The Commonwealth Court has called the bluff of an Allegheny County trial judge who accused it of blindly favoring the Pennsylvania Department of Transportation and challenged it to overturn his ruling in a driver's license suspension case.

Allegheny County Court of Common Pleas Judge Lester Nauhaus, who has a history of making colorful remarks in court, expressed his opinion of the Commonwealth Court while sustaining a plaintiff's nunc pro tunc appeal of a one-year license suspension for failure to submit to chemical testing.

According to Commonwealth Court Judge Dan Pellegrini's opinion, plaintiff Justin Harris sought permission to file a nunc pro tunc appeal, claiming his attorney had failed to timely file an appeal after misplacing Harris' suspension letter. At a hearing on the motion, Nauhaus said a driver contesting a suspended license shouldn't be penalized because of his lawyer's mistake.

But, according to Pellegrini's opinion, William Kuhar, a lawyer representing PennDot, attempted to explain to Nauhaus during the hearing that Commonwealth Court case law holds that a lawyer's negligence is not grounds for allowing a nunc pro tunc appeal.

Nauhaus, however, replied, “Commonwealth Court is the enabler of the Department of Transportation, to be perfectly honest with you, Mr. Kuhar. I mean, it is my experience in reading their opinions that the Department of Transportation could look outside at noon and say it was dark and the Commonwealth Court would agree with them.”

He also asked Kuhar, according to Pellegrini's opinion, “How can I penalize somebody because their lawyer screwed up?”

Kuhar began to reply, “Because the appellate courts have held that—”

“Let the appellate courts overturn me,” Nauhaus interrupted.

Pellegrini, joined by President Judge Mary Hannah Leavitt and Judge Michael H. Wojcik, did not address Nauhaus' remarks other than to list them verbatim in the Commonwealth Court's opinion. Instead, the court stuck to the case law controlling Harris' case, noting that the court “gave a succinct but complete analysis of the law regarding nunc pro tunc appeals where an attorney was negligent in failing to file a timely appeal” last October in Noweck v. Department of Transportation, Bureau of Driver Licensing.

“A licensee has 30 days from the mailing date of the department's notice of suspension to file an appeal with the trial court,” Pellegrini said. “Where an appeal is filed beyond the 30-day period, it is untimely and 'deprive[s] the [trial court] of subject matter jurisdiction over such appeals.'”

He also pointed to the court's 2003 decision in Hudson v. Department of Transportation, Bureau of Driver Licensing, which said:

“Statutory appeal periods are mandatory and may not be extended as a matter of grace or mere indulgence. By allowing a licensee to file a late appeal, the trial court extends the time in which an appeal may be filed, thereby extending itself jurisdiction it would not otherwise have. Such an extension is appropriate only when the licensee proves that either fraud or an administrative breakdown caused the delay in filing the appeal.”

Pellegrini said the Commonwealth Court's previous rulings were on point in Harris' case.

“In this case, it is undisputed that Harris's license suspension appeal was filed well after the required 30-day period,” Pellegrini said. ”Harris does not contend that fraud or a breakdown within the administrative or judicial process occurred. His only reason that he offers in support of his nunc pro tunc appeal is that his attorney 'misplaced' the paperwork. Because Harris failed to make the threshold showing that exceptional, non-negligent circumstances caused the appeal to be untimely filed, he has failed to establish a basis for nunc pro tunc relief.”

Kuhar could not be reached for comment. Patrick J. Thomassey represents Harris and did not return a call seeking comment.