           aIN THE COMMONWEALTH COURT OF PENNSYLVANIA


Justin Wade Allen Harris                     :
                                             :
               v.                            : No. 636 C.D. 2017
                                             : Submitted: January 19, 2018
Commonwealth of Pennsylvania,                :
Department of Transportation,                :
Bureau of Driver Licensing,                  :
                  Appellant                  :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                         FILED: February 13, 2018


               The Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Driver Licensing (Department) appeals an order of the Court of
Common Pleas of Allegheny County (trial court) sustaining Justin Wade Allen
Harris’s (Harris) appeal from the Department’s one-year suspension of his driving
privileges under Section 1547(b)(1)(i) of the Vehicle Code, 75 Pa.C.S. §
1547(b)(1)(i),1 for failure to submit to chemical testing. Because Harris’s appeal

      1
          Section 1547(b)(1)(i) of the Vehicle Code provides:

               If any person placed under arrest for a violation of section 3802 is
               requested to submit to chemical testing and refuses to do so, the
               testing shall not be conducted but upon notice by the police officer,
               the department shall suspend the operating privilege of the person.
(Footnote continued on next page…)
was untimely and he failed to demonstrate circumstances justifying an appeal nunc
pro tunc, we vacate the trial court’s order.


               On September 29, 2016, the Department mailed Harris a notice
informing him that his operating privileges were being suspended for one year for
refusing a police officer’s request to submit to a chemical test.                         The notice
informed Harris that he had the right to appeal within 30 days of the date of
mailing. Harris retained an attorney to appeal the suspension, but his attorney
misplaced the paperwork and did not file the appeal in a timely manner.


               On December 27, 2016, Harris filed with the trial court a motion for
permission to file his appeal nunc pro tunc, alleging that his failure to timely
appeal was “purely due to counsel’s error in misplacing the suspension letter.”
(Reproduced Record (R.R.) at 3a.) At a hearing on this motion, Harris offered no
evidence concerning the circumstances that caused the delay in filing the appeal.
Instead, the trial court had the following colloquy with William Kuhar (Mr.
Kuhar), the Department’s counsel:

               MR. KUHAR: Your Honor, Mr. Harris is asking for
               leave to file a late appeal of the suspension of his
               operating privilege for a reported chemical test refusal on
               September 17th of 2016. The [D]epartment opposes the

(continued…)

               . . . (i) [e]xcept as set forth in subparagraph (ii), for a period of 12
               months.

75 Pa.C.S. § 1547(b)(1)(i).




                                                  2
granting of this petition on the grounds that the reason
asserted why the appeal was filed late, mainly that Mr.
Harris’ attorney --

THE COURT: Committed malpractice.

MR. KUHAR: -- made a mistake in misplacing the
suspension notice, is not, under the court rules --

THE COURT: I understand that, sir. But how can I
penalize somebody because their [sic] lawyer screwed
up?

                         ***

MR. KUHAR: Because the appellate courts have held
that --

THE COURT: Let the appellate courts overturn me. I
understand that. We’re going to grant it.

                         ***

THE COURT: Why don’t you lawyers understand, you
got to know when to hold them, know when to fold them.
Kenny Rogers.

It’s a breakdown in the system if the lawyers screw up.
It’s a breakdown in the system, Mr. Kuhar.

MR. KUHAR: No.

THE COURT: It just is.

MR. KUHAR: Your Honor, may I at least submit --
[packet of materials containing the notice of suspension
and other documents.]

THE COURT: You can submit all you want, but I’m
telling you right now, as far as I’m concerned it’s a
breakdown in the system.

MR. KUHAR: As long as they’re admitted.

                           3
                                             ***

              MR. KUHAR: If I may, Your Honor, could I at least
              provide you with what the Commonwealth Court has said
              in these opinions?

              THE COURT: Commonwealth Court is the enabler of
              the Department of Transportation, to be perfectly honest
              with you, Mr. Kuhar. I mean, it is my experience in
              reading their [sic] opinions that the Department of
              Transportation could look outside at noon and say it was
              dark and the Commonwealth Court would agree with
              them [sic].


(R.R. at 21a-23a.)


              On May 11, 2017, the trial court held a de novo hearing. When the
Department’s counsel advised the court that the Department was unable to proceed
due to the failure of the police officer to appear at the hearing to establish that
Harris refused to submit to chemical testing, the trial court sustained Harris’s
appeal.


              The Department then appealed to this Court raising one issue – that
the trial court erred and abused its discretion in allowing Harris to appeal nunc pro
tunc based on the negligence of his attorney in failing to file the appeal in a timely
manner.2


       2
          This Court’s review of the trial court’s decision to allow an appeal nunc pro tunc is
limited to determining whether the factual findings of the trial court are supported by competent
evidence and whether the trial court committed an error of law or an abuse of discretion.
Department of Transportation, Bureau of Driver Licensing v. Boucher, 691 A.2d 450, 453 (Pa.
1997).



                                               4
             In Noweck v. Department of Transportation, Bureau of Driver
Licensing, (Pa. Cmwlth., No. 1991 C.D. 2016, filed Oct. 23, 2017) (unreported),
we gave a succinct but complete analysis of the law regarding nunc pro tunc
appeals where an attorney was negligent in failing to file a timely appeal. With
some editing, we repeat this analysis below.


             A licensee has 30 days from the mailing date of the Department’s
notice of suspension to file an appeal with the trial court. See 42 Pa.C.S. §§
5571(b), 5572; Hudson v. Department of Transportation, Bureau of Driver
Licensing, 830 A.2d 594, 598 (Pa. Cmwlth. 2003). Where an appeal is filed
beyond the 30-day period, it is untimely and “deprive[s] the [trial court] of subject
matter jurisdiction over such appeals.”        Hudson, 830 A.2d at 598 (quoting
Department of Transportation, Bureau of Driver Licensing v. Maddesi, 588 A.2d
580, 582 (Pa. Cmwlth. 1991)). This Court has explained:

             [S]tatutory appeal periods are mandatory and may not be
             extended as a matter of grace or mere indulgence. By
             allowing a licensee to file a late appeal, the trial court
             extends the time in which an appeal may be filed, thereby
             extending itself jurisdiction it would not otherwise have.
             Such an extension is appropriate only when the licensee
             proves that either fraud or an administrative breakdown
             caused the delay in filing the appeal.


Hudson, 830 A.2d at 598 (citations omitted).


             Generally, an appeal nunc pro tunc is allowed where fraud or a
breakdown in the court’s operations caused the delay in filing the appeal. Smith v.



                                         5
Department of Transportation, Bureau of Driver Licensing, 749 A.2d 1065, 1066
(Pa. Cmwlth. 2000). In addition, an appeal nunc pro tunc may be allowed where
the delay in filing the appeal was caused by “non-negligent circumstances related
to the [petitioner], his counsel or a third party.” J.C. v. Department of Public
Welfare, 720 A.2d 193, 197 (Pa. Cmwlth. 1998). The exception for non-negligent
circumstances, however, is given narrow application. This exception “is meant to
apply only in unique and compelling cases in which the [petitioner] has clearly
established that [he] attempted to file an appeal, but unforeseeable and unavoidable
events precluded [him] from actually doing so.” Criss v. Wise, 781 A.2d 1156,
1160 (Pa. 2001).      For example, our Supreme Court found non-negligent
circumstances existed where the attorney’s secretary failed to file the appeal
because she got sick and was out of the office. Bass v. Commonwealth, 401 A.2d
1133, 1135-36 (Pa. 1979). Similarly, non-negligent circumstances existed when
the appellant missed the deadline to file the appeal because he had been admitted
to the hospital for medical issues. Cook v. Unemployment Compensation Board of
Review, 671 A.2d 1130, 1132 (Pa. 1996).


            In contrast, we have held that “any delay caused by mere negligence
or neglect of an attorney in failing to appeal within the required time period does
not provide a basis for granting an appeal nunc pro tunc.” J.C., 720 A.2d at 197;
see also Schofield v. Department of Transportation, Bureau of Driver Licensing,
828 A.2d 510, 512 (Pa. Cmwlth. 2003); Rostosky v. Department of Environmental
Resources, 364 A.2d 761, 763 (Pa. Cmwlth. 1976) (holding that “the mere neglect
of counsel cannot justify the granting of an appeal [n]unc pro tunc.”).         For
example, an attorney’s calendaring error does not justify nunc pro tunc relief. C.A.



                                         6
v. Department of Human Services, (Pa. Cmwlth., No. 1050 C.D. 2016, filed
February 24, 2017) (unreported).         Likewise, a secretary’s lapse in memory
regarding the filing of an appeal is not considered a non-negligent circumstance
warranting nunc pro tunc relief. Moyd v. Cook-Artis, (Pa. Cmwlth., No. 1453 C.D.
2008, filed February 10, 2009) (unreported).


             In this case, it is undisputed that Harris’s license suspension appeal
was filed well after the required 30-day period. Harris does not contend that fraud
or a breakdown within the administrative or judicial process occurred. His only
reason that he offers in support of his nunc pro tunc appeal is that his attorney
“misplaced” the paperwork. Because Harris failed to make the threshold showing
that exceptional, non-negligent circumstances caused the appeal to be untimely
filed, he has failed to establish a basis for nunc pro tunc relief.


             Because the trial court lacked subject matter jurisdiction to consider
Harris’s untimely appeal, we vacate the trial court’s order sustaining Harris’s
appeal and remand the matter to the trial court to quash the appeal.



                                         ___________________________________
                                         DAN PELLEGRINI, Senior Judge




                                            7
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Justin Wade Allen Harris                   :
                                           :
              v.                           : No. 636 C.D. 2017
                                           :
Commonwealth of Pennsylvania,              :
Department of Transportation,              :
Bureau of Driver Licensing,                :
                  Appellant                :




                                     ORDER


              AND NOW, this 13th day of February, 2018, the May 11, 2017 order
of the Court of Common Pleas of Allegheny County (trial court) in the above-
captioned matter is vacated and the matter is remanded to the trial court to quash
the appeal.


              Jurisdiction relinquished.



                                           ___________________________________
                                           DAN PELLEGRINI, Senior Judge
