J-A18037-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: B.B. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: B.B. : : : : : : No. 64 WDA 2021
Appeal from the Order Entered December 15, 2020 In the Court of Common Pleas of Allegheny County Orphans’ Court at No(s): No. CC 638 of 2017
BEFORE: OLSON, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: OCTOBER 12, 2021
B.B. appeals from the Order denying his Petition for permission to file a
nunc pro tunc appeal of the Orphans’ Court’s December 5, 2017, Order (“the
2017 Order”),1 which committed B.B. to extended involuntary mental health
treatment pursuant to Section 303 of the Mental Health Procedures Act
(“MHPA”).2 We affirm.
____________________________________________
1 The Orphans’ Court’s February 5, 2021, Opinion mistakenly states that the
2017 Order was entered on November 5, 2017. See Orphans’ Court Opinion, 2/5/21, at 1.
2See 50 P.S. § 7303 (“Section 303”) (providing for extended involuntary mental health treatment). J-A18037-21
On December 1, 2017, pursuant to Section 302 of the MHPA,3 B.B. was
involuntarily committed for mental health treatment. A Petition for Extended
Involuntary Mental Health Treatment, pursuant to Section 303, was filed
against B.B. on December 2, 2017. On December 4, 2017, after a hearing at
which B.B. was represented by counsel, a mental health hearing officer
dismissed the Petition.
On December 4, 2017, the Allegheny County Department of Human
Services, Office of Behavioral Health, filed a Petition for Review in the
Allegheny County Court of Common Pleas.4 The Orphans’ Court conducted a
Review Hearing on December 5, 2017, at which B.B. again was represented
by counsel. That same date, the Orphans’ Court entered the 2017 Order
overruling the hearing officer’s determination, and committing B.B. to
extended involuntary mental health treatment pursuant to Section 303. B.B.
filed no appeal of the 2017 Order.
Three years later, on December 8, 2020, B.B. filed a pro se Petition for
permission to file a nunc pro tunc appeal of the 2017 Order. On December
15, 2020, the Orphans’ Court denied the Petition. Thereafter, B.B. filed the
3 See 50 P.S. § 7302 (providing for involuntary emergency examination and
mental health treatment).
4 See 50 P.S. § 7303(g) (providing for a right to petition the court of common
pleas for review of the certification); In re T.J., 739 A.2d 478, 482 (Pa. 1999) (recognizing a mental health agency’s standing to appeal the hearing officer’s determination).
-2- J-A18037-21
instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of matters complained of on appeal.
B.B. presents the following claim for our review:
Where there is a breakdown in the court’s operation resulting in the delay of filing a direct appeal, did the [trial c]ourt err when it denied [B.B.’s] Petition Nunc Pro Tunc to allow direct appeal of a[n] [MHPA] Section 303 [P]etition for review [sic] final order?
Brief for Appellant at 4 (some capitalization omitted).
The “denial of an appeal nunc pro tunc is within the discretion of the
trial court, and we will only reverse for an abuse of that discretion.” Vietri
ex rel. Vietri v. Delaware Valley High Sch., 63 A.3d 1281, 1284 (Pa.
Super. 2013). “An abuse of discretion occurs when a trial court, in reaching
its conclusions, overrides or misapplies the law, or exercises judgment which
is manifestly unreasonable, or the result of partiality, prejudice, or ill
will.” Id. (citation omitted).
B.B. claims that the Orphans’ Court improperly denied his Petition for
permission to file a nunc pro tunc appeal of the 2017 Order. Brief for Appellant
at 11. B.B. asserts that he has established a breakdown of the court’s
operation, based upon his prior counsel’s “failure to advise him of his
[a]ppellate rights[.]” Id. at 13. According to B.B., his prior counsel was
assigned to him through the public defender’s office, a government unit or
agency. Id. at 13. Further, B.B. claims that attorneys are officers of the
court, and counsel’s ineffectiveness constitutes a breakdown of the court’s
-3- J-A18037-21
processes. Id. at 13, 15. B.B. argues that a court should not dismiss serious
allegations of a failure to follow the procedures of the MPHA. Id. at 14.
B.B. claims that he did not file an appeal of the 2017 Order within the
required 30 days, because his counsel at the time rendered ineffective
assistance. Id. at 17. According to B.B., his attorney failed “to counsel and
inform [B.B.] of his right[] to direct appeal and right[] to continuing
representation for such an appeal.” Id. B.B. provides extensive argument
regarding the right to competent counsel to protect a client’s appeal rights.
See id. at 20 (citing cases regarding counsel’s duty to protect a defendant’s
appeal rights).
Initially, we observe that “an appeal … from a court to an appellate court
must be commenced within 30 days after the entry of the order from which
the appeal is taken, in the case of an interlocutory or final order.” 42 Pa.C.S.A.
§ 5571. “[A]n appellate court cannot extend the time for filing an appeal.
Nonetheless, this general rule does not affect the power of the courts to grant
relief in the case of fraud or breakdown in the processes of the court.”
Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super. 2007)
(citations omitted). As our Supreme Court explained in In re Vacation of
Portion of Dorney Park, 468 A.2d 462 (Pa. 1983),
[w]here 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 a matter 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 ….
-4- J-A18037-21
Id. at 45 (citations omitted).
In addition to the occurrence of “fraud or breakdown in the court’s
operations,” nunc pro tunc relief may also be granted where the appellant
demonstrates that “(1) [his] notice of appeal was filed late as a result of
nonnegligent circumstances, either as they relate to the appellant or the
appellant’s counsel; (2) [he] filed the notice of appeal shortly after the
expiration date; and (3) the appellee was not prejudiced by the
delay.” Vietri, 63 A.3d at 1284. The appeal must be filed within a short time
after the appellant or his counsel learns of, and has an opportunity to address
the untimeliness. Cook v. Unemployment Comp. Bd. of Review, 671 A.2d
1130, 1131 (Pa. 1996).
In Cook, our Supreme Court permitted a plaintiff to file a nunc pro tunc
appeal four days after the fifteen-day appeal period had expired. Cook, 671
A.2d at 1131. In that case, the plaintiff, upon the denial of unemployment
compensation benefits, arranged to meet with an attorney about appealing
his case. Id. However, the plaintiff collapsed prior to the meeting, and was
Free access — add to your briefcase to read the full text and ask questions with AI
J-A18037-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: B.B. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: B.B. : : : : : : No. 64 WDA 2021
Appeal from the Order Entered December 15, 2020 In the Court of Common Pleas of Allegheny County Orphans’ Court at No(s): No. CC 638 of 2017
BEFORE: OLSON, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: OCTOBER 12, 2021
B.B. appeals from the Order denying his Petition for permission to file a
nunc pro tunc appeal of the Orphans’ Court’s December 5, 2017, Order (“the
2017 Order”),1 which committed B.B. to extended involuntary mental health
treatment pursuant to Section 303 of the Mental Health Procedures Act
(“MHPA”).2 We affirm.
____________________________________________
1 The Orphans’ Court’s February 5, 2021, Opinion mistakenly states that the
2017 Order was entered on November 5, 2017. See Orphans’ Court Opinion, 2/5/21, at 1.
2See 50 P.S. § 7303 (“Section 303”) (providing for extended involuntary mental health treatment). J-A18037-21
On December 1, 2017, pursuant to Section 302 of the MHPA,3 B.B. was
involuntarily committed for mental health treatment. A Petition for Extended
Involuntary Mental Health Treatment, pursuant to Section 303, was filed
against B.B. on December 2, 2017. On December 4, 2017, after a hearing at
which B.B. was represented by counsel, a mental health hearing officer
dismissed the Petition.
On December 4, 2017, the Allegheny County Department of Human
Services, Office of Behavioral Health, filed a Petition for Review in the
Allegheny County Court of Common Pleas.4 The Orphans’ Court conducted a
Review Hearing on December 5, 2017, at which B.B. again was represented
by counsel. That same date, the Orphans’ Court entered the 2017 Order
overruling the hearing officer’s determination, and committing B.B. to
extended involuntary mental health treatment pursuant to Section 303. B.B.
filed no appeal of the 2017 Order.
Three years later, on December 8, 2020, B.B. filed a pro se Petition for
permission to file a nunc pro tunc appeal of the 2017 Order. On December
15, 2020, the Orphans’ Court denied the Petition. Thereafter, B.B. filed the
3 See 50 P.S. § 7302 (providing for involuntary emergency examination and
mental health treatment).
4 See 50 P.S. § 7303(g) (providing for a right to petition the court of common
pleas for review of the certification); In re T.J., 739 A.2d 478, 482 (Pa. 1999) (recognizing a mental health agency’s standing to appeal the hearing officer’s determination).
-2- J-A18037-21
instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of matters complained of on appeal.
B.B. presents the following claim for our review:
Where there is a breakdown in the court’s operation resulting in the delay of filing a direct appeal, did the [trial c]ourt err when it denied [B.B.’s] Petition Nunc Pro Tunc to allow direct appeal of a[n] [MHPA] Section 303 [P]etition for review [sic] final order?
Brief for Appellant at 4 (some capitalization omitted).
The “denial of an appeal nunc pro tunc is within the discretion of the
trial court, and we will only reverse for an abuse of that discretion.” Vietri
ex rel. Vietri v. Delaware Valley High Sch., 63 A.3d 1281, 1284 (Pa.
Super. 2013). “An abuse of discretion occurs when a trial court, in reaching
its conclusions, overrides or misapplies the law, or exercises judgment which
is manifestly unreasonable, or the result of partiality, prejudice, or ill
will.” Id. (citation omitted).
B.B. claims that the Orphans’ Court improperly denied his Petition for
permission to file a nunc pro tunc appeal of the 2017 Order. Brief for Appellant
at 11. B.B. asserts that he has established a breakdown of the court’s
operation, based upon his prior counsel’s “failure to advise him of his
[a]ppellate rights[.]” Id. at 13. According to B.B., his prior counsel was
assigned to him through the public defender’s office, a government unit or
agency. Id. at 13. Further, B.B. claims that attorneys are officers of the
court, and counsel’s ineffectiveness constitutes a breakdown of the court’s
-3- J-A18037-21
processes. Id. at 13, 15. B.B. argues that a court should not dismiss serious
allegations of a failure to follow the procedures of the MPHA. Id. at 14.
B.B. claims that he did not file an appeal of the 2017 Order within the
required 30 days, because his counsel at the time rendered ineffective
assistance. Id. at 17. According to B.B., his attorney failed “to counsel and
inform [B.B.] of his right[] to direct appeal and right[] to continuing
representation for such an appeal.” Id. B.B. provides extensive argument
regarding the right to competent counsel to protect a client’s appeal rights.
See id. at 20 (citing cases regarding counsel’s duty to protect a defendant’s
appeal rights).
Initially, we observe that “an appeal … from a court to an appellate court
must be commenced within 30 days after the entry of the order from which
the appeal is taken, in the case of an interlocutory or final order.” 42 Pa.C.S.A.
§ 5571. “[A]n appellate court cannot extend the time for filing an appeal.
Nonetheless, this general rule does not affect the power of the courts to grant
relief in the case of fraud or breakdown in the processes of the court.”
Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super. 2007)
(citations omitted). As our Supreme Court explained in In re Vacation of
Portion of Dorney Park, 468 A.2d 462 (Pa. 1983),
[w]here 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 a matter 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 ….
-4- J-A18037-21
Id. at 45 (citations omitted).
In addition to the occurrence of “fraud or breakdown in the court’s
operations,” nunc pro tunc relief may also be granted where the appellant
demonstrates that “(1) [his] notice of appeal was filed late as a result of
nonnegligent circumstances, either as they relate to the appellant or the
appellant’s counsel; (2) [he] filed the notice of appeal shortly after the
expiration date; and (3) the appellee was not prejudiced by the
delay.” Vietri, 63 A.3d at 1284. The appeal must be filed within a short time
after the appellant or his counsel learns of, and has an opportunity to address
the untimeliness. Cook v. Unemployment Comp. Bd. of Review, 671 A.2d
1130, 1131 (Pa. 1996).
In Cook, our Supreme Court permitted a plaintiff to file a nunc pro tunc
appeal four days after the fifteen-day appeal period had expired. Cook, 671
A.2d at 1131. In that case, the plaintiff, upon the denial of unemployment
compensation benefits, arranged to meet with an attorney about appealing
his case. Id. However, the plaintiff collapsed prior to the meeting, and was
hospitalized in a cardiac care unit for the next six days. Id. Following his
release from the hospital, which occurred on the day after the appeal period
had expired, the plaintiff promptly engaged counsel and filed an appeal. Id.
Our Supreme Court held that under such circumstances, the plaintiff met “his
heavy burden” for failing to timely file his appeal. Id. at 1132. In so holding,
the Supreme Court emphasized that the plaintiff had “pursued his appeal
-5- J-A18037-21
promptly upon release from the hospital and there is nothing of record to
indicate that the lateness, four days, prejudiced the appellee.” Id.
In his Petition, B.B. averred that he was “not timely made aware of his
right to direct appeal” the 2017 Order. Petition Nunc Pro Tunc to Allow Direct
Appeal, 12/8/20, ¶ 15. B.B. alleged that his counsel “was ineffective by
reason of his failure to inform [B.B.] of his right to direct appeal, the thirty
(30) day time frame for such an appeal … and of his right to continued
representation for purposes of such an appeal.” Id., ¶ 18. According to B.B.,
counsel’s ineffectiveness constituted “a serious breakdown in the [c]ourt’s
operation through a default of one of its officers.” Id., ¶ 21.
B.B.’s Petition, however, fails to offer any basis for his three-year delay
in seeking a nunc pro tunc appeal. Under these circumstances, we cannot
conclude that the Orphans’ Court erred or abused its discretion in denying
B.B.’s Petition. See Cook, 671 A.2d at 1131. Accordingly, we affirm the
Order of the Orphans’ Court.
Order affirmed.
Judge Nichols joins the memorandum.
Judge Olson concurs in the result.
-6- J-A18037-21
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/12/2021
-7-