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COMMONWEALTH PENNSYLVANIA v. RICHARD CARL ROGGIO (06/11/82)

SUPERIOR COURT OF PENNSYLVANIA


June 11, 1982

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD CARL ROGGIO, APPELLANT

No. 2202 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Criminal Division, of Delaware County, No. 80-13920.

Before Wickersham, Brosky and Wieand, JJ.

Per Curiam:

Order affirmed.

MEMORANDUM

In proceedings before a magistrate, Richard Carl Roggio was found guilty of driving while his operating privileges had been suspended or revoked,*fn1 and a fine was imposed. Although advised of his right to appeal, Roggio instructed his attorney to file no appeal, and none was filed. Almost a year later, after he had received notice that his Pennsylvania license would be revoked by virtue of the conviction, Roggio attempted to appeal nunc pro tunc to the Court of Common Pleas. His application was denied, and this appeal followed. We affirm.

An appeal from a summary offense must be filed within thirty days of the date of conviction. Pa.R.Crim.P. 67(c). See also 42 Pa.C.S. ยง 5571(b). Where the time within which an appeal may be taken is fixed by statute or rule, the time may not be extended as a matter of indulgence. Commonwealth v. Horner, 449 Pa. 322, 324, 296 A.2d 760, 762 (1972); Commonwealth v. Bey, 437 Pa. 134, 137, 262 A.2d 144, 145 (1970); Commonwealth v. Lord, 230 Pa. Super. 96, 100, 326 A.2d 455, 458 (1974); Commonwealth v. Firmstone, 199 Pa. Super. 526, 186 A.2d 258 (1962), aff'g per curiam, 28 D.&C.2d 483 (Lycoming Co. 1962); Commonwealth v. Wright, 187 Pa. Super. 39, 42, 142 A.2d 336, 337 (1958); Commonwealth v. Peters, 178 Pa. Super. 82, 84-5, 113 A.2d 327, 328 (1955); Commonwealth v. Schneiderman, 162 Pa. Super. 461, 463, 58 A.2d 196, 196 (1948). An appeal nunc pro tunc may be allowed only where fraud or its equivalent is present or where a breakdown in the court's operation causes an injustice to occur. Commonwealth v. Horner, supra; Commonwealth v. Bey, supra at 137 n.4, 262 A.2d at 145 n.4; Commonwealth v. Meshey, 278 Pa. Super. 73, 75, 419 A.2d 1363, 1363 (1980); Commonwealth v. Lord, supra; Commonwealth v. Firmstone, supra; Commonwealth v. Wright, supra.

In the instant case, neither fraud nor injustice has been shown.Appellant's sole contention is that he was unaware that his conviction would result in administrative action revoking his operating privileges. This is an inadequate basis on which to allow an appeal nunc pro tunc. Cf. Commonwealth v. Meshey, supra.

Moreover, appellant offered no excuse for delaying his application to appeal almost eight months after he had received notice of the revocation of his operating privileges.*fn2 Under these circumstances, the court was entirely correct in denying appellant's petition for leave to appeal nunc pro tunc.

The order will be affirmed.


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