J-A31023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

DANIEL L. HEISEY

                            Appellant                     No. 859 MDA 2014


                  Appeal from the Order Entered April 22, 2014
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-MD-0000268-2014


BEFORE: BOWES, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                                   FILED MARCH 04, 2015

       Daniel L. Heisey appeals from the order entered on April 22, 2014, in

the Court of Common Pleas of Lancaster County, dismissing his petition for

summary appeal nunc pro tunc.             Heisey raises eight issues in this timely

appeal.    Seven of these issues address alleged errors in failing to hold an

evidentiary hearing on his petition for re-argument;1 the eighth issue is a

claim the trial court misinterpreted an averment in Heisey’s original petition

for nunc pro tunc relief. After a thorough review of the submissions by the

parties, relevant law, and the certified record, we affirm.



____________________________________________


1
 The petition for re-argument was denied without a hearing by order of May
1, 2014. The denial of the petition for re-argument is included in this
appeal.
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       We recite the procedural and factual background of this matter as

related by the trial court in its Pa.R.A.P. 1925(a) Opinion:

       Defendant Daniel Heisey has appealed to the Superior Court of
       Pennsylvania from the order dismissing his petition to appeal
       nunc pro tunc entered on April 21, 2014 and the order
       dismissing his motion for reconsideration entered on May 1,
       2014. On appeal [Heisey] alleges 28 errors[2] by the Court,
       based on the Court’s decision not to hold an evidentiary hearing
       in light of the lack of assertions by [Heisey] that would merit a
       hearing. This opinion is written pursuant to Rule 1925(a) of the
       Pennsylvania Rules of Appellate Procedure.

       On January 13, 2014, [Heisey] was found guilty at a summary
       trial before Magisterial District Judge Mary Mongiovi Sponaugle
       for citations received on October 31, 2013 for operating a vehicle
       without an official certificate of inspection1 and operating a
       vehicle while registration is suspended.2 [Heisey] was not
       present at the time of the summary trial. Notice of the summary
       trial had been sent to 271 Prospect Road, Mount Joy, PA 17552,
       which was the address provided by [Heisey] as his place of
       business, although not the address on his license. [Heisey’s]
       summary convictions following the trial were sent to 606 Queen
       Street, York, PA, 17403, which was the address on [Heisey’s]
       Driver’s License at the time of the summary trial. On March 28,
       2014, [Heisey] filed a Petition for Leave to File Appeal Nunc Pro
       Tunc. In his petition, he argued that although notice of the
       hearing had been sent to the address he had provided, he had
       not been advised by anyone at that address of the notice date of
       the hearing. He also argued that he did not receive notice of the
       verdict against him until March 18, 2014 when his license was
       seized as he attempted to change his address on his driver’s
       license.
              1
                  75 Pa.C.S. § 4703.
              2
                  75 Pa.C.S. § 1371.
____________________________________________


2
  We note the Commonwealth’s argument that Heisey’s Pa.R.A.P. 1925(b)
statement is redundant but neither concise nor coherent.         See
Commonwealth’s Brief at 6-7, Pa.R.A.P. 1925(b)(4)(iv).



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      His petition was denied without a hearing, as he failed to allege
      evidence of fraud, or a wrongful or negligent act of court official
      which caused [Heisey] to forgo his right to a timely appeal of
      conviction. In [Heisey’s] motion for reconsideration, he argued
      that notice of the hearing had never actually been sent to the
      address he had provided and that the inability of the
      Commonwealth to prove actual receipt of Notice of the Hearing
      constitutes a breakdown in the system. The court denied his
      motion. The instant appeal followed.


Trial Court Opinion, 6/23/2014, at 1-2.

      Initially, we note:

      An abuse of discretion standard governs our review of the
      propriety of a grant or denial of an appeal nunc pro tunc. Union
      Electric Corp. v. Board of Property Assessment, 560 Pa.
      481, 746 A.2d 581 (2000). An appeal nunc pro tunc is intended
      to be an extraordinary remedy to vindicate the right to an appeal
      where that right has been lost due to some extraordinary
      circumstance. See Commonwealth v. Stock, 545 Pa. 13, 679
      A.2d 760 (1996). Thus, the pertinent question in this review is
      whether the right to appeal from his summary convictions was
      denied Appellant by extraordinary circumstances not of his doing
      so as to merit the remedy of an appeal nunc pro tunc. Id.

Commonwealth v. White, 806 A.2d 45, 46 (Pa. Super. 2002).

      Additionally,   as    the    trial    court   noted,   “Only    where   there   are

circumstances such as ineffectiveness of counsel, fraud, or a breakdown in

the   court’s   operations        is   an     appeal    nunc    pro    tunc   justified.”

Commonwealth v. Frazier, 471 A.2d 866, 868 (Pa. Super. 1984).

      Because Heisey’s allegations regarding the failure to grant a hearing

on the petition for re-argument all center on the purported failures of the

court to notify him of his hearing date and/or conviction, we will address




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Heisey’s underlying allegation that the trial court misinterpreted an

averment in his petition for leave to file appeal nunc pro tunc.

      The claim of misinterpretation involves a question of whether he

admitted in his original petition that the notice of hearing was sent to his

work address, received there, but his employees never informed him of that

notice. If Heisey admitted the notice of hearing had been sent and received,

but that he simply was unaware of that, then there would be no

extraordinary circumstance as to merit nunc pro tunc relief. Accordingly, we

examine the averments in Heisey’s original petition.

      3. The Notice of Hearing was sent to [Heisey] by regular mail to
         271 Prospect Road, Mount Joy, PA 17552 on December 24,
         2013, the address [Heisey] had provided although not the
         address on his License.

      4. During that time the [Heisey] was very busy driving an oil
         delivery truck for his oil company.

      5. The address is that of his place of business.

      6. The Petitioner was not advised by his employees of the notice
         date of the hearing and did not attend.     The Hearing was
         held in his absence on January 13, 2014 and he was found
         guilty on both charges. The Decisions are attached, marked
         Exhibit “B” and made part of hereof. They were sent to 606
         S. Queen St., York, PA 17403 and [Heisey] represents he did
         not receive copies in the mail.

Petition to Appeal Nunc Pro-Tunc, 3/28/2014, at 1-2.

      In relation to the above averments, the trial court stated:

      On December 24, 2013, Notice of the Hearing was sent to
      [Heisey] by regular mail to that [Mount Joy] address. [Heisey]
      alleges that he was not advised by his employees of the notice
      date and so did not attend.

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J-A31023-14



Trial Court Opinion, at 3. We fail to see the misinterpretation by the trial

court.     The original petition contains no allegations that: the notice was

never sent, the notice was never received, any fraudulent activity took

place, and/or any other form of trial court breakdown or misadventure took

place. The fair reading of Heisey’s original petition is that the trial court sent

him the notice of hearing to the address he gave the police officer at the

time the citation was issued. However, he was very busy at work and none

of his employees ever told him the notice had arrived or informed him of the

date.

         Because Heisey raised no allegations of extraordinary circumstances,

the trial court’s original denial of the petition for leave to appeal nunc pro

tunc is supported by the certified record and represents no abuse of

discretion.

         All of Heisey’s subsequent allegations are based upon the premise that

he did not admit the notice had been sent and that his employees had

simply failed to inform him of the date.      As that premise is demonstrably

faulty, the remaining issues raised by Heisey are without merit.        The trial

court is under no obligation to hold a hearing on a demonstrably meritless

claim.     Accordingly, the trial court did not err or abuse its discretion in

denying either the original petition or the petition for reconsideration.

         Order affirmed. Motion to Correct the Record granted.




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J-A31023-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2015




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