J-A16018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANDREW DAVIS                               :
                                               :
                       Appellant               :   No. 810 EDA 2017

           Appeal from the Judgment of Sentence of February 1, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-SA-0003251-2015


BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                             FILED AUGUST 08, 2018

        Andrew Davis appeals from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, after his summary appeal was

dismissed for failure to appear. Upon careful review, we vacate and remand

for further proceedings.

        On July 23, 2015, Davis received a traffic citation for driving with

operating privileges suspended or revoked.1           The citation set a date of

September 24, 2015, for a summary trial in the Traffic Court Division of

Philadelphia Municipal Court. Davis failed to appear for trial and was found

guilty in absentia. On October 13, 2015, Davis, acting pro se, filed a timely

appeal to the court of common pleas for a trial de novo. A status conference

was set for December 14, 2015. In the interim, certified legal intern Nicholas

____________________________________________


1   75 Pa.C.S.A. § 1543(a).
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J. Hubner, then a third-year law student at Drexel University School of Law,

began assisting Davis in the matter under the supervision of Patrick T. Ryan,

Esquire. On December 8, 2015, Attorney Ryan filed a request to continue the

December 14, 2015 status conference because Davis was in South Carolina

assisting his ill mother. The request was granted and the conference was

rescheduled for February 19, 2016.

      On February 19, 2016, Davis appeared with Attorney Ryan and Intern

Hubner for the rescheduled status conference. Attorney Ryan filed an entry

of appearance on Davis’ behalf. The parties did not reach a resolution at the

conference; as a result, a trial de novo was scheduled for April 25, 2016.

Davis signed and dated the trial notice at that time.

      On April 25, 2016, Davis again appeared with Attorney Ryan and Intern

Hubner for trial. However, the citing police officer was unavailable and the

Commonwealth requested a continuance, which the trial court granted. Trial

was rescheduled for August 8, 2016, and Davis again signed and dated the

rescheduling notice.

      On August 8, 2016, Attorney Ryan and Intern Hubner appeared in court

and requested a continuance on behalf of Davis, who was attending to an ill

grandparent in South Carolina. Attorney Ryan again submitted an entry of

appearance on Davis’ behalf.       The court granted the continuance and

rescheduled trial for November 18, 2016. Attorney Ryan signed and dated

the notice of trial.




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      Prior to the November 18, 2016 trial date, now-Attorney Hubner, who

had since been admitted to practice in Pennsylvania, submitted a request for

a continuance due to a conflict with court-ordered depositions in another

matter. The court granted the continuance. Thus, neither Attorney Hubner,

Attorney Ryan, nor Davis were in court on November 18, 2016, to receive the

written notice of trial, which was rescheduled for February 1, 2017.       The

docket states: “Service to be mailed out to the defendant[.]” However, there

is no docket entry indicating that service was actually effected.

      On or around November 18, 2016, Attorney Hubner was advised

telephonically by Traffic Court personnel that trial had been rescheduled for

February 1, 2017. However, neither Attorney Ryan nor Attorney Hubner ever

received written notice of the trial date.   On January 31, 2017, Attorney

Hubner contacted Traffic Court by telephone to inquire about the upcoming

trial date. Attorney Hubner was advised that trial was scheduled for February

6, 2017.   Accordingly, neither Attorney Ryan, Attorney Hubner, nor Davis

appeared in court on February 1, 2017. When both counsel arrived in court

on February 6, 2017, they learned that they had been misinformed and that

the matter had, in fact, been listed for February 1, 2017. Because Davis failed

to appear, his appeal de novo had been dismissed and judgment entered

against him.

      On February 13, 2017, Attorney Ryan faxed a Petition for Relief from

Judgment to Traffic Court Administration. The petition contained affidavits

explaining why neither Davis nor his counsel had appeared in court on

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February 1, 2017. The following day, Attorney Ryan received a faxed response

from John Lynch in Traffic Court Administration stating: “There are no post

verdict or post sentence petitions in summary offense matters. The matter

must be appealed at Superior Court in Room 206 of the Criminal Justice

Center.” Fax from John Lynch of Traffic Court, R.R. at 14.

     On February 22, 2017, Attorney Ryan again submitted the petition, this

time including a cover letter setting forth his argument as to why he believed

the petition was proper under the Rules of Criminal Procedure and should be

accepted. The petition was never accepted or docketed. Thereafter, Davis

filed a timely notice of appeal on March 3, 2017.        Davis filed a concise

statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)

and the trial court filed its Rule 1925(a) opinion on November 9, 2017.

     Davis raises the following issues for our review:

     1. Did the trial court err in dismissing [Davis’] summary appeal
     when, as reflected in the docket, there was no service of a Notice
     of [Rescheduled] Trial on either [Davis] or his counsel when an
     earlier continuance was granted on November 18, 2016?

     2. Did the trial court err when Court Administration declined to
     accept and docket the post-dismissal Petition for Relief from
     Judgment that [Davis’] counsel attempted (twice) to submit after
     the dismissal of [Davis’] summary appeal but before the expiration
     of the 30-day period that 42 Pa.C.S.§ 5505 provides during which
     a Pennsylvania court may reconsider any decision?

     3. Did the trial court err in dismissing [Davis’] summary appeal
     when, as [Davis] attempted to show with a post-dismissal Petition
     for Relief from Judgment, (i) neither [Davis] nor his counsel was
     served with a Notice of [Rescheduled] Trial when an earlier
     continuance was granted on November 18, 2016, and (ii) [Davis’]
     counsel was given an incorrect date for the rescheduled trial de


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      novo when he called Traffic Division customer service on January
      31, 2017?

Brief of Appellant, at 6-7.

      We begin by noting our standard of review, which is limited to whether

the trial court committed an error of law and whether the court’s findings are

supported by competent evidence.      Commonwealth v. Askins, 761 A.2d

601, 603 (Pa. Super. 2000). The court’s adjudication will not be disturbed on

appeal absent a manifest abuse of discretion, which occurs when “the trial

court has rendered a judgment that is manifestly unreasonable, arbitrary, or

capricious, has failed to apply the law, or was motivated by partiality,

prejudice, bias, or ill will.” Commonwealth v. Holder, 765 A.2d 1156 (Pa.

Super. 2001).

      Davis first argues that the trial court erred in dismissing his summary

appeal when, as reflected in the docket, there was no service of notice of the

rescheduled trial on either Davis or his counsel following the continuance

granted prior to the November 18, 2016 trial date. Davis argues that the

failure to notify either him or his counsel violates not only the Pennsylvania

Rules of Criminal Procedure, but also fundamental notions of procedural due

process. We agree.

      Pennsylvania Rule of Criminal Procedure 106(E), applicable to both

summary and court cases, provides that “[w]hen a continuance is granted,

the notice of the new date, time, and location of the proceeding shall be served

on the parties as provided in these rules.” Pa.R.Crim.P. 106(E). Pursuant to



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Pa.R.Crim.P. 114, the clerk of courts is charged with service of such notice as

follows:

      (B) Service

           (1) A copy of any order or court notice promptly shall be
           served on each party’s attorney, or the party if
           unrepresented.

           (2) The clerk of courts shall serve the order or court notice,
           unless the president judge has promulgated a local rule
           designating service to be by the court or court
           administrator.

           (3) Methods of Service. Except as otherwise provided in
           Chapter 5 concerning notice of the preliminary hearing,
           service shall be:

              (a) in writing by

                 (i) personal delivery to the party’s attorney or, if
                 unrepresented, the party; or

                 (ii) personal delivery to the party’s attorney’s
                 employee at the attorney’s office; or

                 (iii) mailing a copy to the party’s attorney or
                 leaving a copy for the attorney at the attorney’s
                 office;
                                        ...

                 (v) sending a copy to an unrepresented party by
                 certified, registered, or first class mail addressed
                 to the party’s place of residence, business, or
                 confinement; or
                                          ...

              (b) orally in open court on the record.

Pa.R.Crim.P. 114(B).

      Further, Rule 114(C) sets forth the requirements for criminal docket

entries:


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       (C) Docket Entries

          (1) Docket entries promptly shall be made.

          (2) The docket entries shall contain:

              (a) the date of receipt in the clerk's office of the order
              or court notice;

              (b) the date appearing on the order or court notice;
              and

              (c) the date of service of the order or court
              notice.

Pa.R.Crim.P. 114(C) (emphasis added).

       Here, Davis was represented and, thus, service was required to have

been made upon his counsel in accordance with subsection (B)(3)(a)(i), (ii),

or (iii) of Rule 114. According to averments contained in Davis’ brief, as well

as affidavits executed by both counsel, neither of Davis’ attorneys received

written notice of the rescheduled trial de novo. Moreover, the docket in this

matter is devoid of any indication that notice was actually sent as required.

Absent such a notation, there is nothing in the certified record to suggest that

counsel was properly served with written notice of the rescheduled trial de

novo as required under Rule 114(B).2 Although counsel was verbally informed

over the telephone of the correct new date at some point in August 2016,

counsel was subsequently verbally misinformed of the trial date when he


____________________________________________


2 Rule 114(B) also authorizes notice to be provided orally in open court;
however, the docket does not reflect that such notice was given. In any event,
the court had previously granted Davis a continuance of the November 18,
2016 trial date, so neither he nor his counsel were in court at the time the
new trial date would have been set.

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called court administration on January 31, 2017 to confirm that trial was

scheduled for the following day. On February 1, 2017, when Davis and his

counsel did not appear for the trial de novo, the trial court failed to inquire as

to whether Davis had been provided proper notice of the rescheduled date.

Moreover, the transcript of the brief proceeding does not indicate that the

Commonwealth appeared or that it presented any evidence that Davis or his

counsel had been served with notice of the hearing.

       “[F]undamental procedural due process in our system of jurisprudence

embodies the bedrock principle that each participant in the adjudicative

process be given adequate notice and the opportunity to be heard.”

Commonwealth v. Parks, 768 A.2d 1168, 1172 (Pa. Super. 2001) (holding

appellant entitled to new trial de novo where appellant never received written

notice of rescheduled trial de novo and docket did not reflect that such notice

was sent). Adequate and timely notice to the accused of court proceedings is

fundamental to the constitutionally guaranteed right to a fair trial.

Commonwealth v. Hollerbush, 444 A.2d 1235, 1239 (Pa. Super. 1982).

Thus, it is of paramount importance that criminal defendants be provided with

notice, in strict accordance with applicable rules, when an order is issued

rescheduling a trial.     Because Davis was not provided with such notice as

required under Rule 114(B), we must vacate his judgment of sentence and

remand for a trial de novo.3
____________________________________________


3Because we grant relief with respect to Davis’ first appellate claim, we need
not address his remaining issues.

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      Judgment of sentence vacated; case remanded for further proceedings

in accordance with the dictates of this memorandum.           Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/18




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