J. A03002/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                        Appellee          :
                                          :
                  v.                      :
                                          :
MARILYN KENT,                             :
                                          :
                        Appellant         :     No. 508 EDA 2015

                   Appeal from the Order January 30, 2015
               In the Court of Common Pleas of Bucks County
             Criminal Division No(s).: CP-09-MD-0001640-2014

BEFORE: GANTMAN, P.J., MUNDY,J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                            FILED MARCH 30, 2016

      Marilyn Kent appeals from the Honorable Wallace H. Bateman, Jr.’s

denial of her Motion to Appeal nunc pro tunc from her summary convictions

for, among other things, cruelty to animals and criminal mischief.       After

careful review, we find an administrative breakdown in the court’s handling

of the appeal process, reverse the trial court’s denial of nunc pro tunc relief

and remand for further proceedings.

      The procedural history of this case is as follows. On August 21, 2013,

and September 4, 2013, Bucks County Magisterial District Judge Gary

Gambardella found Appellant guilty of four summary offenses of Criminal

Mischief and Cruelty to Animals.     Judge Gambardella sentenced her to a

term of 24 consecutive hours’ incarceration at the Bucks County Correctional

Facility.
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       Appellant, acting pro se, filed timely Notices of Appeal from her

summary convictions on September 12, 2013, and September 23, 2013, for

the    convictions   dated    August   21,   2013,   and   September   4,    2013,

respectively.   At the same time, she filed Motions to Proceed In Forma

Pauperis (“IFP Petitions”).

       The Bucks County Clerk of the Court of Common Pleas received

Appellant’s Notices of Appeal. Each Notice of Appeal was time stamped, but

the Clerk of Courts failed to file or docket either appeal.

       The Clerk of Courts also received Appellant’s IFP Petitions, and created

separate miscellaneous dockets in the Court of Common Pleas for each. 1 On

September 12, 2013, the Bucks County Deputy Clerk sent Appellant a letter

(“Acknowledgment Letter”), acknowledging the receipt of the IFP Petitions as

well as informing Appellant about the procedure when the court grants or

denies the IFP Petitions. In particular, the Acknowledgment Letter informed

Appellant that if the court denied the IFP Petitions, Appellant would have ten

days to pay the filing fee:

       If the [IFP] petition is granted, [the Clerk of Courts] will notify
       the District Court to forward your case to the Court of Common
       Pleas for summary appeal. If the petition is denied and the
       filing fee is not paid within ten (10) days, the case
       remains at the District Court level.

Defense Exhibit D-2, Hearing on Motion, 12/23/14; R.R. at 111a (emphasis

added).

1
    See Dockets No. CP-09-MD-0002684-2013 and CP-09-MD-0002768-2013.



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      Six weeks later, the Court Administration from the Court of Common

Pleas returned Appellant’s “pleadings” and notified her that her IFP Petitions

had “not been acted upon by the Court,” as they were “deficient.”2

Commonwealth Exhibit C-3, Hearing on Motion, 12/23/14.                The Court

Administration’s letter to Appellant, however did not provide the Appellant

with notice that if she failed to complete the IFP Petitions, the court would

dismiss the IFP Petitions.

      Appellant did not respond to the Court Administration’s letter and six

weeks later Judge Gambardella sent Appellant a letter (“Judge Gambardella

Letter”) informing Appellant she no longer had a right to appeal: 3

      It has come to my attention that you have failed to perfect your
      appeals in the above-captioned non-traffic citation cases in
      which verdicts of guilty have been entered. Therefore, as the
      appeal periods have expired in each of these matters, the
      judgments of sentence for these matters are final.

Defense Exhibit D-3, Hearing on Motion, 12/23/14; R.R. at 112a-113a. The

Judge Gambardella Letter was not accompanied by an order, and was not

docketed in either of the miscellaneous dockets.


2
  The deficiency was indicated with a check in a box marked “other” with the
explanation “Affidavit must include the value of all property including
livestock, equipment and supplies used to maintain such livestock.”
Commonwealth Exhibit C-3, Hearing on Motion, 12/23/14.
3
  This letter completely ignored the fact that Appellant had already
submitted timely Notices of Appeal that the Clerk of Courts refused to file.
This letter also fails to follow the procedure laid out by the Acknowledgement
Letter. In particular, the Judge Gambardella Letter does not actually dismiss
the IFP Petitions or give Appellant ten days to pay the filing fee.



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      In response to the Judge Gambardella Letter, Appellant took the

following actions to resurrect her appeals.      First, on December 23, 2013,

Appellant filed a pro se “Motion for Extension of Time” citing long-term

illness.4 On December 30, 2013, she filed a pro se motion seeking, among

other things, Reinstatement of the Appeal.5 Third, sometime in January of

2014, Appellant returned to the Clerk of Courts’ office and filed completed

IFP petitions in her initial summary appeals.6

      Appellant also retained counsel who filed a Motion Seeking Leave to

Amend her summary appeals or, in the alternative, file appeals from the

summary offenses nunc pro tunc.

      On December 23, 2014, the Honorable Wallace H. Bateman, Jr. held a

hearing on the motion. Natalie Litchko, an employee of the Clerk of Courts,

testified that the Clerk of Courts never filed Appellant’s appeal “because [the

4
 The Clerk of Courts failed to docket this Motion. Commonwealth Exhibit C-
1, Hearing on Motion, 12/23/14; R.R. at 119a. It does not appear to have
ever been denied, dismissed, or otherwise addressed. See Dockets No. CP-
09-MD-0002684-2013 and CP-09-MD-0002768-2013.
5
  This Motion was docketed with one of Appellant’s two IFP petitions. See
Docket No. CP-09-MD-0002768-2013. The Motion was “[f]orwarded for
consideration” and then “returned to file without action by Judge Bateman.”
See Commonwealth Exhibit C-1, Hearing on Motion, 12/23/14; R.R. at 115a.
There is no record of the motion requesting Reinstatement ever being
denied, dismissed, or otherwise addressed. See Dockets No. CP-09-MD-
0002684-2013 and CP-09-MD-0002768-2013.
6
  Although Natalie Litchko, an employee of the Clerk of Courts, testified that
the new IFP petition was considered and granted, this appears nowhere in
the Court of Common Pleas docket. N.T. Hearing, 12/23/14, at 21. The
Clerk of Courts took no action after the new IFP petition was granted. Id.



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IFP] was not perfected.”    N.T. Hearing, 12/23/14, at 21.     Judge Bateman

denied Appellant’s Motion for Leave to Appeal Nunc Pro Tunc and reinstated

the sentence imposed by Judge Gambardella. Order, dated 1/30/15.

      Appellant filed a timely Notice of Appeal to this Court, and a Rule

1925(b) Statement raising twelve issues. We need to address only the issue

of whether the trial court properly denied Appellant nunc pro tunc relief:

      Did the [c]ourt below commit reversible error and abuse its
      discretion in denying the [Appellant’s] Motion to Appeal Nunc Pro
      Tunc, and in the alternative to Amend Summary Appeals under
      the facts of this case?

Appellant’s Brief at 3.

      In an appeal from the denial of a motion to appeal nunc pro tunc, this

Court has stated our standard of review as follows:

      [T]he allowance of appeal nunc pro tunc is within the sound
      discretion of the trial court, and our scope of review of a decision
      of whether to permit an appeal nunc pro tunc is limited to a
      determination of whether the trial court has abused its discretion
      or committed an error of law. Orders granting or denying [a]
      petition to appeal nunc pro tunc are reversible [only] in
      instances where the court abused its discretion or where the
      court drew an erroneous legal conclusion.

Commonwealth v. Yohe, 641 A.2d 1210, 1211 (Pa. Super. 1994)

(citations and internal quotation marks omitted).

      Appellant contends that the trial court abused its discretion and erred

as a matter of law in denying her leave to appeal nunc pro tunc where the

Clerk of Courts failed to file Appellant’s Notices of Appeal and failed to

dismiss or deny her IFP petitions. We agree.




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      “An appeal nunc pro tunc is intended to be an extraordinary remedy to

vindicate the right to an appeal where that right has been lost due to some

extraordinary circumstance.” Commonwealth v. White, 806 A.2d 45, 46

(Pa. Super. 2002) (citation omitted).    “Generally, an appeal nunc pro tunc

may be allowed when a delay in filing the appeal is caused by extraordinary

circumstances involving fraud or some breakdown in the court’s operation

through a default of its officers.” Cook v. Unemployment Comp. Bd. Of

Review, 671 A.2d 1130, 1131 (Pa. 1996) (citations and internal quotation

marks omitted).

      We find that the trial court erroneously denied nunc pro tunc relief

where there was an administrative breakdown in the court’s operations.

      The Office of the Clerk of Courts expressly told Appellant in its

Acknowledgment Letter that it would take one of two actions on Appellant’s

IFP petitions, and then failed to follow its own announced procedures. The

Acknowledgment Letter told Appellant the court would either grant or deny

her IFP Petitions, and if the court denied them, she would have 10 days to

pay the filing fees. Instead, the Clerk of Courts not only failed to actually

grant or deny the IFP petitions, they did so without providing any further

action, direction, or notice to Appellant. Such failure to follow through on its

own stated procedures constitutes a breakdown in the court’s operations.

      Furthermore, the Office of the Clerk of Courts was without authority to

refuse to docket Appellant’s timely Notices of Appeal. By its own admission,



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the Office of the Clerk of Courts refused to file Appellant’s timely Notices of

Appeals because of a defect in the IFP petitions.               As this Court has

repeatedly made clear, a prothonotary or Clerk of Courts’ failure to process a

defective but otherwise timely appeal constitutes a breakdown in the court’s

operations.   See Commonwealth v. Alaouie, 837 A.2d 1190, 1192 (Pa.

Super. 2003) (holding the prothonotary had no authority to reject an

appellant’s   timely   but   defective   Notice   of   Appeal   from   a   summary

conviction). See also Amicone v. Rok, 839 A.2d 1109, 1115 (Pa. Super.

2003) (holding that because “the prothonotary’s office was without the

power to reject the appeal . . . there was a breakdown in the court’s

operation through a default of its officers.”); Nagy v. Best Home Services,

Inc., 829 A.2d 1166, 1168 (Pa.Super. 2003) (finding a breakdown in the

court’s operations due to the prothonotary’s “failure to time stamp and

docket the timely-filed, albeit flawed, notice of appeal.”).           The Clerk of

Courts was required to docket and process the Notices of Appeal and IFP

petitions. The failure to do so constituted a clear breakdown in the court’s

operations.7 Alaouie, 837 A.2d at 1192.



7
  The trial court erred in finding Appellant’s own negligence caused this
breakdown in the court’s operations. When an appellant seeks nunc pro
tunc relief on the grounds there was a breakdown in the court’s operations,
the proper focus of the inquiry is on the conduct of the court and its officers.
See e.g., Nagy, 829 A.2d at 1167-68 (holding a breakdown in the court’s
operations warranted nunc pro tunc relief where prothonotary refused to
docket a timely-filed notice of appeal, despite the fact that appellant’s Notice
(Footnote continued)


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      Having found a breakdown in the court’s operations, we must now

consider whether Appellant timely pursued nunc pro tunc relief. Yohe, 641

A.2d at 1212 (“A party seeking leave to appeal from a summary conviction

nunc pro tunc has the burden of demonstrating . . . that upon learning of the

existence of the grounds relied upon for nunc pro tunc relief, he acted

promptly to seek such relief.”).

      The Judge Gambardella Letter put Appellant on notice that there had

been a breakdown in the court’s operations. Within days, Appellant made

three separate attempts to re-assert her appellate rights in response to the

Judge Gambardella Letter. See supra at slip op. 4. The fact that the Clerk

of Courts improperly docketed or otherwise ignored these efforts does not

diminish Appellant’s demonstrated diligence. When her efforts were ignored,

she retained private counsel. We conclude Appellant was diligent and timely

in her pursuit of an appeal nunc pro tunc.

      Therefore, we reverse the order of January 30, 2015, and we remand

for proceedings consistent with this memorandum opinion.

      Order reversed. Case remanded. Jurisdiction relinquished.

      President Judge Gantman joins the memorandum.

      Judge Mundy concurs in the result.




of Appeal lacked all required signatures and lacked a copy of the judgment
below).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/30/2016




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