IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Patrick Roberts, :

Appellant :

:
v. : No. 1072 C.D. 2018

: SUBMITTED: February 1, 2019 Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE CEISLER FILED: April 12, 2019

John Patrick Roberts (Licensee) appeals from the June 28, 2018 Order of the Court of Common Pleas of Allegheny County (Trial Court) denying Licensee’s Petition

to File Appeal Nunc Pro Tunc (Petition for Appeal). The Trial Court concluded that

Licensee fai led to prove that the late filing of his statutory appeal was due to non

negligent circumstance s

. For the reasons that follow, w e vacate the Trial Court’s Order

and remand for further proceedings

. Background On May 1, 2018, t he Department of Transportation
, Bureau of Driver Licensing
(DOT)
, mailed Licensee a Notice of Suspension
, informing him that DOT was suspending his operating privilege for one year under Section 1547(b)(1)(i) of the
Vehicle Code, 75 Pa. C.S. § 1547(b)(1)(i), effective Jun e 5, 2018, due to his chemical

test refu sal on March 19, 2018. The Notice of S uspension state d in relevant part : “ You2

have the right to appeal this action to the Court of Common Pleas (Civil Division) within 30 days of the mail date, MAY 01, 2018, of thi s letter. ” Not. of Suspension,
5/1/18, at 3.

On June 15, 2018, Licensee filed his Petition for Appeal with the Trial Court . In his Petition for Appeal, Licensee assert ed that his appeal was late because his counsel’s

file clerk , Patrick McQuillan, who was responsible for filing the appeal paperwork
, died on May 31, 2018 unbeknownst to counsel

. 1 Pet. for Appeal, 6/15/18, at 1

- 2. According to Licensee
, his counsel was attending to out

- of

- state family matters at that time and did not learn of Mr. McQuil lan’s death until he returned to work on June 13,

2018. Id. at 2. DOT did not file a respons e in opposition to the Petition for Appeal.
On June 28, 2018, the Trial C ourt held a n evidentiary hearing on the Petition for Appeal

. At the outset of the hearing, Licensee’s counsel attempted to explain why the appeal was filed late , but the Trial Court did not permit counsel to finish speaking. Notes of Testimony ( N.T. ) , 6/28/18, at 3. The following exchange occurred :

[ LICENSEE’S COUNSEL]: This only h appened in my career one other time. The law also says if there’s a breakdown within the attorney’s office, that’s not malpractice. If you read

– THE COURT: Okay. I’m not saying it’s malpractice, but it is not a reason for a nunc pro tunc appeal.

[ L ICENSEE’S COUNSEL]: When my file clerk who files my paperwork died and did not file

– THE COURT: Are you listening to me?

1 Licensee appended to his Petition for Appeal a n internet printout that appears to be an obituary for Patrick Day McQuillan
, stat ing that he died on May 31, 2018

. Pet. for Appeal, 6/15/18, Ex.1. As discussed infra , this document was neither introduced nor admitted into evidence at the June 28, 2018 hearing.3

[ LICENSEE’S COUNSEL]: Yes, Your Honor. I always do. You know that.

THE COURT: The case [law] says whether it’s a breakdown, whether somebody died, whatever the reason was, if the appeal wasn’t filed, and even though the reason the appeal wasn’t filed is because of the lawyer, it’ s not a breakdown in the system.

Now, all I can tell you is this. That’s the Commonwealth Court. Most of the cases end at the Commonwealth Court. Any time there’s a case that goes beyond the Commonwealth Court you have a chance of the Supreme Court taking the argument and basically say i ng, well, of course that’s a breakdown in the system. But right now I am bound by the rules of the Commonwealth Court, whether I like them or not, whether I agree with them or not.

Id

. After this discussion, DOT’s counsel and Licensee’s counsel informed the Trial

Court that DOT was not opposing the Petition for Appeal. Id. at 4. Immediately
thereafter, without taking any evidence or hearing from counsel again, the T rial C ourt abruptly conclud ed the hearing and denied Licensee’s Petition for Appeal, stating:

[W]hat’s going to happen is this is going to go to Harrisburg and Harrisburg’s going to file an appeal. I’ve been doing this long enough to understand how this goes.

As much as I would like to grant this . . . right now my understanding of the case law is that a breakdown in the lawyer’s o ffice is not a reason to grant an appeal nunc pro tunc

. [DOT] may not dispute this, but it will go to Harrisburg and Harrisburg’s legal . . . [t]hey’ll appeal it.

You can appeal this. But I have to deny this.4

Id. at 4

- 5. Licensee now appeals from that decision

. 2

Issue

Did Licensee establish a non

- negligent basis on which the Trial Court should

have allowed an appeal nunc pro tunc , when Licensee established that his counsel was

un aware that t he appeal had not been filed due to the death of counsel’s file clerk on May 31, 2018? Analysis

Under Section s 5571(b) and 5572 of the Judicial Code, 42 Pa. C.S. §§ 5571(b)
and 5572, 3 a licensee has 30 da ys from the mailing date of DOT’ s notice of suspension

to file an appeal with the trial court. Williamson , 1 29 A.3d at 599

. An a ppeal filed after the expiration of the 30

- day appeal perio d is untimely and deprive s the t rial c ourt of jurisdiction. Id.
In this case, the N otice of S uspension bore a “Mail Date” of May 1, 2018

. Licensee had 30 days from that date , or until May 31, 2018
, to file a timely appeal.

Licensee did not file his appeal until June 15, 2018. In his Petition for Appeal, Licensee

a lleged that non

- negligent circumstance s caused his dela y in fili ng the appeal and, thus, he should be permitted to file an appeal nunc pro tunc

. G enerally, a nunc pro tunc appeal may be permitted only where the delay in filing the appeal was caused by extraordinar y circumstances involving fraud or a

2 Our review of the Trial Court’ s decision to dis allow an appeal nunc pro tunc is limi ted to determining whether the T rial C ourt abused its discretio n or committed an error of law. Williamson v. Dep’t of Transp., Bureau of Driver Licensing , 129 A.3d 597 , 599 (Pa. Cmwlth. 2015)

.

3 Section 5571(b) of the Judicial Code states that “ an appeal from a tribunal or other government unit to a court

. . . must be commenced within 30 days after the entry of the order from which the appeal is taken, in the case of an interlocutory or final order .” 42 Pa. C.S. § 5571(b). Section 5572 of the Judicial Code states that “[t] he date of service of an order of a government unit, which shall be the date of mailing if service is by mail, shall be deemed to be the date of entry of the order for the purposes of this subchapter. ” 42 Pa. C.S. § 5 572.5

breakdown in the administrative process. Baum v. Dep ’ t of Transp

. , Bureau of Driver
Licensing , 949 A. 2d 345, 348 (Pa. Cmwlth. 2008). The appellant bears the burden of proving that such circumstances exist. Williamson , 129 A.3d at 600; Kulick v. Dep ’ t of Transp

. , Bureau of Driver Licensing , 666 A.2d 1148, 1150 (Pa. Cmw lth. 1995).

In addition
, the Pennsylvania Supreme Court has recognized that non

- negligent circumstances related to the actions of the appellant
, his counsel , or his counsel’s agent

can justify a nunc pro tunc appeal. See Criss v. Wise , 781 A.2d 1156, 11 59 (Pa. 2001) ; Cook v. Unemployment Comp

. B d. of Review , 671 A.2d 1130
, 1132 (Pa. 1996) ; Bass v.

Com

. , 401 A.2d 1133
, 1134

- 35 (Pa. 1979)

. Th e exception for “ non

- negligent circumstances is meant to apply only in unique and compelling cases in which the

app ellant has clearly established that [he] attempted to file an appeal, but unforeseeable

and unavoidable events precluded [him] from actually doing so .” Criss , 781 A.2d at
1160 (emphasis added)

. A c ourt will allow a nunc pro tunc appeal in non

- negligent

circumstances only where the appellant filed the appeal shortly after the appeal period expire d and the appellee was not prejudiced by the delay. Id. at 1159. Contrary to the Trial Court’s statements at the June 28, 2018 hearing, o ur appellate courts have permitted a nunc pro tunc appeal where the ap pellant, his
attorney , or the person in h is attorney’ s office responsible for filing the appeal suffers an unexpected illness or hospitaliz ation during the appeal period. See , e.g., Cook , 671

A.2d at 1132 ( holding that the appellant’ s sudden illness and hospitalization during the appeal period was a sufficient g round for a nunc pro tunc appeal ); Bass , 401 A.2d at

1134

- 36 ( holding that nunc pro tunc relief was warranted where the attorney’s
secretary respons ible for filing appeal became ill, left work
, and did not return to work

until after t he appeal deadline had passed); Tony Grande, Inc. v. Workmen’ s Comp

. Appeal B d. (Rodriguez) , 455 A.2d 299, 300 (Pa. Cmwlth. 1983 ) ( holding that nunc pro6

tunc relief was warranted where the hospitalization of the appellant’ s counsel prevent ed the filing of a timely appeal ). Similarly, this Court has permitted a nunc pro tunc appeal

w here the clerk in the appellant’s attorney’ s office experienced automotive pro blems while driving to the post office to file the appeal and did not arrive until after the post

office had closed. See P erry v. Unemployment Comp

. B d. of Review , 459 A.2d 1342, 1343 & n.2 (Pa. Cmwlth. 1983).

Here , Licensee maintains that his a ppeal was filed late due to the deat h of his

counsel’s file clerk , which was a non

- negligent , unforeseeable circumstance justifying

a nunc pro tunc appeal

. In his Petition for Appeal
, Licensee averred that Mr. McQuillan, to whom counsel had given the appeal paperwork for filing , died on May
31, 2018 , the last day of the appeal period

. Pet. for Appeal, 6/15/18, at 1. Licensee

also averred that his counsel did not learn of Mr. McQuillan’s death until June 13, 2018

, and that , upon learning this information, he filed the appeal two days later, on June 15,

2018

. Id. at 2

. Given the nature of Licensee’s allegations
, this case potentially could be

considered the type of “unique and compelling” situation in which Licensee “attempted to file an appeal, but unforeseeable and unavoidable events precluded [him] from actually doing so.” Criss , 781 A.2d at 1160. H owever , the Trial Court did not give

Licensee ’s counsel an opportunity to present sworn testimony or enter any documents

into evidence before it den ied the Petition for Appeal

. The Trial Court also made no

factual findings or credibility determinations regarding the circumstances surrounding

Licensee’s filing of the late appeal

. Additionally
, it is clear that DOT was not prejudiced by the delay since DOT’s

counsel informed the Trial Court that DOT was not opposing Licensee’s Petition for Appeal

.7

Even more disconcerting is that, in its subsequent Pa. R.A.P. 19 25(a) Opi n i on,
the Trial Court sta ted that it denied Licensee’s Petition for Appeal because Licensee

pre se nted no evidence to satisfy his burden of proof : Although [Licensee’s] counsel stated that the file clerk who was supposed to file the appeal paperwork died, there was no substantiat ion about any ot her information. An assertion by counsel is insufficient where no independent evidence is on record to substantiate the assertion.
Trial Ct. Op., 10/25/18 , at 2

- 3 (unpaginated). Yet the reason there was no evidence of

record to satisfy Licensee’s burden was that the Trial Court abruptly ended the hearing before taking any testimony or evidence

. For these reasons, w e conclude that the Trial Court erred in denying Licensee’s Petition for Appeal without conducting a full evidentiary hearing on the timeliness

issue

. Cf. Dep ’ t of Transp., Bureau of Driver Licensing v. Schillaci , 639 A.2d 924, 926 (Pa. Cmwlth. 1994) (“[B]ecause of [the trial court’s] error in not co nducting a hearing

on [the] licensee’s petition to appeal nunc pro tunc , the untimeliness of [the] licensee’ s petition was, in effect, never resolved. ” ).

Conclusion Accordingly, we vacate the Trial Court’s Order and remand this matter to the Trial Court for a new evidentiary hearing on Licensee’s Petition for Appeal

.

________________________________ ELLEN CEISLER , J udgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Patrick Roberts, :

Appellant :

:
v. : No. 1072 C.D. 2018

: Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing :

O R D E R

AND NOW, this 12 th day of April, 20 19, the O rder of the Court of Common Pleas of Allegheny County (Trial Co urt) , dated June 28, 2018, is hereby VACAT ED, and this matter is REMANDED to the Trial Court for further proceedings consistent with the foregoing Opinion

. Jurisdiction relinquished.

________________________________ ELLEN CEISLER , J udge