Wednesday, April 21, 2010

appeal - timeliness - collateral errors

Brown v. Levy - Commonwealth Court - April 21, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/2221CD09_4-21-10.pdf


It was error for the prothonotary to refuse to accept a timely appeal because of collateral errors, including the failure to attach the case’s docket entries, provide the requisite number of copies, and provide a certificate of service indicating service upon the trial judge.


The court held that the prothonotary erred by not accepting the notice of appeal, applying the standard in Pennsylvania Rule of Appellate Procedure 902, which provides:

An appeal permitted by law as of right from a lower court to an appellate court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by Rule 903 (time for appeal). Failure of an appellant to take any step other than the timely filing of a notice of an appeal does not affect the validity of the appeal, but it is subject to such action as the appellate court deems appropriate, which may include, but is not limited to, remand of the matter to the lower court so that the omitted procedural step may be taken. (Emphasis added.)

In Lowrey v. East Pikeland Township, 562 A.2d 1010 (Pa. Cmwlth. 1989), the court held that a prothonotary who refused to time-stamp a timely filed appeal that omitted the case number committed an abuse of discretion and violated Rule 902 because the failure to include the case number did not affect the validity of the appeal. Likewise, in Department of Transportation v. Florek, 455 A.2d 1263 (Pa. Cmwlth. 1983), it held that a notice of appeal with various unnamed defects that was timely filed did not affect the validity of the appeal.

Here, it is undisputed that Petitioner timely filed a notice of appeal. As timeliness is the only requirement to make a notice of appeal valid, Petitioner’s first attempt to file a notice of appeal was indeed a valid notice of appeal, and the Prothonotary committed an abuse of discretion by sending the notice of appeal back to Petitioner rather than accepting it. It was, therefore, unnecessary for Petitioner to file a petition for leave to appeal nunc pro tunc because his appeal was indeed timely.



>