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July 7, 2026
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Brensinger v. Parkway Pools and Patio, LLC, No. 26-207 (Berks Cty. C.C.P. June 22, 2026) (denying appellant’s motion for leave to file appeal nunc pro tunc where late filing resulted from private carrier’s failure to deliver jurisdictional appeal papers by the deadline).

For litigants, attorneys, and anyone relying on private carriers to transmit time-sensitive court filings, this case is a critical reminder that Pennsylvania courts strictly enforce appellate deadlines and that the failure of a private delivery service does not constitute the type of extraordinary circumstance warranting nunc pro tunc relief. It also underscores the importance of preserving a complete record on appeal and acting promptly when a filing deadline is missed.

Judge J. Benjamin Nevius issued an opinion recommending affirmance of his order denying Defendant’s Motion for Leave to file an appeal nunc pro tunc from a magisterial district court judgment.

Key takeaways:

• Appeal deadlines are jurisdictional and strictly enforced. Pennsylvania courts will not enlarge an appeal deadline as a matter of grace, sympathy, or mere indulgence, even where the delay is only one day.
• Private carrier delays are foreseeable and avoidable. Following Criss v. Wise, reliance on a third-party delivery service, whether FedEx, UPS, or USPS, does not constitute an extraordinary, non-negligent circumstance warranting nunc pro tunc relief. Litigants bear the risk of carrier failure.
• Last-day filings carry inherent risk. Waiting until the eve of a filing deadline to transmit jurisdictional papers by overnight carrier leaves no margin for error. Courts will consider the timing of such decisions when assessing diligence and whether resulting delays were truly unforeseeable.
• Act promptly if a deadline is missed. Even where an extraordinary circumstance exists, nunc pro tunc relief requires that the petition be filed within a “very short duration” after the missed deadline. A three-week unexplained delay will undermine a petition for relief.
• Preserve the record. Appellants must ensure that all relevant transcripts and evidence are included in the certified record on appeal. Failure to do so results in waiver and prevents meaningful appellate review.

Background

Plaintiffs sued Defendant in the Magisterial District Court and obtained a money judgment. Pa.R.Civ.P.M.D.J. 1002(A) gave Defendant thirty days to file a jurisdictional appeal to the Court of Common Pleas, a deadline that expired December 12, 2025. See Penn Sycamore Apartments Inc. v. Brooks, 346 A.3d 768, 772 (Pa. Super. Ct. 2025); Lobos Mgmt. v. Powell, 330 A.3d 438, 441 (Pa. Super. Ct. 2025). Defendant missed that deadline. On January 6, Defendant filed a Motion for Leave to File Appeal nunc pro tunc, alleging that on December 11, 2025, the day before expiration, counsel sent the Notice of Appeal via Federal Express Priority Overnight. Still, FedEx did not deliver the package until December 15, 2025. The Trial Court issued a Rule to Show Cause, held an evidentiary hearing, and denied the motion.

The Court’s analysis

Waiver for lack of record on appeal. The Trial Court found that Defendant failed to include the transcript of the evidentiary hearing in the certified record on appeal. Without the transcript, the Superior Court cannot evaluate the testimony, exhibits, or evidence presented, making meaningful appellate review impossible. Under established precedent, a claim that depends on materials not included in the certified record is waived.

No breakdown in court operations. The Trial Court held that Defendant’s theory did not involve a breakdown in the court system, as the Prothonotary had not refused a timely filing, supplied incorrect information, or otherwise contributed to the missed deadline. The asserted failure occurred entirely within a private delivery service, which is not a breakdown in court operations.

Failure to establish extraordinary, non-negligent circumstances. Under Criss v. Wise, 781 A.2d 1156 (Pa. 2001), mail and carrier delays are both “foreseeable and avoidable,” and litigants have a duty to anticipate them. See id. at 1160. In Criss, the Supreme Court denied nunc pro tunc relief even though counsel had mailed the notice of appeal six days before the deadline. Here, Defendant waited until December 11, 2025, the day before expiration, to obtain the certified Notice of Judgment and transmit the appeal papers by overnight carrier. The Trial Court concluded this did not constitute extraordinary, non-negligent circumstances, noting that Defendant acted with arguably less diligence than counsel in Criss.

Failure to act promptly. The Trial Court further found that Defendant failed to act with sufficient promptness after the missed deadline. The appeal papers were delivered on December 15, 2025, meaning Defendant knew or should have known by that date that the filing had failed. Yet the nunc pro tunc application was not filed until January 6, more than three weeks later, with no explanation for the delay in seeking relief.

Lack of prejudice is insufficient. Finally, the Trial Court rejected the argument that the absence of prejudice to Plaintiffs entitled Defendant to relief. Lack of prejudice does not itself confer jurisdiction or excuse the petitioner from proving extraordinary circumstances. See Criss, 781 A.2d at 1159–60.

The full opinion from the Court of Common Pleas can be found here for those wishing to review the detailed procedural history and legal analysis.