admin. law - late appeal - unsuccessful electronic transmission - extraordinary circumstances - nunc pro tunc appeal allowed
Bureau Veritas North America v. PennDOT – Cmwlth. Court – November 3, 2015
appeal - unsuccessful email does not constitute filing
The unsuccessful sending of an email does not constitute filing with an administrative agency. Roman-Hutchinson v. Unemployment Compensation Board of Review, 972 A.2d 1286, 1289 (Pa. Cmwlth. 2009); McClean v. Unemployment Compensation Board of Review, 908 A.2d 956, 957-58 (Pa. Cmwlth. 2006). Moreover, the fact that the email reached DOT’s server does not constitute receipt by the head of DOT, with whom the protest must be filed. See Russo v. Unemployment Compensation Board of Review, 13 A.3d 1000, 1001-03 (Pa. Cmwlth. 2010) (appeal left before expiration of deadline in drop box in foyer of building when agency offices were locked was untimely because it was not filed until agency picked it up the next day). BV cites no rule, regulation or decision of any court holding that unsuccessful electronic transmission constitutes the receipt or filing of a document. The authorities on which BV relies do not provide or hold that filing occurs at the time when an electronic transmission is rejected;
Nunc pro tunc appeal – unsuccessful electronic transmission – extraordinary circumstances
However, appellant’s authorities do allow unsuccessful electronic transmission as basis for nunc pro tunc relief despite the fact that the document was not received and filed at the time of the failed transmission. See Pa. R.C.P. No. 205.4 (e)(4)(ii) (“If a party makes a good faith effort to electronically file a legal paper but it is not received, accepted or filed by the electronic filing system, the court may order that the paper be accepted and filed nunc pro tunc upon a showing that reasonable efforts were made to timely present and file the paper”); Phoenix Global Ventures, LLC v. Phoenix Hotel Associates, Ltd., 422 F.3d 72, 74, 76 (2d Cir. 2005) (court could “excuse” filing of motion one day beyond deadline where counsel “was assured” that filing was successful on the date of filing, within filing deadline, and was notified of rejection next day, after deadline expired); Dallas v. Platinum Health Care, LLC, (E.D. Mo., No. 4:14-CV-1377 (CEJ), filed Dec. 15, 2014), 2014 U.S. Dist. LEXIS 172735 at *3-*4 (late filing treated as timely based on “extraordinary circumstance” that prevented timely filing where counsel was notified on the last day for filing that electronically filed complaint had been received by court filing system and complaint was not rejected until the next day); Inwards v. North Dakota Workforce Safety & Insurance, 851 N.W.2d 693, 697-98 (N.D. 2014) (untimely perfection of appeal excused under electronic filing rule providing that “[o]n a showing of good cause, the court may grant appropriate relief if electronic filing or electronic service was not completed due to technical problems”).
Extraordinary circumstances – equitable considerations
BV has, however, shown that its protest should have been heard nunc pro tunc. A document filed with an administrative agency after the expiration of a jurisdictional deadline that would ordinarily bar its consideration can be accepted as filed nunc pro tunc where the filer shows that extraordinary circumstances caused the delay in filing. Union Electric Corp. v. Board of Property Assessment, Appeals & Review of Allegheny County, 746 A.2d 581, 584 (Pa. 2000); Cook v. UCBR, 671 A.2d 1130, 1131 (Pa. 1996); H.D. v. DPW, 751 A.2d 1216, 1219 (Pa. Cmwlth. 2000); Martin Media v. PennDOT, 727 A.2d 140, 142 (Pa. Cmwlth. 1999). The fact that the Procurement Code does not specifically address and provide for such relief does not preclude allowance of a protest nunc pro tunc. Nunc pro tunc relief is an equitable exception to strict deadlines that by their terms absolutely bar untimely filings. Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001); Martin v. DPW, 514 A.2d 204, 208-09 (Pa. Cmwlth. 1986). Equitable considerations apply to Procurement Code protests and can permit a protest that would otherwise be untimely. Omnicare, Inc., 68 A.3d at 24 (agency would be estopped from enforcing Procurement Code seven-day time limit if it had misrepresented the deadline for filing a protest); Firetree, Ltd., 3 A.3d at 764 n.6 .
Elements for nunc pro tunc
The party seeking nunc pro tunc filing must show 1) that extraordinary circumstances, involving fraud or breakdown in the administrative process or non-negligent circumstances related to the party, its counsel or a third party, caused the untimeliness; 2) that it filed the document within a short time period after the deadline or date that it learned of the untimeliness; and 3) that the respondent will not suffer prejudice due to the delay. Cook, 671 A.2d at 1131; C.E. v. DPW, 97 A.3d 828, 832 (Pa. Cmwlth. 2014); H.D., 751 A.2d at 1219. BV has satisfied all of these requirements.
The rejection of BV’s email protest constitutes extraordinary circumstances sufficient to warrant nunc pro tunc relief. BV emailed its protest to DOT on November 20, 2014, before the expiration of the filing deadline. The fact that the email was sent at 6:33 p.m., after business hours, does not negate its timeliness. Absent a statute or regulation requiring that an electronic transmission be received by a particular time of day to be considered filed on that day, a document is timely filed if it is successfully electronically transmitted at any time before midnight of the filing deadline. Dumberth v. UCBR, 837 A.2d 678, 681-83 (Pa. Cmwlth. 2003) (en banc) (fax transmission successfully sent after business hours on last day of deadline was timely filed). DOT does not contend that it has any regulation requiring that protests or other filings be received by the close of business to be treated as filed on the day that they are actually received. Compare 52 Pa. Code § 1.11(a)(4) (providing that documents are deemed filed with the Public Utility Commission “[o]n the date stated on the confirmation of receipt from the Commission’s electronic filing system, when the time shown is prior to 4:30 p.m. local prevailing time in the Eastern Time Zone (United States of America) and … the Commission offices are open,” but that “[w]hen a document is filed electronically when the offices of the Commission are closed, the document will be deemed to be filed at the time the offices next open”).
BV had reason to believe that its timely email was a proper method of filing its protest. BV understood from its dealings with DOT that DOT permitted filing by email. DOT does not contend that its regulations or the Procurement Code or any other applicable regulations or statutes prohibit or restrict the filing of Procurement Code protests by email or advise filers that they utilize email transmission at their own risk. Indeed, DOT admitted at oral argument that it accepts protests filed by email. This case thus stands in sharp contrast to the decisions where this Court has held that unsuccessful email filing did not constitute grounds for nunc pro tunc relief. See Roman-Hutchinson, 972 A.2d at 1289 (failure of email transmission did not constitute extraordinary circumstances because the agency’s regulation expressly provided that “[a] party filing an appeal by electronic transmission is responsible for using the proper format and for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the appeal may not be properly or timely filed”) (quoting 34 Pa. Code § 101.82(b)(4)) (emphasis omitted); McClean, 908 A.2d at 959.
Email rejected due to DOT formatting restriction – zip files – no notice to appellant
While BV’s email was rejected by DOT’s server and was therefore not received by DOT on November 20, 2014, the rejection was due to a DOT formatting restriction, not to any error in address or any malfunction in BV’s transmission. BV had no notice of DOT’s formatting restriction. BV was unaware that DOT’s server does not accept .ZIP files. DOT does not contend that its regulations prescribe format requirements for email filings or submissions. Nor does DOT contend that any of its communications to bidders or procurement policies or guidelines advise parties of format restrictions on email submissions or that BV had any notice that .ZIP file documents would not be accepted. Moreover, DOT’s failure report did not advise BV of the reason for the rejection of the email. Given the absence of any notice by DOT of its restriction on email format, the rejection of BV’s timely sent email protest constitutes extraordinary, non-negligent circumstances that delayed the filing of BV’s protest.
There is no dispute that BV satisfied the other two requirements for nunc pro tunc relief. BV inquired into the reasons for the rejection of its email and successfully resent and filed its protest by email on November 21, 2014, the next day, only one day after the deadline. There is no claim by DOT that the one-day delay caused it any prejudice. To the contrary, the only arguments that DOT has asserted against BV’s request for nunc pro tunc relief are the contentions that such relief cannot be granted in Procurement Code protests and that BV has not shown extraordinary circumstances.
Because the Secretary erred in denying BV’s request for leave to file its protest nunc pro tunc, we reverse the Secretary’s dismissal of the protest as untimely and remand this matter to the Secretary for consideration of the protest on the merits.
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