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On appeal, the Superior Court vacated the judgment, holding that the Court of Common Pleas lacked appellate jurisdiction due to the late-filed appeal and that an appeal nunc pro tunc was not warranted under the “non-negligent failure” exception first articulated by the Pennsylvania Supreme Court nearly 50 years ago in Bass v. Commonwealth.
The risk of missing a filing deadline is a major—if not the principal—source of anxiety among legal professionals. That concern is well-founded: an honest miscalculation, miscommunication, or unexpected emergency resulting in a late filing can have disastrous consequences, particularly at the appellate level. While a judicial reprieve for a late-filed appeal is theoretically possible under Pennsylvania law, the Superior Court recently issued a stark reminder that, absent fraud or an administrative breakdown, permission to appeal nunc pro tunc will be granted only in the most extraordinary circumstances.
Biernstein v. Aleebanese Food, 352 A.3d 479 (Pa. Super. 2026) involved a commercial lease dispute that originated in Magisterial District Court. Following the entry of judgment in favor of the defendants/tenants, the plaintiffs/landlords appealed to the Court of Common Pleas, but not until the 31st day after the judgment. The Court of Common Pleas granted the plaintiffs’ petition to appeal nunc pro tunc and ultimately returned a verdict in their favor. On appeal, the Superior Court vacated the judgment, holding that the Court of Common Pleas lacked appellate jurisdiction due to the late-filed appeal and that an appeal nunc pro tunc was not warranted under the “non-negligent failure” exception first articulated by the Pennsylvania Supreme Court nearly 50 years ago in Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979).
Standard for Appeals Nunc Pro Tunc
In general, a notice of appeal must be filed within 30 days after the entry of the order from which the appeal is taken. See, e.g., Pa. R.A.P. 903(a); Pa. R.C.P. M.D.J. 1002(A). The timeliness of an appeal and compliance with the statutory provisions granting the right to appeal implicate an appellate court’s jurisdiction and, absent extraordinary circumstances, an appellate court lacks the power to enlarge or extend the time provided by statute for taking an appeal. Commonwealth v. Williams, 106 A.3d 583, 587 (Pa. 2014); see also 42 Pa. C.S. Section 704(b)(1). Thus, the failure to file a timely notice of appeal generally divests the appellate court of its jurisdiction to hear the appeal.
Traditionally, Pennsylvania courts held that a statutory appeal deadline could only be extended in situations involving fraud or some breakdown in the court's operation. See, e.g., In re Dixon’s Estate, 279 A.2d 39, 40 (Pa. 1971); Nixon v. Nixon, 198 A. 154, 157 (Pa. 1938).However, in 1979, the Bass court established a third exception for an appellant or counsel’s “non-negligent failure to file a timely appeal.”
Bassand the 'Non-Negligent Failure' Exception
In Bass, the plaintiff/appellant, Shirley Bass, intended to appeal an order of the Commonwealth Court (which had original jurisdiction over the case) that sustained preliminary objections to her complaint. Bass’ counsel prepared the necessary papers and placed them in a folder on his assistant’s desk for filing, six days prior to the expiration of the appeal deadline. The assistant fell ill that afternoon and remained out the entire next week. Upon the assistant’s return to the office and discovery that the notice of appeal had not been filed, counsel immediately filed a motion for permission to file an appeal nunc pro tunc with the Pennsylvania Supreme Court.
A minority-majority of the court granted the petition, writing, in part: "Although there are some exceptions, ordinarily non-negligent conduct, although it results in injury to another is not actionable. This principle can be illustrated by assuming that an attorney, while on his way to the Prothonotary's Office to file an appeal has an unexpected heart attack or other illness which causes him to lose control of his vehicle, and injure a bystander. The attorney (or any other person) would not be held liable. Society and the courts have recognized that events occur sometimes because of unexpected non-negligent causes. Just as the attorney would not be liable for damages to the bystander resulting from his non-negligent driving, his client should not suffer because the attorney, as a result of his illness, was unable to file the appeal."
The Bass majority opinion was met with immediate and harsh criticism. In a sharply worded dissent, Justice Robert J. Roberts reasoned that the appellant’s argument—that a late appeal should be allowed because the appellant's lawyer's secretary was sick for seven days out of the 30-day appeal period and failed to carry out her employer's instructions—was in no way comparable to the “act of God” theory espoused by the majority. The dissent further held that “the majority’s ipse dixitresultis plainly contrary not only to the specific statutory mandate, but also to prior decisions of the court dealing with the fixed requirements of timeliness in judicial proceedings” and “destroys confidence in, and respect for, the integrity of the decisional process in a court of last resort.”
Subsequent decisions were similarly critical of the Bass majority holding. See, e.g., Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130, 1132-33 (Zappala, J., dissenting) (stating that Bass was “wrongly decided” and noting the difficulty in applying its exception due to its “ad hoc” character and lack of guidance for assessing whether given circumstances will be deemed “non-negligent”); Gallardy v. Ashcraft, 430 A.2d 1201, 1203-04 (questioning Bass’ precedential value and noting difficulty in applying its “vague, standardless, undefined exception”). Nevertheless, courts have continued to recognize and apply the exception, albeit sparingly, since Bass.
Biernstein
Biernstein involved an untimely appeal that resulted from similar, and arguably more exigent, circumstances than those in Bass. After the magistrate entered judgment against them, with six days remaining in the appeal period, the plaintiffs/landlords (landlords) instructed their counsel to file an appeal. Counsel experienced a medical emergency the next day, underwent emergency surgery, and remained hospitalized for the next five days. Upon discharge from the hospital, counsel instructed his staff to prepare and file a notice of appeal, but the appeal was not filed until the next day—one day after the expiration of the 30-day appeal period.
Plaintiffs filed a petition to appeal nunc pro tunc with the Court of Common Pleas, which granted the petition and reversed the magistrate’s decision. On appeal to the Superior Court, the landlords did not dispute that their appeal was untimely but argued that the untimeliness was excusable. The Superior Court disagreed and vacated the judgment. The majority declined to find a non-negligent reason to excuse the late filing, reasoning that, unlike the secretary in Bass, who remained out of the office until after the appeal period expired, the attorney here was discharged from the hospital on the last day of the appeal period. However, the majority then went a step further, writing:
attorneys are expected to have contingency plans in place to protect clients from deadlines like here, where situations arise that are beyond the attorney's control. There is no evidence that the landlords’ attorney had such a contingency plan in place or that the plan fell through for a reason beyond counsel's control. Thus, the attorney's failure to make contingency plans for a medical emergency … is not a valid reason to grant nunc pro tunc relief.
While the majority also noted landlords’ lengthy delay in seeking nunc pro tunc relief, the crux of the opinion is clear: an emergency does not warrant application of the “non-negligent failure” exception where the filing attorney had no contingency plan in place.
In a concurring opinion, President Judge Emeritus Correale Stevens agreed with the majority’s result, but noted that the Pennsylvania Rules of Professional Conduct do not specifically require sole practitioners to formulate a contingency plan for the unexpected circumstances of their disability or death. Given the lack of an explicit mandate for attorneys to make contingency plans, the concurring opinion cautioned that the court should not create such a rule, nor should the Rules of Professional Conduct be used as a basis upon which to preclude a trial court from granting a petition to file an appeal nunc pro tunc.
Conclusion
While the Biernstein majority did not expressly disavow Bass, and attempted to distinguish it on the facts, the ruling may have effectively foreclosed the non-negligent failure exception as a viable avenue for seeking nunc pro tunc relief in cases of emergency. At a minimum, Biernstein further limits the already extremely narrow grounds available to parties seeking such relief. The opinion also serves as an important reminder to all attorneys—from first-year associates to longtime practitioners—to have contingency plans in place in the event of an emergency, even when there is no express requirement to do so.
Reprinted with permission from The Legal Intelligencer, © ALM Media Properties LLC. All rights reserved.
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