Cook v. Unemployment Compensation Board of Review

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] duct,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] the 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. But to liberalize the law to the point where our courts would be required to entertain those excuses, and sort out the legitimate from the frivolous, fraudulent, and illegitimate, would eviscerate the very purpose of the law and run counter to the dictates of our Supreme Court articulated through Pa. R.A.P. 105 that a “court may not enlarge the time for filing a notice of appeal, a petition for allowance of appeal, a petition for permission to appeal, or a petition for review.” Cook relies upon our decision in Typinski v. Unemployment Compensation Board of Review, 105 Pa.Commonwealth Ct. 560, 524 A.2d 1086 (1987), in support of his position that his hospitalization provided an adequate excuse for his failure to timely file his appeal. In Typinski, a claimant asserted that he was unable to file a timely appeal because he was mentally ill; he later filed an appeal nunc pro tunc which was dismissed by the Board. Because the Board’s findings on the question of whether the claimant was mentally ill were inadequate, this Court remanded the case to the Board for findings on whether the claimant’s alleged mental problems rendered him unable to file a timely appeal. In Typinski, we referred to language in Staten v. Unemployment Compensation Board of Review, 88 Pa.Commonwealth Ct. 297, 488 A.2d 1207 (1985), stating that the law “provides for a waiver of the limitations period where a claimant provides an adequate excuse for the delay_” Typinski, 105 Pa.Commonwealth Ct. at 563, 524 A.2d at 1088 (emphasis added). But, while Staten implicitly limited the scope of the term “adequate excuse” to fraud or its equivalent, the Typinski decision inflates that term to encompass mental in-competeney of the litigant himself. Such an expansion goes beyond the narrow exception that the Bass line of cases intended to permit. Therefore, we now overrule Typinski and hold that the term “adequate excuse,” in reference to the filing of an appeal nunc pro tunc, includes only fraud, a breakdown in a court’s operations, or the unusual factual circumstances of the Bass line of cases. Specifically, circumstances involving action or inaction on the part of the litigant himself will not provide an “adequate excuse.” The principle we have clarified here is consistent with other rules of practice and procedure. Even a statute of limitation [695] which establishes the time within which a suit must be filed on a cause of action, which is analogous to the time limitation for filing an appeal, continues to run against a person who is incompetent. Section 5533(a) of the Judicial Code, 42 Pa.C.S. § 5533(a);3 Walters v. Ditzler, 424 Pa. 445, 227 A.2d 833 (1967). Because illness, mental or otherwise, is not a legally sufficient reason to extend the time period within which an appeal must be filed, Nixon, Marcus, a hospitalization resulting from such an illness cannot provide such a basis. It makes little sense to distinguish between an illness at home and an illness which requires hospitalization. Accordingly, the order of the Board dismissing Cook’s appeal is affirmed. ORDER NOW, April 26, 1994, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed. Footnotes [1] Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). [2] Section 501(e) of the Law, 43 P.S. § 821(e). [3] "General Rule. — Except as otherwise provided by statute, insanity or imprisonment does not extend the time limited by this subchapter for the commencement of a matter.” 42 Pa.C.S. § 5533(a).