Judges Opinions, — October 29, 2024 14:27 — 0 Comments

Ronald Thomasco, v. City of Lebanon, City of Lebanon Housing Board of Appeals and City of Lebanon Office of Public Safety

Ronald Thomasco, v. City of Lebanon, City of Lebanon Housing Board of Appeals and City of Lebanon Office of Public Safety

Civil Action-Property Law-Public Safety-Code Violations-Timeliness of Appeal-Jurisdiction of the Court-Appeal Nunc Pro Tunc-Fraud-Breakdown of the Court’s Operations-Non-Negligent Circumstances-Early Closure of Office of the Prothonotary-Prejudice to Appellee

Following an unsuccessful appeal to the City of Lebanon Housing Board of Appeals (“the Housing Board”), Ronald Thomasco (“Appellant”) appealed a Notice of Violation that condemned and issued citations for violations regarding the property he owns at 362 North Seventh Street in Lebanon City.  The Housing Board filed a Motion to Quash the Appeal on the basis that the appeal was not filed within thirty (30) days of issuance of the decision by the Housing Board. 

1.  In order to perfect an appeal, parties strictly must adhere to the statutory provisions for filing appeals.

2.  An untimely appeal presents a jurisdictional issue that must be quashed absent a showing of fraud or a breakdown of the court’s operations.

3.  The court may grant a party equitable relief in the form of an appeal nunc pro tunc in certain extraordinary circumstances. 

4.  An appeal nunc pro tunc should be permitted where the appellant proves that the notice of appeal was filed late as a result of non-negligent circumstances as they relate to the appellant or appellant’s counsel, the appellant filed the notice of appeal shortly after the expiration date and the appellee was not prejudiced by the delay.

5.  Where the Prothonotary’s Office closed at 3:00 pm instead of 4:30 pm as indicated on the County website, counsel for Appellant was not advised that the Notice of Appeal could be filed through the Clerk of Court’s Office until 4:30 pm due to the early closure of the Prothonotary’s Office, Counsel for Appellant appeared at the Office of the Prothonotary at or about 4:30 pm on the last day to file the appeal, the filing was not accepted due to the early closure of the Prothonotary’s Office, the Notice of Appeal promptly was filed the following day and the Housing Board has failed to establish its experience of prejudice, extenuating circumstances warrant granting Appellant the ability to appeal nunc pro tunc.

L.C.C.C.P. No. 2022-01261, Opinion by John C. Tylwalk, President Judge, October 23, 2023.  

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

                                                            PENNSYLVANIA

                                                            CIVIL DIVISION

RONALD THOMASCO,                              :           NO. 2022-01261

                        Appellant                                :

                                                                        :

            v.                                                         :

CITY OF LEBANON,                                               :

CITY OF LEBANON HOUSING                 :

   BOARD OF APPEALS,                             :

CITY OF LEBANON OFFICE                     :

   OF PUBLIC SAFETY,                               :

                        Appellee                                  :

                                                            ORDER OF COURT

            AND NOW, this 23rd day of October, 2023, upon consideration of the evidence adduced at the hearing conducted on August 15, 2023, and the Post-Hearing Briefs submitted by the parties, it is hereby Ordered as follows:

  1.  Appellee’s Motion to Quash with Prejudice is DENIED.
  2. Appellant’s Cross-Petition to Proceed as Appeal Nunc Pro Tunc is GRANTED.

BY THE COURT:

________________________, P.J.

JOHN C. TYLWALK

JCT/jah

Cc:  Danielle Thomasco, Esquire/1355 Fairview Lane/Lebanon, PA  17042

       Donna Long Brightbill, Esquire/Long Brightbill

       Tucker R. Hull, Esquire/The Law Office of Tucker R. Hull, LLC/108 West Main

           Street/Annville, PA  17003

       Judith Huber, Esquire/Law Clerk

                        IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

                                                            PENNSYLVANIA

                                                            CIVIL DIVISION

RONALD THOMASCO,                              :           NO. 2022-01261

                        Appellant                                :

                                                                        :

            v.                                                         :

CITY OF LEBANON,                                               :

CITY OF LEBANON HOUSING                 :

   BOARD OF APPEALS,                             :

CITY OF LEBANON OFFICE                     :

   OF PUBLIC SAFETY,                               :

                        Appellee                                  :

APPEARANCES:

DANIELLE THOMASCO, ESQUIRE                  FOR RONALD THOMASCO

DONNA LONG BRIGHTBILL, ESQUIRE                      FOR CITY OF LEBANON

LONG BRIGHTBILL                                                            and CITY OF LEBANON

                                                                                       OFFICE OF PUBLIC SAFETY

TUCKER HULL, ESQUIRE                                              FOR CITY OF LEBANON

LAW OFFICES OF TUCKER R. HULL, LLC       HOUSING BOARD OF APPEALS

OPINION, TYLWALK, P.J., OCTOBER 23, 2023.

            On March 31, 2021, Appellant Ronald Thomasco (“Thomasco”) was served with a Notice of Violation (“NOV”) from the City of Lebanon, Office of Public Housing (“Office of Public Housing”) regarding his property located at 362 North 7th Street in the City of Lebanon.  Thomasco filed an appeal of the NOV to the City of Lebanon Housing Board of Appeals (“the Housing Board”) and a hearing was conducted on August 3, 2022.  The Housing Board issued a decision and Order on September 6, 2022 upholding the decision of the Office of Public Safety’s decision to condemn the property and the issuance of citations for various violations set forth in the NOV. 

Thomasco’s Notice of Appeal of that decision was filed in the Prothonotary’s Office of Lebanon County on October 7, 2022.  The Housing Board has filed a Motion to Quash Appeal on the basis that it was not filed within thirty days of the issuance of the Housing Board’s decision as required by Pa.R.A.P. 903.  In response to the Motion to Quash, the Office of Public Safety also requested that the appeal be quashed. 

Thomasco argues that he was not afforded the full thirty-day appeal period for the filing of his Notice of Appeal, but was only afforded 29 ½ days due to circumstances involving an early closure of the Lebanon County Prothonotary’s Office.  He has filed a Cross-Petition to Proceed as Appeal Nunc Pro Tunc, claiming that his attorney, Danielle Thomasco, Esquire (“Counsel”) attempted to file the appeal on October 6, 2022, which was thirty days from the Housing Board’s issuance of decision, but was prevented from doing so by the early closure and by the actions of staff members of the Prothonotary’s Office.  We conducted a hearing on August 15, 2023.  Both parties have filed post-hearing Briefs and the matter is now before us for disposition.

            At the hearing, the docket of this matter was admitted as Exhibit “1.”

The parties agreed that there was no dispute that the notice of appeal was required to be filed by the close of business on October 6, 2023 and that the appeal was not filed until October 7, 2022 at 11:19 a.m. 

            Thomasco first called Wanda Warner, who is employed as a clerk in the Prothonotary’s Office.  Warner testified that the Prothonotary’s Office closed to the public at 3:00 p.m. on Tuesdays and Thursdays during the time period which included October 6, 2022.  She recalled that she was working on Thursday, October 6, 2022 and the door was closed and locked at 3:00 p.m.   Warner testified that she was leaving work at 4:35 p.m. and was in the hallway outside of the door to the Prothonotary’s Office when Counsel approached from the stairwell and explained that she needed to file something.  Warner informed Counsel that the office was closed and the computers had been turned off.  Counsel complained to Warner that it was not yet 4:30, but Warner recalled that it would have been 4:35 because the staff was late leaving the office that day.

            Thomasco next called Sherry Small, the former Second Deputy Prothonotary.  Small was also working on October 6, 2022.  She confirmed that the office had closed at 3:00 that day, the door had been locked, and the light at the doorway had been turned off.  Small explained that something could still be filed through the Clerk of Courts in the case of an emergency even though the Prothonotary’s Office was closed.  There was a sign on the door indicating that the Prothonotary’s Office closed at 3:00 and directing that emergency filings could be taken to the Clerk of Courts’ Office.

Small testified that Counsel had come to the door and Warner had answered it.  Small approached the doorway when she heard a commotion and observed Counsel speaking to Warner at the door.  Counsel was insisting that she had to get something filed immediately.  Warner was trying to explain that emergency filings could be filed through the Office of the Clerk of Courts.  Small recalled that this transpired at approximately 4:29 or 4:30.  Another staff member, Michele Sanger, went to the door and Small went to get Barbara Smith, the Prothonotary of Lebanon County, at around 4:30.  Small confirmed that the computer terminals had already been turned off and that nothing would be time-stamped after 4:30.  She recalled that the filing was refused and assumed that Smith had handled it.

On cross-examination, Small testified that she saw Counsel at the doorway and that Warner had not yet walked out of door of the office.  She acknowledged that the office routinely accepted filings up until 4:30.  However, Counsel had not been allowed to enter due to the 3:00 closure.

Prothonotary Barbara Smith testified that she got involved at the tail end of the incident.  By the time she arrived at the doorway to the Prothonotary’s Office, it was after 4:30.  She heard a discussion between Warner, Small and Sanger about whether Counsel had arrived before or after 4:30.  Smith was informed that the filing was rejected.  She explained that the document could not have been accepted for filing without being time-stamped.  Smith confirmed that she was aware that filings would be accepted until midnight by Prothonotary Offices that utilize electronic filing, but that under the local policy of her office, documents would only be accepted and time-stamped within office hours which ended at 4:30 p.m.

Counsel testified that on October 6, 2022, she had entered the Municipal Building and gone through security before 4:30 p.m.  When she arrived at the Prothonotary’s Office, the door was locked but she could see employees working inside.  She knocked, but there was no immediate answer.  After she knocked again, Warner answered the door but would not permit her to enter.  Warner pointed to the clock and announced that it was 4:30 p.m.  However, Warner did not look at the clock and Counsel saw that it was actually 4:29 p.m. 

When Small approached, Counsel told her that she had something to file.  Small told her that she should have gone through the Clerk of Courts due to the 3:00 closing.  Small acknowledged to Counsel that the limited hours had not been publicized.  Small walked away and Sanger came over.  She asked to see the documents, but said they could not be stamped past 4:30 p.m.  Sanger refused to take possession of the documents because she could not enter them into the computer.  Counsel testified that all of the office lights were still on.  After their conversation, she observed that Sanger started performing work again.  She also observed that Small and other employees were still working.

Counsel checked the Lebanon County website and noticed that the limited hours of the Prothonotary’s Office were not posted.  She also noted that she had been in the office earlier that day and was informed of the filing fee and the office hours which ended at 4:30 p.m.

On cross-examination, Counsel admitted that she did not regularly file legal papers in Lebanon County and, in her multiple filings in various cases in Lebanon County, she had never filed anything late.  On October 6, 2022, she was told by Warner and Sanger that filings could not be accepted after 4:30 p.m. but she was not told that the office was closed.  Earlier that day, Sanger had told her that they would accept filings until 4:30 p.m. but that the staff appreciated it when documents were brought in earlier.  Counsel claimed that she knocked on the door before 4:29 p.m. and that the local rule about the 4:30 p.m. closing was not published on the County website.  She was not aware that she should have gone through the Clerk of Courts.

In order to perfect an appeal, parties must strictly adhere to the statutory provisions for filing an appeal.  Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001).  An untimely appeal presents a jurisdictional issue and must be quashed absent a showing of fraud or a breakdown of the court’s operation. Thorn v. Newman, 538 A.2d 105, 107 (Pa. Cmwlth. 1988).

Even when a party has filed an untimely notice of appeal, however, appellate courts may grant a party equitable relief in the form of an appeal nunc pro tunc in certain extraordinary circumstances. Commonwealth v. Stock, 545 Pa. 13, 679 A.2d 760, 763-64 (1996). Initially, an appeal nunc pro tunc was limited to circumstances in which a party failed to file a timely notice of appeal as a result of fraud or a breakdown in the court’s operations. West Penn Power Co. v. Goddard, 460 Pa. 551, 333 A.2d 909, 912 (1975) (the time for taking an appeal will not be extended as a matter of grace or mere indulgence). In Bass v. Commonwealth Bureau of Corrections, et al., 485 Pa. 256, 401 A.2d 1133 (1979), however, this Court found that where an appellant, an appellant’s counsel, or an agent of appellant’s counsel has failed to file a notice of appeal on time due to non-negligent circumstances, the appellant should not lose his day in court. Id. at 1135. Therefore, the Bass Court expanded the limited exceptions for allowing an appeal nunc pro tunc to permit such an appeal where the appellant proves that: (1) the appellant’s notice of appeal was filed late as a result of non-negligent circumstances, either as they relate to the appellant or the appellant’s counsel; (2) the appellant filed the notice of appeal shortly after the expiration date; and (3) the appellee was not prejudiced by the delay. 

Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001). 

            We believe the evidence adduced at the hearing revealed the existence of extenuating circumstances which warrant our granting Thomasco’s request to proceed with his appeal nunc pro tunc.  The testimony indicated that there was some confusion regarding the time limit for filing documents at the Prothonotary’s Office on October 6, 2022 which prevented Counsel from filing the Notice of Appeal in a timely manner.  The early closing of the Prothonotary’s Office and the necessity of filing through the Clerk of Courts was not posted on the County website.  Counsel was told earlier in the day on October 6, 2022 that filings were accepted until 4:30 p.m.  However, she was not advised that it would not be open until 4:30 on that particular day or that the office closed at 3:00 p.m. on Tuesdays and Thursdays.  Counsel was also not advised that she would have to file the Notice of Appeal through the Clerk of Courts Office due to the early closure. 

There was also conflicting evidence as to the exact time when Counsel arrived at the Prothonotary’s Office in her attempt to file the Notice of Appeal.  Warner testified that she was already out in the hallway when she encountered Counsel after 4:30 p.m.  However, Small testified that she observed Warner speaking with Counsel while Warner was still inside the doorway to the office at 4:29 or 4:30.  The testimony also indicated that Sanger arrived at the doorway at 4:30, after Counsel had already been speaking to Warner and Small.  The uncertainty as to Counsel’s arrival time was also evidenced by Smith’s testimony that she heard her employees discussing the timeframe of the incident when she arrived at the doorway to the Prothonotary’s Office.

Moreover, we find no negligence on the part of Counsel in filing the Notice of Appeal after the expiration of the applicable thirty-day appeal period.  The Notice of Appeal was promptly filed one day after the expiration date and the Appellees have failed to establish that they have sustained any prejudice by the delay in filing.

For these reasons, we will deny the Motion to Quash the appeal and will allow Thomasco to proceed nunc pro tunc.

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