• Failure to Anticipate Potential Mail Delays May Result in a Party's Loss of Rights
  • May 5, 2003 | Author: Kimberly Boyer-Cohen
  • Law Firm: Marshall, Dennehey, Warner, Coleman & Goggin - Philadelphia Office
  • In a recently decided case, the Pennsylvania Supreme Court ruled that a party's failure to anticipate potential delays in the mail prohibited that party from appealing an arbitration award.

    In Criss v. Wise, 781 A.2d 1156 (Pa. 2001), an arbitration panel awarded the appellants, Mark Criss and Kathryn Stevenson, damages in the amount of $16,017.50 against the appellee, Sharon Wise, on November 25, 1998. Since a party has 30 days after the entry of an arbitration award in which to file a notice of appeal from the award, Wise was required to file her notice by December 28, 1998. On December 22, 1998, Wise's attorney asked a receptionist at the firm to mail the notice of appeal, which the receptionist placed in the mail at approximately 5:10 p.m. that day. Nevertheless, on December 28, 1998, the court had not received the notice of appeal, and the time for filing the notice expired. The next day, judgment was entered on the arbitration award against Wise. On December 30, 1998, the court received the notice of appeal, but returned it to Wise since the time for filing it had expired.

    Soon after, Wise filed a motion asking the court to strike the judgment against her and grant her leave to appeal. In support of her motion, Wise insisted that she had acted reasonably by mailing the notice of appeal with the U.S. Postal Service on December 22, 1998, which allowed sufficient time for it to be delivered to the court, only 30 miles away, by December 28, 1998. Therefore, Wise argued that she should not be precluded from appealing the arbitration award because of an unforeseeable delay in the mail service. In response, Criss and Stevenson asserted that Wise acted negligently because she should have known that the U.S. Postal Service delivers mail slower during the holiday season.

    Although the trial court denied Wise's motion, the Pennsylvania Superior Court determined that Wise may be entitled to an appeal nunc pro tunc, which permits late appeals to continue as though timely filed, and remanded the case to the trial court to make factual findings. In deciding that a delay in the U.S. Mail may support an allowance of an appeal nunc pro tunc, the Superior Court relied upon McKean County Animal Hospital v. Burdick, 700 A.2d 541 (Pa. Super. 1997). In McKean, the appellant contended that he mailed his notice of appeal to the court ten days before the 30-day appeal period expired; however, the notice was not delivered until 14 days after it was mailed. In response, the McKean Court found that, although the record failed to provide enough information about the circumstances causing the untimely appeal, the allegations, if supported by facts which are believed by the trial court, could be sufficient grounds to support an appeal nunc pro tunc.

    Criss and Stevenson appealed the Superior Court's decision to the Pennsylvania Supreme Court. On appeal, the court first distinguished arbitration appeals from other appeals because, unlike the Rules of Appellate Procedure, which in certain specified procedures allow filings to be deemed filed on the date they are deposited in the U.S. Mail, the Pennsylvania Rules of Civil Procedure have no such provision. Instead, the Rules of Civil Procedure provide that "[a] paper sent by mail shall not be deemed filed until received by the appropriate officer." Pa. R.C.P. 205.1. Therefore, the court found that, since parties must strictly adhere to the statutory provisions for filing an appeal, Wise clearly did not perfect her appeal.

    Nevertheless, the court determined that, even when a party has filed an untimely notice of appeal, an appellate court may grant a party equitable relief in the form of an appeal nunc pro tunc in certain extraordinary circumstances. To permit such an appeal, the party appealing must prove that: (1) his/her notice of appeal was filed late due to non-negligent circumstances, either as they relate to the party or the party's counsel; (2) the party filed the notice of appeal shortly after the expiration date; and (3) the opposing party was not prejudiced by the delay. However, this exception is meant to apply only in unique and compelling cases in which the appealing party has clearly established that he/she attempted to file an appeal, but unforeseeable and unavoidable events precluded him/her from actually doing so. For instance, non-negligent circumstances have been found where the law clerk's car broke down while he was on route to the post office and where a party's attorney was hospitalized for unexpected and serious cardiac problems.

    Finally, after finding that the McKean decision relied upon by the Superior Court was wrongly decided, the Pennsylvania Supreme Court concluded that delays in the mail are both foreseeable and avoidable. In addition, regardless of the season, an appellant has a duty to suspect delays when mailing a notice of appeal. As a result, the court held that Wise's failure to anticipate a potential delay in the mail was not a non-negligent circumstance and, therefore, no appeal nunc pro tunc may be granted.

    In light of the events of September 11th, the Criss decision is a cautionary tale. Now, more than ever, delays in mail service must be anticipated. Although Criss involved an appeal from an arbitration award, the decision arguably applies to any situation where filing is considered to have occurred only upon receipt of the document by the court. As a result, the Criss decision instructs us that greater attention to filing deadlines, and methods of filing other than the U.S. Mail (i.e. hand delivery and electronic filing), might save a party from losing his/her rights.