J-A32003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellee

                   v.

JOANNA J. EASTMAN,

                        Appellant                 No. 131 WDA 2015


                 Appeal from the Order December 11, 2014
              In the Court of Common Pleas of Greene County
            Criminal Division at No(s): CP-30-SA-0000038-2014


BEFORE: SHOGAN, OTT, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                    FILED FEBRUARY 10, 2016

     Appellant, Joanna J. Eastman, appeals from the December 11, 2014

trial court order quashing her summary appeal as untimely. We vacate and

remand for a hearing on whether Appellant’s right to appeal her summary

convictions should be restored.

  The relevant facts, as gleaned from the certified record, are as follows:

After a traffic incident on September 4, 2013, Appellant was charged with

summary motor vehicle offenses by certified summons issued on September

23, 2013. According to the Magisterial District Judge docket, on September

8, 2014, Appellant was found guilty in abstentia of the offenses and

sentenced to eighty days of incarceration.    However, the certificates of
J-A32003-15


disposition on the reverse side of the citations identifies September 9, 2014,

as the date of adjudication.1

       On October 9, 2014, Appellant filed a notice of appeal from the

summary criminal convictions and a motion for leave to proceed in forma

pauperis. Both documents are dated October 8, 2014. On November 21,

2014, the Commonwealth filed a motion to quash the appeal as untimely,

and, a few days later, the trial court directed Appellant to file an answer to

the Commonwealth’s motion.

       Subsequently, on December 8, 2014, Appellant filed a Petition and

Answer to Rule to Show Cause averring, inter alia, that another individual

was convicted in the same incident, that Appellant did not receive notice of

the September 8, 2014 summary trial and judgment until September 29,

2014,2 and that the in forma pauperis application and appeal were dated

October 8, 2014, but time stamped October 9, 2014. The petition averred:

“It is believed that the document was lodged with the Clerk on October 8,

2014[,] subject to the Court’s approval of the in forma pauperis appeal and

____________________________________________


1
   Although Appellant included a copy of the certificate in her brief, she does
not argue that the discrepancy between the September 9, 2014 date of
adjudication on the citation and the Magisterial District docket entry that
identifies September 8, 2014, as the date of disposition warrants relief. We
appreciate the Commonwealth’s candor in this regard.
2
   These proceedings and the related factual averments are not part of the
record on appeal.



                                           -2-
J-A32003-15


therefore timely filed.” Petition and Answer, 12/8/14, at unnumbered 2. In

the alternative, Appellant requested “that the Court hold a hearing to

determine whether [Appellant] should be permitted to proceed nunc pro

tunc.” Id.

       By order entered December 11, 2014, the trial court quashed the

summary appeal as untimely. On December 19, 2014, Appellant requested

reconsideration of the order quashing the appeal and again petitioned the

trial court to hold a hearing on Appellant’s request to proceed nunc pro tunc.

The docket does not indicate that the trial court ruled on the motion. 3

       On January 12, 2015, Appellant filed a notice of appeal to this Court.

Because the original trial judge had since retired, the Honorable Farley

Toothman ordered Appellant to file a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal. Appellant timely complied, arguing generally that

the trial court erred when it did not hold a hearing on the question of the

timeliness of the appeal.       Judge Toothman did not address the arguments

raised in Appellant’s 1925(b) statement and simply entered an order

indicating “the Court stands by the previously filed record” before the now-

retired Judge Nalitz. Order, 3/12/15, at unnumbered 1.

       Appellant raises one issue for appellate review:
____________________________________________


3
  Because the trial court never ruled on the reconsideration motion, the date
of the order appealed from is December 11, 2014. The thirtieth day from
that order was January 10, 2015, a Saturday. This appeal, filed Monday,
January 12, 2015, is timely. See 1 Pa. C. S. § 1908.



                                           -3-
J-A32003-15


             Did the trial court . . . abuse its discretion and violate the
       due process rights of a summary offender on de novo appeal
       when the trial judge refused to hold a hearing to determine facts
       that establish she filed a timely appeal, was otherwise entitled to
       proceed nunc pro tunc, or should be granted other post-
       conviction relief?

Appellant’s Brief at unnumbered 7. We construe Appellant’s argument as a

challenge to the trial court’s decision to quash her summary convictions

appeal without holding a hearing on her request for nunc pro tunc relief.

Our standard of review in determining the propriety of a denial of an appeal

nunc    pro   tunc   is   whether   the   trial   court    abused    its   discretion.

Commonwealth v. Stock, 679 A.2d 760, 762 (Pa. 1996).

       Pennsylvania courts traditionally have held that in cases involving

appeals from summary convictions, nunc pro tunc relief may be granted only

when circumstances “such as ineffectiveness of counsel, fraud, or a

breakdown in the court’s operations” result in the denial of a criminal

defendant’s constitutional right to an appeal.            Stock, 679 A.2d at 762

(quoting Commonwealth v. Jarema, 590 A.2d 310, 311 (Pa. Super.

1991)). However, the Stock Court observed that the above-stated standard

governing nunc pro tunc relief had been “somewhat liberalized” and

proposed that a principle has emerged that “an appeal nunc pro tunc is

intended as a remedy to vindicate the right to an appeal where that right

has been lost due to extraordinary circumstances.”                  Id. at 763–764

(citations omitted). Amplifying this ruling in Criss v. Wise, 781 A.2d 1156

(Pa. 2001), the Supreme Court held that untimeliness resulting from “non-


                                      -4-
J-A32003-15


negligent circumstances, either as they relate to the appellant or the

appellant’s counsel,” might warrant nunc pro tunc relief. Id. at 1159. See

also Commonwealth v. White, 806 A.2d 45, 46 (Pa. Super. 2002)

(observing that the pertinent question in reviewing of the propriety of an

adverse nunc pro tunc ruling is whether the right to appeal was denied

because of extraordinary circumstances not of the appellant’s doing).

       With these principles in mind, we conclude that the instant case

presents such extraordinary circumstances which, at a minimum, require

that a hearing be held concerning Appellant’s request for restoration of her

appeal rights. The factual discrepancy in the certified record regarding the

date of the district magistrate’s adjudication reasons this conclusion. If, as

the reverse side of the traffic citations memorializes, Appellant was

adjudicated guilty on September 9, 2014, then her appeal filed on

October 9, 2014, was timely.              We conclude this facial inconsistency

mandates the trial court to conduct a hearing on the timeliness of the

appeal.4

       Alternatively, if the docket entry indicating that the adjudication

occurred on September 8, 2014, is deemed accurate, the trial court should

____________________________________________


4
   The Commonwealth does not appear to oppose this remedy as it “submits
that this Court may determine [whether the date of adjudication]
discrepancy requires remand for clarification as adjudication on the later
date would render the summary appeal timely.” Commonwealth’s Brief at 6.



                                           -5-
J-A32003-15


consider the significance of Appellant’s claim that the motion to proceed in

forma pauperis and the appeal were timely presented for filing on October 8,

2014.    If it can be established that the failure to rule on the motion, the

granting of which was a condition precedent to the filing of Appellant’s

appeal, represented a breakdown in the court’s operation, Appellant’s appeal

rights should be restored nunc pro tunc.

        For these reasons, we vacate the order quashing Appellant’s appeal as

untimely and remand for a hearing on the propriety of relief requested by

Appellant.

        Order vacated.   Case remanded for proceedings consistent with this

adjudication. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2016




                                     -6-
