IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John E. Barrett, :

:

Appellant :

:

v. : No. 858 C.D. 2016

: Submitted: January 20, 2017

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE COLINS FILED: May 15, 2017

John E. Barrett (Licensee) appeals from an order of the Court of 

Common Pleas of Allegheny County (Trial Court) dismissing his appeal from a

one-year suspension of his driver’s license imposed by the Department of 

Transportation, Bureau of Driver Licensing (Department) for refusal of chemical 

testing in violation of Section 1547(b)(1)(i) of the Vehicle Code, 75 Pa. C.S. §

1547(b)(1)(i), commonly known as the Implied Consent Law. However, because 

we determine that the Trial Court erred by permitting Licensee to file a nunc pro 

tunc appeal, we vacate the Trial Court’s order and dismiss Licensee’s appeal from 

the suspension for lack of jurisdiction.

The facts as found by the Trial Court are as follows. On November 

10, 2015, Trooper Jerrod Withrow of the Mt. Lebanon Police Department 
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responded to a dispatcher’s report that several 911 calls had been received 

reporting erratic driving. (Trial Court Op. at 3.) From his patrol car, Trooper 

Withrow observed a vehicle with the same description and license plate number as 

the vehicle mentioned in the dispatcher’s report and began to follow the vehicle. 

(Id.) Trooper Withrow observed the vehicle cross the double yellow lines into the 

oncoming lane and slow down and speed up erratically. (Id.) Trooper Withrow 

initiated a stop of the vehicle and approached the vehicle to speak with the driver, 

who was identified at trial as Licensee. (Id.) Licensee had difficulty finding his 

license and registration, and Trooper Withrow observed that he had red glassy 

eyes, slurred speech, a dark red stain around his mouth and smelled strongly of 

alcohol. (Id. at 3-4.)

After another officer arrived on the scene, Trooper Withrow asked 

Licensee to exit his vehicle, but Licensee repeatedly refused and became 

increasingly hostile. (Id. at 3-4.) After being advised that he would be forcibly 

removed if he did not do so voluntarily, Licensee exited the vehicle and stated that 

he had problems with his feet and that he had drunk a few glasses of wine with 

dinner. (Id. at 4.) Licensee consented to a horizontal gaze nystagmus test, but was 

unable to perform the test pursuant to instructions. (Id.) Trooper Withrow then 

asked Licensee to perform a portable breath test to assess whether he had 

consumed alcohol, but Licensee failed to blow into the device to allow for a 

reading. (Id.) 

Trooper Withrow then arrested Licensee for driving while intoxicated, 

handcuffing him and placing him in the back of the patrol vehicle. (Id.) Trooper 

Withrow then read to Licensee the warnings on the Department’s DL-26 chemical 

test warning form and asked Licensee to submit to a blood test. (Id. at 4-5.) After 
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the first reading, Licensee told Trooper Withrow to ask his lawyer. (Id. at 5.) 

Trooper Withrow then read the DL-26 form and asked Licensee to submit to a 

blood test two more times; on the second reading, Licensee did not provide a 

response and on the third reading, Licensee stated that Trooper Withrow was a 

disgrace to the uniform. (Id.) Trooper Withrow informed Licensee that he was 

treating the responses as a refusal to submit to chemical testing; Licensee refused 

to sign the DL-26 form. (Id.; DL-26 Form, Reproduced Record 78a.) Licensee did 

not ask that the DL-26 form be reread or state that he did not understand any of the 

warnings. (Trial Court Op. at 5.) Licensee also did not report at any point that he 

had a hearing impairment. (Id. at 4.)

By notice mailed on November 27, 2015, the Department informed 

Licensee that his license was suspended for a period of one year effective January 

1, 2016 based on his refusal to submit to a chemical test on November 10, 2015. 

(Supplemental Reproduced Record (Supp. R.R.) 3b-5b.) On January 7, 2016, 

Licensee, acting pro se, filed a Petition to File Appeal Nunc Pro Tunc seeking 

leave to appeal the Department’s determination and requesting a stay of the license 

suspension. (Supp. R.R. 1b-2b.) Following a January 14, 2016 hearing at which 

Licensee was now represented by counsel, the Trial Court issued an order granting 

the petition. (Order, Supp. R.R. 1b; Jan. 14, 2016 Hearing Transcript (H.T.) at 9, 

Supp. R.R. 13b.)

A hearing on the merits of Licensee’s appeal was held on April 14, 

2016 at which Trooper Withrow, Licensee and Licensee’s daughter testified. On 

May 3, 2016, the Trial Court issued an order dismissing Licensee’s appeal. 

Licensee filed a timely appeal, and the Trial Court thereafter issued an opinion 

pursuant to Rule 1925 of the Pennsylvania Rules of Appellate Procedure.
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On appeal to this Court, Licensee argues that the Department failed to 

present sufficient evidence to establish two elements of its prima facie case to 

sustain a suspension of operating privileges under the Implied Consent Law, 

namely that the evidence failed to show that Trooper Withrow had reasonable 

grounds to believe that Licensee was operating a vehicle under the influence of 

alcohol or that Licensee refused to submit to a chemical test. See Banner v. 

Department of Transportation, Bureau of Driver Licensing, 737 A.2d 1203, 1206 

(Pa. 1999) (setting forth test under the Implied Consent Law). The Department 

argues that the Trial Court correctly determined that it had satisfied its prima facie

burden of proof under the Implied Consent Law and that Licensee did not present 

evidence that would allow him to invoke the affirmative defense that he was 

incapable of making a knowing and conscious decision to refuse chemical testing. 

In addition, the Department argues that the Trial Court misapplied the law when it

granted Licensee’s nunc pro tunc appeal because Licensee did not show the type of 

extraordinary circumstances that would permit an appeal of the Department’s 

notice of suspension of his operating privileges after the statutorily prescribed 

deadline. Upon review, we agree with the Department that the Trial Court erred by 

granting the nunc pro tunc appeal in this matter and we accordingly do not reach 

the merits of Licensee’s appeal.

A licensee who wishes to appeal from a suspension of operating 

privileges has 30 days from the date of the entry of the order in which to file a 

notice of appeal in the court of common pleas where the arrest was made. 42 Pa. 

C.S. § 933(a)(1)(ii); 42 Pa. C.S. § 5571(b); Williamson v. Department of 

Transportation, Bureau of Driver Licensing, 129 A.3d 597, 601 (Pa. Cmwlth. 

2015). Where the order is served by mail, as is the case with the notice of 
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suspension at issue in this matter, the date of mailing is considered the date of 

entry of the order. 42 Pa. C.S. § 5572; Williamson, 129 A.3d at 601. 

Appeals filed beyond the 30-day appeal period are untimely and 

deprive the court of common pleas of subject matter jurisdiction over the appeal, 

and the time for taking an appeal cannot be extended as a matter of grace or mere 

indulgence. Williamson, 129 A.3d at 601; Hudson v. Department of 

Transportation, Bureau of Driver Licensing, 830 A.2d 594, 598 (Pa. Cmwlth. 

2003). An appeal may be permitted nunc pro tunc only where delay in the filing of 

the appeal was caused by extraordinary circumstances involving fraud, a 

breakdown in the administrative process or non-negligent circumstances related to 

the appellant, her counsel or a third party. Bureau Veritas North America, Inc. v. 

Department of Transportation, 127 A.3d 871, 879 (Pa. Cmwlth. 2015); Baum v. 

Department of Transportation, Bureau of Driver Licensing, 949 A.2d 345, 348 

(Pa. Cmwlth. 2008). The appellant bears the burden of demonstrating that such 

circumstances exist. Williamson, 129 A.3d at 600; Kulick v. Department of 

Transportation, Bureau of Driver Licensing, 666 A.2d 1148, 1150 (Pa. Cmwlth. 

1995). This Court’s scope of review of a trial court’s decision whether to allow an 

appeal nunc pro tunc is limited to determining whether the trial court abused its 

discretion or committed an error of law. Williamson, 129 A.3d at 599; Baum, 949 

A.2d at 347 n.5.

In this matter, the notice of suspension was mailed on November 27, 

2015 and therefore Licensee had 30 days from that date within which to file an 

appeal to the Trial Court. (Notice of Suspension, Supp. R.R. 3b, 5b.) The notice 

of suspension clearly explained Licensee’s appeal right and the timeframe in which 

the appeal may be made: “You have the right to appeal this action to the Court of 
6

Common Pleas (Civil Division) within 30 days of the mail date, NOVEMBER 27, 

2015, of this letter.” (Id., Supp. R.R. 5b.) Because the thirtieth day after 

November 27, 2015 was a Sunday, Licensee had until the following day, Monday, 

December 28, 2015, in which to file his appeal. See 1 Pa. C.S. § 1908 (related to 

computation of time). Therefore, Licensee’s Petition to File Appeal Nunc Pro 

Tunc filed on January 7, 2016 was filed 10 days after the statutorily prescribed 30-

day appeal time limit. 

In his Petition to File Appeal Nunc Pro Tunc, Licensee stated that 

This stay is filed slightly late (11 days) as my attorney 

was away for the holidays and I thought that I had to 

return the license and did mail it to DMV on December 

31. The mailing date on my suspension notice from PA 

DMV is November 27, 2015. It is January 7, 2016 today 

when I make this request at County Court in Pittsburgh 

PA. I want to request the mercy of the court to be 

allowed appeal with DMV Pa for as long as this court 

matter takes to complete.

(Supp. R.R. 2b.) At the hearing on the petition, Licensee’s counsel stated that he 

left on vacation on December 24, 2015 and Licensee called his office while 

counsel was away and asked to speak with him but did not leave a message 

indicating the purpose of the call. (Jan. 14, 2016 H.T. at 3, 5-6, Supp. R.R. 7b, 9b10b.) Counsel stated that he was therefore unaware of the December 28, 2015 

appeal deadline until he spoke with Licensee when he arrived back from vacation 

on January 6, 2016. (Id. at 6, Supp. R.R. 10b.) Counsel explained that Licensee 

was given “bad advice” by a mutual friend, who was not a lawyer, that counsel 

could “take care of it” when he returned from vacation. (Id. at 7, Supp. R.R. 11b.) 

Counsel further stated that Licensee was “confused” by this advice, which was 

evidenced by the fact that Licensee complied with the requirement in the notice 
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that he mail his license back to the Department by January 1, 2016 while ignoring 

the notice’s appeal deadline. (Id.; Notice of Suspension, Supp. R.R. 5b (“You 

must return all current Pennsylvania driver license products to PennDOT by 

01/01/2016.”).) The Trial Court did not state its basis for granting Licensee leave 

to file the appeal nunc pro tunc at the hearing, in its order or in its opinion. 

Licensee argues before this Court that he was misled by the inaccurate 

advice given by his non-lawyer friend, but that he acted in good faith and that this 

constituted a non-negligent circumstance that justifies a nunc pro tunc appeal. In 

Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979), and Cook v. Unemployment 

Compensation Board of Review, 671 A.2d 1130 (Pa. 1996), our Supreme Court 

recognized that non-negligent circumstances related to either the actions of the 

appellant or his counsel can serve as the basis for a nunc pro tunc appeal. The 

exception to allow for the filing of a late appeal due to non-negligent 

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

appellant has clearly established that she attempted to file an appeal, but 

unforeseeable and unavoidable events precluded her from actually doing so.” 

Criss v. Wise, 781 A.2d 1156, 1160 (Pa. 2001) (holding that “delays in the U.S. 

mail are both foreseeable and avoidable” and that the appellant’s failure to 

anticipate a delay did not warrant nunc pro tunc relief); see also Baum, 949 A.2d at 

348. Thus, courts have permitted an appeal to be filed nunc pro tunc where the 

appellant, her attorney or the individual in her attorney’s office responsible for 

filing the appeal suffers an unexpected illness or hospitalization during the appeal 

period. See, e.g., Cook, 671 A.2d at 1132 (appellant’s sudden illness and 

hospitalization while the appeal period expired was grounds for appeal nunc pro 

tunc); Bass, 401 A.2d at 1134-36 (nunc pro tunc relief warranted where secretary 
8

who was responsible for filing appeal fell ill, left work and did not return to work 

until after the appeal deadline had passed); Tony Grande, Inc. v. Workmen’s 

Compensation Appeal Board (Rodriguez), 455 A.2d 299, 300 (Pa. Cmwlth. 1983)

(hospitalization of appellant’s counsel preventing the filing of a timely appeal 

authorized nunc pro tunc relief). Similarly, this Court has permitted a nunc pro 

tunc appeal where the clerk in the appellant’s attorney’s office experienced

automotive problems while driving to the post office to file the appeal and did not 

arrive until after the post office was closed. Perry v. Unemployment Compensation 

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

A mere misunderstanding or confusion regarding the necessity for an 

appeal or an appeal deadline, however, will not serve as the basis for the filing of 

an appeal after a statutorily mandated period. See, e.g., Williamson, 129 A.3d at 

602 (stating that the licensee’s “subjective misunderstanding or confusion related 

to the straightforward appeal language in the Bureau’s notice of suspension cannot, 

by itself justify extension of the statutorily mandated 30-day appeal period”); 

Baum, 949 A.2d at 349-50 (motorist barred from filing nunc pro tunc appeal of 

suspension of operating privileges where she appealed an underlying summary 

offense violation and filed a request for a stay of the suspension but mistakenly did 

not file a timely appeal of the notice of suspension); Kovalesky v. Department of 

Transportation, Bureau of Driver Licensing, 850 A.2d 26, 29-32 (Pa. Cmwlth. 

2004) (holding that a licensee who did not file a timely appeal of a Pennsylvania 

license suspension based on a “misunderstanding of the workings” of the Driver’s 

License Compact was not entitled to an appeal nunc pro tunc); see also In re 

Appeal of Tenet HealthSystems Bucks County, LLC, 880 A.2d 721, 727-28 (Pa. 

Cmwlth. 2005) (attorney’s reliance on erroneous statement of appeal timeframe in 
9

legal publisher’s unofficial compendium of Pennsylvania’s uncodified statutes did 

not present an extraordinary event that would allow nunc pro tunc appeal); 

Lawrence County v. Pennsylvania Labor Relations Board, 469 A.2d 1145, 1148-

49 (Pa. Cmwlth. 1983) (holding that an attorney who inadvertently did not review

a copy of the order that was required to be appealed until after the expiration of the 

appeal period was not entitled to file a late appeal because “mere neglect or 

administrative oversight of counsel cannot justify allowance of an appeal nunc pro 

tunc”). Furthermore, the fact that an appellant is unrepresented does not excuse his 

misunderstanding or lack of knowledge of the law that is required to effectuate a 

timely appeal. Hinds v. Department of Transportation, Bureau of Motor Vehicles,

740 A.2d 1217, 1219 (Pa. Cmwlth. 1999) (pro se appellant “assumed the risk that 

her lack of legal knowledge might prove to be her undoing” and lack of knowledge 

of “proper appellate procedure” was not enough to permit an appeal nunc pro 

tunc); Fritz v. Workmen’s Compensation Appeal Board (Kim Manufacturing Co., 

Inc.), 527 A.2d 636, 637 (Pa. Cmwlth. 1987) (unrepresented litigant’s argument 

“that he was ‘not skilled in the law’” was insufficient to overcome jurisdictional 

bar based on a failure to file a timely appeal). 

We conclude that Licensee has not set forth grounds for a nunc pro 

tunc appeal. The only grounds presented by Licensee to the Trial Court that would 

merit leave to file a nunc pro tunc appeal were that his attempt to reach his 

attorney prior to the running of the appeal period was unsuccessful because the 

attorney was on vacation and that he was given incorrect advice by a friend that the 

appeal could be filed by the attorney after the appeal period had run. It is clear that 

Licensee received the notice of suspension advising him that any appeal must be 

filed within 30 days of November 27, 2015, read the notice and understood at least 
10

that he could appeal the notice and he was required to mail his license to the 

Department by January 1, 2016. These circumstances demonstrate at most only a 

confusion regarding the strict necessity that the appeal be filed within 30 days of 

the notice’s mail date which courts have routinely rejected and do not present the 

“unique and compelling” case 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.

Accordingly, we vacate the order of the Trial Court. 

____________________________________

JAMES GARDNER COLINS, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John E. Barrett, :

:

Appellant :

:

v. : No. 858 C.D. 2016

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing :

O R D E R

AND NOW, this 15th day of May, 2017, the order of the Court of 

Common Pleas of Allegheny County (Trial Court) in the above-captioned case is

VACATED and Appellant’s appeal from the suspension of his driver’s license 

imposed by the Department of Transportation, Bureau of Driver Licensing is 

DISMISSED for lack of jurisdiction.

____________________________________

JAMES GARDNER COLINS, Senior Judge