          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alton D. Brown,                           :
                   Appellant              :
                                          :
             v.                           :   No. 388 C.D. 2018
                                          :   Submitted: January 4, 2019
Superintendent Hill, D. P. Lyons,         :
Joseph P. Cronin Jr., A. Sheldon          :
Kovach, Patrick L. Meehan, Daniel         :
McDevitt, Richard Daubenberger,           :
Francis J. Dujmic, Ranald A. Berry,       :
Steven Brown, John Murphy, John           :
Easton, Delaware County, Paul G.          :
Mattus, Joseph W. Dorsey, Nicholas        :
G. Theodore, Emilio DeMatteo Jr.,         :
York Stenographic Services, Inc.,         :
Charles Kelbley, Michael Green,           :
Henry Lunardi, Michael J. Henry,          :
George W. Hill                            :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                   FILED: August 1, 2019

             Alton D. Brown appeals two orders of the Court of Common Pleas of
Delaware County (trial court) in his civil action against Delaware County (County)
and several of its officials and employees for alleged violations of Brown’s
constitutional rights. The first order denied Brown’s motion to appeal nunc pro tunc
ten orders sustaining the defendants’ preliminary objections and dismissing his first
amended complaint with prejudice. The second order denied his motion to strike
those orders. Brown claims he has a right to proceed nunc pro tunc because he never
received the trial court’s orders sustaining the defendants’ preliminary objections or
the trial court’s order denying his first request for nunc pro tunc relief. Further, the
trial court erred by characterizing his motions as seeking reconsideration and
refusing to address the merits. We vacate and remand for a hearing on Brown’s
motions.
               Brown is currently serving a cumulative prison sentence of 108 to 216
years. Brown v. Levy, 73 A.3d 514, 515 (Pa. 2013). The balance of his sentence
relates to his April 8, 1997, escape from the George W. Hill Correctional Facility
(County Prison) and the crimes he committed while attempting to avoid
apprehension. See Commonwealth v. Brown (Pa. Super., No. 12 EDA 2012, filed
May 8, 2014) (detailing Brown’s multiple convictions and sentences). In sum,
Brown was convicted in the County of escape; robbery (multiple counts); burglary;
aggravated assault (multiple counts); possession of an instrument of crime (multiple
counts); and theft (multiple counts).
               Relevant here is a first amended complaint Brown filed on September
6, 2005,1 against numerous public officials and employees (collectively,
Defendants).2 Brown alleged a number of civil rights violations that he claimed


1
  The original complaint was filed March 8, 2005.
2
  The Defendants are Superintendent Hill (first name not provided), the superintendent of the
County Prison; D. P. Lyons, the deputy warden of the County Prison; Joseph P. Cronin Jr., a trial
court judge; A. Sheldon Kovach, an employee of the district attorney’s office; Patrick L. Meehan,
an employee of the district attorney’s office; Daniel McDevitt, an employee of the district
attorney’s office; Richard Daubenberger, an employee of the district attorney’s office; Francis J.
Dujmic, a County administrative court reporter; Ranald A. Berry, a local law enforcement officer;
Steven Brown, a local law enforcement officer; John Murphy, a local police department detective;
John Easton, a County detective; Paul G. Mattus, a County commissioner; Joseph W. Dorsey,
Director of the Office of Judicial Support; Nicholas G. Theodore, an employee of the public
defender’s office; Emilio DeMatteo, Jr., an employee of the public defender’s office; York
Stenographic Services, Inc., the official stenographic service of the County; Charles Kelbley,
appointed appellate counsel; Michael Green, appointed appellate counsel; Henry Lunardi,

                                                2
occurred during his confinement in the County Prison following his apprehension
for escape and the prosecution on the criminal charges. The first amended complaint
claims that many people in the County conspired to convict persons of color3 of
crimes by presenting false evidence against them, destroying evidence in their favor,
and sabotaging their post-conviction appeals. Brown sought a declaratory judgment
that Defendants violated his constitutional rights, an injunction prohibiting
Defendants from deciding any issues relating to his criminal charges, compensatory
damages of $20,000,000 and punitive damages of $20,000,000.
              Issues regarding service of the first amended complaint persisted from
2005 through 2011. In 2011, Defendants filed preliminary objections.                 After
requesting and receiving several extensions of time to respond to the preliminary
objections to the first amended complaint, Brown filed a second amended complaint.
On August 9, 2012, the trial court struck the second amended complaint and ordered
Brown to respond to the preliminary objections to the first amended complaint.
Brown did respond. On October 25, 2013, the trial court filed ten orders sustaining
Defendants’ preliminary objections and striking the first amended complaint with
prejudice.
              On November 9, 2015, Brown requested leave to appeal the trial court’s
2013 orders nunc pro tunc. He claimed that he never received the 2013 orders and
that he first learned the trial court dismissed his case on November 2, 2015. Brown
claimed that prison records would show he did not receive any mail from the trial
court after the 2013 orders were filed. Defendants did not respond to this motion or
to any of Brown’s subsequent motions to the trial court. On December 9, 2015, the

appointed appellate counsel; Michael J. Henry, appointed appellate counsel; George W. Hill,
warden of the County Prison; and the County (collectively, Defendants).
3
  Brown is African-American.
                                            3
trial court filed an order denying Brown’s request to appeal the 2013 orders nunc
pro tunc. The trial court did not state a reason for denying nunc pro tunc relief.
             On March 25, 2016, Brown filed a “re-newed motion” requesting leave
to appeal the 2013 orders nunc pro tunc. Brown reiterated that he never received
notification from the trial court that his case was dismissed in 2013. He first learned
of the dismissal when he received documents in another one of his cases against the
County.    He claimed that the failure to provide notice constituted another
inappropriate act by County courthouse staff.
             On April 4, 2016, Brown filed a motion to strike the 2013 orders.
Brown claimed that, in addition to never receiving the 2013 orders, he never received
notice of the December 9, 2015, order denying nunc pro tunc relief. This prompted
his renewed motion on March 25, 2016, requesting leave to appeal the 2013 orders
nunc pro tunc. He believed his original 2015 motion for nunc pro tunc relief
remained outstanding.
             On January 12, 2018, the trial court filed two orders. The first order
denied Brown’s renewed motion to appeal the 2013 orders nunc pro tunc, which the
trial court characterized as a motion for reconsideration of its 2015 order denying
nunc pro tunc relief. The trial court stated that Brown’s request for reconsideration
was filed more than 90 days after the 2015 order. As such, it was beyond the time
the trial court had jurisdiction to reconsider its order. The second order denied
Brown’s motion to strike the 2013 orders. The trial court stated it was also treating
this motion as a request for reconsideration. Because the motion was filed 29 months
after the 2013 orders were filed, it was beyond the time the trial court had jurisdiction
to reconsider the orders. Brown now appeals both orders.



                                           4
               On appeal,4 Brown argues that the trial court erred in denying his
motions. Brown contends that he is entitled to a hearing to establish that he never
received the trial court’s 2013 orders sustaining Defendants’ preliminary objections
or the trial court’s 2015 order denying his motion to appeal the 2013 orders nunc pro
tunc. Brown further asserts that he was entitled to file a motion to strike the 2013
orders because if he had received timely notice of the orders, he would have filed a
timely motion to strike the orders. Brown requests a remand to the trial court for a
hearing on his motions.
               We begin with Brown’s challenge to the trial court’s 2018 order
denying his renewed motion to appeal the 2013 orders nunc pro tunc. Brown
contends that he did not learn of the 2013 orders sustaining Defendants’ preliminary
objections and dismissing the first amended complaint until 2015. He immediately
filed a motion for leave to appeal nunc pro tunc. The trial court denied his motion
on December 9, 2015. However, he also did not receive that order. This was why
he filed the renewed motion for nunc pro tunc relief on March 25, 2016. His
renewed motion was not a request for reconsideration. He filed a renewed motion
because he believed the trial court had yet to act on his 2015 motion.
               Brown further asserts that the trial court’s 2015 order denying nunc pro
tunc relief was improper because the trial court never held a hearing. Brown
contends that he was entitled to a hearing to establish that he never received the 2013




4
  Our review of a trial court’s order granting or denying nunc pro tunc relief determines whether
there has been an error of law or a manifest abuse of discretion. Baker v. City of Philadelphia, 603
A.2d 686, 687 n.2 (Pa. Cmwlth. 1992).

                                                 5
orders, or the 2015 order; Brown claims he could have proven non-receipt through
mail records maintained by the Department of Corrections.5 Brown’s Brief at 10.
               Defendants have filed a brief in response to Brown’s appeal to this
Court.6 They state that Brown did not timely appeal the 2013 orders or the 2015
order. Brown is a prolific litigator and continues to file repeated requests seeking
nunc pro tunc relief. The trial court properly denied his repeated claims.
               An appeal nunc pro tunc is an exception “to the general rule prohibiting
the extension of an appeal deadline.” Union Electric Corporation v. Board of
Property Assessment, Appeals and Review of Allegheny County, 746 A.2d 581, 584
(Pa. 2000). “It is intended as a remedy to vindicate the right to an appeal where that
right has been lost due to certain extraordinary circumstances.”                      Id. (quoting
Commonwealth v. Stock, 679 A.2d 760, 764 (Pa. 1996)).                                Extraordinary
circumstances include fraud, a breakdown in a court’s operations, or where a litigant
has failed to file a timely appeal due to non-negligent circumstances. Criss v. Wise,

5
  Brown also argues that the County’s prothonotary is responsible for mailing trial court orders to
parties and should have a record showing whether notice was sent to him. Brown notes that the
prothonotary has failed to send him notice of trial court orders in the past. In support, Brown
references a case currently pending before this Court, Brown v. Civera (Pa. Cmwlth., No. 922 C.D.
2017), where a representative of the prothonotary’s office admitted Brown was not sent notice of
a trial court order. There, Brown filed an application for leave to appeal nunc pro tunc with this
Court, claiming he did not receive timely notice of the trial court’s order dismissing his case. This
Court remanded the case to the trial court to determine whether its order was mailed to Brown and
whether he should be permitted to appeal nunc pro tunc.
         On remand, the trial court held a hearing. A representative of the office of prothonotary
testified that notice of the trial court’s order was sent to some of the parties, but not to Brown. As
such, the trial court granted nunc pro tunc relief and returned the matter to this Court for
consideration on the merits. Brown v. Civera (Pa. Delaware County C.C.P., No. 14-5822, filed
October 16, 2017).
6
  Specifically, a brief was filed on behalf of A. Sheldon Kovach, Patrick L. Meehan, Daniel
McDevitt and Richard Daubenberger. The remaining Defendants joined in the brief, with the
exception of Superintendent Hill, Ranald A. Berry, Steven Brown and York Stenographic
Services, Inc., none of which responded.
                                                  6
781 A.2d 1156, 1159 (Pa. 2001). To grant a litigant the right to file an appeal nunc
pro tunc, there must be a factual finding that extraordinary circumstances exist.
Puckett v. Department of Transportation, Bureau of Driver Licensing, 804 A.2d 140,
143 (Pa. Cmwlth. 2002).
             Failure to send notice of an order constitutes a breakdown in operations
warranting nunc pro tunc relief. Moore v. Pennsylvania Board of Probation and
Parole, 503 A.2d 1099, 1101 (Pa. Cmwlth. 1986). Failure to receive a notice can
also warrant nunc pro tunc relief.
             Here, Brown’s original 2015 motion for nunc pro tunc relief alleged
that the County Prison’s mailing records would show he never received copies of
the trial court’s 2013 orders sustaining Defendants’ preliminary objections and
dismissing his case. Further, the trial court’s records will establish if the orders were
sent. Brown’s claims that he was deprived of notice of the 2013 orders are sufficient
to merit an evidentiary hearing. See Weiman by Trahey v. City of Philadelphia, 564
A.2d 557, 559-60 (Pa. Cmwlth. 1989) (when a litigant’s nunc pro tunc appeal
involves a factual determination a hearing before the trial court is warranted). Here,
it was error for the trial court to dismiss Brown’s November 9, 2015, motion to
appeal the 2013 orders nunc pro tunc without holding a hearing or explaining the
court’s reasoning. It follows that the trial court also erred in denying Brown’s March
25, 2016, renewed motion for nunc pro tunc relief for the same reason.
             The trial court characterized Brown’s March 25, 2016, renewed nunc
pro tunc motion and his April 4, 2016, motion to strike the 2013 orders as motions
for reconsideration of the trial court’s 2015 order denying nunc pro tunc relief. This
also was error. Brown’s March 25, 2016, motion only addressed the trial court’s
2013 orders and made no reference to the 2015 order. The April 4, 2016, motion


                                           7
referenced the 2015 order for the first time. In that motion, Brown emphatically
stated that he just learned about the 2015 order and sought to appeal both the 2013
orders and the 2015 orders nunc pro tunc.7
               For the reasons set forth above, we vacate the orders of the trial court
dated January 12, 2018, that denied Brown’s renewed motion to appeal the 2013
orders nunc pro tunc and denied Brown’s motion to strike the 2013 orders. We
remand for an evidentiary hearing on Brown’s motion to appeal the 2013 orders and
the 2015 order nunc pro tunc and his motion to strike the 2013 orders and reinstate
the first amended complaint.
                                          _____________________________________
                                          MARY HANNAH LEAVITT, President Judge

Judge Fizzano Cannon did not participate in the decision in this case.




7
  Moreover, even if the trial court properly characterized Brown’s 2016 motions as seeking
reconsideration, it erred in determining it lacked jurisdiction to address them. The 30-day period
to request reconsideration is not implicated when a litigant asserts nunc pro tunc relief. As this
Court has explained:
       “[T]he trial court may consider a motion for reconsideration only if the motion for
       reconsideration is filed within thirty days of the entry of the disputed order.”
       [Haines v. Jones, 830 A.2d 579, 584 (Pa. Super. 2003)] (citation omitted). Unless
       the court enters an order granting reconsideration within the 30–day period, the
       power to grant reconsideration is lost. In re Upset Price Tax Sale of September 25,
       1989, [] 615 A.2d 870 ([Pa. Cmwlth.]1992). After expiration of the 30–day period,
       however, the court may only open or vacate an order upon a showing of extrinsic
       fraud, lack of subject matter jurisdiction, a fatal defect on the face of the record or
       some other evidence of “extraordinary cause justifying intervention by the court.”
       Stockton v. Stockton, 698 A.2d 1334, 1337 (Pa. Super. 1997) (citation omitted[]).
Fulton v. Bedford County Tax Claim Bureau, 942 A.2d 240, 242 n.3 (Pa. Cmwlth. 2008) (emphasis
added). Thus, the trial court had jurisdiction to determine whether Brown’s claimed lack of notice
of the 2013 orders constituted “extraordinary cause justifying intervention by the court.” Id.
(quoting Stockton, 698 A.2d at 1337).
                                                8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alton D. Brown,                         :
                   Appellant            :
                                        :
            v.                          :   No. 388 C.D. 2018
                                        :
Superintendent Hill, D. P. Lyons,       :
Joseph P. Cronin Jr., A. Sheldon        :
Kovach, Patrick L. Meehan, Daniel       :
McDevitt, Richard Daubenberger,         :
Francis J. Dujmic, Ranald A. Berry,     :
Steven Brown, John Murphy, John         :
Easton, Delaware County, Paul G.        :
Mattus, Joseph W. Dorsey, Nicholas      :
G. Theodore, Emilio DeMatteo Jr.,       :
York Stenographic Services, Inc.,       :
Charles Kelbley, Michael Green,         :
Henry Lunardi, Michael J. Henry,        :
George W. Hill                          :


                                   ORDER

            AND NOW, this 1st day of August, 2019, the two orders of the Court
of Common Pleas of Delaware County (trial court), dated January 12, 2018, are
VACATED and this matter is REMANDED to the trial court for an evidentiary
hearing in accordance with the attached opinion.
            Jurisdiction relinquished.
                                    _____________________________________
                                    MARY HANNAH LEAVITT, President Judge
