MacKanick v. Rubin
MacKanick v. Rubin
Opinion of the Court
This is an appeal from an order granting plaintiffs-appellees’ petition for allowance to file an appeal nunc pro tunc from a Report and Award of Arbitrators.
On May 5, 1975 appellee instituted a suit in trespass against appellant Rose Rubin, alleging that appellant negligently caused injury to the minor plaintiff when appellant’s vehicle and minor Michael MacKanick’s bicycle collided at Verree Road and Greymont Street, Philadelphia. An arbitration hearing was held on October 28, 1975
On January 12, 1975, counsel for plaintiffs filed a petition for allowance to file an appeal from the report and award of arbitrators nunc pro tunc, averring that the appeal was not timely entered because of a busy schedule and because the papers were given to a secretary for processing. The petition further alleged that the secretary became ill on November 19, 1975, that she was out of counsel’s office from November 19th to November 21st, that the Thanksgiving holidays intervened and that the oversight was not discovered until the secretary’s return.
The court below, cited the reasoning of our decision in Poluka v. Cole, 222 Pa.Super. 500, 295 A.2d 132, allocatur refused, 222 Pa.Super. xxxii (1972), granted plaintiffs leave to appeal nunc pro tunc, holding that mere inadvertence of counsel should not operate to turn plaintiffs out of court. Appellant’s claim is that this action exceeded the lower court’s powers. We agree. Poluka v. Cole, supra, which reversed a lower court’s discretion in entering a judgment of non pros for want of due diligence in prosecuting an action within a reasonable time, is inapposite to the instant circumstance involving a statutory limitation on time for appeal.
The principles of law which are applicable to this case and which limit the discretion of the court below in a case such as this are well-settled. Generally, where a statute fixes the time within which an appeal may be taken, the time may not be extended as a matter of indulgence or grace, West Penn Power Co. v. Goddard, 460 Pa. 551, 333 A.2d 909 (1975); Commonwealth v. Horner, 449 Pa. 322, 296 A.2d 760 (1972); Dixon Estate, 443 Pa. 303, 279 A.2d 39 (1971); Commonwealth v. Bey, 437 Pa. 134, 262 A.2d 144 (1970), and courts have no power to extend a statutory appeal time or to allow an appeal nunc pro tunc in the absence of fraud or its equiv
“ '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 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. . . . 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 the power to extend the time for appeal. . . . But where no fraud or anything equivalent thereto is shown such appeals cannot be allowed. . . . The mistake or neglect of the attorney for the party desiring to appeal is not sufficient ground for relief: Ward v. Letzkus, 152 Pa. 318, 319, 25 A. 778.’ ” (Emphasis added).
Id. at 275, 182 A.2d at 226, quoting Wise v. Cambridge Springs Borough, 262 Pa. 139, 104 A. 863 (1918).
In spite of the clear import of the preceding, we must reluctantly recognize that we are without power to reverse the action of the court below at this procedural juncture and that this appeal must be quashed, because the order appealed from is interlocutory.
The instant order, which allows appellees leave to file their appeal nunc pro tunc, “. . . does not put thé plaintiff out of court or constitute a conclusive adjudication of the proceeding, and the statute does not authorize an appeal from an interlocutory order. . . .” Steth v. Henderson, supra at 269, 188 A.2d at 824. See Caples v. Klugman, 202 Pa.Super. 517, 198 A.2d 342 (1964); Budde v. Sandler, 204 Pa.Super. 36, 201 A.2d 247 (1964); Damon & Foster v. Berger, 191 Pa.Super. 165, 155 A.2d 388 (1959).
Appeal quashed.
. The arbitration hearing was held pursuant to Philadelphia County Arbitration Rule VI and the provisions of the Act of June 16, 1836, P.L. 715, as amended, 5 P.S. §§ 21 et seq. (Supp.1976-77), added January 14, 1952, P.L. 2087, § 1, as amended, 5 P.S. § 30 (Supp.1976-77).
. The Act of June 16, 1836, P.L. 715, § 27, as amended, 5 P.S. § 71 (1963) provides, inter alia:
“§ 71. Parties may appeal
“Either party may appeal from an award of arbitrators, to the court in which the cause was pending at the time the rule or agreement of reference was entered, under the following rules, regulations and restrictions, viz.:
“IV. Such appeal shall be entered, and the costs paid, and recognizance filed, within twenty days after the day of the entry of the award of the arbitrators on the docket.”
. We are mindful of the fact that defendant-appellant may be required to undergo an unnecessary trial as a result hereof, after which, with a final order in hand, she will be able to properly appeal to this Court to seek relief from the unauthorized order entered here. Although we might, in the interest of judicial economy, view the order appealed from as an order granting a new trial, see Damon & Foster v. Berger, 191 Pa.Super. 165, 169, 155 A.2d 388, 391 (1959), or as an appeal from an order opening a judgment, thereby labeling the order in this case as an appealable order, to do so would be to circumvent the fact that the statute does not provide for such an appeal.
Dissenting Opinion
dissenting:
On December 9, 1975, appellant entered final judgment on the award, of the arbitrators. The lower court’s action in granting this appeal nunc pro tunc by its order dated January 8, 1976,
The appellees’ action in petitioning for allowance of an appeal nunc pro tunc was in reality mounting an attack on the judgment and while their ingenuity in approach
The clear result of the appellees’ action and the lower court’s order is to open a final judgment. As such it is appealable.
And, if appealable, the majority has very ably demonstrated that the action was improper and in error.
I would reverse the order of the lower court and affirm the judgment, presently of record, in favor of appellant.
. Interestingly, the Order bears this date, although the appellees’ petition was not docketed until January 12, 1976.
Reference
- Full Case Name
- Michael MacKANICK, a Minor, by His Parent and Natural Guardian, Natalie MacKanick and Natalie MacKanick, in Her Own Right, v. Rose RUBIN, Appellant
- Cited By
- 37 cases
- Status
- Published