IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Commonwealth of Pennsylvania v. No. 448 C.D Submitted October 25, Subaru Impreza VIN# JF1GG68552G and Nokia Tracphone seized from Andrew Glushko Appeal of Andrew Glushko BEFORE HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BROBSON FILED December 18, 2013 Andrew Glushko (Glushko), pro se, appeals from an order of the Court of Common Pleas of Monroe County (trial court) dated March 1, 2013, which denied Glushko s petition for leave to appeal nunc pro tunc from an order dated June 29, We now vacate the trial court s order and remand for further proceedings. In 2008, Glushko was charged with unlawful contact with a minor and related offenses and thereafter a jury found him guilty following a jury trial. Following the trial, the Commonwealth filed a petition of forfeiture, which the trial court granted on May 18, Glushko did not file a timely appeal of the

2 forfeiture order. Rather, over a year later, on June 13, 2011, Glushko filed a petition for leave to appeal nunc pro tunc. In that petition, Glushko asserted that his counsel was ineffective in failing to file a timely appeal from the forfeiture order and sought reinstatement of his appellate rights. The trial court denied that nunc pro tunc petition on September 7, 2011, and Glushko appealed to this Court, raising solely the question of whether the trial court had subject matter jurisdiction to adjudicate the forfeiture petition. Glushko did not argue that the trial court, in addressing that earlier untimely challenge, erred by denying his request to appeal nunc pro tunc. In an unreported opinion and order dated May 24, 2012, 1 we concluded that Glushko failed to present any issue for this Court to review, and we affirmed the trial court s denial of his request to appeal the May 18, 2010 forfeiture order nunc pro tunc. Thereafter, on June 28, 2012, Glushko filed a motion to vacate the trial court s May 18, 2010 forfeiture order. In his motion to vacate, Glushko described the previous proceedings up through this Court s May 24, 2010 decision. In the section of his motion to vacate entitled supporting grounds, Glushko asserted that the trial court lacked subject matter jurisdiction to adjudicate [his] criminal forfeiture matter in its civil court division. (Motion to vacate 9.) Based upon this assertion, Glushko claimed that the trial court s forfeiture order was null and void, and that a judgment that is void... due to a court s lack of jurisdiction over the subject matter is subject to attack at any time. (Motion to vacate ) On June 29, 2012, the Honorable Jennifer Sibum of the Court of 1 Commonwealth v Subaru Impreza VIN# JF1GG68552G821124, (Pa. Cmwlth., No C.D. 2011, filed May 24, 2012). 2

3 Common Pleas of Monroe County issued an order denying Glushko s motion to vacate the May 18, 2010 forfeiture order. On or about November 1, 2012, Glushko filed a petition for leave to appeal nunc pro tunc (the Petition) from Judge Sibum s June 29, 2012 order denying his motion to vacate the forfeiture order. In the Petition, Glushko averred that, as of October 5, 2012, he had not received any correspondence from the trial court concerning his motion to vacate. Glushko averred that the only mail addressed to him from the Court of Common Pleas of Monroe County and received by him between June 29, 2012 and July 20, 2012, at the State Correctional Institution at Smithfield (SCI-Smithfield) (where he then was being housed as an inmate) was a letter concerning an amended post-conviction relief petition he had filed. Glushko averred that he contacted the Court of Common Pleas of Monroe County on October 5, 2012, inquiring as to whether any action had occurred with regard to his motion to vacate. Glushko averred that he did not receive a copy of the June 29, 2012 order until October 15, On March 1, 2013, the trial court judge conducted a video hearing on the Petition and also addressed a pending matter related to the criminal matter, presumably the post-conviction relief petition Glushko mentioned in the Petition. During the hearing, Glushko referred to a letter he had sent to the trial court, indicating that the clerk of courts had mistakenly mailed a copy of the June 29, 2012 order denying his motion to vacate to his old address in Virginia, and that he did not learn of Judge Sibum s June 29 order until October 15, Rather than address the issue of whether to permit Glushko to appeal nunc pro tunc the denial of the motion to vacate, the trial court judge asked Glushko why he believed he was entitled to 3

4 a third bite of the apple? And what I mean by that is this I had issued originally in this forfeiture case an Order granting the Commonwealth s petition for forfeiture. There was no direct appeal taken from that Order. So if you go back to that Order as the Order that you are looking to attack... and challenge, we are way, way past the time for any appeal. (Hearing Transcript at 7-8.) In response to this question, Glushko asserted that his motion to vacate raised the question of whether the trial court had subject matter jurisdiction in the first instance to issue the forfeiture order. (Hearing Transcript at 9.) The Commonwealth asserted that this Court had already concluded that Glushko s subject matter jurisdiction challenge had no merit. (Id. at 9-10.) 2 At the conclusion of the hearing, the trial court judge entered an order into the record, denying Glushko s petition to appeal nunc pro tunc. (Id. at 47.) The trial court judge also explained the rationale for the decision on the record. (Id. at ) The trial court judge stated that she would assume for the purposes of [her] decision now that the Order was sent to the wrong prison and took a long time to get to [Glushko]. (Id. at 43.) The trial court judge, however, stated that she would not get into whether Glushko should have taken additional steps to notify the Court of the change of address. (Id. at ) The trial court judge then focused on the merits of the underlying motion to vacate, concluding that Glushko s motion to vacate had no merit because he failed to seek a direct appeal 2 In our earlier decision, we noted that Glushko asserts that subject matter jurisdiction is a non-waivable issue.... However, we do not find waiver here. Rather, we conclude that his challenge to the forfeiture order is beyond the scope of this court s review, as the order appealed from merely denied Glushko s petition for leave to appeal nunc pro tunc. Commonwealth v Subaru Impreza VIN# JF1GG68552G821124, (Pa. Cmwlth., No C.D. 2011, filed May 24, 2012), slip op. at 3 n.4. 4

5 of the May 18, 2010 forfeiture order. The trial court judge also noted that Glushko never appealed this Court s order affirming the denial of Glushko s petition for leave to appeal the trial court s forfeiture order nunc pro tunc. Thus, the trial court concluded that the forfeiture order had become final and unassailable. The trial court also concluded that the subject matter jurisdiction claim that Glushko initially attempted to raise in his appeal to this Court had no merit. Thus, the rationale centered on the merits and finality of the underlying forfeiture order. In his appeal to this Court, 3 Glushko argues that the trial court erred by considering the underlying merits of his motion to vacate rather than considering the merits of the Petition, which sought leave to file an appeal nunc pro tunc from the June 29, 2012 order denying his motion to vacate. An appeal nunc pro tunc may be allowed where the delay in filing the appeal was caused by extraordinary circumstances involving fraud or some breakdown in the administrative process or non-negligent circumstances related to the appealing party, his counselor, or a third party. Cook v. Unemployment Comp. Bd. of Review, 543 Pa. 381, , 671 A.2d 1130, 1131 (1996). Thus, an appellant may demonstrate that a court should permit a late appeal if the party can show that he or she filed a late appeal because of a breakdown in the court s operations. Schofield v. Dep t of Transp., Bureau of Driver Licensing, 828 A.2d 510, 512 (Pa. Cmwlth.), appeal denied, 575 Pa. 705, 837 A.2d 1179 (2003). The appeal, however, must be filed within a short time after the appellant or his counsel 3 Generally, our review of an order denying a petition for leave to appeal nunc pro tunc is limited to determining whether the trial court committed an error of law or an abuse of discretion. Kaminski v. Montgomery Cnty. Bd. of Assessment Appeals, 657 A.2d 1028, 1031 (Pa. Cmwlth.) appeal denied, 542 Pa. 652, 666 A.2d 1060 (1995). 5

6 learns of and has an opportunity to address the untimeliness. Cook, 543 Pa. at , 671 A.2d at Here, the Commonwealth contends that the doctrines of waiver, res judicata, and collateral estoppel apply, such that Glushko cannot be successful on appeal, and that, therefore, the trial court did not err in denying the Petition. The Commonwealth, however, cites no authority in support of its position that those doctrines are relevant to determining whether a party should be permitted to file an appeal nunc pro tunc. We note that the merits of the underlying appeal (here, the appeal of the motion to vacate) are not factors to consider when determining whether an appeal nunc pro tunc should be permitted. Because the merits of the underlying appeal of the motion to vacate are irrelevant, whether the doctrines of waiver, res judicata, or collateral estoppel apply to the merits of the motion to vacate is equally irrelevant to our analysis of whether an appeal nunc pro tunc should be granted. Thus, the trial court erred in considering the merits of the underlying appeal, including the doctrines discussed above. The only issue that was properly before the trial court, therefore, was whether or not Glushko demonstrated that he was entitled to appeal nunc pro tunc the June 29, 2012 order. In this case, Glushko averred in the Petition that he advised the trial court that his address had changed and that he never received the order at his new address. Further, evidence he sought to have admitted into the record suggests that the only piece of mail that he received from the trial court following June 29, 2012, related to his post-conviction relief petition. Although the trial court indicated that it assumed that the order was mailed to an incorrect address, the trial court never specifically addressed the merits of the Petition, 6

7 including whether a breakdown in the operation of the courts precluded Glushko from filing a timely appeal. Accordingly, we must vacate the trial court s order and remand the matter to the trial court for further proceedings consistent with this opinion, including the development of a more complete record, if necessary. 4 P. KEVIN BROBSON, Judge 4 If, upon remand, the trial court affirmatively grants the Petition, the trial court could proceed to request a concise statement of matters complained of on appeal regarding the merits of the motion to vacate, and issue an opinion under Pa. R.A.P. 1925(a), which would properly address the merits of Glushko s claims. Then this Court, which is the correct forum to address the merits of the trial court s denial of the motion to vacate (if the nunc pro tunc appeal is granted), could consider the merits of Glushko s appeal of the denial of his motion to vacate the forfeiture order, and the Commonwealth could properly respond to those arguments. 7

8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Commonwealth of Pennsylvania v. No. 448 C.D Subaru Impreza VIN# JF1GG68552G and Nokia Tracphone seized from Andrew Glushko Appeal of Andrew Glushko O R D E R AND NOW, this 18 th day of December, 2013, the order of the Court of Common Pleas of Monroe County (trial court), dated March 1, 2013, is hereby VACATED. The matter is REMANDED to the trial court with the direction to address anew, in accordance with this opinion, the petition for leave to appeal nunc pro tunc filed by Andrew Glushko on November 1, Jurisdiction relinquished. P. KEVIN BROBSON, Judge