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HomeMy WebLinkAbout98-218 miscallaneousCOMMONWEALTH OF PENNSYLVANIA Vo WILLIAM LUTHER BECK, JR., Defendant. : IN TItE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · · No: 98-218 MISC. · · · IN RE: DEFENDANT'S REQUEST TO F1LE AN APPEAL NUNC PRO TUNC. BEFORE GU]DO, J. ORDER OF COURT. AND NOW, this lO ~ day of AUGUST, 1998, Defendant's request for leave to file an appeal nunc pro mnc is DENIED. By the Court Edward E. Guido, J. District Attorney Jeffery M. Cook, Esquire Attorney for Defendant COMMONWEALTH OF PENNSYLVANIA Vo WILLIAM LUTHER BECK, JR., Defendant. ' IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA ·No' 98-218 MISC. 1N RE: DEFENDANT'S REQUEST TO FII,E AN APPEAL NUNC PRO TUNC BEFORE GUIDO, J._ OPINION AND ORDER OF COURT On September 16, 1996 the Defendant received a citation for a violation of Section 1501(a) of the Motor Vehicle Code (75 Pa.C.S.A. § 1501 Drivers required to be licensed). He was convicted by District Justice Paula Correal on March 31, 1998. On June 15, 1998 the Defendant filed the instant petition for leave to file an appeal nunc pro tunc.x For the reasons hereinafter set forth, Defendant's request is denied. DISCUSSION The Defendant asserts that his failure to file an appeal was caused by "non-negligent circumstances." Defendant makes the following relevant avermems: (1 .) He received the citation while visiting Pennsylvania from Tennessee to attend his grandfather's funeral. (2.) His father died soon thereatter and he decided to remm to Pennsylvania to live with his mother.2 (3.) During the relocation, the Defendant lost the citation and was, therefore, unaware of the hearing date. ~The Petition is dated May 29, 1998. A supplemental petition filed on July 31, 1998 avers that the original petition was mailed on May 29, 1998. Whether the petition was filed on June 15, 1998 or May 29, 1998 makes no difference to our resolution of the issues presented. 2The petition is silent as to the date of death of Defendant's father. Nor does it tell us when the Defendant relocated to Pennsylvania. No: 98-218 MISC. (4.) On April 28, 1998, the Pennsylvania Department of Transportation notified Defendant that his license would be suspended as a result of his March 31, 1998 conviction. (5.) Defendant first spoke with an attorney on May 28, 1998. An appeal nunc pro mnc should be allowed when the delay in filing is caused by extraordinary circumstances involving fraud, a breakdown of the court's operation, or non- negligent acts of the appellant's attorney or the appellant himself. Cook v. Unemployrnent Compensation Bd. of Review, 543 Pa. 381,671 A.2d 1130 (1996); Com. v. Stock, 545 Pa. 13, 679 3~2d 760 (1996). In the instant case, even if we accept as tree all of the averments made by Defendant, we are satisfied that he should not be allowed to file this untimely appeal. Defendant avers that his grandfather died in 1996 and his father died shortly thereafter. When he relocated to Pennsylvania after his father's death, he lost the citation. Therefore, he was not aware of the heating date and was convicted in absentia.3 However, any extraordinary circumstances which might have justified a delay in filing the appeal ended when Defendant relocated to Pennsylvania. Presumably, this was in late 1996 or early 1997. Defendant..was convicted on March 31, 1998.4 The appeal should have been filed by April 30, 1998. On April 28, 1998, PennDOT notified him that his license would be suspended as a result of his conviction. He still did not file the instant petition until thirty-one (31) days after the date of that letter. He has not offered any explanation for this delay. Therefore, we see no 3There is nothing in the petition to indicate why there was an eighteen month delay between the issuance of the citation and the hearing before District Justice Correal. 4Defendant does not allege that he did not receive notice of his conviction from District Justice Correal. No: 98-218 MISC. reason to allow him to proceed with an appeal nunc pro tunc. For the foregoing reasons, Defendant's request for leave to file an appeal nunc pro mnc is denied. ORDER OF COURT AND NOW, this ~O'~day of AUGUST, 1998, Defendant's request for leave to file an appeal nunc pro mnc is DENIED. By the Court, /s/Edward E. Guido, J. Edward E. Guido, J. District Attorney Jeffery M. Cook, Esquire Attorney for Defendant