appeal - late appeal - nunc pro tunc
City of Philadelphia v. Tirrill - Commonwealth Court - August 23, 2006
This case is about a potbellied pig. It is also about filing an appeal nunc pro tunc (NPT). The city filed a complaint against Occupant for having a farm animal - a Vietnamese potbellied pig - in his residence, contrary to the city health code. The trial court found that the pig was a "farm animal" and entered an order in November 2005. The Court sua sponte dismissed Occupant's appeal, because it was not filed until 36 days after the court order -- beyond the 30-day appeal period.
Occupant filed a leave to appeal NPT, 29 days after the court's dismissal order. Commonwealth Court affirmed in a 6-1 decision. Noting the Occupant did not offer any explanation about the 29-day delay in filing his NPT application, the court dismissed the appeal, since the application for relief was not filed promptly, within a reasonable time, once he knew of the need to take action.
"[A]ppeal periods are jurisdictional and may not be extended as a matter of grace or mere indulgence; othewise there would benon finality to judicial action….[T]he attractiveness of an argument on the merits is of no moment because the tribunal is without power to grant the requested relief" even with the appeal is filed one day late.
"Under extraordinary circumstances, however, a court may extend the appeal period by granting equitable relief in the form of a nunc pro tunc or 'now for then' appeal." This can happen where a) there has been fraud; b) there has been a breakdown in the court's operations; or c) non-negligent circumstances relating to either the appellant or his attorney caused the briefly untimely appeal.
In the latter instance, there is generally a due process requirement for the court to conduct an evidentiary hearing to allow the appellant an opportunity to prove the existence of those circumstances. Here the court noted that it was "troubling" that the Occupant did not ask for a hearing and also that "this Court did not offer them an opportunity to make a record supporting their claims." The court said, however, that a hearing was not necessary because Occupant "failed to file a prompt application for relief."
The dissent would have granted Occupant a hearing to offter an explanation for the delay in asking for NPT relief, since the court did not mention this issue in its order directing en banc argument in the case.