Opinion
Argued February 9, 1972
April 19, 1972.
Appeal — Nunc pro tunc — Fraud — Hardship — Special circumstances — Extensions of time.
1. An appeal nunc pro tunc may not be allowed without a showing of fraud or its equivalent, and extensions of time to appeal shall not be granted upon a showing of mere hardship. [289-90]
2. In a unique case involving unusual circumstances, a court may allow an appeal nunc pro tune to prevent an injustice occasioned by court action in a case of first impression, which action foreclosed any appeal upon the merits of the case. [290]
Argued February 9, 1972, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.
Appeal, No. 818 C.D. 1971, from the Order of the Court of Common Pleas of Philadelphia County in case of City of Philadelphia v. Rohm Haas Company, Inc., No. 3442, July Term, 1971.
Complaint in the Philadelphia Municipal Court charging defendant with violation of Air Management Code. Judgment for complainant. Defendant appealed to the Court of Common Pleas of Philadelphia County. Motion to quash appeal filed by City of Philadelphia. Motion denied. CODY, J. City of Philadelphia appealed to the Commonwealth Court of Pennsylvania. Reversed and appeal quashed by order with opinion of the Commonwealth Court of Pennsylvania on March 13, 1972. Defendant filed Petition to Modify Order. Held: Petition granted in part and defendant granted leave to appeal.
Louis C. Johanson, with him Henry Thomas Dolan and Fein, Criden, Johanson, Dolan Morrissey, for petitioner.
S. Jay Sklar, Assistant City Solicitor, with him John Mattioni, Deputy City Solicitor, and Levy Anderson, City Solicitor, for City of Philadelphia.
ORDER
AND NOW, this 19th day of April, 1972, it appearing to the Court that there was a transposition error in the Supplemental Opinion and Order of this Court dated April 7, 1972, in the above-noted matter, it is hereby ordered that the Order of this Court dated April 7, 1972, is hereby vacated, and the Supplemental Opinion is amended to read as shown on the Supplemental Opinion attached hereto, and the Order is amended to read:
Based upon the discussion in the Supplemental Opinion, the Opinion of March 13, 1972 is affirmed as entered; however, it is hereby ordered that Rohm Haas Company, Inc. is granted leave to file an appeal in the Court of Common Pleas of Philadelphia County under the Philadelphia Municipal Court Act, Act of October 17, 1969, P. L. 259, 17 Pa.C.S.A. § 711.1 et seq., within thirty (30) days from the date hereof.
On March 13, 1972, this Court rendered an Opinion wherein we reversed the Court of Common Pleas of Philadelphia County and quashed the appeal of Rohm Haas Company, Inc. (Rohm Haas). In essence we held that Rohm Haas had chosen the wrong statute (The Minor Judiciary Court Appeals Act, Act of December 2, 1968, P. L. ___, No. 355, 42 Pa.C.S.A. § 3001, et seq.) under which to file its appeal from a fine plus costs imposed by a Judge of the Philadelphia Municipal Court. We stated the proper statute was The Philadelphia Municipal Court Act, Act of October 17, 1969, P. L. 259, 17 Pa.C.S.A. § 711.1 et seq.
On March 22, 1972, Rohm Haas filed with this Court a Petition To Modify Order in which it requested this Court to modify its ruling so as to permit Rohm Haas to file, nunc pro tune, an appeal under the proper statute.
The City of Philadelphia (City) on March 28, 1972, filed an Answer to the Petition in which it asked us to dismiss the Petition for the reason that there was no showing of "fraud or its equivalent."
We have reviewed these pleadings and are disposed to grant a portion of the prayer of the Petition. We have no power to stay the proceedings in the court below for there is nothing before us which would require such a stay.
The City is correct in its position that we cannot allow the filing of an appeal nunc pro tunc, unless there is a showing of fraud or its equivalent. See Riley's Grille Liquor License Case, 213 Pa. Super. 46, 245 A.2d 725 (1968). In Yeager v. United Nat. Gas Co., 197 Pa. Super. 25, 28, 176 A.2d 455, 456 (1961), the court states that "[s]omething more than mere hardship is necessary to justify an extension of time."
We have reexamined this entire record and conclude that it would work an injustice to Rohm Haas to foreclose an avenue of appeal under the proper statute. The two statutes are relatively new, and as we stated in our original Opinion, it was understandable how Rohm Haas was misled by the wording of the statute. There was no precedent to guide counsel until our Opinion was filed. We also are influenced by the fact that under either of the statutes involved, the appeal is to be filed in the same common pleas court.
We also note that there is precedent to allow an appeal nunc pro tunc under similar unusual circumstances in the cases of Appeal of Plains Township School District, 438 Pa. 294, 265 A.2d 358 (1970); In Re Manufacturer's Light and Heat Company, 428 Pa. 270, 236 A.2d 796 (1968); and Bowers v. Smethport Area School District, 440 Pa. 310, 269 A.2d 712 (1970).
In view of the additional fact that the City in its Answer states that the violations charged are of a continuing nature, there is practical reason to permit the merits of the case to be finally determined.
Without any intent to establish a precedent in allowing the appeal to be filed nunc pro tune, and because of the peculiar circumstances presented by this case, we have entered the Order dated April 19, 1972.