Late Nunc Pro Tunc Motion Fails
Petitioner Failed To File A Timely Appeal Within The 30-Day Jurisdictional Period
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Post number 5354
In MP Notary & Tags, Inc. v. Department of Transportation, No. 992 C.D. 2024, Commonwealth Court of Pennsylvania (May 7, 2026) MP Notary & Tags, Inc. had an Agent Services Contract with the Pennsylvania Department of Transportation allowing it to process vehicle titles and issue tags. In December 2022, state police raided its offices, seized its business records and equipment, and the business closed.
FACTS
The company’s principal contacted the Department to obtain paperwork and temporary tags so the business could resume operations. The Department later emailed that an official termination notice would be mailed. On February 23, 2023, the Department mailed a notice terminating the contract based on alleged criminal conduct, fraud, and related charges. The notice was sent to the business address, which had already been shut down, so the company did not receive it until after the 30-day appeal deadline had passed. On July 26, 2023, the company filed a petition to appeal nunc pro tunc (a Latin legal phrase meaning “now for then”. It refers to a court action or order that applies retroactively to a date in the past. It is used to correct clerical errors, accidental omissions, or clerical delays in official records, ensuring past events are properly documented) claiming that the Commonwealth’s closure of the business prevented timely receipt of the notice.
LAW
The court explained that appeal deadlines are jurisdictional and ordinarily cannot be extended. A late appeal may proceed nunc pro tunc only in limited circumstances. To obtain that relief, the appellant must show:
1. extraordinary circumstances such as fraud, administrative breakdown, or non-negligent circumstances causing the late filing;
2. filing within a short time after learning of the need to act; and
lack of prejudice to the opposing party.
The court also emphasized that a party seeking nunc pro tunc relief bears a heavy burden and must act with reasonable diligence once aware of the need to take action. A hearing on a nunc pro tunc petition is required only if the petition alleges facts that, if true, would be legally sufficient to justify late relief.
DISCUSSION
The petitioner argued that it should have been allowed to appeal nunc pro tunc because Commonwealth agents had illegally shuttered its business, which prevented it from receiving the mailed termination notice, and because it was denied an evidentiary hearing. The Department responded that the late filing was the result of the petitioner’s own negligence in failing to monitor its mail or arrange for forwarding, despite knowing an official notice would be mailed.
The court agreed with the Department. It reasoned that the petitioner had a duty to monitor its business mail or make alternative arrangements once the office was closed. The court relied on prior cases holding that failing to check mail at an unstaffed office or to arrange for forwarding constitutes negligence, not non-negligent circumstances. The court also noted that earlier suspension notices had been sent to the same business address and had been successfully appealed, showing the petitioner knew official notices would be mailed there. Because the petitioner’s own lack of diligence caused the delay, it did not satisfy the requirements for nunc pro tunc relief.
ANALYSIS
The court’s analysis turned on whether the petitioner’s untimeliness resulted from non-negligent circumstances or from its own failure to act reasonably. The court concluded that even if the business had been forced to close, that did not excuse the petitioner from the obligation to ensure receipt of important mail.
CONCLUSION
The Commonwealth Court affirmed the July 1, 2024 order of the Executive Deputy Secretary. It held that the petitioner failed to file a timely appeal within the 30-day jurisdictional period and did not establish the extraordinary, non-negligent circumstances required for a nunc pro tunc appeal. As a result, the Department’s termination of the Agent Services Contract remained in effect.
Because Petitioner did not appeal within the 30-day jurisdictional period.
ZALMA OPINION
Records can be cured with an nunc pro tunc motion or appeal. But, to do so, you must do so promptly and within the jurisdictional limits. Failure to do so in a timely fashion is a total failure and the contracts cancellation remained.
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