HARRISBURG – According to a Superior Court of Pennsylvania judge, a late appeal notice filing was not proven to be as a result of non-negligent circumstances and summarily denied.

On Oct. 28, Judge Victor P. Stabile said the trial court did not abuse its discretion when it denied an appeal filed nunc pro tunc, from the Nov. 20, 2014 award of the board of arbitrators in Snyder County.

Per court records, on Nov. 20, 2014, the Snyder County Prothonotary’s Office entered a notice of entry of award of arbitrators, entering judgment in favor of defendant Edwin C. Haines (doing business as ECHO), in the amount of $25,000 plus interest accumulating from Nov. 20, 2014 onward.

On Thursday, Dec. 18, 2014, plaintiff Lofty and Tina Hackenberg’s counsel sent, via UPS Next Day Air, an appeal notice from the award of the board of arbitrators to the Snyder County Prothonotary’s Office. On Jan. 5, 2015, the Hackenbergs’ counsel received a response letter dated Dec. 29, 2014, from the Snyder County Prothonotary, returning the notice of appeal as “untimely” – because it was received on Wednesday, Dec. 24, 2014, beyond the filing deadline of Monday, Dec. 22, 2014.

“On Jan. 9, 2015, Hackenberg filed a petition to allow appeal from award of board of arbitrators nunc pro tunc. The same date, the trial court entered an order directing Hackenberg to file a brief, ECHO to respond and file a brief, and scheduled a hearing,” Stabile said.

“A hearing was held on April 29, 2015, at which time the parties agreed the facts were undisputed. After the hearing, the trial court entered an order denying Hackenberg’s petition to allow appeal from the award of board of arbitrators nunc pro tunc,” Stabile added.

The Hackenbergs filed a notice of appeal on May 26, 2015. On appeal, the Hackenbergs’ sole argument is that the trial court abused its discretion when it denied the petition to allow appeal from the award of board of arbitrators nunc pro tunc

“Pursuant to Pennsylvania Rule of Civil Procedure 1308, a notice of appeal from an arbitration award must be filed ‘with the prothonotary of the court in which the action is pending not later than thirty days after the day on which the prothonotary makes the notation on the docket that notice of entry of the arbitration award has been provided,” Stabile stated.

“When a party does not file a timely notice of appeal, in ‘extraordinary circumstances involving fraud or some breakdown in the court’s operation through a default of its officers,’ a trial court may grant nunc pro tunc relief,” Stabile commented.

Citing Supreme Court of Pennsylvania precedent in Criss v. Wise, Stabile explained how the Supreme Court expanded the limited exceptions for allowing an appeal nunc pro tunc – which is allowed in circumstances of: “(1) Non-negligent circumstances, either as they relate to the appellant or appellant’s counsel; (2) If the appellant filed the notice of appeal shortly after the expiration date; and (3) If the appellee was not prejudiced by the delay.”

“In the matter sub judice, counsel for plaintiffs attempted to anticipate a delay in the mail by sending the notice of appeal via UPS Next Day Air on Thursday, Dec. 18, 2014; however, counsel did not follow up to determine whether the shipment was delivered timely. In the age of online tracking of shipments, determining whether a package is timely delivered is neither burdensome nor time consuming,” Stabile said.

Stabile explained counsel were aware the filing deadline was Monday, Dec. 22, 2014, and “assumed the risk by sending a time-sensitive notice of appeal using UPS Next Day Air”, and additionally, could have called the prothonotary’s office on Dec. 22 to verify if the appeal notice had been received or not.

“Additionally, like Criss, this delay in mailing occurred during the holiday season and counsel should have recognized that delays are likely to occur. As the trial court noted, the only factual difference between the instant matter and Criss, is that counsel for Hackenberg used UPS Next Day Air rather than the United States Postal Service,” Stabile pointed out.

“As counsel did not act with due diligence, and this Court is constrained by the holding and rationale of Criss, we find that the trial court did not abuse its discretion when it found that Hackenberg failed to prove that the late filing was as a result of non-negligent circumstances,” Stabile said.

Stabile added, “In conclusion, we find that the trial court did not abuse its discretion when it denied the Hackenbergs’ petition or leave to file appeal nunc pro tunc. Accordingly, we affirm the April 29, 2015 order denying said petition.”

Superior Court of Pennsylvania case 887 MDA 2015

Snyder County Court of Common Pleas case CV-0263-2013

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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