        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
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


                                         2
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.


                                         3
             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


                                          4
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


                                        5
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, 9b-
10b.) 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

                                         6
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


                                            7
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


                                         8
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


                                           9
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




                                        10
        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              :


                                  ORDER


             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
