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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 404 U.S. 1038

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0226%3A1. Public record. Not legal advice.