Com v. Kent, M. ( 2016 )

J. A03002/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MARILYN KENT, :
:
Appellant : No. 508 EDA 2015
Appeal from the Order January 30, 2015
In the Court of Common Pleas of Bucks County
Criminal Division No(s).: CP-09-MD-0001640-2014
BEFORE: GANTMAN, P.J., MUNDY,J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED MARCH 30, 2016
Marilyn Kent appeals from the Honorable Wallace H. Bateman, Jr.’s
denial of her Motion to Appeal nunc pro tunc from her summary convictions
for, among other things, cruelty to animals and criminal mischief. After
careful review, we find an administrative breakdown in the court’s handling
of the appeal process, reverse the trial court’s denial of nunc pro tunc relief
and remand for further proceedings.
The procedural history of this case is as follows. On August 21, 2013,
and September 4, 2013, Bucks County Magisterial District Judge Gary
Gambardella found Appellant guilty of four summary offenses of Criminal
Mischief and Cruelty to Animals. Judge Gambardella sentenced her to a
term of 24 consecutive hours’ incarceration at the Bucks County Correctional
Facility.
J. A03002/16
Appellant, acting pro se, filed timely Notices of Appeal from her
summary convictions on September 12, 2013, and September 23, 2013, for
the convictions dated August 21, 2013, and September 4, 2013,
respectively. At the same time, she filed Motions to Proceed In Forma
Pauperis (“IFP Petitions”).
The Bucks County Clerk of the Court of Common Pleas received
Appellant’s Notices of Appeal. Each Notice of Appeal was time stamped, but
the Clerk of Courts failed to file or docket either appeal.
The Clerk of Courts also received Appellant’s IFP Petitions, and created
separate miscellaneous dockets in the Court of Common Pleas for each. 1 On
September 12, 2013, the Bucks County Deputy Clerk sent Appellant a letter
(“Acknowledgment Letter”), acknowledging the receipt of the IFP Petitions as
well as informing Appellant about the procedure when the court grants or
denies the IFP Petitions. In particular, the Acknowledgment Letter informed
Appellant that if the court denied the IFP Petitions, Appellant would have ten
days to pay the filing fee:
If the [IFP] petition is granted, [the Clerk of Courts] will notify
the District Court to forward your case to the Court of Common
Pleas for summary appeal. If the petition is denied and the
filing fee is not paid within ten (10) days, the case
remains at the District Court level.
Defense Exhibit D-2, Hearing on Motion, 12/23/14; R.R. at 111a (emphasis
added).
1
See Dockets No. CP-09-MD-0002684-2013 and CP-09-MD-0002768-2013.
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Six weeks later, the Court Administration from the Court of Common
Pleas returned Appellant’s “pleadings” and notified her that her IFP Petitions
had “not been acted upon by the Court,” as they were “deficient.”2
Commonwealth Exhibit C-3, Hearing on Motion, 12/23/14. The Court
Administration’s letter to Appellant, however did not provide the Appellant
with notice that if she failed to complete the IFP Petitions, the court would
dismiss the IFP Petitions.
Appellant did not respond to the Court Administration’s letter and six
weeks later Judge Gambardella sent Appellant a letter (“Judge Gambardella
Letter”) informing Appellant she no longer had a right to appeal: 3
It has come to my attention that you have failed to perfect your
appeals in the above-captioned non-traffic citation cases in
which verdicts of guilty have been entered. Therefore, as the
appeal periods have expired in each of these matters, the
judgments of sentence for these matters are final.
Defense Exhibit D-3, Hearing on Motion, 12/23/14; R.R. at 112a-113a. The
Judge Gambardella Letter was not accompanied by an order, and was not
docketed in either of the miscellaneous dockets.
2
The deficiency was indicated with a check in a box marked “other” with the
explanation “Affidavit must include the value of all property including
livestock, equipment and supplies used to maintain such livestock.”
Commonwealth Exhibit C-3, Hearing on Motion, 12/23/14.
3
This letter completely ignored the fact that Appellant had already
submitted timely Notices of Appeal that the Clerk of Courts refused to file.
This letter also fails to follow the procedure laid out by the Acknowledgement
Letter. In particular, the Judge Gambardella Letter does not actually dismiss
the IFP Petitions or give Appellant ten days to pay the filing fee.
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In response to the Judge Gambardella Letter, Appellant took the
following actions to resurrect her appeals. First, on December 23, 2013,
Appellant filed a pro se “Motion for Extension of Time” citing long-term
illness.4 On December 30, 2013, she filed a pro se motion seeking, among
other things, Reinstatement of the Appeal.5 Third, sometime in January of
2014, Appellant returned to the Clerk of Courts’ office and filed completed
IFP petitions in her initial summary appeals.6
Appellant also retained counsel who filed a Motion Seeking Leave to
Amend her summary appeals or, in the alternative, file appeals from the
summary offenses nunc pro tunc.
On December 23, 2014, the Honorable Wallace H. Bateman, Jr. held a
hearing on the motion. Natalie Litchko, an employee of the Clerk of Courts,
testified that the Clerk of Courts never filed Appellant’s appeal “because [the
4
The Clerk of Courts failed to docket this Motion. Commonwealth Exhibit C-
1, Hearing on Motion, 12/23/14; R.R. at 119a. It does not appear to have
ever been denied, dismissed, or otherwise addressed. See Dockets No. CP-
09-MD-0002684-2013 and CP-09-MD-0002768-2013.
5
This Motion was docketed with one of Appellant’s two IFP petitions. See
Docket No. CP-09-MD-0002768-2013. The Motion was “[f]orwarded for
consideration” and then “returned to file without action by Judge Bateman.”
See Commonwealth Exhibit C-1, Hearing on Motion, 12/23/14; R.R. at 115a.
There is no record of the motion requesting Reinstatement ever being
denied, dismissed, or otherwise addressed. See Dockets No. CP-09-MD-
0002684-2013 and CP-09-MD-0002768-2013.
6
Although Natalie Litchko, an employee of the Clerk of Courts, testified that
the new IFP petition was considered and granted, this appears nowhere in
the Court of Common Pleas docket. N.T. Hearing, 12/23/14, at 21. The
Clerk of Courts took no action after the new IFP petition was granted. Id.
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IFP] was not perfected.” N.T. Hearing, 12/23/14, at 21. Judge Bateman
denied Appellant’s Motion for Leave to Appeal Nunc Pro Tunc and reinstated
the sentence imposed by Judge Gambardella. Order, dated 1/30/15.
Appellant filed a timely Notice of Appeal to this Court, and a Rule
1925(b) Statement raising twelve issues. We need to address only the issue
of whether the trial court properly denied Appellant nunc pro tunc relief:
Did the [c]ourt below commit reversible error and abuse its
discretion in denying the [Appellant’s] Motion to Appeal Nunc Pro
Tunc, and in the alternative to Amend Summary Appeals under
the facts of this case?
Appellant’s Brief at 3.
In an appeal from the denial of a motion to appeal nunc pro tunc, this
Court has stated our standard of review as follows:
[T]he allowance of appeal nunc pro tunc is within the sound
discretion of the trial court, and our scope of review of a decision
of whether to permit an appeal nunc pro tunc is limited to a
determination of whether the trial court has abused its discretion
or committed an error of law. Orders granting or denying [a]
petition to appeal nunc pro tunc are reversible [only] in
instances where the court abused its discretion or where the
court drew an erroneous legal conclusion.
Commonwealth v. Yohe, 641 A.2d 1210, 1211 (Pa. Super. 1994)
(citations and internal quotation marks omitted).
Appellant contends that the trial court abused its discretion and erred
as a matter of law in denying her leave to appeal nunc pro tunc where the
Clerk of Courts failed to file Appellant’s Notices of Appeal and failed to
dismiss or deny her IFP petitions. We agree.
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“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.” Commonwealth v. White, 806 A.2d 45, 46
(Pa. Super. 2002) (citation omitted). “Generally, an appeal nunc pro tunc
may be allowed when a delay in filing the appeal is caused by extraordinary
circumstances involving fraud or some breakdown in the court’s operation
through a default of its officers.” Cook v. Unemployment Comp. Bd. Of
Review, 671 A.2d 1130, 1131 (Pa. 1996) (citations and internal quotation
marks omitted).
We find that the trial court erroneously denied nunc pro tunc relief
where there was an administrative breakdown in the court’s operations.
The Office of the Clerk of Courts expressly told Appellant in its
Acknowledgment Letter that it would take one of two actions on Appellant’s
IFP petitions, and then failed to follow its own announced procedures. The
Acknowledgment Letter told Appellant the court would either grant or deny
her IFP Petitions, and if the court denied them, she would have 10 days to
pay the filing fees. Instead, the Clerk of Courts not only failed to actually
grant or deny the IFP petitions, they did so without providing any further
action, direction, or notice to Appellant. Such failure to follow through on its
own stated procedures constitutes a breakdown in the court’s operations.
Furthermore, the Office of the Clerk of Courts was without authority to
refuse to docket Appellant’s timely Notices of Appeal. By its own admission,
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the Office of the Clerk of Courts refused to file Appellant’s timely Notices of
Appeals because of a defect in the IFP petitions. As this Court has
repeatedly made clear, a prothonotary or Clerk of Courts’ failure to process a
defective but otherwise timely appeal constitutes a breakdown in the court’s
operations. See Commonwealth v. Alaouie, 837 A.2d 1190, 1192 (Pa.
Super. 2003) (holding the prothonotary had no authority to reject an
appellant’s timely but defective Notice of Appeal from a summary
conviction). See also Amicone v. Rok, 839 A.2d 1109, 1115 (Pa. Super.
2003) (holding that because “the prothonotary’s office was without the
power to reject the appeal . . . there was a breakdown in the court’s
operation through a default of its officers.”); Nagy v. Best Home Services,
Inc., 829 A.2d 1166, 1168 (Pa.Super. 2003) (finding a breakdown in the
court’s operations due to the prothonotary’s “failure to time stamp and
docket the timely-filed, albeit flawed, notice of appeal.”). The Clerk of
Courts was required to docket and process the Notices of Appeal and IFP
petitions. The failure to do so constituted a clear breakdown in the court’s
operations.7 Alaouie, 837 A.2d at 1192.
7
The trial court erred in finding Appellant’s own negligence caused this
breakdown in the court’s operations. When an appellant seeks nunc pro
tunc relief on the grounds there was a breakdown in the court’s operations,
the proper focus of the inquiry is on the conduct of the court and its officers.
See e.g., Nagy, 829 A.2d at 1167-68 (holding a breakdown in the court’s
operations warranted nunc pro tunc relief where prothonotary refused to
docket a timely-filed notice of appeal, despite the fact that appellant’s Notice
(Footnote continued)
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Having found a breakdown in the court’s operations, we must now
consider whether Appellant timely pursued nunc pro tunc relief. Yohe, 641
A.2d at 1212 (“A party seeking leave to appeal from a summary conviction
nunc pro tunc has the burden of demonstrating . . . that upon learning of the
existence of the grounds relied upon for nunc pro tunc relief, he acted
promptly to seek such relief.”).
The Judge Gambardella Letter put Appellant on notice that there had
been a breakdown in the court’s operations. Within days, Appellant made
three separate attempts to re-assert her appellate rights in response to the
Judge Gambardella Letter. See supra at slip op. 4. The fact that the Clerk
of Courts improperly docketed or otherwise ignored these efforts does not
diminish Appellant’s demonstrated diligence. When her efforts were ignored,
she retained private counsel. We conclude Appellant was diligent and timely
in her pursuit of an appeal nunc pro tunc.
Therefore, we reverse the order of January 30, 2015, and we remand
for proceedings consistent with this memorandum opinion.
Order reversed. Case remanded. Jurisdiction relinquished.
President Judge Gantman joins the memorandum.
Judge Mundy concurs in the result.
of Appeal lacked all required signatures and lacked a copy of the judgment
below).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2016
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