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COMMONWEALTH PENNSYLVANIA v. REGIS PAUL ENGLERT (03/04/83)

filed: March 4, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
REGIS PAUL ENGLERT, APPELLANT



No. 844 Pittsburgh, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Allegheny County, No. 547-1980.

COUNSEL

Louis J. Krzemien, Jr., Pittsburgh, for appellant.

Kemal Alexander Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Wickersham, Wieand and Beck, JJ. Beck, J., files a dissenting opinion.

Author: Wieand

[ 311 Pa. Super. Page 80]

Is a district justice who finds a motorist guilty of a summary violation of Section 3743 of the Vehicle Code required to advise the motorist of a potential license suspension by the Department of Transportation in order that the appeal period begin to run? The trial court held that such a requirement did not exist and refused to allow an appeal nunc pro tunc five months after the conviction and sentence. We affirm.

Regis Paul Englert was found guilty, after hearing on December 26, 1979, of failing to stop at the scene of an accident in violation of 75 Pa.C.S.A. § 3743(a).*fn1 He paid the fine imposed by the district justice and took no appeal. On May 27, 1980, Englert filed a petition requesting leave of court to file an appeal nunc pro tunc. In support of this request he alleged that he had been unaware that a license suspension would follow his conviction. In fact, his license had been suspended for six months on April 15, 1980 pursuant to Section 1532(b)(1) of the Vehicle Code, 75 Pa.C.S.A. § 1532(b)(1). This section directs the Department of Transportation to suspend the operating privileges of a driver for six months upon conviction of Section 3743 of the Code. The trial court initially allowed the appeal but thereafter reconsidered and granted a Commonwealth motion to quash. This appeal followed.

[ 311 Pa. Super. Page 81]

When an Act of Assembly fixes the time within which an appeal may be taken, courts are without power to extend the period or allow an appeal nunc pro tunc absent fraud or its equivalent or some breakdown in the court's operation. West Penn Power Company v. Goddard, 460 Pa. 551, 556, 333 A.2d 909, 912 (1975); Commonwealth v. Horner, 449 Pa. 322, 324, 296 A.2d 760, 762 (1972); Commonwealth v. Bey, 437 Pa. 134, 137 and n. 4, 262 A.2d 144, 145 and n. 4 (1970); Hesson v. Weinrebe, 288 Pa. Super. 216, 218, 431 A.2d 1015, 1016 (1981); Appeal of Girolamo, 49 Pa. Commw. 159, 164, 410 A.2d 940, 943 (1980); MacKanick v. Rubin, 244 Pa. Super. 467, 470-472, 368 A.2d 815, 817-818 (1976); Commonwealth v. Lord, 230 Pa. Super. 96, 100, 326 A.2d 455, 458 (1974); Klugman v. Gimbel Brothers, Inc., 198 Pa. Super. 268, 275, 182 A.2d 223, 226 (1962).

Judicial extensions of time, in the absence of fraud or its equivalent, are specifically prohibited by Section 5504 of the Judicial Code, which provides:

§ 5504. Judicial extension of time

(a) General rule. -- Except as provided in section 1722(c) (relating to time limitations) or in subsection (b) of this section, the time limited by this chapter shall not be extended by order, rule or otherwise.

(b) Fraud. -- The time limited by this chapter may be extended to relieve fraud or its equivalent, but there shall be no extension of time as a matter of indulgence ...


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