          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania            :
                                        :
             v.                         :   No. 1391 C.D. 2017
                                        :   Submitted: November 13, 2018
David Perez, $22,025.00,                :
                  Appellant             :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE PATRICIA A. MCCULLOUGH, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                    FILED: January 9, 2019

             David Perez appeals an order of the Court of Common Pleas of York
County (trial court) forfeiting cash claimed by Perez in the amount of $22,025 to the
Commonwealth of Pennsylvania. The trial court granted Perez’s petition to appeal
to this Court nunc pro tunc. The Commonwealth argues that the trial court erred in
permitting the appeal and, thus, this Court lacks jurisdiction to hear Perez’s appeal.
We vacate and remand.
             The procedural history follows. The Commonwealth filed a petition
for forfeiture of cash seized from Perez’s vehicle following a traffic stop by police.
Perez filed a petition for the return of the money. An evidentiary hearing was held,
and on May 26, 2017, the trial court ordered that the cash be forfeited to the
Commonwealth. The forfeiture order was filed May 31, 2017.
             On July 3, 2017, Perez filed a motion for reconsideration requesting the
trial court reevaluate its forfeiture order in light of the Pennsylvania Supreme Court’s
decision in Commonwealth v. 1997 Chevrolet and Contents Seized from Young, 160
A.3d 153 (Pa. 2017), which was decided on May 25, 2017. On July 27, 2017, Perez
filed a motion requesting that reconsideration be allowed nunc pro tunc. On July
28, 2017, Perez filed a “Motion For Consideration Nunc Pro Tunc And Appeal of
Courts (sic) Decision.” Perez’s two nunc pro tunc motions alleged that on June 23,
2017:

             we mailed out our answer [sic] and faxed a copy to the [trial
             court] and all parties. On June 30, 2017[,] it was returned to our
             office for insufficient funds. We again mailed the motion and
             also faxed a copy of the return envelope to your Law Clerk.

Motions for Reconsideration Nunc Pro Tunc, ¶3 at 1.
             On August 15, 2017, the trial court issued an order denying all three
reconsideration applications because they were not filed within 30 days of the
forfeiture order. The trial court explained that “because the period to appeal on this
[c]ourt’s order has expired … this [c]ourt has lost the power to act upon [the] Motion
for Reconsideration Nunc Pro Tunc.” Trial Court Order, 8/15/2017, at 2. The trial
court advised that Perez’s “only avenue to such redress is to file a petition seeking
permission to appeal nunc pro tunc.” Id.
             On August 28, 2017, Perez filed a petition to appeal the trial court’s
forfeiture order nunc pro tunc. Again, he stated that he mailed his motion on June
23, 2017, but it was returned for insufficient funds on June 30, 2017. Perez sought
the trial court’s reconsideration of its forfeiture or an appeal of the trial court’s order
to this Court. On September 21, 2017, the trial court entered an order stating that
“upon review of [the] Nunc Pro Tunc Petition[,]” Perez “established sufficient
reasons to entitle him to appeal nunc pro tunc.” Trial Court Order, 9/21/2017, at 1.
In accordance with that order, Perez appealed to this Court.
             In his appeal, Perez asserts that the trial court erred in granting a
forfeiture of the cash found in his vehicle. The Commonwealth responds that the

                                            2
trial court lacked jurisdiction to enter its order of September 21, 2017, authorizing
Perez’s appeal of the forfeiture order to this Court.1
               We begin with a review of the procedural requirements for appellate
review of a court order. Pennsylvania Rule of Appellate Procedure 903(a) states as
follows:

               Except as otherwise prescribed by this rule, the notice of appeal
               required by Rule 902 (manner of taking appeal) shall be filed
               within 30 days after the entry of the order from which the appeal
               is taken.

PA. R.A.P. 903(a). Simply, Perez had 30 days from the trial court’s entry of the
forfeiture order to file his appeal to this Court. Perez did not appeal; instead, he
sought reconsideration. The rule on reconsideration states as follows:

               (b) Authority of a trial court or agency after appeal. After an
               appeal is taken or review of a quasijudicial order is sought, the
               trial court or other government unit may:

                                                     ***
                       (3) Grant reconsideration of the order which is the
                       subject of the appeal or petition, if:
                               (i) an application for reconsideration
                               of the order is filed in the trial court or
                               other government unit within the time
                               provided or prescribed by law; and

                               (ii) an order expressly granting
                               reconsideration of such prior order is
                               filed in the trial court or other
                               government unit within the time

1
  In reviewing a trial court’s decision permitting or refusing to permit a nunc pro tunc appeal, this
Court 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).
                                                 3
                          prescribed by these rules for the filing
                          of a notice of appeal or petition for
                          review of a quasijudicial order with
                          respect to such order, or within any
                          shorter time provided or prescribed by
                          law for the granting of reconsideration.

             A timely order granting reconsideration under this paragraph
             shall render inoperative any such notice of appeal or petition for
             review of a quasijudicial order theretofore or thereafter filed or
             docketed with respect to the prior order. The petitioning party
             shall and any party may file a praecipe with the prothonotary of
             any court in which such an inoperative notice or petition is filed
             or docketed and the prothonotary shall note on the docket that
             such notice or petition has been stricken under this rule. Where a
             timely order of reconsideration is entered under this paragraph,
             the time for filing a notice of appeal or petition for review begins
             to run anew after the entry of the decision on reconsideration,
             whether or not that decision amounts to a reaffirmation of the
             prior determination of the trial court or other government unit.

PA. R.A.P. 1701(b)(3) (emphasis added). Notably, the filing of a motion for
reconsideration does not stay the appeal period; the trial court must actually grant
reconsideration in order for the appeal period to be tolled. Oak Tree Condominium
Association v. Greene, 133 A.3d 113, 116 (Pa. Cmwlth. 2016).
             “[A]n appeal nunc pro tunc is a recognized exception to the general rule
prohibiting the extension of an appeal deadline.” Union Electric Corporation v.
Board of Property Assessment, Appeals & 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. at 584
(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,

                                          4
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).
             The Commonwealth claims that Perez did not offer sufficient grounds
to warrant an appeal nunc pro tunc. His petition states as follows:

             June 23, 2017 we mailed out our answer and faxed a copy to the
             Court and all parties. On June 30, 2017 it was returned to our
             office for insufficient funds. We again mailed the Motion and
             also faxed a copy of the return envelope to your Law Clerk.

Nunc Pro Tunc Appeal Petition, ¶3 at 1-2. This stated justification is somewhat
opaque. In any case, it is not clear whether the mailing was returned for insufficient
funds due to negligent or non-negligent circumstances, which requires a factual
determination. However, the trial court did not hold a hearing or make any factual
findings, as is required before an untimely appeal can be allowed to proceed nunc
pro tunc. Baker v. City of Philadelphia, 603 A.2d 686, 689 (Pa. Cmwlth. 1992).
             The deadline for seeking reconsideration is set forth at Section 5505 of
the Judicial Code, which provides:

             Except as otherwise provided or prescribed by law, a court upon
             notice to the parties may modify or rescind any order within 30
             days after its entry, notwithstanding the prior termination of any
             term of court, if no appeal from such order has been taken or
             allowed.

42 Pa. C.S. §5505. However, Section 5505 does not preclude a trial court from
addressing a motion for reconsideration nunc pro tunc filed after the 30-day period.
Fulton v. Bedford County Tax Claim Bureau, 942 A.2d 240, 242 n.3 (Pa. Cmwlth.
2008). As noted above, “an appeal nunc pro tunc is a recognized exception to the
                                          5
general rule prohibiting the extension of an appeal deadline.” Union Electric
Corporation, 746 A.2d at 584.
             As such, the trial court should have considered Perez’s motions for
reconsideration nunc pro tunc and decided whether he established “extraordinary
cause justifying intervention by the court.” Fulton, 942 A.2d at 242 n.3 (quoting
Stockton v. Stockton, 698 A.2d 1334, 1337 (Pa. Super. 1997) (citation omitted)).
Perez asserted identical grounds in support of his request for nunc pro tunc relief on
both his application for reconsideration and his appeal. As explained above, there
needs to be a factual determination on those asserted grounds.
             For the above reasons, we vacate the order of the trial court and remand
for the trial court to hold an evidentiary hearing and make factual findings on
whether Perez has established extraordinary circumstances to justify either
reconsideration of the forfeiture order or an appeal to this Court nunc pro tunc.


                                    _____________________________________
                                    MARY HANNAH LEAVITT, President Judge




                                          6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania             :
                                         :
            v.                           :   No. 1391 C.D. 2017
                                         :
David Perez, $22,025.00,                 :
                  Appellant              :


                                   ORDER


            AND NOW, this 9th day of January, 2019, the order of the Court of
Common Pleas of York County, dated September 21, 2017, granting nunc pro tunc
review, is hereby VACATED, and the matter is REMANDED for a determination
in accordance with the attached opinion.
            Jurisdiction relinquished.

                                   _____________________________________
                                   MARY HANNAH LEAVITT, President Judge
