aIN 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 Pennsylvania, Department of Transportation, 

Bureau of Driver 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 

privileges 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 operating 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 vacate the trial court’s order.

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

informing him that his operating privileges were being suspended for one year for 

refusing a police officer’s request to submit to a chemical test. The notice 

informed 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, 2016, Harris filed with 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.) At a hearing on this motion, Harris offered no 

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

Instead, 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

granting of this petition on the grounds that the reason 

asserted why the appeal was filed late, mainly that Mr. 

Harris’ attorney --

THE COURT: Committed malpractice.

MR. KUHAR: -- made a mistake in misplacing the 

suspension notice, is not, under the court rules --

THE COURT: I understand that, sir. But how can I 

penalize somebody because 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 in the system if the lawyers screw up. 

It’s a breakdown in the system, Mr. Kuhar.

MR. KUHAR: No.

THE COURT: It just is.

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

[packet of materials containing the notice of suspension 

and other documents.]

THE COURT: You can submit all you want, but I’m 

telling you right 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 Commonwealth 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 appear at the hearing to establish that 

Harris refused to submit to chemical testing, the trial court sustained Harris’s 

appeal.

The Department then appealed to this Court raising one issue – that 

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

tunc based on the negligence of his attorney 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 supported 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. Department 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 regarding nunc pro tunc

appeals where an attorney was negligent in failing to file a timely appeal. With 

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 with 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 an appeal is filed 

beyond the 30-day period, it is untimely and “deprive[s] the [trial court] of subject 

matter jurisdiction over such appeals.” 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 fraud 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 delay 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, however, 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 

circumstances 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 Board 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 tunc.” 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 mere neglect 

of counsel cannot justify the granting 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 

February 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, 2009) (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 paperwork. Because Harris failed to make the threshold showing 

that exceptional, non-negligent circumstances caused the appeal to be untimely 

filed, he has failed to establish a basis for nunc pro tunc relief.

Because 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 Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Justin Wade Allen Harris :

:

v. : No. 636 C.D. 2017

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing, :

Appellant :

O R D E R

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

of the Court of Common Pleas of Allegheny County (trial court) in the abovecaptioned matter is vacated and the matter is remanded to the trial court to quash 

the appeal.

Jurisdiction relinquished.

___________________________________

DAN PELLEGRINI, Senior Judge