedApril 26, 1994
StatusPublished
Cited by1 cases

This text of 641 A.2d 692 (Cook v. Unemployment Compensation Board of Review) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. Unemployment Compensation Board of Review, 641 A.2d 692, 163 Pa. Commw. 583, 1994 Pa. Commw. LEXIS 203 (Pa. Ct. App. 1994).

Opinions

DOYLE, Judge.

Before us is the appeal of Willie J. Cook from an order of the Unemployment Compensation Board of Review dismissing Cook’s petition for unemployment compensation benefits.

Cook worked for the Hussey Copper Corporation (Employer) as a stone mason until his separation from employment on April 8, 1992. Cook filed for unemployment compensation benefits at the Office of Employment Security (OES) on April 11, 1992. OES disapproved Cook’s application on April 23, 1992, finding that Cook’s separation from employment was due to his willful miscon[693]*693duct,1 thus disqualifying him for unemployment benefits. That decision was mailed to Cook at his last known address on the same day. The notice informed Cook that he had until May 8, 1992, to appeal from the determination of OES. From May 3,1992, to May 5, 1992, Cook was in the Critical Care Unit (CCU) of East Liverpool City Hospital because of irregularities in his heart activity and blood pressure. On May 5, 1992, Claimant was transferred out of the CCU to a regular room where he could read, write, and receive visitors. Cook was released from the hospital on May 9, 1992, one day after the appeal period expired. Cook filed his appeal on May 12, 1992.

On appeal, the referee dismissed Cook’s petition on the grounds that it was untimely filed because it was received more than fifteen days after OES’ denial of benefits.2 The Board affirmed this order, and this appeal followed.

Cook argues that the Board erred in its conclusion that he had not provided an adequate excuse for his failure to file a timely appeal from the OES determination denying him benefits, and therefore his petition should have been considered nunc pro tunc.

Generally, an appeal nunc pro tunc may be allowed when a delay in filing an appeal is caused by extraordinary circumstances involving fraud or some breakdown in a court’s operations. Guat Gnoh Ho v. Unemployment Compensation Board of Review, 106 Pa.Commonwealth Ct. 154, 525 A.2d 874 (1987). In Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979), however, our Supreme Court liberalized that rule to the extent that the non-negligent conduct of an appellant’s attorney which results in an untimely appeal may provide grounds which would permit an appellant to appeal nunc pro tunc. The extent of the liberalization of that rule in the wake of Bass was explained in Finney v. Unemployment Compensation Board of Review, 81 Pa.Commonwealth Ct. 101, 472 A.2d 752 (1984), as follows:

Now, non-negligent conduct of the appellant’s attorney, which results in an untimely appeal, may also suffice for the grant of an appeal nunc pro tunc. Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979) (illness of attorney’s secretary resulted in delay in filing); see also Perry v. Unemployment Compensation Board of Review, [74] Pa.Commonwealth Ct. [388], 459 A.2d 1342 (1983) (mechanical failure of law clerk’s car resulted in delay in filing); Tony Grande, Inc. v. Workmen’s Compensation Appeal Board (Rodriguez), 71 Pa.Commonwealth Ct. 566, 455 A.2d 299 (1983) (sudden hospitalization of counsel resulted in delay of three days).... [I]t has also now been held that, where the appellant himself 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 to be taken nunc pro tunc. Walker v. Unemployment Compensation Board of Review, [75] Pa.Commonwealth Ct. [116], 461 A.2d 346 (1983) (failure of post office to forward notice of referee’s decision allegedly resulted in untimely filing of appeal).

Id. at 103-04 n. 3, 472 A.2d at 753 n. 3 (quoting Roderick v. State Civil Service Commission, 76 Pa.Commonwealth Ct. 329, 332-33, 463 A.2d 1261, 1263 (1983)). Thus, the decisions in Bass and its progeny intend to allow only a very narrow exception to the strict rule requiring appeals to be timely filed.

While the strict rule of timeliness was relaxed by some small measure in Bass, our Supreme Court did not liberalize that rule to the point where any reasonable excuse proffered by an appellant for his or her failure to file a timely appeal is sufficient to allow an appeal nunc pro tunc. The holding in Bass has been applied by this Court only in those extremely few instances where an appellant’s failure to file a timely appeal was caused by the non-negligent acts of someone else, either the claimant’s attorney or the attorney’s staff; all situations which involve the non-negligent behavior of a third party. Further, [694]*694the Superior Court in Marcus v. Cohen, 94 Pa. Superior Ct. 383 (1928), specifically held that an appellant’s illness was not an excuse which would allow a court to extend the period for filing an appeal, and Marcus was cited with approval by our Supreme Court in Nixon v. Nixon, 329 Pa. 256, 259, 198 A. 154, 157 (1938).

Where an act of assembly fixes the time within which an act must be done, as for example, an appeal taken, courts have no power to extend it, or to allow the act to be done at a later day, as an act [sic] of indulgence. Something more than mere hardship is necessary to justify an extension of time, or its equivalent, an allowance of the act nunc pro tunc.

Marcus, 94 Pa. Superior Ct. at 385 (quoting Wise v. Borough of Cambridge Springs, 262 Pa. 139, 104 A. 863 (1918), and cases cited therein).

In Guat Gnoh Ho, this Court rejected an appellant’s argument to further expand the application of Bass. In that ease, the appellant’s appeal was untimely because she was out of the country when a decision denying her unemployment compensation benefits was mailed to her home; the appellant’s spouse received the letter, but he was unable to read English. We rejected the appellant’s argument that the appeal should be permitted nunc pro tunc in accordance with Bass stating:

[T]he decisions in the Bass line of cases were limited strictly to the unique and compelling factual circumstances presented to the court, and they were never intended to create, as Justice Roberts warned in his dissenting opinion in Bass, ‘a new and unnecessary layer of delay, mandating a special inquiry whenever an appeal is untimely filed.’

Guat Gnoh Ho, 106 Pa.Commonwealth Ct. at 156, 525 A.2d at 875 (quoting Bass, 485 Pa. at 263, 401 A.2d at 1137 (Roberts, J., dissenting)).

We are not unsympathetic to the fact that there are often legitimate and extenuating circumstances to excuse a litigant’s failure to meet a filing deadline.

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641 A.2d 692, 163 Pa. Commw. 583, 1994 Pa. Commw. LEXIS 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-unemployment-compensation-board-of-review-pacommwct-1994.