Com. v. Davis, C.

J-S62041-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

CHRYSTAL ANN DAVIS, :

:

Appellant : No. 134 MDA 2017

Appeal from the Judgment of Sentence Entered December 14, 2016,

in the Court of Common Pleas of Franklin County,

Criminal Division at No(s): CP-28-CR-0000705-2016

BEFORE: STABILE, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 23, 2017

Chrystal Ann Davis (Appellant) appeals from the judgment of sentence

imposed after she was found guilty of driving under the influence (DUI). For

the reasons that follow, we quash this appeal.

Given the manner in which we dispose of this matter, we need not

provide a full recitation of the factual history. Pertinent to this appeal, on

October 27, 2016, the trial court found Appellant guilty of DUI and on

December 14, 2016, Appellant was sentenced to six months’ probation and

ordered to pay a $300 fine.

Appellant filed a notice of appeal, which was received and docketed by

the clerk of courts in Franklin County on January 17, 2017. Thereafter, the

trial court issued an order directing Appellant to comply with the

* Retired Senior Judge assigned to the Superior Court.

J-S62041-17

requirements of Pa.R.A.P 1925(b). Appellant filed her concise statement on

February 7, 2017, and the trial court issued its opinion on March 2, 2017.

In her brief to this Court, Appellant asks us to consider two issues

concerning the initial stop of her vehicle and the evidence produced by the

Commonwealth to sustain her conviction. However, before we can reach the

merits of those issues, we must address whether this Court has jurisdiction

to entertain this appeal. See Commonwealth v. Demora, 149 A.3d 330,

331 (Pa. Super 2016) (“We may raise the issue of jurisdiction sua sponte.”).

A “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.” Pa.R.A.P. 903. Here, the period in which to file a notice of

appeal timely ended on Friday, January 13, 2017. Appellant’s notice of

appeal was docketed on Tuesday, January 17, 2017, one business day

beyond the deadline.1

Upon initial review of the record, this Court issued a rule to show

cause why this appeal should not be quashed. See Order, 3/28/2017.

Forest Dean Morgan, Esquire, counsel for Appellant, filed an answer on her

behalf, averring that the notice of appeal was mailed on January 11, 2017.

Appellant’s Answer to Rule to Show Cause, 4/3/2017, at 1 (unnumbered).

This is of no moment, as it is well-settled that “[f]iling may be accomplished

by mail addressed to the prothonotary, but except as otherwise provided by

1

Monday, January 16, 2017 was a court holiday.

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these rules, filing shall not be timely unless the papers are received

by the prothonotary within the time fixed for filing.” Pa.R.A.P. 121

(emphasis added).2

Nonetheless, Attorney Morgan argues the untimely filing of Appellant’s

notice of appeal should be accepted nunc pro tunc for the following reasons:

(1) events that led to the filing of this appeal only became known to him and

Appellant several days prior to the expiration of the appeal period; (2) the

notice of appeal was mailed two days prior to the end of the appeal period,

averring “no other practical means for delivering the notice existed[,]”

because he is a solo-practitioner whose office is sixty miles away from the

courthouse, scheduling conflicts prohibited him from hand delivering the

notice, Franklin County does not permit electronic filings, and his secretary

was nine months pregnant at the time and unable to drive long distances;

(3) based on previous experience with mailing filings, Attorney Morgran had

a reasonable basis for believing that the notice would be received by the

clerk of courts in a timely manner; and (4) we should grant Appellant’s

motion to treat this notice of appeal as having been timely filed nunc pro

tunc because Appellant has met the standards set forth in Bass v.

2

We are cognizant that this rule applies to, inter alia, appellate court filings.

Nonetheless, our case law and rules have reiterated that a notice of appeal

must be filed within thirty days. See Commonwealth v. Moir, 766 A.2d

1253, 1254 (Pa. Super. 2000) (“[A] notice of appeal must be filed within

thirty days after the date of entry of that order.”). See also Pa.R.A.P. 105

([“This C]ourt may not enlarge the time for filing a notice of appeal[.]”).

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Commonwealth Bureau of Corrections, 401 A.2d 1133 (Pa. 1979).3

Appellant’s Answer to Rule to Show Cause, 4/3/2017, at 1-8 (unnumbered).

However, despite Appellant’s protestations to the contrary, we find this

case akin to our Supreme Court’s decision in Criss v. Wise, 781 A.2d 1156

(Pa. 2001) In Criss, the Court, interpreting and seemingly narrowing its

decision in Bass, determined that non-negligent, extraordinary

circumstances that would permit the untimely filing of a notice of appeal did

not include a party’s failure to anticipate a delay in mail delivery. Criss, 781

A.2d at 1160. Although in Criss, the filing was mailed around a busy

holiday season, the Court nonetheless held that “regardless of the season,

an appellant has a duty to suspect delays when mailing a notice of appeal.”

Id. at 1160, n.3. As such, our high court rejected Criss’s request that it find

that the delayed filing constituted a non-negligent circumstance as outlined

3

In Bass, our Supreme Court

found that where an appellant, an appellant’s counsel, or an

agent of appellant’s counsel has failed to file a notice of appeal

on time due to non-negligent circumstances, the appellant

should not lose his day in court. Therefore, the Bass Court

expanded the limited exceptions for allowing an appeal nunc pro

tunc to permit such an appeal where the appellant proves that:

(1) the appellant’s notice of appeal was filed late as a result of

non-negligent circumstances, either as they relate to the

appellant or the appellant’s counsel; (2) the appellant filed the

notice of appeal shortly after the expiration date; and (3) the

appellee was not prejudiced by the delay.

Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001) (citation omitted).

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in Bass. In holding as such, the Court found that the exception for filing an

appeal nunc pro tunc

in non-negligent circumstances is meant to apply only in unique

and compelling cases in which the appellant has clearly

established that she attempted to file an appeal, but

unforeseeable and unavoidable events precluded her from

actually doing so. See [Cook v. Unemployment Comp. Bd. Of

Review, 671 A.2d 1130, 1132 (Pa. 1996)]; Perry v.

Unemployment Comp. Bd. of Review, [459 A.2d 1342, 1343

(Pa. Cmwlth. 1983)] (fact that law clerk’s car broke down while

he was on route to the post office, precluding him from getting

to the post office before closing time, was a non-negligent

happenstance for granting appeal nunc pro tunc ); Tony

Grande, Inc. v. Workmen’s Comp. Appeal Bd. (Rodriquez),

[455 A.2d 299, 300 (Pa. Cmwlth. 1983)] (hospitalization of

appellant’s attorney for unexpected and serious cardiac problems

ten days into twenty day appeal period was reason to allow

appeal nunc pro tunc ); Walker v. Unemployment Comp. Bd.

of Review, [461 A.2d 346, 347 (Pa. Cmwlth. 1983)] (U.S.

Postal Service’s failure to forward notice of referee’s decision to

appellant’s address, as appellant had requested, warranted

appeal nunc pro tunc ). But cf. In re In the Interest of C.K.,

[535 A.2d 634, 639 (Pa. Super. 1987)] (appeal nunc pro tunc

denied where counsel was absent from office and did not learn of

appellant’s desire to appeal before expiration period because

counsel negligently failed to make arrangements to look over his

professional obligations); Moring v. Dunne, [493 A.2d 89, 92-

93 (Pa. Super. 1985)] (although death of appellant’s attorney

may have qualified as a non-negligent circumstance, appellant

failed to prove that he attempted to appeal on time but was

precluded from doing so as a result of receiving late notice of his

attorney’s death). Accordingly, as delays in the U.S. mail are

both foreseeable and avoidable, [a]ppellee’s failure to anticipate

a potential delay in the mail was not such a non-negligent

circumstance for which an appeal nunc pro tunc may be granted.

Id. at 1160 (footnotes omitted). Although Attorney Morgan has represented

to this Court several additional hurdles he contends precluded the timely

filing of a notice of appeal, we have concluded that none of these obstacles

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falls within the ambit of acceptable non-negligent circumstances, as outlined

supra.

Thus, in light of the foregoing, we conclude that Appellant untimely

filed her notice of appeal. Consequently, this Court does not have

jurisdiction to entertain the appeal. For these reasons, we quash this

appeal.

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/23/2017

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