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.
This case
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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