IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Stephen Napier :

:

 v. : No. 648 C.D. 2021

: Submitted: February 10, 2023

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing, :

:

Appellant :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: June 22, 2023

The Department of Transportation, Bureau of Driver Licensing (DOT),

appeals the order of the Delaware County Court of Common Pleas (trial court) that 

sustained the nunc pro tunc appeal of Stephen Napier (Licensee) and restored 

Licensee’s operating privilege from the one-year suspension that DOT had imposed

under Section 1547(b)(1)(i) of the Vehicle Code, 75 Pa. C.S. §1547(b)(1)(i).1 We 

affirm.

1 Section 1547, commonly referred to as the Implied Consent Law, requires DOT to 

suspend the driving privilege of a licensee for 12 months as a consequence of the licensee’s refusal 

to submit to chemical testing where the licensee was placed under arrest for a violation of Section 

3802 of the Vehicle Code, 75 Pa. C.S. §3802 (relating to driving under the influence of alcohol or 

controlled substance (DUI)).
2

By Official Notice mailed on January 10, 2020, DOT informed 

Licensee of the one-year suspension of his operating privilege under Section 

1547(b)(1)(i), based on his refusal to submit to chemical testing. See Reproduced 

Record (RR) at 13a- 15a. The Official Notice specifically advised Licensee that he 

had a right to appeal the suspension to the trial court “within 30 days of the mail 

date, JANUARY 10, 2020, of this letter.” Id. at 15a. On March 12, 2020, Licensee 

filed an untimely appeal of DOT’s suspension, seeking nunc pro tunc relief. Id. at 

4a.

On September 17, 2020, the trial court conducted a hearing on 

Licensee’s untimely appeal in which Licensee’s counsel elicited the following 

relevant testimony from Licensee on direct examination:

Q . . . And you were charged with a DUI in Delaware 

County, is that correct?

A Yes.

Q And you received a letter from [DOT] thereafter 

suggesting that you had refused the chemical test, is that 

correct?

A Yes.

Q And do you recall coming into my office and 

retaining me for the criminal case on January 13th?

A Yes.

Q And when I say the criminal case I mean the 

underlying DUI, correct?

A Correct.

Q And on January 13th, you believed you had 

retained me to handle the criminal case and file the 

appeal for the [DOT] suspension in this case for the 

refusal, is that correct?

A Correct.
3

Q But at that point you hadn’t made the payment yet 

for that refusal?

A Correct.

Q In fact, you just made the last payment on August 

17th?

A Yes.

Q But you were under the understanding that at the 

time that you came in that we would be filing everything 

despite the fact that you hadn’t paid for it yet, correct?

A Correct.

Q And you contacted us in March when you got a 

letter saying that you had been suspended, is that correct?

A Correct.

Q And came into our office to show it to me?

A Yes.

Q And we then explained to you what had happened 

with your misunderstanding as to our representation 

agreement, correct?

A Yes.

Q And as far as you know, we then filed it the next day 

on your behalf?

A Yes.

Q And we filed the nunc pro tunc [appeal,] which is 

why we are here today?

A Correct.

RR at 24a-26a (emphasis added).

2

2

See also RR at 28a, wherein Licensee’s Counsel and DOT’s Counsel stated on the record:

[Licensee’s Counsel]: We will stipulate that he walked into our 

office January 13th with the letter.

[DOT’s Counsel]: So he had the notice of suspension on January 

13?

(Footnote continued on next page...)
4

At the close of the hearing, Licensee’s counsel made the following 

argument in support of the trial court’s grant of nunc pro tunc relief:

[Counsel]: Your Honor, I just think it is a prejudice 

against my client at this point to deny the nunc pro tunc

[relief]. It was a misunderstanding to the funds and what 

he believed he was paying for. He had hired us for the 

DUI thinking that he had hired us. He came in the minute 

he got the letter stating that he had missed that date. He 

came in and at that point, despite not having been paid for 

it until two weeks ago, we filed it the very next day back 

in March[,] the day after he came in[,] based on the 

misunderstanding. So I think he did everything he could 

to get under the date. It was just a misunderstanding as to 

how the legal contract read.

RR at 28a-29a.

At the conclusion of the hearing, the trial court granted Licensee’s 

request for nunc pro tunc relief. RR at 29a. Ultimately, following a hearing on the 

merits, the trial court sustained Licensee’s nunc pro tunc appeal, and restored his 

operating privilege from the one-year suspension that DOT had imposed. See id. at 

41a. Thereafter, DOT filed the instant timely appeal of the trial court’s order.

The sole claim that DOT raises in this appeal is that the trial court erred 

in granting Licensee’s request for nunc pro tunc relief. We do not agree.3

Licensee had 30 days from the mailing date of the Official Notice to 

file an appeal in the trial court. See Section 5571(b) of the Judicial Code, 42 Pa. C.S. 

§5571(b) (“[A]n appeal from a tribunal or other government unit to a court or from 

[Licensee’s Counsel]: Correct.

3

“Where the trial court permits an untimely appeal to be filed nunc pro tunc, our review is 

limited to determining whether the trial court abused its discretion or committed an error of law.” 

Smith v. Department of Transportation, Bureau of Driver Licensing, 749 A.2d 1065, 1066 n.1 (Pa. 

Cmwlth. 2000) (citation omitted).
5

a court to an appellate 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.”); Section 5572 of the Judicial Code, 42 Pa. C.S. §5572 (“The 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.”). Indeed, as the Court has observed:

Pursuant to Sections 5571(b) and 5572 of the 

Judicial Code, a motorist has 30 days from the mailing 

date of [DOT’s] notice of suspension to file an appeal with 

the trial court. “Appeals filed beyond the 30–day appeal 

period are untimely and deprive the common pleas court 

of subject matter jurisdiction over such appeals.”

Further, statutory appeal periods are mandatory and 

may not be extended as a matter of grace or mere 

indulgence. By allowing a licensee to file a late appeal, 

the trial court extends the time in which an appeal may be 

filed, thereby extending itself jurisdiction it would not 

otherwise have. Such an extension is appropriate only 

when the licensee proves that either fraud or an 

administrative breakdown caused the delay in filing the 

appeal.

Hudson v. Department of Transportation, Bureau of Driver Licensing, 830 A.2d 

594, 598 (Pa. Cmwlth. 2003) (citations and footnotes omitted).

Nevertheless, as the Pennsylvania Supreme Court has explained:

Even when a party has filed an untimely notice of 

appeal, however, appellate courts may grant a party 

equitable relief in the form of an appeal nunc pro tunc in 

certain extraordinary circumstances. Commonwealth v. 

Stock, [679 A.2d 760, 763-64 (Pa. 1996)]. Initially, an 

appeal nunc pro tunc was limited to circumstances in 

which a party failed to file a timely notice of appeal as a 

result of fraud or a breakdown in the court’s operations. 

West Penn Power Co. v. Goddard, [333 A.2d 909, 912 (Pa. 

1975),] (the time for taking an appeal will not be extended 
6

as a matter of grace or mere indulgence). In Bass v. 

Commonwealth Bureau of Corrections, [401 A.2d 1133 

(Pa. 1979)], however, this Court found that where an 

appellant, an appellant’s counsel, or an agent of 

appellant’s counsel has failed to file a notice of appeal on 

time due to non-negligent circumstances, the appellant 

should not lose his day in court. Id. at 1135. Therefore, 

the Bass Court expanded the limited exceptions for 

allowing an appeal nunc pro tunc to permit such an appeal 

where the appellant proves that: (1) the appellant’s notice 

of appeal was filed late as a result of non-negligent 

circumstances, either as they relate to the appellant or the 

appellant’s counsel; (2) the appellant filed the notice of 

appeal shortly after the expiration date; and (3) the 

appellee was not prejudiced by the delay.[4] See id. at 

1135-36 (allowing appellant to appeal nunc pro tunc

where appeal was filed four days late because appellant’s 

attorney placed the notice of appeal on the desk of the 

secretary responsible for ensuring that appeals were timely 

filed and the secretary became ill and left work, not 

returning until after the expiration of the period for filing 

an appeal); see also Cook v. Unemployment 

Comp[ensation] B[oard] of Review, [671 A.2d 1130, 1132 

(Pa. 1996)] (granting appeal nunc pro tunc where claimant 

filed appeal four days late because he was hospitalized).

Criss v. Wise, 781 A.2d 1156, 1159-60 (Pa. 2001).

Licensee’s testimony in this matter demonstrates that he went to confer 

with and retain Counsel on the day that he received DOT’s Official Notice of his 

license suspension, a mere three days after it had been mailed to him. Licensee 

testified that he believed that he had engaged Counsel to represent him5in both the 

4 DOT does not assert that Licensee did not file the appeal shortly after he became aware 

of the omission of its filing, or that it has been prejudiced by the delay in the filing. 

5

In fact, courts will find an attorney/client relationship even in the absence of an express 

representation agreement. See, e.g., Bitter Sweet Properties, LP v. The City of Farrell (Pa. 

Cmwlth., No. 1640 C.D. 2016, filed October 20, 2017), slip op. at 13-14 (“Absent an express 

contract, an implied attorney/client relationship will be found if 1) the purported client sought 

(Footnote continued on next page...)
7

underlying criminal DUI proceedings and the license suspension under Section 1547

on January 13, 2020. Licensee’s misunderstanding of the scope of the express terms

of the representation agreement that he had executed with Counsel, and his 

reasonable assumption that Counsel would perfect a timely appeal of the Official 

Notice following their meeting on January 13, 2020,

6 constitute a unique and proper 

non-negligent basis upon which the trial court could grant nunc pro tunc relief. See 

Bass, 401 A.2d at 1135 (“In this case, however, we are presented with a nonnegligent failure to file a timely appeal after the client had made a decision to 

appeal. . . . Therefore, at least in those circumstances involving the non-negligent 

failure to file an appeal, members of the public should not lose their day in court.”).

7

 

advice or assistance from the attorney; 2) the advice sought was within the attorney’s professional 

competence; 3) the attorney expressly or impliedly agreed to render such assistance; and 4) it is 

reasonable for the putative client to believe the attorney was representing him. Atkinson v. Haug, 

622 A.2d 983, 986 (Pa. Super. 1993).”). 

6

It is on these bases that the instant matter may be distinguished from the precedent that 

DOT cites. In the instant case, Licensee received DOT’s Official Notice; understood the necessity 

of filing an appeal within 30 days; and acted expeditiously by retaining Counsel to timely file an

appeal. That Licensee failed to comprehend the express terms of the representation agreement 

cannot be attributed to his “negligence.” See, e.g., Lefta Associates v. Hurley, 902 F. Supp. 2d 

559, 581 (M.D. Pa. 2012) (“It is the reasonableness of the client’s belief that the attorney is 

providing legal services pursuant to an attorney-client relationship that controls this issue, not the 

attorney’s own belief. [Capital Care Corp. v. Hunt, 847 A.2d 75, 83 (Pa. Super. 2004)].”); see 

also Nonrefundable Retainers Revisited, 72 N.C. L.Rev. 1, 29 (1993) (“As a fiduciary for his client, 

however, a lawyer–in fee arrangements and otherwise–is held to a ‘fairness-in-fact’ standard, 

which is a higher, more exacting, and less self-interested standard than is applied to commercial 

parties in free market transactions.”).

7 But cf. Williamson v. Department of Transportation, Bureau of Driver Licensing, 129 

A.3d 597, 601-02 (Pa. Cmwlth. 2015), wherein this Court stated:

Regardless of [the l]icensee’s misunderstanding of the [Official 

N]otice, this Court recognizes that the appeal provision in the notice 

of suspension “unequivocally indicates that [l]icensee had ‘the right 

(Footnote continued on next page...)
8

As a result, the trial court did not err as a matter of law or abuse its discretion in 

granting Licensee’s request for nunc pro tunc relief, and such determination is 

supported by substantial, competent evidence.

Accordingly, the trial court’s order is affirmed.8

MICHAEL H. WOJCIK, Judge

to appeal this action to the [trial court] within 30 days of the mail 

date . . . .’” Moreover, the 30-day period to appeal is established by 

statute; therefore, [the l]icensee must be charged with knowledge of 

that information. [(Citations and footnote omitted.)]

8

It is well settled that this Court may affirm the trial court’s order sustaining Licensee’s 

appeal on any basis appearing in the record. Conrad v. Department of Transportation, Bureau of 

Driver Licensing, 226 A.3d 1045, 1057 (Pa. Cmwlth. 2020).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Stephen Napier :

:

 v. : No. 648 C.D. 2021

: 

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing, :

:

Appellant :

O R D E R

AND NOW, this 22nd day of June, 2023, the order of the Delaware 

County Court of Common Pleas dated May 25, 2021, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge