                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania                    :
                                                :   No. 1381 C.D. 2019
               v.                               :
                                                :   Submitted: May 15, 2020
William and Nancy Clementi,                     :
                 Appellants                     :



BEFORE:        HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE ELLEN CEISLER, Judge


OPINION BY
JUDGE McCULLOUGH                                                           FILED: July 6, 2020



               Nancy and William Clementi (the Clementis) appeal from the order of the
Court of Common Pleas of Montgomery County (trial court), which denied their
Motion for Reconsideration Nunc Pro Tunc after determining that it did not have
jurisdiction to rule on it.1



       1
         On August 29, 2019, the Superior Court sua sponte transferred the appeal to this Court
pursuant to section 762(a)(2)(ii) of the Judicial Code, 42 Pa.C.S. §762(a)(2)(ii) (Commonwealth
Court to hear appeals in criminal actions or proceedings for the violation of any rule, regulation or
order of any Commonwealth agency); Pa.R.A.P. 751(a) (transfer of erroneously filed cases); and
Commonwealth v. Hake, 738 A.2d 46, 47 n.3 (Pa. Cmwlth. 1999), appeal denied, 749 A.2d 473 (Pa.
2000) (explaining that jurisdiction lies in the Commonwealth Court, as opposed to the Superior Court,
because the former Dangerous Dog Law at 3 P.S. §459-502-A, Act of December 7, 1982, P.L. 784,
as amended, added by the Act of May 31, 1990, P.L. 213 (repealed), was not a penal statute under
the Crimes Code (Title 18), but was a regulatory statute, administered and enforced by the Department
of Agriculture (Title 7, Chapter 27 of the Pa.Code)).
                        I. Factual and Procedural Background


              The Clementis were found guilty before the local Magisterial District
Judge of the summary offense of harboring dangerous dogs. They appealed for a trial
de novo before the trial court. On December 20, 2018, the trial court found the
Clementis guilty of harboring dangerous dogs and imposed a sentence, as reflected in
its order issued on that same date.2 The Clementis had until January 22, 2019, to file
an appeal. However, instead of filing an appeal, the Clementis filed a Motion for
Reconsideration on December 28, 2019 – which they were entirely within their rights
to do, as discussed below.
              On January 4, 2019, the trial court entered an Order directing the
Commonwealth to respond to the Clementis’ Motion for Reconsideration and
scheduled a hearing on the Motion for Reconsideration for February 1, 2019, which
was subsequently continued to February 8, 2019.
              At the February 8, 2019 hearing on the Motion for Reconsideration, the
trial court treated the Motion for Reconsideration as a post-sentence motion and,
therefore, held it was without jurisdiction under Pennsylvania Rule of Criminal
Procedure 720(D), Pa.R.Crim.P. 720(D) (hereinafter “Rule 720(D)”) to rule upon the
merits of the Motion for Reconsideration. Rule 720(D) provides:

              There shall be no post-sentence motion in summary case
              appeals following a trial de novo in the court of common
              pleas. The imposition of sentence immediately following a
              determination of guilt at the conclusion of the trial de novo
              shall constitute a final order for purposes of appeal.

Pa.R.Crim.P. 720(D).


       2
         At the trial, the evidence showed that the Clementis’ two German Shepherds escaped from
the yard and attacked children and adults who were waiting for a school bus.


                                               2
             The trial court also held that more than 30 days had passed since the
imposition of the December 20, 2018 sentencing order, therefore, it was no longer
empowered to modify its order.
             Notably, and central to this appeal, the trial court did not acknowledge the
official comment to Rule 720(D), which provides that, although post-sentence motions
are not permitted in summary case appeals, a defendant may file a motion for
reconsideration in a summary appeal case, and that such motion is governed by
section 5505 of the Judicial Code, 42 Pa.C.S. §5505 (governing Modification of
Orders). Specifically, the official comment to Rule 720 states:
             Although there are no post-sentence motions in summary
             appeals following the trial de novo pursuant to paragraph (D),
             nothing in this rule is intended to preclude the trial judge
             from acting on a defendant’s petition for reconsideration.
             See the Judicial Code, 42 Pa.C.S. §5505. See also
             Commonwealth v. Dougherty, [697 A.2d 779, 784 (Pa.
             Super. 1996)]. The time for appeal in summary cases
             following a trial de novo runs from the imposition of
             sentence.

Pa.R.Crim.P. 720, cmt.

             Section 5505 of the Judicial Code (Modification of Orders), in turn,
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.
             On February 19, 2019, the Clementis filed a Nunc Pro Tunc Motion for
Reconsideration raising a number of purported breakdowns in the court system that
allegedly resulted in a violation of their due process rights. Specifically, they pointed


                                           3
to the trial court’s mistaken belief that they were not permitted to file their original
Motion for Reconsideration following the trial de novo in a summary appeal, and
claimed that they justifiably relied on the trial court’s January 4, 2019 order scheduling
oral argument on the Motion for Reconsideration for a date which took place after the
30-day time period to hear the motion had expired.3

       3
         The Clementis also raised numerous other alleged breakdowns in the court system which
allegedly deprived them of due process:

                       a.      The original charging documents (the citations) were
               defective because they did not charge the Clementis separately and
               failed to delineate which dogs did what.
                       b.      The Magisterial District Judge should have caught this
               error.
                       c.      The Magisterial District Judge should have required
               proof beyond a reasonable doubt as to which of them owned which dog,
               and what each dog did, before convicting BOTH of them.
                       d.      The Magisterial District Judge should not have cut short
               the Clementis’ opportunity to present evidence or make argument by
               suspending the trial on July 9, 2018, and resuming that trial on July 18,
               2018 without notice to the Clementis.
                       e.      The Commonwealth failed to fix the charging
               documents after the Clementis appealed from Magisterial District
               Court to the trial court.
                       f.      The Commonwealth failed to prove that the trial court
               had jurisdiction.

(Reproduced Record at 195-197.)

        Nunc pro tunc relief is generally warranted only under “extraordinary circumstances.”
Schofield v. Department of Transportation, Bureau of Driver Licensing, 828 A.2d 510, 512 (Pa.
Cmwlth. 2003). Subparagraphs (a) through (e) allege breakdowns that occurred at the Magisterial
District Court and were of literally no effect, since the Clementis were able to re-litigate their case de
novo before a judge of the court of common pleas. Therefore, we seriously question whether any of
these allegations meet this standard. Subparagraph (f) alleges the trial court’s “lack of jurisdiction”
to hear a case which arose in Bryn Mawr, which they claim is not one of the 62 municipalities making
up Montgomery County. However, the question of which county in the state may entertain the action
is a question of venue and not jurisdiction and venue may always be waived. Commonwealth v.
Gross, 101 A.3d 28, 32 (Pa. 2014); Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa. 2003); Blair



                                                    4
               The Commonwealth filed an answer on March 8, 2019, and the trial court
heard argument on April 24, 2019. By order dated May 15, 2019, the trial court (again
disregarding 42 Pa.C.S. §5505) denied the Clementis’ Motion for Reconsideration
Nunc Pro Tunc, once again noting that post-sentence motions were not permitted under
Rule 720(D) and reiterating that it lacked jurisdiction to act beyond the expiration of
the 30-day appeal period. The trial court reasoned:
               Pursuant to Pa.R.Crim.P. 720(D), this Court’s Order of
               December 20, 2018 was a final Order for the purposes of
               Appeal, to which no post sentence Motions are permitted. As
               such, this Court is without jurisdiction to rule on the merits
               of [the Clementis’] Motion for Reconsideration.
               Furthermore, [the Clementis’] appeal period expired thirty
               days after the entry of this Court's December 20, 2018
               decision.

(Trial court op., May 15, 2019, at 1.)

               The Clementis filed a notice of appeal to the Superior Court on May 28,
2019, and the trial court filed its Pa.R.A.P. 1925(a) Opinion on July 18, 2019. The trial
court first addressed whether it had jurisdiction to consider the Clementis’ original
Motion for Reconsideration. The trial court held that it did not have jurisdiction to hear
the original Motion for Reconsideration pursuant to Rule 720(D). Next, the trial court
held that the Clementis
               appear to assert that for failing to rule on both the Motion to
               Reconsider and the subsequent Motion to Reconsider Nunc
               Pro Tunc, this Court erred on equitable grounds and
               permitted a breakdown in the court system. This argument
               is without merit, as the aforementioned case law and Rule of


v. Blair, 171 A.2d 854, 855 (Pa. Super. 1961). Thus, there is an outstanding issue of whether venue
was proper in Montgomery County and whether the Clementis waived the issue by failing to object
to venue before the trial court. Nevertheless, as an appellate court, it is not for us to decide these
issues in the first instance. As discussed infra, this was one for the trial court to decide when
considering the Clementis’ Nunc Pro Tunc Motion.


                                                  5
               Criminal Procedure clearly holds, once thirty (30) days have
               passed a trial court is without jurisdiction to enter a ruling.

(Trial court op., July 18, 2019, at 1.)

               As noted, the Superior Court transferred this case sua sponte to this Court
on August 27, 2019.
                                      II. Discussion
               The issue before us is whether the trial court properly exercised its
discretion in denying the Clementis’ Motion for Reconsideration Nunc Pro Tunc.
               The Clementis acknowledge that their time to file an appeal from the
underlying conviction expired 30 days from the date of the sentencing order. Instead,
they argue that the trial court erred when it ruled that it was without jurisdiction to
consider their Motion for Reconsideration Nunc Pro Tunc. They argue that the issue
on which the instant appeal is based is the trial court’s refusal to consider any evidence
of the procedural breakdowns alleged in their Motion for Reconsideration Nunc Pro
Tunc, and then not asserting its reasoning supporting that decision. They contend that
the jurisdictional limit of Rule 720(D) and related case law cited by the trial court to
support its May 15, 2019, ruling are wholly inapplicable to their request for nunc pro
tunc review.
               According to the Clementis, a request for nunc pro tunc review is a form
of equitable relief, and jurisdiction concerns do not prohibit a court of common pleas
from entertaining such a request. They contend that, notwithstanding the Rules of
Criminal Procedure and 42 Pa.C.S. §5505, the trial court was required to review their
Motion for Reconsideration Nunc Pro Tunc since it was styled as a “nunc pro tunc”
motion. They contend that the trial court misconstrued their arguments because it never
actually addressed whether it was required to entertain a “nunc pro tunc” Motion for
Reconsideration. Instead, the trial court’s focus was on whether it had jurisdiction to


                                             6
entertain the original Motion for Reconsideration and it incorrectly assumed that the
Motion for Reconsideration Nunc Pro Tunc raised the same issues raised in the original
Motion for Reconsideration. The Clementis argue that the trial court should have
considered their Motion for Reconsideration Nunc Pro Tunc by deciding whether the
factual allegations of procedural “breakdowns,” if proven, would be sufficient to
warrant retroactively considering the original Motion for Reconsideration. If not, the
Clementis contend, the trial court should have denied the Motion for Reconsideration
Nunc Pro Tunc on those grounds.
              In response, the Commonwealth argues that the trial court committed no
error.   It argues, as it did before the trial court, that this case is identical to
Commonwealth v. Moir, 766 A.2d 1253 (Pa. Super. 2000). In Moir, a trial court’s order
scheduling oral argument on the movants’ motion for reconsideration did not expressly
grant reconsideration within the 30-day appeal period. Id. at 1254. The trial court in
Moir also did not act on the motion for reconsideration until more than 30 days after
the entry of the final appealable order. Id. By that time, the trial court in Moir was
without authority and lacked jurisdiction to act upon the motion for reconsideration or
to amend or modify its previous order. Id. The Moir court held that a trial court’s
“failure to ‘expressly’ grant reconsideration within the time set by the rules for filing
an appeal will cause the trial court to lose its power to act on the application for
reconsideration” and that the “filing of a notice of appeal is necessary to preserve
appellate rights in the event that either the trial court fails to grant the petition expressly
within 30 days, or it denies the petition.” Id.
              The Commonwealth argues that pursuant to Moir, the trial court did not
grant the original Motion for Reconsideration within 30 days of its imposition of
sentence, therefore, it lacked jurisdiction to rule on it. The Commonwealth also argues
that since the trial court did not grant the original Motion for Reconsideration within



                                              7
30 days of the sentencing order, it necessarily lacked jurisdiction to rule on the Motion
for Reconsideration Nunc Pro Tunc.


   A. The Original Motion for Reconsideration

             When the trial court originally concluded that it had no jurisdiction to
consider the Clementis’ original Motion for Reconsideration, the trial court erred
because the official comment to Rule 720(D) states that a motion for reconsideration
may be filed in a summary appeal case, but that it is governed by Section 5505 of the
Judicial Code, 42 Pa.C.S. §5505. Again, the comment reads:

             Although there are no post-sentence motions in summary
             appeals following the trial de novo pursuant to paragraph (D),
             nothing in this rule is intended to preclude the trial judge
             from acting on a defendant's petition for reconsideration.
             See the Judicial Code, 42 Pa.C.S. § 5505. See also
             Commonwealth v. Dougherty, [679 A.2d 779, 784 (Pa.
             Super. 1996)]. The time for appeal in summary cases
             following a trial de novo runs from the imposition of
             sentence.

Pa.R.Crim.P. 720, cmt. (emphasis added).

             Again, Section 5505 of the Judicial Code, in turn, 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.

             Thus, the trial court was wrong to conclude that the original Motion for
Reconsideration was procedurally invalid under Rule 720(D). The Clementis’ original
Motion for Reconsideration was filed pursuant to section 5505 of the Judicial Code, 42

                                           8
Pa.C.S. §5505, not Rule 720(D). Pursuant to section 5505 of the Judicial Code, 42
Pa.C.S. §5505, the trial court had 30 days from the date of its December 20, 2018
imposition of sentence to modify its order (i.e., entertain the Clementis’ original
Motion for Reconsideration). Thirty days from that date was January 22, 2019.4
However, the trial court took no action to rule on the Motion for Reconsideration within
the time period set by 42 Pa.C.S. §5505. Evidently, unaware of 42 Pa.C.S. §5505, the
trial court did not schedule a hearing on the Motion for Reconsideration until after the
time it had to rule on the motion had already expired. In essence, the trial court
indicated that it was willing to consider the motion but scheduled the hearing beyond
the time period when the judge purportedly had jurisdiction to rule on it, and in so
doing, arguably deprived the Clementis of due process and an opportunity to present
evidence on the merits.

   B. The Motion for Reconsideration Nunc Pro Tunc

               The trial court also erred when it determined that it was time-barred from
ruling on the Clementis’ Motion for Reconsideration Nunc Pro Tunc.
               Pursuant to 42 Pa.C.S. §5505, unless the trial court enters an order
granting reconsideration within 30 days, the power to grant reconsideration is lost. In
re Upset Price Tax Sale of September 25, 1989, 615 A.2d 870 (Pa. Cmwlth. 1992).
However, Section 5505 does not preclude a trial court from addressing a motion for
reconsideration nunc pro tunc filed after the 30-day period. After expiration of the 30-
day period, the court may 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). See also Fulton v. Bedford County


      4
          January 21, 2019, was a Court holiday.


                                                   9
Tax Claim Bureau, 942 A.2d 240, 242 n.3 (Pa. Cmwlth. 2008); Orie v. Stone, 601 A.2d
1268 (Pa. Super. 1992); Simpson v. Allstate Insurance Co., 504 A.2d 335 (Pa. Super.
1986).
             As such, the trial court should have considered the Clementis’ Motion for
Reconsideration Nunc Pro Tunc and decided whether they established “extraordinary
cause justifying intervention by the court.” Fulton, 942 A.2d at 242 n.3.            The
Clementis asserted various grounds in support of their request for nunc pro tunc relief.
As explained above, there needs to be a factual determination on those asserted
grounds.
             While the Commonwealth is correct that the trial court did not expressly
grant reconsideration within this 30-day appeal period, the trial court did issue an order
on January 4, 2019, well within the appeal period, which scheduled argument for a date
more than a week after expiration of the same. At the very least, the trial court’s action
in scheduling the hearing beyond the 30-day appeal period raises an issue of whether
the trial court should have considered the Clementis’ Motion for Reconsideration Nunc
Pro Tunc. See, e.g., Seropian v. State Ethics Commission, 20 A.3d 534, 540-43 (Pa.
Cmwlth. 2011) (finding an administrative breakdown justifying nunc pro tunc relief
where an agency’s regulations and actions in scheduling and holding argument on a
petition for reconsideration were misleading); Monroe County Board of Assessment
Appeals v. Miller, 570 A.2d 1386, 1388 (Pa. Cmwlth. 1990) (“[A]n appeal may be
granted where a litigant is unintentionally misled by officials as to the proper procedure
to be followed.”); Commonwealth v. Bogden, 528 A.2d 168, 170 (Pa. Super. 1987)
(finding an administrative breakdown justifying nunc pro tunc relief where a common
pleas court failed to inform a party of the proper appeal period); Commonwealth v.
Anwyll, 482 A.2d 656, 657 (Pa. Super. 1984) (finding an administrative breakdown
justifying nunc pro tunc relief where a common pleas court misstated the appeal
period). This was one of the bases for the Clementis’ Motion for Reconsideration Nunc

                                           10
Pro Tunc – i.e., that the trial court incorrectly assumed it had no jurisdiction to decide
the original Motion for Reconsideration.
              Recently, in Commonwealth v. Perez, (Pa. Cmwlth., No. 1391 C.D. 2017,
filed January 9, 2019) (unreported),5 we recognized that there is an exception to Section
5505 of the Judicial Code, which permits a party to file a motion for reconsideration
nunc pro tunc beyond the 30-day period where the party seeking reconsideration has
established “extraordinary cause justifying intervention by the court.” Slip op. at 3.
This requires the trial court to make factual findings on whether the moving party has
established extraordinary circumstances to justify reconsideration. Id.
              In Perez, the trial court, like the trial court here, believed it was unable to
rule on the movant’s original motion for reconsideration or a subsequent motion for
reconsideration nunc pro tunc because 30 days had expired from the date of the
underlying forfeiture order. The trial court held 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]
[m]otion for [r]econsideration [n]unc [p]ro [t]unc.” Slip op. at 1. This is analogous to
what the trial court held in this case. In Perez, we vacated a trial court’s decision. We
explained:
              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, [942 A.2d at 242 n.3].
              As noted above, “an appeal nunc pro tunc is a recognized

       5
        Under section 414(a) of this Court’s Internal Operating Procedures, an unreported opinion
may be cited for its persuasive value. 210 Pa. Code §69.414(a).


                                               11
             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)].

             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[, 698 A.2d at 1337] (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.

Slip op. at 3 (emphasis added).

             Applying that same rationale here, we conclude that the trial court erred
by denying the Motion for Reconsideration Nunc Pro Tunc on the belief that it had no
jurisdiction to consider it because 30 days had elapsed since the entry of the sentencing
order. Accordingly, we must vacate the orders of the trial court and remand for the
trial court to rule on the Clementis’ original Motion for Reconsideration of the
sentencing order.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge


Judge Fizzano Canon did not participate in this decision.


                                           12
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania             :
                                         :    No. 1381 C.D. 2019
            v.                           :
                                         :
William and Nancy Clementi,              :
                 Appellants              :


                                     ORDER


            AND NOW, this 6th day of July, 2020, the February 8, 2019 and May
15, 2019 orders of the Court of Common Pleas of Montgomery County are hereby
VACATED, and the matter is REMANDED for a determination in accordance with
the attached opinion.
            Jurisdiction relinquished.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge
