a IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Justin Wade Allen Harris :

:

v. : No. 636 C.D. 2017 : Submitted: January 19, 2018 Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing, :

Appellant :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE PELLEGRINI FILED: February 13, 2018

The Commonwealth of Pennsylvan ia, Department of Transportation,

Bureau of Driv er Licensing (Department) appeals an order of the Court of

Common Pleas of Allegheny County (trial court) sustaining Justin Wade Allen

Harris ’s (Harris) appeal from the Department ’s one

- year suspension of his driving

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

1547(b)(1)(i)

, 1 for failure to submit to chemical testing

. Because Harris’s appeal

1 Section 1547(b)(1)(i) of the Vehicle Code provides:

If any person placed under arrest for a violation of section 3802 is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the ope rating privilege of the person

. (Footnote continued on next page...)2

was untimely and he failed to demonstrate circumstances justifying an appeal nunc

pro tunc , we vac ate the trial court’ s order.

On September 29, 2016, the Department mailed Harris a notice

informing him that his operating privilege s were being suspended for one year for

refusing a police officer’s request to submit to a chemical test. The not ice

i nformed Harris that he had the right to appeal within 30 days of the date of

mailing. Harris retained an attorney to appeal the suspension

, but his attorney

misplaced the paperwork and did not file the appeal in a timely manner

.

On December 27, 201 6, Harris filed w ith the trial court a motion for

permission to file his appeal nunc pro tunc

, alleging that his failure to timely

appeal was “purely due to counsel’s error in misplacing the suspension letter.”

(Reproduced Record (R.R.) at 3a.) A t a hear ing on th is motion

, Harris offered no

evidence concerning the circumstances that caused the delay in filing the appeal

.

I nstead

, the trial court had the following colloquy with William Kuhar (Mr.

Kuhar) , the Department’s counsel:

MR. KUHAR : Your Honor, Mr. Harris is asking for leave to file a late appeal of the suspension of his operating privilege for a reported chemical test refusal on September 17th of 2016

. The [D] epartment opposes the

(continued...)

. . . (i) [e]xcept as set forth in subparagraph (ii), for a period of 12

months.

75 Pa.C.S. § 1547(b)(1)(i).3 grantin g of this petition on the grounds that the reason

asserte d why the appeal was fil ed late, mainly that Mr. Harris’ attorney

--

THE COURT: Committed malpractice.

MR. KUHAR:

-- made a mist ake in misplacing the suspension notice , is not, under the court rules

--

THE COURT: I understand that, sir. But how can I penalize somebody b ecause their [sic] lawyer screwed up?

* * *

MR. KUHAR: Because the appellate courts have held that

--

THE COURT: Let the appellate courts overturn me. I understand that. We’ re going to grant it.

* * *

THE COURT: Why don’ t you lawyers understand, you got to know when to hold them, know when to fold them. Kenny Rogers.

It’ s a breakdown i n the system i f the lawyers screw up. It’ s a break down in the system, Mr. Kuhar.

MR. KUHAR: No

.

THE COURT: It just is.

MR. KUHAR: Your Honor, may I at least submit

-- [packet of material s containing the notice of suspension and other documents.]

THE COURT: You can submit all you want, but I’ m tel ling you rig ht now, as far as I’ m concerned it’ s a breakdown in the system.

MR. KUHAR: As long as they’ re admitted.4 * * *

MR. KUHAR: If I may, Your Honor, could I at least provide you with what the Commonwealth Court has said in these opinions?

THE COURT: Commonwealth Court is the enabler of the Department of Transportation, to be perfectly honest with you, Mr. Kuhar. I mean, it is my experience in reading their [sic] opinions that the Department of Transportation could look outside at noon and say it was dark and the Commonweal th Court would agree with them [sic]

.

(R.R. at 21a

- 23a.)

On May 11, 2017, the trial court held a de novo hearing. When the

Department’s counsel advised the court that the Department was unable to proceed

due to the failure of the police officer to appea r at the hearing to establish that

Harris refused to submit t o chemical testing

, the trial court sustain ed Harris’s

appea l.

The Department then appealed to this C ourt r aising one issue

– that

the trial court erred and abused its discretion in allowing Harris to appeal nunc pro

tunc based on the n egligence of his a ttorney in failing to file the appeal in a timely

manner

. 2

2 This Court’s review of the trial court’s decision to allow an appeal nunc pro tunc is limited to determining whether the factual findings of the trial court are sup ported by competent

evidence and whether the trial court committed an error of law or an abuse of discretion. Department of Transportation , Bureau of Driver Licensing v. Boucher , 691 A

. 2d 450, 453 (Pa. 1997).5 In Noweck v. Departmen t of Transportation , Bureau of Driver

Licensing

, (Pa. Cmwlth., No. 1991 C.D. 2016 , filed Oct. 23, 2017) (unreported)

, we gave a succinct but complete analysis of the law rega rding nunc pro tunc

appeal s where an attorney was negligent in failing to file a timely appeal. W ith

some editing, we repeat this analysis below.

A licensee has 30 days from the mailing date of the Department’ s
notice of suspension to file an appeal wit h the trial court. See 42 Pa. C.S. § §

5571(b), 5572; Hudson v. Department of Transportation, Bureau of Driver

Licensing , 830 A.2d 594, 598 (Pa. Cmwlth. 2003). Where a n appeal is filed

beyond the 30

- day period, it is untimely and “deprive[s] the [trial cou rt] of subject

matter jurisdiction over such appeal s .” Hudson , 830 A.2d at 598 (quoting

Department of Transportation, Bureau of Driver Licensing v. Maddesi , 588 A.2d

580, 582 (Pa. Cmwlth. 1991)). This Court has explained:

[S]tatutory 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 , 830 A.2d at 598 (citations omitted).

Generally, an appeal nunc pro tunc is allowed where fr au d or a

breakdown in the court’ s operations caused the delay in filing the appeal. Smith v.6

Department of Transportation, Bureau of Driver Licensing , 749 A.2d 1065, 1066

(Pa. Cmwlth. 2000). In addition, an appeal nunc pro tunc may be allowed where

the del ay in filing the appeal was caused by “non

- negligent circumstances related

to the [petitioner], his counsel or a third party.” J.C. v. Department of Public

Welfare , 720 A.2d 193, 197 (Pa. Cmwlth. 1998). The exception for non

- negligent

circumstances, howe ver, is given narrow application. This exception “is meant to

apply only in unique and compelling cases in which the [petitioner] has clearly

established that [he] attempted to file an appeal, but unforeseeable and unavoidable

events precluded [him] from actually doing so.” Criss v. Wise , 781 A.2d 1156,

1160 (Pa. 2001). For example, our Supreme Court found non

- negligent

circumsta nces existed where the attorney’ s secretary failed to file the appeal

because she got sick and was out of the office. Bass v. Commonwealth , 401 A.2d

1133, 1135

- 36 (Pa. 1979). Similarly, non

- negligent circumstances existed when

the appellant missed the deadline to file the appeal because he had been admitted

to the hospital for medical issues. Cook v. Unemployment Compensation B oard of

Review , 671 A.2d 1130, 1132 (Pa. 1996).

In contrast, we have held that “any delay caused by mere negligence

or neglect of an attorney in failing to appeal within the required time period does

not provide a basis for granting an appeal nunc pro tu nc .” J.C ., 720 A.2d at 197;

see also Schofield v. Department of Transportation, Bureau of Driver Licensing

, 828 A.2d 510, 512 (Pa. Cmwlth. 2003); Rostosky v. Department of Environmental

Resources , 364 A.2d 761, 763 (Pa. Cmwlth. 1976) ( holding that “the me re neglect

of counsel cannot justify the granti ng of an appeal [n]unc pro tunc. ”). For

example, an attorney ’ s calendaring error does not justify nunc pro tunc relief. C.A.7

v. Department of Human Services , (Pa. Cmwlth., No. 1050 C.D. 2016, filed

F ebruary 24, 2017) (unreported)

. Likewise, a secretary’ s lapse in memory

regarding the filing of an appeal is not considered a non

- negligent circumstance

warranting nunc pro tunc relief. Moyd v. Cook

- Artis , (Pa. Cmwlth

. , No. 1453 C.D.

2008, filed February 10, 200 9) (unreported).

In this case, it is undisputed that Harris ’s license suspension appeal

was filed well after the required 30

- day period. Harris does not contend that fraud

or a breakdown within the administrative or judicial process occurred. His only

reason that he offers in support of his nunc pro tunc appeal is that his attorney

“misplaced” the paper work. Because Harris failed to make the threshold showing

that exceptional, non

- negligent circumstances caused the appeal to be untimely

filed, he has f

ailed to establish a basis for nunc pro tunc relief.

B ecause the trial court lacked subject matter jurisdiction to consider

Harris’s untimely appeal , we vacate the trial court ’s order sustaining Harris’s

appeal and remand the matter to the trial court to quash the appeal.

_____________________________ ______ DAN PELLEGRINI, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Justin Wade Allen Harris :

:

v. : No. 636 C.D. 2017

: Commonwealth of Pennsylvania, : Department of Tra nsportation, : Bureau of Driver Licensing, :

Appellant :

O R D E R

AND NOW, this 13 th day of February , 2018, the May 11, 2017 order

of the Court of Common Pleas of Allegheny County (trial court) in the above

captioned matter is vacated and the m atter is remanded to the trial court to quash

the appeal.

Jurisdiction relinquished.

_____________________________ ______ DAN PELLEGRINI, Senior Judge