           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Cash Seized Belonging to                 :
Lisa Saldana-DeLeo                              :   No. 567 C.D. 2017
                                                :   Submitted: February 6, 2018
Appeal of: Lisa Saldana-DeLeo                   :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                                FILED: April 4, 2018

               In this forfeiture case, Lisa Saldana-DeLeo (Saldana) appeals from an
order of the Court of Common Pleas of Jefferson County (trial court) that denied her
motion for reconsideration of its March 6, 2017, order dismissing her petition for
return of property, which consisted of approximately $1,101,440 in cash seized in
2012 pursuant to the statute commonly referred to as the Controlled Substances
Forfeiture Act (Forfeiture Act).1 Saldana contends the trial court erred in dismissing
her motion for return of property and answer to the Commonwealth’s petition for
forfeiture where Saldana did not have notice of the events from the time of her
release from custody to the time of the trial court’s March 6, 2017, order. Saldana
further asserts the trial court erred in denying her motion for reconsideration where
it should have been clear to the court that she did not have notice of the events in the
forfeiture proceeding from the time of her release from custody on April 4, 2016, to


       1
          The former provisions of the Controlled Substances Forfeiture Act (Forfeiture Act),
codified at 42 Pa. C.S. §§6801-6802, were in effect at all relevant times for the purposes of this
appeal. By the Act of June 29, 2017, P.L. 247, effective July 1, 2017, the General Assembly
repealed the former provisions and enacted the current provisions of the Forfeiture Act, which can
be found at 42 Pa. C.S. §§5801-5808.
the trial court’s dismissal order of March 6, 2017. Also before this Court are the
issues of whether Saldana filed a timely notice of appeal and whether the trial court’s
April 4, 2017, order denying reconsideration constituted an appealable order. For
the reasons that follow, we quash Saldana’s appeal.


                                   I. Background
             In July 2012, Pennsylvania State Police Detective Steven Kontaxes and
Trooper Craig Yauch executed a search warrant at Saldana’s residence at 136 Wayne
Avenue, Punxsutawney, Pennsylvania. According to the affidavit of probable cause
attached to the criminal complaint, during the execution of the warrant, the officers
discovered illegal drugs, bulk glassine bags, heroin stampers, loading devices,
spoons, heroin cutting agents, synthetic drugs and other contraband. Located in
close proximity to the drugs and paraphernalia, the officers found $560,676 in cash
and bank information showing accounts holding another $83,463.


             A second search warrant executed the same day at Saldana’s business,
Bodylines by Lisa, located in Rossi’s Pop-Up Market, 200 Lowes Drive, North
Versailles, Pennsylvania, yielded various items of drug paraphernalia including
electric and hand-held grinders, glass pipes, bongs, scales, packages of rolling
papers, and rollers.


             During an interview the same day, Saldana told Trooper Yauch that she
owned a residence at 11 Bailey Avenue in Mount Washington, Pennsylvania, which
she used to store products for her Naughty by Nature business located in West
Virginia. Saldana also gave the officers permission to search her Mount Washington



                                          2
residence. That search yielded synthetic marijuana, bath salts, paraphernalia, one
bag of suspected cocaine and $447,032 in cash.


               The total cash seized by the officers amounted to $1,101,439.51.


               On October 11, 2013, Saldana filed a petition for return of property
under Pennsylvania Rule of Criminal Procedure 588(A), which provides in part: “A
person aggrieved by a search and seizure, whether or not executed pursuant to a
warrant, may move for the return of the property on the ground that he or she is
entitled to lawful possession thereof.” Saldana alleged the cash came from lawful
transactions and legitimate businesses including her hair salon, her business in West
Virginia, and her business located in North Versailles, Pennsylvania. Mot. for
Return, 10/11/13, at ¶15. Saldana further alleged there was no nexus between the
money and illegal drug activity. Id. at ¶16.


               In response to Saldana’s petition, the Commonwealth filed an answer,
new matter, and a petition for forfeiture and condemnation (forfeiture petition), and
a rule to show cause why the forfeiture petition should not be granted. The forfeiture
petition alleged the seized cash was furnished or intended to be furnished by persons
in exchange for a controlled substance in violation of the Controlled Substance,
Drug, Device and Cosmetic Act2 (Controlled Substance Act). Answer at ¶58.
Thereafter, Saldana filed an answer to the Commonwealth’s new matter.
               Saldana remained in prison during her criminal prosecution on state and
federal drug charges. After serving two years, Saldana obtained her release on May


      2
          Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§780.101-780.144.


                                               3
4, 2016. On October 20, 2016, the Commonwealth filed a motion to compel answers
to interrogatories and requests for documents. The Commonwealth served her
counsel of record in July 2016. The motion, which the trial court granted, required
that Saldana serve her answers within 30 days. Saldana failed to do so.


             On March 3, 2017, the Commonwealth filed a motion for sanctions
requesting that Saldana’s motion for return of property be dismissed. On March 6,
2017, the trial court issued an order dismissing Saldana’s motion for return of
property and her answer to the Commonwealth’s forfeiture petition. Reproduced
Record (R.R.) at 36a-37a. The trial court’s order also granted the Commonwealth’s
forfeiture petition and terminated Saldana’s rights, title and interest in the currency.
Id.


             On April 3, 2017, Saldana, rather than appealing the merits order, filed
a motion for reconsideration. R.R. at 31a-34a. In her motion, Saldana alleged (with
emphasis added):

             4. The Commonwealth then served Interrogatories and
             Request for Production of Documents on counsel
             undersigned on July 13, 2016. However, in the interim,
             [Saldana] had been prosecuted by the Department of
             Justice at 14-217 and in the [trial court] at No. 388-CR-
             2014. As a result of cooperation at 14-217 with the federal
             government she received a sentence of 24 months. In
             addition, at No. 388-CR-2014 your Court sentenced her to
             a sentence concurrent with her sentence at 14-217, less 1
             day.

             5. This matter languished during the time of [Saldana’s]
             cooperation, however, in a meeting with the District
             Attorney and representatives of the Attorney General’s
             office prior to [Saldana’s] sentencing in Jefferson County,


                                           4
it was made clear that the offer by the District Attorney
would not be made if [Saldana] did not agree to forfeiture
of the seized funds.

6. [Saldana] was released from the Jefferson County Jail
on May 6, 2017 [sic].

7. Thereafter, counsel and [Saldana] and her family had a
significant falling out and counsel had no contact with
[Saldana] and she made no contact with counsel or his
office.

8. The whereabouts of [Saldana] were unknown to counsel
and his staff and on receiving documents relating to the
seizure of the funds, counsel’s staff, unbeknownst to
counsel, placed them in [Saldana’s] file.

9. Thus, [Saldana] had no notice of the correspondence
and filings after they were sent to counsel’s office.

10. On March 6, 2017 your Court issued an Order
dismissing [Saldana’s] Motion for Return of Property and
her Answer to the Petition for Forfeiture and
Condemnation.

11. After service of the March 6, 2017 Order of Court,
counsel’s staff contacted prior counsel as well as others in
an attempt to locate [Saldana]. It was discovered that upon
release, she claimed residency at her house at 136 Wayne
Road, Punxsutawney [PA] 15767, however, she had no
phone. Thereafter, she moved to 1790 Potomac Avenue,
Pittsburgh, [PA] where she maintained a phone at
412.377.0727.

11. [sic] [Saldana] was contacted and notified of the Order
and the Commonwealth Interrogatories and Request for
Production of Documents of which she had no prior
notice. Due to restrictions placed on her during her post
sentence supervision she was not able to retrieve mail sent
to a mailbox rented for her by her sister at P.O. Box 1096,
Punxsutawney [PA] 15767 – an address used by the
Attorney General’s office in correspondence mailed
directly to her on February 27, 2017.

                             5
               12. Reconsideration is sought in that [Saldana] did not
               have notice of the events from the time of her release to
               the time of the Court’s March 6, 2017 order.

               13. [Saldana] has provided counsel with Answers to
               Interrogatories and submitted documents in response to
               the Request for Production of Documents. Those Answers
               to Interrogatories and responsive documents will be filed
               immediately if the Court grants reconsideration of the
               March 6, 2017 order.

R.R. at 32a-34a.


               On April 4, 2017, the trial court issued an order denying
reconsideration. R.R. at 29a. On May 3, 2017, Saldana filed a notice of appeal.
Thereafter, in her concise statement of errors complained of on appeal, Saldana
stated:

               1. This Court erred in dismissing [Saldana’s] Motion for
               Return of Property and her Answer to the Petition for
               Forfeiture and Condemnation where [Saldana] did not
               have notice of the events from the time of her release to
               the time of the Court’s March 6, 2017 order due to
               counsel’s staff error.

               2. The Court erred in denying [Saldana’s] Motion for
               Reconsideration of the Order of March 6, 2017 where it
               was clear that [Saldana] did not have notice of the events
               in this forfeiture proceeding from the time of her release
               from the Jefferson County Jail on April 4, 2016 [sic] to the
               time of the Court’s dismissal order of March 6, 2017.

R.R. at 11a.
               On May 31, 2017, the trial court filed a Rule 1925(a) opinion in support
of its order. R.R. at 8a-9a. In denying it erred in entering its order dismissing


                                            6
Saldana’s motion for reconsideration, the trial court reasoned (with emphasis
added):

                  As the record reflects, [Saldana] did not respond to
           the Commonwealth’s Interrogatories and Request for
           Production of Documents, which were forwarded to her
           attorney on July 13, 2016. Nor did she comply with the
           Court’s order, filed October 21, 2016, directing her to
           answer the Interrogatories and Requests within thirty days.
           [The trial court] thus granted the Commonwealth’s Motion
           for Sanctions via the contested March 6, 2017 order.

                  On April 3, 2017, [Saldana] filed her Motion for
           Reconsideration pursuant to 42 Pa. C.S. §5505, averring
           that she had been out of contact with her attorney
           throughout the relevant time period and that her attorney’s
           staff had errantly filed the aforementioned documents
           without notifying him. She thus claimed that she was
           without notice and, therefore, not properly subject to the
           sanctions levied pursuant to the March 6, 2017 order. The
           Court does not agree with her conclusion.

                  Even assuming that the averments set forth in her
           Motion for Reconsideration are true, she did not plead
           ‘lack of notice’ such that justice demanded further
           consideration.       [Saldana] knew when she quit
           communicating with counsel that the Commonwealth’s
           forfeiture petition was pending against her. Yet she chose
           to keep her whereabouts secret from [her counsel], the
           Court and the Commonwealth. Because she did not
           actually fire counsel, however, he remained her attorney
           of record and, as such, was the person designated by
           Pa.R.Crim.P. [114(B) and 576(B)] to receive copies of all
           relevant documents related to her case.

                  As well as failing to communicate with or fire her
           attorney, either of which would have ensured her receipt
           of the above-referenced documents, [Saldana] declined to
           make any effort to keep herself abreast of developments in
           this case. Had she done so, she would have become aware
           of the Commonwealth’s Motion to Compel, filed October


                                       7
             20, 2016, and the Court’s responsive order, wherein it
             cautioned her that a failure to comply could result in
             sanctions, long before the imposition thereof. Had she
             done so, she would have put herself in a position to
             respond to the allegations and avoid what ultimately
             occurred. She neglected to do so, and it was not the
             Court’s duty to ensure that she was communicating with
             her attorney or taking alternative measures to stay engaged
             as her case progressed. On the contrary, the Court fulfilled
             its obligation under Rule 114(B) and, as a result, did not
             err when it entered the March 6, 2017 order and denied
             [Saldana’s] Motion for Reconsideration.

Tr. Ct., Slip Op., 5/31/17, at 1-2; R.R. at 8a-9a.


             In July 2017, this Court, speaking through Senior Judge Bonnie
Brigance Leadbetter, issued an order noting that Saldana filed her May 3, 2017,
notice of appeal more than 30 days after the trial court’s merits order. Therefore,
this Court directed the parties to address the merits of the timeliness of Saldana’s
appeal of the March 6, 2017, order in their principal briefs on the merits. R.R. at 1a.
In addition, the Court further recognized that an order denying reconsideration is not
an appealable order.     See In re Merrick’s Estate, 247 A.2d 786 (Pa. 1989).
Consequently, the Court also directed the parties to discuss in their respective briefs
the appealability of the April 4, 2017, order denying reconsideration.




                                    II. Discussion
                   A. Timeliness of Appeal; Appealable Order
             In accord with this Court’s July 26, 2017, order, we first address the
issues of whether Saldana timely filed her notice of appeal within the requisite 30

                                           8
days of the trial court’s original merits order and whether the trial court’s order
denying reconsideration is an appealable order.


             The timeliness of an appeal is jurisdictional and may be raised by any
party, and by the Court on its own motion, at any stage of the proceedings. Reading
Anthracite Co. v. Rich, 577 A.2d 881 (Pa. 1990); City of Phila. v. Frempong, 865
A.2d 324 (Pa. Cmwlth. 2005). An untimely appeal must be quashed absent a
showing of fraud or a breakdown in the court’s operations. Frempong.


             Pennsylvania Rule of Appellate Procedure 903(a) provides: “Except as
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.” Further, Pennsylvania Appellate Rule 105(b) (enlargement of time)
expressly prohibits an appellate court from enlarging the time for filing a notice of
appeal. Appellate Rule 105(b) provides (with emphasis added):

             An appellate court for good cause shown may upon
             application enlarge the time prescribed by these rules or
             by its order for doing any act, or may permit an act to be
             done after the expiration of such time, but the court may
             not enlarge the time for filing a notice of appeal, a petition
             for allowance of appeal, a petition for permission to
             appeal, or a petition for review.

             Further, we recognize that a party’s filing of a motion for
reconsideration does not stay the appeal period; the appeal period is only tolled
where the trial court expressly grants reconsideration of the prior order. Pa. R.A.P.
1701(b)(3); Moore v. Moore, 634 A.2d 163 (Pa. 1993); Oak Tree Condo. Ass’n v.
Greene, 133 A.3d 113 (Pa. Cmwlth. 2016). In Greene, this Court observed that


                                           9
Appellate Rule 1701(b) clarified the principle that a motion for reconsideration does
not act as a stay of the appeal period.


             Equally significant here, a trial court’s order denying reconsideration is
not reviewable on appeal. See Chaney v. Fairmount Park Estate Corp., 155 A.3d
648 (Pa. Cmwlth. 2016); Frempong; Commonwealth v. Rachau, 670 A.2d 731 (Pa.
Cmwlth. 1996); Thorn v. Newman, 538 A.2d 105 (Pa. Cmwlth. 1988).


             The trial court issued its substantive order on March 6, 2017, which
dismissed Saldana’s motion for return of property and her answer to the forfeiture
petition. R.R. at 36a-37a. Saldana did not appeal this order. Rather, Saldana filed
a motion for reconsideration of the March 6 order. See R.R. at 31a-35a. On April
4, 2017, the trial court expressly denied the motion for reconsideration. This
rendered the April 4 order unappealable and therefore unreviewable. Pa. R.A.P.
1701(3); Moore; Merrick’s Estate; Oak Tree Condo Ass’n; Thorn.


             Further, Saldana’s motion for reconsideration, denied by the trial court,
did not stay the 30-day appeal period for the March 6, 2017, order. Pa. R.A.P.
1701(b); Moore; Oak Tree Condo Ass’n; Frempong.


             For these reasons, we quash Saldana’s appeal, filed May 3, 2017, as an
untimely appeal of the trial court’s March 6, 2017, merits order, Frempong, and as
an improper and unreviewable appeal of the trial court’s April 4, 2017, order denying
her motion for reconsideration. Moore; Merrick’s Estate; Oak Tree Condo Ass’n.




                                          10
                           B. Late Appeal by Permission
             Having determined that Saldana’s motion for reconsideration, which
the trial court denied, did not stay the 30-day appeal period for the trial court’s March
6, 2017, merits order, we are legally precluded from determining whether the trial
court erred in dismissing Saldana’s motion for return of property and answer to the
Commonwealth’s forfeiture petition. Further, because the trial court’s order denying
Saldana’s motion for reconsideration is unappealable, we are legally precluded from
determining whether the trial court erred in denying it.


             Nevertheless, for the sake of completeness, we review Saldana’s appeal
as a petition in the nature of a request for an appeal nunc pro tunc (late appeal by
permission) of the March 6, 2017, merits order. In her brief, Saldana requests that
this Court remand the case to the trial court with instructions that the matter be
reinstated and that Saldana be afforded an opportunity to defend her claim to the
seized funds.


             Essentially, Saldana’s counsel argues that after Saldana was released
from custody in early May 2016, he and Saldana had a “significant falling out” and
thereafter had no contact with each other. R.R. at 32a. Saldana’s counsel further
argues that unbeknownst to him, when his staff received documents relating to the
seizure of Saldana’s funds, they simply placed them in Saldana’s file. Id. Therefore,
Saldana did not receive notice of the correspondence and filings sent to counsel’s
office. Id. at 33a. In addition, because of restrictions imposed upon Saldana during
her post-sentence supervision, she could not retrieve mail sent by the Attorney




                                           11
General in February 2017 to a post office box her sister rented for her in
Punxsutawney. Id.


             Consequently, based on her lack of notice of the events occurring
following her May 2016 release, up to the trial court’s March 2017 order dismissing
her motion for return of property, Saldana asserts she did not have a full opportunity
to defend herself in the Commonwealth’s forfeiture action. In the interest of justice,
Saldana argues, she must be afforded those rights.


             We recognize that even where a party files an untimely notice of appeal,
an appellate court may grant a party equitable relief in extraordinary circumstances
in the form of an appeal nunc pro tunc. Criss v. Wise, 781 A.2d 1156 (Pa. 2001).
At first, the courts only granted an appeal nunc pro tunc in situations where a party
failed to file a timely notice of appeal as a result of fraud or a breakdown in the
court’s operations. See W. Penn Power v. Goddard, 333 A.2d 909 (Pa. 1975) (the
time for taking an appeal will not be extended as a matter of grace or as a mere
indulgence). Thereafter, the Supreme Court expanded the scope of nunc pro tunc
appeals to include situations where an appellant, or an appellant’s counsel, failed to
file a timely notice of appeal as a result of non-negligent circumstances. See Bass
v. Commonwealth, 401 A.2d 1133 (Pa. 1979) (where appellant’s attorney filed
appeal four days late because of his secretary’s illness, appeal nunc pro tunc
allowed); Cook v. Unemployment Comp. Bd. of Review, 671 A.2d 1130 (Pa. 1996)
(appeal nunc pro tunc allowed where claimant filed his appeal four days late because
he was hospitalized with severe illness). In sum, the exception for allowance of an
appeal nunc pro tunc in non-negligent circumstances is meant to apply only in



                                         12
unique and compelling circumstances where the appellant clearly established that
she attempted to file a timely appeal, but unforeseeable and unavoidable
circumstances precluded her from actually doing so. Criss; Cook.


             Here, Saldana fails to identify a sufficient breakdown in court
operations or any non-negligent circumstances, involving either herself or her
counsel, which would warrant equitable relief in the nature of an appeal nunc pro
tunc. The trial court noted that after her release from custody Saldana knew when
she ceased communicating with her counsel that her motion for return of property
and the Commonwealth’s forfeiture petition were still pending.             Nonetheless,
Saldana chose to keep her whereabouts secret from her counsel, the trial court, and
the Commonwealth.


             Further, because Saldana never dismissed or replaced her counsel, he
remained counsel of record. Pursuant to Pennsylvania Rules of Civil Procedure Nos.
236(a)(2) and 440(a)(1)(i), and Pennsylvania Rules of Criminal Procedure 114(B)
and 576(B)(2), notice by the prothonotary and others in civil cases, and notice by the
clerk of courts in criminal cases, shall be sent to the attorney of record. The “attorney
of record” for purposes of notice of entry of order, decree or judgment rule is the
attorney listed on the docket. Fraternal Order of Police, Lodge No. 5 v. City of
Phila., 655 A.2d 666, 669 (Pa. Cmwlth. 1995).


             In sum, Saldana’s failure to provide her address or other contact
information to her counsel, or to the trial court following her release from prison,
cannot be considered a non-negligent circumstance. See Arena Beverage Corp. v.



                                           13
Pa. Liquor Control Bd., 97 A.3d 444 (Pa. Cmwlth. 2014) (making a decision to do
nothing in response to time sensitive matters does not constitute a non-negligent
circumstance or an administrative breakdown justifying an extension of the appeal
period).


             Therefore, we discern no breakdown in court operations. Further,
Saldana failed to assert any non-negligent circumstances, which would warrant
equitable relief in the nature of an appeal nunc pro tunc from the trial court’s order
dismissing her motion for return of property and granting the Commonwealth’s
forfeiture petition. Criss; Arena Beverage.


                                   III. Conclusion
             For the above reasons, we quash Saldana’s May 3, 2017, appeal as an
untimely appeal of the trial court’s March 6, 2017, merits order, Frempong, and as
an improper appeal of the trial court’s April 4, 2017, order denying Saldana’s motion
for reconsideration. Moore; Merrick’s Estate; Oak Tree Condo Ass’n. Further, even
considering Saldana’s appeal as a request for an appeal nunc pro tunc of the March
6, 2017, merits order, we discern no breakdown in court operations or any non-
negligent circumstances, involving either Saldana or her counsel, which would
warrant equitable relief in the nature of an appeal nunc pro tunc from the trial court’s
order dismissing her motion for return of property and granting the
Commonwealth’s forfeiture petition. Criss; Arena Beverage.




                                        ROBERT SIMPSON, Judge


                                          14
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Cash Seized Belonging to       :
Lisa Saldana-DeLeo                    :   No. 567 C.D. 2017
                                      :
Appeal of: Lisa Saldana-DeLeo         :


                                  ORDER

            AND NOW, this 4th day of April, 2018, for the reasons stated in the
foregoing opinion, the appeal of Lisa Saldana-DeLeo is QUASHED.




                                    ROBERT SIMPSON, Judge
