Petition for Writ of Certiorari — Franklin Township v. Borough of Delmont

LIBRARY |

SUPREME COURT, u rat

IN THE =

E. ROBERT SEAVER, CLERK

Term, 1971 ~

No <e 08% 4

OWNERS-GR PAP TIES HCEVTEREST:

FRANKLIN TOWNSHIP, Petitioner

v.

BOROUGH OF DELMONT, Respondent

PETITION aE oF CERTIORARI

COURT OF

PENNSYLVANIA

JOHN G. GENT

JAMES D. McDONALD

ROBERT G. HUHTA

1415 G. Daniel Baldwin Building

Erie, Pennsylvania, 16501

Attorneys for Petitioner

Of Counsel:

QUINN, GENT, BUSECK & LEEMHUIS

October, 1971

TWE LEGAL INTE) LIGENCER, 66 NORTH JUNIPER STREET, PHILA, PA. 19167

~

Page

Opis... ee 1

Juriag ss. ..................... 2

Question Presented for Review ................... 2

Constitutional Provisions and Statutes Involved ..... 2

Statement of the Case ........................... 2

Reasons for Granting the Writ .................... 4

OE Ee 8

Appendi —Opinion and Order of the Court of

Ss... ........ Ca

or Leave to File Appeal Nunc

wealth Court of Pa.) ........ 11

A. Hudson .......... 13

mn of Commonwealth Court of Pa. 14

Appendix E—Petition for Allowance of Appeal or

Certiorari from Judgment Order of the Common-

WOME... 19

Appendix F—Order of Supreme Court of Pa......... 23

TABLE OF CITATIONS

Cases:

Baxstrom v. Herold, 383 U.S. 107, 86 S. Ct. 760 ...... 8

Edelman v. People of State of California, 344 U.S. 357,

73 S. Ct. 293, 97 L. Ed. 387 ................... 5

Hill v. Hawes, 320 U.S. 520, 64 S. Ct. 334, 88 L. Ed. 283,

rehearing denied 321 U.S. 801,64S.Ct.515..... 5

mer v. Union Free School District, 395 U.S. 621,

Mss www www eee 8

TABLE OF CITATIONS~Continued)

Cases: Page

Nixon v. Nixon, 329 U.S. 256 (1938) ................ 8

Rinaldi v. Yeager, 384 U.S. 305, 86 S. Ct. 1497 ........ 8

Scofield v. N.L.R.B., 394 U.S. 423, 89 S. Ct. 1154, 22

RUMI cs. ee 7

Williams v. Oklahoma City, 395 U.S. 458, 89 S. Ct.

1818 ...... Rk, sa... 5... 8

IN THE

Supreme Court of the United States

Term, 1971

No.

OWNERS OR PARTIES IN INTEREST:

FRANKLIN TOWNSHIP, Petitioner

Petitioner prays that a Writ of Certiorari issue to re-

view a judgment of the Supreme Court of Pennsylvania

which quashed Petiticner’s Appeal from a final order of

the Commonwealth Court of Pennsylvania.

GPINIONS BELOW

2

JURISDICTION

The judgment of the Supreme Court of Pennsylvania

was entered on Juiy 30, 1971. The jurisdiction of ‘his Court

is invoked under 28 U.S.C. 1257(3).

QUESTION PRESENTED FOR REVIEW

(1) Was Petitioner deprived of property without due

process of law in violation of the Fourteenth Amendment

to the United States Constitution where the Pennsylvania

Supreme Court quashed its Appeal for late filing of an

Appeal to the Commonwealth Court of Pennsylvania where

the then counsel for Petitioner received no notice of the

entry of the jucgment from which the Appeal lay nor re-

ceived any copy of the Order and Opinion from which the

Appeal should be taken.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Constitutional provisions involved are contained

in the Fourteenth Amendment to the United States Con-

stitution. The Pennsylvania statutory provision involved

in the Appeal to the Commonwealth Court of Pennsylvania

is the Appellate Court Jurisdictional Act, Act of July 31,

1970, 17 P.S. 211.101-211.510.

STATEMENT OF THE CASE

This was an annexation case initiated by the Borough

of Delmont to annex land in Franktin Township, West-

moreland County, Pennsylvania. On September 25, 1966,

the enabling Ordinance was filed with the Court of Com-

mon Pleas of Westmoreland County. Within the statutory

3

period of 30 days, an appropriate Complaint-Appeal was

filed by the Township of Franklin. On November 2, 1970,

the Court of Common Pleas of Westmoreland County pre-

pared a written Opinion and Order quashing the Appeal

of Franklin Township (Appendix A) The Opinion and

Order was improperly filed by the Secretary to the presiding

Judge of the Court, with the Frothonotary of the Court of

Common Pleas (Civil Division) rather than with the Clerk

of Courts (Criminal Division). On November 4, 1970; the

Prothonotary delivered the Opinion and Order dated No-

vember 2, 1970 to the Clerk (Criminal Division). No notice

of the entry of the Opinion and Order was sent to counsel

for the Township of Franklin by any Court official, nor

did counsel receive any notice of any kind of the entry of

the Opinion and Order, nor was any copy of the Opinion

and Order of November 2, 1969 mailed or delivered to coun-

sel for Franklin Township.

The first notice of any kind that counsel for Franklin

Township received of the Opinion and Order of November 2,

1970, was on December 16, 1970 when the Opinion and Order

was referred to in a Brief filed by a party in another sep-

arate annexation proceeding.

Counsel for Franklin Township then filed a Petition

For Leave To File Appeal Nunc Pro Tunc, with the Com-

monwealth Court of Pennsylvania on December 22, 1970.

Under Section 402 Appellate Court Jurisdiction Act of

July 31, 1970, 17 P.S. 211.101-211.510, jurisdiction is con-

ferred on the Commonwealth Court to hear Appeals from

Orders of the Courts of Common Pleas. An Appeal should be

filed within 30 days from the date of the entry of the Order

of the Court below. On April 15, 1971, the Commonwealth

Court e:tered its Order dismissing the Petition for leave to

file the Appeal Nunc Pro Tunc and quashed the Appeal

(Appendix 3B).

Appellant and present Petitioner, Franklin Township,

filed its Petition For Allowance of Appeal Or Certiorari

From Judgment Order Of The Commonwealth Court with

the Supreme Court of Pennsylvania on May 10, 1971 (Ap-

4

pendix E.). On July 30, 1971, the Suoreme Court of Penn-

sylvania entered an Order “Petition Denied Per Curiam.”

(Appendix F ).

Neither the Commonwealth Court nor the Supreme

Court of Pennsylvania considered the merits of the case.

Nor did the Court of Common Pleas of Westmoreland

County consider the merits of the annexation. Nor did that

Court take any testimony with respect thereto.

REASONS FOR GRANTING THE WRIT

It is a violation of due process to quash an Appeal as

being untimely filed when counsel for Appellant does not

receive notice of the filing of the Order or a copy of the

Opinion and Order until after the Appeal time has run.

The decision of the Commonwealth of Pennsylvania

created a due process issue in this case. The Commonwealth

Court assumed as a fact that neither counse! for Appellant,

Franklin Township (Petitioner), nor Franklin Township

itself received notice of the entry of the Order and Opinion

of the Court of Common Pleas of Westmoreland County

(Criminal Division), dated November 2, 1970, until De-

cember 21, 1970. The time for the filing of the Appeal to

the Commonwealth Court expired thirty days from the

date of entry of the Order and Opinion, which was filed

with the Clerk of the Crimina! Division of the Court of

Common Pleas of Westmoreland County on November 4,

1970.

Counsel for Petitioner alleged, and it was not denied,

that neither counsel for Franklin Township nor Franklin

Township itself received any notice from the Clerk of the

Criminal Division of the Court of Common Pleas of West-

moreland County that the Order and Opinion of Novem-

ber 2, 1970, had been entered (Paragraph 3, Appendix

B).

The Commonwealth Court concluded, and the Supreme

Court of Pennsylvania concurred, that it is not necessary

5

to give to counsel, or to a party itself, notice of the entry of

an order from which an appeal may be taken, nor to send

a copv of the order to a party or its counsel.

It is Petitioner's position that this constitutes a denial

of due process.

In Hill v. Hawes, 320 U.S. 520, 64 S. Ct. 334, 88 L. Ed.

283; Rehearing Denied, 321 U.S. 801, 64 S. Ct. 515, the

plaintiff had failed to file his appeal to the Court of Appeals

for the Dis: .ct of Colurabia within twenty days allowed by

Court Rule. The Clerk of the Court had not sent to counsel

a notice of the entry of judgment or dismissal. The Court

of Appeals had held that the appeal was not timely because

it was not filed within the time set forth in the Rule. In

reversing judgment of the Court of Appeais, this Court had

the following to say on page 336 of its Opinion:

“It is tue that Rule 77(d) does not purport to

attach any consecuence to the failure of the clerk to

give the prescribed notice; but we can think of no

reason for requiring the notice if .ounsel in the cause

are noi entitled to rely upon the requirement that it be

given. It may well be that the effect to be given to the

rule is that, although the judgment is final for other

purposes, it does not become final for the purpose of

starting the running of the period for appeal until

notice is sent in accordance with the rule. The Federal

Rules of Civil Procedure permit the amendment or

vacation of a judgment for clerical mistakes or errors

arising from oversight or omission and authorize the

court to relieve a party from a judgment or order taken

against him through his mistake, inadvertence, sur-

prise or excusable neglect. See Rule 60(aXb). These

rules do not in terms apply to the situation here pres-

ent, as the court below held. But we think it was

competent for the trial judge, in the view that the

petitioner relied upon the provisions of Rule 77(d)

with respect to notice, and in the exercise of a scund

discretion, to vacate the former judgment and to enter

6

a new judgment of which notice was sent in compliance

with the rules. The term had not expired and the judg-

ment was still within control of the trial judge for such

action as was in the interest of justice to a party to

the cause.”

Edelman v. People of State of California, 344 US.

357, 73 S. Ct. 293, 97 L. Ed. 387, involves a situation where

counsel for the defendant never received notice of the time

an appeal would be heard in the Appellate Court of the

state in which the appeal was taken. Counsel failed to

present himself to the Court at the time set for argument

of which he had no notice. The Appellate Court entered

a default judgment which was affirmed by this Court on

the ground that the petitioner had adequate state remedies

which he could pursue in another proceeding. In a Dissent

by Mr. Justice Biack and Mr. Justice Douglas, it was held

that under the circumstances a refusal to allow the peti-

tioner to be heard in the Appellate Court deprived peti-

tioner of due process of law as guaranteed by the Four-

teenth Amendment. Mr. Justice Black made the following

comments on page 297 of the Dissent:

“The rules of the California appellate court specifically

require that an appellant or his attorney of record

shall be mailed notice of the date on which his appeal

will be heard. California admits that no such notice

was given petitioner or his counsel of recurd on appeal

and that neither knew the case was set for hearing.

As a result neither was present when the case was called

in the appellate court. Consequently that court af-

firmed the jail sentence by default without argument

or consideration of the merits of the conviction or the

constitutionality of the vagrancy statute. Immedi-

ately after discovery of this default affirmance peti-

tioner moved to vacate the action. With full knowl-

edge of all the foregoing facts, the appellate court de-

nied the motion. Petitioner has thus had his constitu-

tional contentions rejected and his conviction affirmed

7

without notice and an opportunity to be heard through

himself or counsel. In California, the right of appeal

‘is guaranteed by the Constitution to the prisoner and

is as sacred as the right of trial by jury. It is one of the

means the law has provided to determine the question

of his guilt or innocence.’ Ex parte Hoge, 48 Cal. 3,

6; In re Alboria, 95 Cal. App. 42, 50-51, 272 P. 321.

Under these circumstances I agree with petitioner that

refusal to give him or his counsel an opportunity to be

heard in the appellate court denied him the due process

of law guaranteed by the Fourteenth Amendment.”

In Scofield v. N.L.R.B., 394 U.S. 423, 89 S. Ct. 1154,

22 L. Ed. 2nd 385, an Opinion, dated March 5, 1968, was

entered, but no decree was entered until April 16, 1968.

Within ninety days of the decree, the Petition for Certi-

orari was docketed. Petitioners received a copy of the

March 5, 1968, Opinion but were given no notice of any

entry of judgment on that date. This Court held that the

Petition for Certiorari was timely.

“In our view, the petition for certiorari was

timely filed. Petitioners have received a copy of the

March 5 opinion, but were given no notice of any

entry of judgment on that date, as would be required

by Rule 36 of the new Federal Rules of Appellate

Procedure, effective July 1, 1968. Since no notice was

given and it could not have been clear to petitioners

whether there was a March 5 judgment or not we hold,

without abandoning the standard that a ‘judgment

for our purposes if final when the issues are adjudged’

and settled with finality, Market Street R. Co. v.

Railroad Commission, 324 U.S. 548, 551-552, 65 S. Ct.

770, 773, 89 L. Ed. 1171 (1945), FTC v. Minneapolis-

Honeywell Regulator Co., 344 U.S. 206, 212, 73 S. Ct.

245, 249, L. Ed. 245 (1952), that in this case the rele-

vant date is that of the entry of the decree. Cf. Rubber

Co. v. Goodyear, 6 Wall. 153, 156, 18 L. Ed. 762

(1868).”

8

While a state is not required to provide appellate re-

view once an appeal procedure is established “it must be

kept free of unreasoned distinctions that only impede open

and equal access to the Courts.” Rinaldi v. Yeager, 384 U.S.

305, 310-311, 86 S. Ct. 1497, 1500. See also: Williams v.

Oklahoma City, 395 U.S. 458, 89 S. Ct. 1818:

This Court has held that:

“In determining whether or not a state law vio-

lates the Equal Protection Clause, we must consider

the facts and circumstances behind the law, the in-

terests which the State claims to be protecting, and the

interests of those who are disadvantaged by the classi-

fication.” Williams v. Rhodes, 393 U.S. 23, 30, 89 S. Ct.

5, 10.

This was the same holding in Kramer v. Union Free School

District, 395 U.S. 621, 89 S. Ct. 1886; Baxstrom v. Herold,

383 U.S. 107, 86 S. Ct. 760.

This Petitioner believes that the Commonwealth Court

of Pennsylvania and the Supreme Court of Pennsylvania

have made an “unreasoned distinction” between the appel-

lant in Nixon v. Nixon, 329 U.S. 256 (1938), and Peti-

tioner and that the distinction should not prevail when

measured against the test of Williams. There is no logical

reason to conclude that in federal court proceedings notice

is essential and in state court proceedings notice is not

required.

CONCLUSION

For the foregoing reasons, Petitioner prays that this

Petition for a Writ of Certiorari be granted.

Respectfully submitted,

QUINN, GENT, BUSECK

AND LEEMHUIS

JOHN G. GENT

JAMES D. McDONALD, Jr.

ROBERT G. HUHTA

Attorneys for Petitioner

9

Appendix A.

OPINION AND ORDER OF THE

COURT OF COMMON PLEAS

BY THE COURT EN BANC:

(Opinion by David H. Weiss. P.J.)

In the within Annexation proceeding, the Township of

Franklin filed an Appeal from the Ordinance of Annexa-

tion adopted by the Borough of Delmont. The Borough of

Delmont. Roland S. Catarinella, Dorothy A. Catarinella,

and Catranel Inc. have petitioned the Court for a Rule to

Show Cause why the Appeal should not be quashed due to

the failure of the Township of Franklin to comply with the

security requirements of the applicable appeal statute.

The Borough Code requires, in Section 1010, that as

to an appellant from an Ordinance the ~. . . entering

into recognizance with sufficient secuiity to prosecute the

same with effect and for the payment of costs . . . within

30 days after the enactment of any Ordinance . . .” Act of

February 1. 1966, P.L. (1965) No. 581, §1010, as amended.

33 P.S. §46010. Accompanying the Appeal-Complaint filed

by the Township of Franklin in this case was a recognizance

executed by the Township without any surety or other se-

curity. It is the position of the petitioners that the lack of

a surety constitutes a fatal defect in the appeal of the Town-

ship of Franklin. Principally cited in support of this conten-

tion is Irwin Borough Annexation Case, 171 Pa. Super.

256 (1952). In that case. the annexing Borough challenged

whether or not appropriate bond had been filed by the

Township appellant. The Superior Court was there re-

quired to interpret the Borough Code provision then in

existence, which is the same, in pertinent part. as that pro-

vided in the current Borough Code. The Superior Court

there stated that “sufficiently security” meant a corporate

surety. We are aware that for a period of time prior to the

effective date of the current Borough Code, the bonding

requirement in question had been repealed by the legisla-

10

ture. See Hazle Township Annexation Case. 183 Pa. Super.

212 (1957). Since the Pennsvlvania legislature has _ re-

enacted this bonding requirement. and since the Irwin

Borough Annexation Case has interpreted the same to re-

quire the filing of a corporate surety by a municipality to

effect an Appeal from an annexation ordinance, the failure

of the Township of Franklin to file the required bond with-

in the period required by law requires this Court to quash

its Appeal.

ORDER

AND NOW, to wit: this 2nd day of November, 1970,

after due and careful consideration of the Petition, the An-

swer. the Rule issued upon the Township of Franklin to

Show Cause why its Appeal should not be quashed, and the

briefs and arguments of counsel therein, it is now OR-

DERED, ADJUDGED, AND DECREED that the Rule

issued upon the Township of Franklin to Show Cause why

its Appeal should not be quashed shall be and hereby is made

absolute and the Petition of Borough of Delmont, Roland S.

Catarinella. Dorothy A. Catarinella. and Catranel. Inc.

shall be and hereby is sustained.

BY THE COURT:

Is! DAVID H. WEISS

President Judge

CONCURRING:

Is) L. ALEXANDER SCULCO

Judge

/s)/ EARL S. KEIM

Judge

ATTEST:

/s) R.G. BLASIOLI

Clerk of Court

1]

Appendix B.

PETITION FOR LEAVE TO FILE

APPEAL NUNC PRO TUNC

(Commonwealth Court of Pa.)

COMES NOW, the Appellant, Township of Franklin, by

and through its solicitor, Henry A. Hudson, Jr., and in sup-

port of its petition for leave to file appeal nunc pro tunc,

asserts:

1. On December 16, 1970 at approximately 4:00 P.M..,

after the Court House had closed, counsel for Appellant was

advised by receipt of a brief in a companion case to the

within matter, that the Court of Common Pleas of West-

moreland County, Criminal Division (Civil Docket) had

entered an Opinion and Order in this matter.

2. On December 17, 1970, personal reference to the

docket in this case showed that said Order was signed No-

vember 2, 1970 and filed November 4, 1970.

3. The Clerk of Court's office of the Criminal Division

of the Court of Common Pleas has advised that it advised

counsel for the Borough of Delmont that the Order had been

entered after first advising that such had not been done.

It did not notify either Appellant or its counsel of the entry

of the Order.

4. On December 21, 1970, within forty-five (45) days

of the entry of the Order of Court, an attempt was made

to file appeal with the Prothonotary of the Superior Court

but said appeal was refused because the same concerned

annexation.

5. The usual practice of the Court of Common Pleas

of Westmoreland County is to notify counsel of rendition

of a decision either by formal notice or by forwarding a

copy of the Order and Opinion to counsel.

6. Concurrently pending in the several courts of

Westmoreland County are nine (9) matters involving

12

annexation of approximately 3,000 acres of ground within

the Township of Franklin by two separate boroughs, be-

ginning in September 1969 and continuing through April

22. 1970. Such area comprises approximately one-third of

the Township. Also pending is the application of approx-

imately 75% of the voters and landowners of the Township

of Franklin (filed on October 6, 1969 before the effective

date of any of the attempted annexations) for a petition

to transform the Township into a borough in which the

Township Board of Supervisors has concurred and is pro-

moting.

7. Appellees cannot be prejudiced by grant of leave to

file an appeal nunc pro tunc and the best interests of all the

residents of the Township of Franklin would best be served

bv consideration of the merits of the proposed appeal.

WHEREFORE, the Township of Franklin requests

the Court grant leave to the Township of Franklin to file

its appeal nunc pro tunc or alternatively, consider it as

having been timely filed within thirty (30) days of notice

to the parties in interest of the entry of the Opinion and

Order. |

COSTELLO & SNYDER

By /s/ Henry A. Hudson, Jr.

Attorneys for Township of Franklin

13

Appendix C.

AFFIDAVIT OF HENRY A. HUDSON

COMMONWEALTH OF PENNSYLVANIA _)

) SS:

COUNTY OF WESTMORELAND )

BEFORE ME, the undersigned authority in and for

said Commonwealth and County, personally appeared

HENRY A. HUDSON, JR., Solicitor for the Township of

Franklin, who, being duly sworn according to law, deposes

and says that the facts set forth in the within document

are true and correct to the best of his knowledge, inform a-

tion and belief, where the same is based upon his personal

knowledge and based upon information received from

sou: ces deemed reliable where the same is not of his personal

knowledge.

/s/} Henry A. Hudson, Jr.

SWORN TO and subscribed

before me this 22nd day of

December, 1970.

/s/ Dorothy M. Ficco

Notary Public

My Commission Expires: Feb. 23, 1974

14

Appendix D.

OPINION QF COMMONWEALTH

COURT OF PA.

OPINION BY JUDGE MENCER

Filed: April 15, 1971

In September, 1969, annexation proceedings were

commenced to annex approximately 80 acres of land situate

in the Township of Franklin into the Borough of Delmont.

both political subdivisions being in Westmoreland County.

The Township of Franklin filed an appeal complaint as to

the legality of the annexation ordinance under Section

1010 of the Act of February 1, 1966, PL. (1965) __, No.

581. as amended by the Act of October 9, 1967, P.L. __. No.

181, 53 P.S. §46010. The Borough of Delmont, et al.,

petitioned the Court of Common Pleas of Westmoreland

County for a rule to show cause why the appea! should not

be quashed for the reason that the Township of Franklin

had failed to enter into a recognizance with sufficient se-

curity, as required by said Section 1010 of the Act. On No-

vember 2, 1970, the lower court, by order, made the rule

to show cause absolute and “quashed” the appeal complaint.

This order, dated November 2, 1970, was entered and

docketed in the Prothonotary’s office on November 4, 1970.

Fifty days thereafter, on December 24, 1970, the Town-

ship of Franklin filed this appeal, together with a petition

for leave to file an appeal nunc pro tunc. The Borough of

Delmont filed a reply to the petition and a motion to quash

the appeal as untimely filed.

Section 502(a) of the Appellate Court Jurisdiction

Act of July 31, 1970, P.L. —, P.S. §§211.101-211.510,

provides: ~. .. [A]n appeal under this act from any

order shall be filed within thirty days of its entry.” Section

510 of this Act provided for the determination of the ef-

fective date of the Appellate Court Jurisdiction Act of

15

1970 and. in accordance with its provisions. September 11.

1970 became the effective date. Therefore. this instant

appeal is subject to the thirty day appeal period of Section

902(a).

The decisional law mandates strict compliance with

statutory provisions for appeal. Kravitz v. Zoning Board of

Adjustment, 415 Pa. 97, 202 A.2d 64 (1964): Blank v.

Board of Adjustment, 390 Pa. 636, 136 A.2d 695 (1957).

The Supreme Court of Pennsylvania indicated in the re-

cent case of Commonwealth v. Philadelphia Eagles. Inc.,

437 Pa. 25, 261 A.2d 309 (1970). that it continues to in-

sist upon such strict compliance. This conclusion is no less

correct because the Eagles case dealt with the perfecting

of an appeal as distinguished from the effecting of an appeal

in the first instance.

The timeliness of an appeal and compliance with the

statutory provisions which grant the right of appeal go to

the jurisdiction of a court and its competency to act. See

Commonwealta v. Yorktowne Paper Mills, Inc., 419 Pa.

363, 214 A.2d 203 (1965). It is the general rule that, where

an act of assembly fixes the time within which an appeal

may be 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. Tuttle Unemployment Compensation

Case, 160 Pa. Superior Ct. 46, 49 A.2d 847 (1946); Yeager

v. United Natural Gas Company, 197 Pa. Superior Ct. 25,

176 A.2d 455 (1961); Morgan v. Pittsburgh Business

Properties, Inc., 198 Pa. Superior Ct. 254, 181 A.2d 881

(1962). Two notable exceptions to this general rule are

where there is presence of fraud or a breakdown in the

court's operation to the prejudice of a party (Nixon v.

Nixon, 329 Pa. 256, 198 A. 154 (1938): See Christiansen v.

Zoning Board of Adjustment, 1 Pa. Commonwealth Ct. 32

(197]), or where the failure of a defendant in a criminal

case to take a timely appeal is the result of an unconsti-

16

tutional deprivation of the assistance of counsel (Com mon-

wealth ex rel. Light v. Cavell, 422 Pa. 215, 220 A.2d 883

(1965 )).

in Nixon v. Nixon, supra, it was recognized that cer-

tain extraordinary circumstances might satisfactorily ex-

plain a delay in filing an appeal and failure to allow an

appeal nunc pro tunc would work a grave injustice. How-

ever. the court emphasized that any such allowance must be

based on extraordinary conditions and must involve fraud or

some breakdown in the court's operation through a default

of its officers. whereby the party has been injured. In that

case, the plaintiff instituted divorce proceedings and the

defendant was served by publication. The defendant did

not appear and a decree in divorce was granted. A short

time later. after plaintiff had remarried. the defendant

petitioned to have the decree vacated on a juiisdictional

question. The lower court vacated the decree and on appeal

the Superior Court affirmed. The plaintiff. on appeal to

the Supreme Court, shortly after the forty-five day limit

then applicable for such appeals. averred that, although

the custom of the Superior Court was for the Prothonotary

of that Court to send notice to counsel of the entry of an

order, such notice in his case was not sent. It is important

to note that the Supreme Court made special reference to

the fact that this averment of the plaintiff was not specif-

ically denied by the defendant. Plaintiff further stated that

he remained unaware of the decision and order of the

Superior Court until the decision appeared in the Advance

Reports.

The Supreme Court reviewed. at page 261. the custom

of the Superior Court as follows: “Despite the fact there is

no statute or written rule of court requiring the prothono-

tary of the Superior Court to issue notices when orders have

been entered, we understand that he has customarily as-

sumed such aduty. This practice, grown toa custom, to notify

counsel of the decisions of the Supreme and Superior Courts

likewise obtains in the Eastern and Western districts. Nei-

17

ther appellant nor his counsel knew, nor had any reason to

believe. there had been a mistake in the prothonotary’s of-

fice. Under the circumstances they were entitled to expect

this notice. The Harrisburg District is composed of twelve

counties, and the opinions on cases arising there are handed

down at various places at which the court sits, usually cities

other than Harrisburg. Counsel lives in Adams County, and

it would impose too great a burden to require him to daily

inform himself by telephone.”

Because of this admitted error, not present here. the

Supreme Court, in Nixon, allowed the appeal nunc pro

tunc. However, the Court made very clear that the only

reason for doing so was because the appellant contended and

averred. and such averment was not denied, that an error

had been committed in the prothonotary’s office. The Court

carefully pointed out that che controlling factor is whether

the notice was sent as distinguished from the irrelevant fact

of whether or not the appellant received the notice. The

Court said in this regard, at page 262: “But, it must be

understood that, if it appears of record that the prothon-

otary'’s office sent a postal notice, this will satisfy all re-

quirements of the custom and cannot be disputed.” In W. W.

Gre'nger, Inc., v. Ruth, 192 Pa. Superior Ct. 446, 449.

161 A.2d 644. 646 (1960), the Superior Court said: “In

the instant case, even if it had been properly proved. lack

of knowledge or notice of the entry of the judgment by the

alderman is not a sufficient reason [to permit an appeal

nunc pro tunc]. Adelman v. McShain, 148 Pa. Superior

Ct. 138, 24 A.2d 703 (1942).”

Here the Township of Franklin has not attempted to

show any fraud. It has also failed to show a breakdown in

the court's operations. In fact. the only thing that it does

allege is that it did not receive a copy of the opinion and

order filed November 4, 1970, and that hardship would

result if the appeal is not allowed. Hardship alone is not a

justification for the allowing of an appeal nunc pro tunc.

Tuttle Unemployment Compensation Case, supra. Like-

18

wise. failure to receive notice by itself is not sufficient rea-

son for allowing a nunc pro tunc appeal. Nivon v. Nixon,

supra.

The burden is upon the Township of Franklin to show

fraud or a breakdown in the court's operations and it has

not met its burden in this case. Actually. the Borough of

Delmont has offered convincing proof that. in fact. no

breakdown occurred in the customary manner of providing

such notices in Westmoreland County. The affidavit of the

secretary of Judge Weiss indicates that she, in compliance

with custom in Westmoreland Court. sent notice in this

case to all counsel of record. This satisfies the criteria set

forth in Nixon v. Nixon, supra, which we factually distin-

guish from the instant case.

Accordingly. the petition of the Township of Franklin

for leave to file this appeal nunc pro tunc is dismissed and

the motion to quash this appeal is granted.

The appeai is quashed.

Is) GLENN E. MENCER

J.

CERTIFIED FROM THE RECORD

/s/ FRANCIS C. BARBUSH

Chief Clerk

19

Appendix E.

PETITION FOR ALLOWANCE OF APPEAL

OR CERTIORARI FROM JUDGMENT ORDER

OF THE COMMONWEALTH COURT

(Supreme Court of Pa.)

To the Honorable, the Judges of Said Court:

COMES NOW, the Township of Franklin, Appellant

in the above matter by and through its Solicitor, Henry

A. Hudson, Jr. of Costello & Snyder, Attorneys at Law, and

in support of its Petition for Allowance. sets forth the

following:

1. The question involved in the above matter is: May

the Court grant leave to file an appeal nunc pro tunc -

or find the same to have been timely filed when such

appeal was filed within ten (10) days of Notice of

Entry of a final order although not within thirty (30)

days of the entry of such order? (Negatived by Com-

monwealth Court )

2. The facts of the above matter are:

On September 25, 1969 the Borough of Delmont passed

an annexation ordinance purporting to take slightly more

than seventy-eight (78) acres of land from the Township

of Franklin.

On October 7. 1969 an appeal was regularly filed in

the Court of Common Pleas, Criminal Division. Civil Docket

and a supersedeas granted. On October 21, 1969 alleging

that the supersedeas was granted for delay only, the Bor-

ough requested that the supersedeas be stricken and such

was done and an order was entered sustaining otherwise

the previous order including the recognizance. On October

24. 1969 upon the Township’s petition, a hearing was set for

October 30, 1969 at which time the Court would consider

the grant or rejection of supersedeas. At the hearing and

without having filed same previously or having previously

petitioned for intervention, the Court granted, over the

Township's objection, an oral motion to a property owner

20

for intervention. Without any authority to do so the inter-

venor then filed an “Answer to Petition for Supersedeas

and a Motion to Strike.”

Then at the hearing on October 30. 1969. with the

Township prepared to prove each one of the allegations al-

leged. the Court. without the taking of any testimony

sustained the intervenor’s demurrer and refused the super-

sedeas.

From that refusal an appeal to Superior Court was

taken and quashed as a non-appealable order (No. 72 April

T. 1970) 217 Pa. S.720 (1970).

On October 15. 1970 oral argument at Court on Banc

was held over the objection of counsel for the Township on

a rule to show cause issued December 12, 1969 without prior

notice to counsel for Appellant. there not having been filed

a reply to the new matter raised in the response to the.pe-

tition and rule. On November 4. 1970, an order dated No-

vember 2. 1970. was filed in the Prothonotary’s office of

the Court of Common Pleas and transferred on said date

to the Criminal Division where the same was filed. The

Solicitor for the Township of Franklin, sole counsel of

record for the said Township. received notice of the existence

of said order on December 16, 1970. in a brief in a separate

annexation matter filed by the Borough of Delmont.

Commonwealth Court filed an Opinion. Decision and

Order quashing the appeal on April 15, 1971. From that

Opinion. Decision and Order this appeal is taken.

3. It is Appellant's contention that the Common-

wealth Court was in error in quashing Appellant's appeal

and in not allowing Appellant's appeal nunc pro tunc. Ap-

pellant’s non receipt of notice of the filing of the decision

of the lower court within the time allowable for appeal

constituted full and complete grounds for the Common-

wealth Court to allow appeal nunc pro tunc. The authori-

ties supporting Appellant's contentions are:

(A) Acts of Assembly—Act No. 233 Approved July 31,

1970 (17 PS 211.101 to 211.510) Sec. 402(4).

502(a). 507(a). 507(b).

21

(B) Pennsylvania Rules of Civil Procedure Rules 126.

127. 128.

(C) Cases:

Peters Adoption Case, 176 Pa. S. 6 (1964).

Commonwealth v. Schneiderman, 162 Pa. Super.

461 (1948).

Hechman v. Waylman, 83 Pa. Super. 188 (1924).

Ifft v. Hunter, 202 Pa. Super. 487 (1964).

In re Rumsey, 135 Pa. Super. 515 (1939).

McDonnell v. Unemployment Compensation

Board of Review, 173 Pa. Super. 355 (1953).

Nixon v. Nixon, 329 Pa. 256 (1938).

Taylor Motor Rental, Inc. v. Associates Discount

Corp., 196 Pa. Super. 182 (1961).

Tuttle Unemployment Compensation Case, 160

Pa. Super. 46 (1946).

Von Koanel v. Unemployment Compensation

Bd. of Review, 163 Pa. Super. 173 (1948).

Ward v. Letzkus, 152 Pa. 318 (1893).

Wendland v. Altoona & L. V. Elec. Ry. Co., 163

Pa. Super. 457 (1948).

Wise v. Cambridge Springs Borough, 262 Pa.

139 (1919).

W. W. Grange, Inc. ». Ruth, 192 Pa. Super. 446

(1960).

Christiansen v. Zoning Board of Adjust., at 1 Pa.

Commonwealth Court, 32 (1971).

4. Attached hereto and made a part hereof are copies

of the following orders of the lower court, the Superior

Court and the Commonwealth Court:

(A) Common Pleas of Westmoreland County

(1) 9 October 1969

22

(2) 21 October 1969

(3) 24 October 1969

(4) 12 November 1969 (sic-12 December 1969)

(5) 2 November 1970 (Opinion and Order )

(B) Superior Court

June 4. 1970 72 April Term. 1970 217 Pa. Su-

perior Ct. 720 (1970)

(C) Commonrweaith Court

15 April 1971 (Opinion and Order)

WHEREFORE, Township of Franklin requests allow-

ance of the within appeal from or certiorari to the Com-

monwealth Court and that the said Opinion. Decision and

Order be reviewed.

/s} Henry A. Hudson, Jr.

Henry A. Hudson. Jr.. Solicitor

for the Township of Franklin

COSTELLO & SNYDER

Affidavit of Henry A. Hudson

COMES NOW. HENRY A. HUDSON, JR., Solicitor

of the Township of Franklin, and after being duly sworn

according to law. avers that the within Application for

Certiorari is not being made for the purpose of delay but

rather because the Appellant believes it has suffered un-

justice by the Opinion. Decision and Order of the Com-

monwealth Court from which it appeals.

/s} Henry A. Hudson, Jr.

SWORN TO and subscribed before

me this 10th day of May, 1971

Is} Carolyn Ellis

Notary Public

(SEAL)

My Commission Expires: October 2, 1972

23

Appendix F.

ORDER OF SUPREME COURT OF PA.

The Supreme Court of Pennsylvania

Western District

‘Letterhead )

August 10, 197]

Henry A. Hudson. Jr.. Esq.

15 North Main Street

Greenburg, Pa. 15601

Re: Annexation: of Portion of Township of

Franklin by the Borough of Delmont No. 3

Allocatur Docket

Dear Mr. Hudson:

Th’s is to advise you that the Court has entered the

following Order on your petition for allowance of appeal

from the Order of the Commonwealth Court at No. 296 C. D.

1970. in the above-captioned matter:

“July 30, 1971

Petition denied.

Per Curiam”

/s/ PATRICK N. BOLSINGER

PROTHONOTARY