Monday, July 19, 2010

UC - pro se appeal - timeliness

DeWitt v. UCBR - Cmwlth. Cour - July 15, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/2638CD09_7-15-10.pdf



The court held that it did not have the power, under Rule 211 of its Internal Operating Procedure, 210 Pa. Code sec. 67.13, to extend the time for a party to take a pro se appeal beyond that stated in the rule, which provides that
(a) Upon receipt by the chief clerk from a pro se party of a written communication which evidences an intention to appeal, the chief clerk shall timestamp the writing with the date of receipt. The chief clerk shall advise the party by letter:
(1) As to the procedures necessary to perfect the appeal.
(2) That the date of receipt of the pro se communication will be preserved as the date of filing of the appeal, on condition that the party files a proper petition for review within 30 days of the date of the letter from the chief clerk. If the party fails to file a proper petition for review within that period, the chief clerk shall advise the party by letter that the court will take no further action in the matter.
(b) Upon receipt by the chief clerk of a notice of appeal in cases in which a petition for review is the proper appeal document, the chief clerk shall time-stamp the notice of appeal with the date of receipt and the court shall forthwith enter an order giving the party 30 days to file a petition for review and indicating that the failure to do so will result in the dismissal of the appeal. (emphasis added)

The court held that, if the petitioner files its petition for review more than 30 days from the date of the explanatory letter from the chief clerk, referred to abuse, the appeal will be dismissed.

The jurisdictional requirements of filing a petition for review can be deemed met when a petitioner has provided the Court with notice that he/she intends to appeal. Larocca. IOP 211(a)(2) preserves the filing date “on the condition that the party files a proper petition for review within 30 days of the letter from the chief clerk.” 210 Pa. Code § 67.13(a)(2). It then provides that if the party fails to do so “the chief clerk shall advise the party by letter that the court will take no further action in the matter.” Id. Thus, our jurisdiction is conditional on the party filing a perfected petition for review within thirty days of the chief clerk’s letter. Once this thirty-day time period expires, the date of the receipt of the pro se communication is no longer preserved and our jurisdiction is extinguished.

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