J. A03002/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

MARILYN KENT, :

:

Appellant : No. 508 EDA 2015

Appeal from the Order January 30, 2015

In the Court of Common Pleas of Bucks County 

Criminal Division No(s).: CP-09-MD-0001640-2014

BEFORE: GANTMAN, P.J., MUNDY,J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.: FILED MARCH 30, 2016

Marilyn Kent appeals from the Honorable Wallace H. Bateman, Jr.’s 

denial of her Motion to Appeal nunc pro tunc from her summary convictions 

for, among other things, cruelty to animals and criminal mischief. After 

careful review, we find an administrative breakdown in the court’s handling 

of the appeal process, reverse the trial court’s denial of nunc pro tunc relief 

and remand for further proceedings. 

The procedural history of this case is as follows. On August 21, 2013, 

and September 4, 2013, Bucks County Magisterial District Judge Gary 

Gambardella found Appellant guilty of four summary offenses of Criminal 

Mischief and Cruelty to Animals. Judge Gambardella sentenced her to a 

term of 24 consecutive hours’ incarceration at the Bucks County Correctional 

Facility. 
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Appellant, acting pro se, filed timely Notices of Appeal from her 

summary convictions on September 12, 2013, and September 23, 2013, for 

the convictions dated August 21, 2013, and September 4, 2013, 

respectively. At the same time, she filed Motions to Proceed In Forma 

Pauperis (“IFP Petitions”).

The Bucks County Clerk of the Court of Common Pleas received 

Appellant’s Notices of Appeal. Each Notice of Appeal was time stamped, but 

the Clerk of Courts failed to file or docket either appeal.

The Clerk of Courts also received Appellant’s IFP Petitions, and created 

separate miscellaneous dockets in the Court of Common Pleas for each.1 On 

September 12, 2013, the Bucks County Deputy Clerk sent Appellant a letter 

(“Acknowledgment Letter”), acknowledging the receipt of the IFP Petitions as 

well as informing Appellant about the procedure when the court grants or 

denies the IFP Petitions. In particular, the Acknowledgment Letter informed 

Appellant that if the court denied the IFP Petitions, Appellant would have ten 

days to pay the filing fee:

If the [IFP] petition is granted, [the Clerk of Courts] will notify 

the District Court to forward your case to the Court of Common 

Pleas for summary appeal. If the petition is denied and the 

filing fee is not paid within ten (10) days, the case 

remains at the District Court level. 

Defense Exhibit D-2, Hearing on Motion, 12/23/14; R.R. at 111a (emphasis 

added). 

 

1 See Dockets No. CP-09-MD-0002684-2013 and CP-09-MD-0002768-2013.
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Six weeks later, the Court Administration from the Court of Common 

Pleas returned Appellant’s “pleadings” and notified her that her IFP Petitions 

had “not been acted upon by the Court,” as they were “deficient.”2 

Commonwealth Exhibit C-3, Hearing on Motion, 12/23/14. The Court 

Administration’s letter to Appellant, however did not provide the Appellant 

with notice that if she failed to complete the IFP Petitions, the court would 

dismiss the IFP Petitions. 

Appellant did not respond to the Court Administration’s letter and six 

weeks later Judge Gambardella sent Appellant a letter (“Judge Gambardella 

Letter”) informing Appellant she no longer had a right to appeal:3

It has come to my attention that you have failed to perfect your 

appeals in the above-captioned non-traffic citation cases in 

which verdicts of guilty have been entered. Therefore, as the 

appeal periods have expired in each of these matters, the 

judgments of sentence for these matters are final. 

Defense Exhibit D-3, Hearing on Motion, 12/23/14; R.R. at 112a-113a. The 

Judge Gambardella Letter was not accompanied by an order, and was not 

docketed in either of the miscellaneous dockets. 

 

2 The deficiency was indicated with a check in a box marked “other” with the 

explanation “Affidavit must include the value of all property including 

livestock, equipment and supplies used to maintain such livestock.” 

Commonwealth Exhibit C-3, Hearing on Motion, 12/23/14.

3 This letter completely ignored the fact that Appellant had already 

submitted timely Notices of Appeal that the Clerk of Courts refused to file. 

This letter also fails to follow the procedure laid out by the Acknowledgement 

Letter. In particular, the Judge Gambardella Letter does not actually dismiss 

the IFP Petitions or give Appellant ten days to pay the filing fee.
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In response to the Judge Gambardella Letter, Appellant took the 

following actions to resurrect her appeals. First, on December 23, 2013, 

Appellant filed a pro se “Motion for Extension of Time” citing long-term 

illness.4 On December 30, 2013, she filed a pro se motion seeking, among 

other things, Reinstatement of the Appeal.5 Third, sometime in January of 

2014, Appellant returned to the Clerk of Courts’ office and filed completed 

IFP petitions in her initial summary appeals.6

Appellant also retained counsel who filed a Motion Seeking Leave to 

Amend her summary appeals or, in the alternative, file appeals from the 

summary offenses nunc pro tunc. 

On December 23, 2014, the Honorable Wallace H. Bateman, Jr. held a 

hearing on the motion. Natalie Litchko, an employee of the Clerk of Courts, 

testified that the Clerk of Courts never filed Appellant’s appeal “because [the 

 

4 The Clerk of Courts failed to docket this Motion. Commonwealth Exhibit C1, Hearing on Motion, 12/23/14; R.R. at 119a. It does not appear to have 

ever been denied, dismissed, or otherwise addressed. See Dockets No. CP09-MD-0002684-2013 and CP-09-MD-0002768-2013.

5 This Motion was docketed with one of Appellant’s two IFP petitions. See 

Docket No. CP-09-MD-0002768-2013. The Motion was “[f]orwarded for 

consideration” and then “returned to file without action by Judge Bateman.” 

See Commonwealth Exhibit C-1, Hearing on Motion, 12/23/14; R.R. at 115a. 

There is no record of the motion requesting Reinstatement ever being 

denied, dismissed, or otherwise addressed. See Dockets No. CP-09-MD0002684-2013 and CP-09-MD-0002768-2013.

6 Although Natalie Litchko, an employee of the Clerk of Courts, testified that 

the new IFP petition was considered and granted, this appears nowhere in 

the Court of Common Pleas docket. N.T. Hearing, 12/23/14, at 21. The 

Clerk of Courts took no action after the new IFP petition was granted. Id.
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IFP] was not perfected.” N.T. Hearing, 12/23/14, at 21. Judge Bateman 

denied Appellant’s Motion for Leave to Appeal Nunc Pro Tunc and reinstated 

the sentence imposed by Judge Gambardella. Order, dated 1/30/15.

Appellant filed a timely Notice of Appeal to this Court, and a Rule 

1925(b) Statement raising twelve issues. We need to address only the issue 

of whether the trial court properly denied Appellant nunc pro tunc relief:

Did the [c]ourt below commit reversible error and abuse its 

discretion in denying the [Appellant’s] Motion to Appeal Nunc Pro 

Tunc, and in the alternative to Amend Summary Appeals under 

the facts of this case?

Appellant’s Brief at 3. 

In an appeal from the denial of a motion to appeal nunc pro tunc, this 

Court has stated our standard of review as follows:

[T]he allowance of appeal nunc pro tunc is within the sound 

discretion of the trial court, and our scope of review of a decision 

of whether to permit an appeal nunc pro tunc is limited to a 

determination of whether the trial court has abused its discretion 

or committed an error of law. Orders granting or denying [a] 

petition to appeal nunc pro tunc are reversible [only] in 

instances where the court abused its discretion or where the 

court drew an erroneous legal conclusion. 

Commonwealth v. Yohe, 641 A.2d 1210, 1211 (Pa. Super. 1994) 

(citations and internal quotation marks omitted). 

Appellant contends that the trial court abused its discretion and erred 

as a matter of law in denying her leave to appeal nunc pro tunc where the 

Clerk of Courts failed to file Appellant’s Notices of Appeal and failed to 

dismiss or deny her IFP petitions. We agree.
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“An appeal nunc pro tunc is intended to be an extraordinary remedy to 

vindicate the right to an appeal where that right has been lost due to some 

extraordinary circumstance.” Commonwealth v. White, 806 A.2d 45, 46 

(Pa. Super. 2002) (citation omitted). “Generally, an appeal nunc pro tunc

may be allowed when a delay in filing the appeal is caused by extraordinary 

circumstances involving fraud or some breakdown in the court’s operation 

through a default of its officers.” Cook v. Unemployment Comp. Bd. Of 

Review, 671 A.2d 1130, 1131 (Pa. 1996) (citations and internal quotation 

marks omitted). 

We find that the trial court erroneously denied nunc pro tunc relief 

where there was an administrative breakdown in the court’s operations.

The Office of the Clerk of Courts expressly told Appellant in its 

Acknowledgment Letter that it would take one of two actions on Appellant’s 

IFP petitions, and then failed to follow its own announced procedures. The 

Acknowledgment Letter told Appellant the court would either grant or deny 

her IFP Petitions, and if the court denied them, she would have 10 days to 

pay the filing fees. Instead, the Clerk of Courts not only failed to actually 

grant or deny the IFP petitions, they did so without providing any further 

action, direction, or notice to Appellant. Such failure to follow through on its 

own stated procedures constitutes a breakdown in the court’s operations. 

Furthermore, the Office of the Clerk of Courts was without authority to 

refuse to docket Appellant’s timely Notices of Appeal. By its own admission, 
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the Office of the Clerk of Courts refused to file Appellant’s timely Notices of 

Appeals because of a defect in the IFP petitions. As this Court has 

repeatedly made clear, a prothonotary or Clerk of Courts’ failure to process a 

defective but otherwise timely appeal constitutes a breakdown in the court’s 

operations. See Commonwealth v. Alaouie, 837 A.2d 1190, 1192 (Pa. 

Super. 2003) (holding the prothonotary had no authority to reject an 

appellant’s timely but defective Notice of Appeal from a summary 

conviction). See also Amicone v. Rok, 839 A.2d 1109, 1115 (Pa. Super. 

2003) (holding that because “the prothonotary’s office was without the 

power to reject the appeal . . . there was a breakdown in the court’s 

operation through a default of its officers.”); Nagy v. Best Home Services, 

Inc., 829 A.2d 1166, 1168 (Pa.Super. 2003) (finding a breakdown in the 

court’s operations due to the prothonotary’s “failure to time stamp and 

docket the timely-filed, albeit flawed, notice of appeal.”). The Clerk of 

Courts was required to docket and process the Notices of Appeal and IFP 

petitions. The failure to do so constituted a clear breakdown in the court’s 

operations.7 Alaouie, 837 A.2d at 1192.

 

7 The trial court erred in finding Appellant’s own negligence caused this 

breakdown in the court’s operations. When an appellant seeks nunc pro 

tunc relief on the grounds there was a breakdown in the court’s operations, 

the proper focus of the inquiry is on the conduct of the court and its officers. 

See e.g., Nagy, 829 A.2d at 1167-68 (holding a breakdown in the court’s 

operations warranted nunc pro tunc relief where prothonotary refused to 

docket a timely-filed notice of appeal, despite the fact that appellant’s Notice 

(Footnote continued)
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Having found a breakdown in the court’s operations, we must now 

consider whether Appellant timely pursued nunc pro tunc relief. Yohe, 641 

A.2d at 1212 (“A party seeking leave to appeal from a summary conviction 

nunc pro tunc has the burden of demonstrating . . . that upon learning of the 

existence of the grounds relied upon for nunc pro tunc relief, he acted 

promptly to seek such relief.”). 

The Judge Gambardella Letter put Appellant on notice that there had 

been a breakdown in the court’s operations. Within days, Appellant made 

three separate attempts to re-assert her appellate rights in response to the 

Judge Gambardella Letter. See supra at slip op. 4. The fact that the Clerk 

of Courts improperly docketed or otherwise ignored these efforts does not 

diminish Appellant’s demonstrated diligence. When her efforts were ignored, 

she retained private counsel. We conclude Appellant was diligent and timely 

in her pursuit of an appeal nunc pro tunc.

Therefore, we reverse the order of January 30, 2015, and we remand 

for proceedings consistent with this memorandum opinion. 

Order reversed. Case remanded. Jurisdiction relinquished. 

President Judge Gantman joins the memorandum. 

Judge Mundy concurs in the result. 

 

of Appeal lacked all required signatures and lacked a copy of the judgment 

below).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/30/2016