Com., Dept. of Transp., Bureau of Driver Licensing v. Johnson

• Decision Date: 06 May 1994
• Citation: 434 Pa.Super. 1,641 A.2d 1170
• Parties: COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant, v. Ronald Eugene JOHNSON, Appellee.
• Court: Pennsylvania Superior Court

Page 1170

641 A.2d 1170

434 Pa.Super. 1

COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant, v. Ronald Eugene JOHNSON, Appellee.

Superior Court of Pennsylvania.

Argued Feb. 8, 1994.

Filed May 6, 1994.

Timothy P. Wile, Harrisburg, for appellant.

R. Mark Thomas, Mechanicsburg, for appellee.

Before WIEAND, McEWEN and SAYLOR, JJ.

WIEAND, Judge.

In this appeal from a trial court order which reversed the suspension of Ronald Eugene Johnson's driving privileges following pleas of guilty to three charges of possession with intent to deliver controlled substances, the Department of Transportation contends that the trial court erred when it (1) allowed an appeal from the suspension nunc pro tunc; and (2) reversed a legislatively mandated suspension following guilty pleas which had never been withdrawn. ¹

On July 1, 1992, Johnson entered pleas of guilty to three counts of possession with intent to deliver controlled substances and was duly sentenced. Upon certification by the Clerk of Courts of Dauphin County, the Department of Transportation, by letter dated and mailed August 3, 1992, notified Johnson that his operating privileges were being suspended for 90 days in accordance with the mandate of Section 13(m) of the Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, P.L. 233, No. 64, as amended, 35 P.S. § 780-113(m). ² By notices dated August 5, 1992, the Department notified Johnson that his driving privileges would be suspended for additional periods of one and two years because of his convictions on the remaining two charges. On December 17, 1992, Johnson filed a petition in the court of common pleas requesting leave to file an appeal nunc pro tunc. This petition was heard on February 5, 1993, after which an appeal nunc pro tunc was allowed. It was allowed because the Department's notices of suspension had been sent to the address shown on the Department's records and not to the address shown on the certification prepared and forwarded to the Department by the Clerk of Courts. Johnson testified that he had moved from 264 Boas Street, Harrisburg (the address shown on his driver's license) to 2946 Wilson Parkway, Harrisburg (the address shown on the court's records) and had not received the notices sent by the Department. The reason for this was that he had failed to notify the Department that the address shown on his driver's license had been changed.

A hearing on the merits of the appeal was held on April 8, 1993, after which the hearing court vacated the suspensions. It did so because Johnson had not been told at the time of entering his guilty pleas that a collateral consequence of his pleas was the legislatively mandated suspension of his operating privileges.

"It is well settled that an appeal from a driver's license [suspension] must be taken within thirty days from the mailing date of the Department's notice." Commonwealth, Department of Transportation v. Matlack, 144 Pa.Commw. 12, 15, 600 A.2d 998, 999 (1991). See also: Commonwealth, Department of Transportation v. Shain, 114 Pa.Commw. 360, 538 A.2d 994 (1988); Commonwealth, Department of Transportation v. Rogers, 53 Pa.Commw. 641, 419 A.2d 235 (1980). "Appeals filed beyond the 30-day appeal period are untimely and deprive the common pleas court of subject matter jurisdiction over such appeals." Commonwealth, Department of Transportation v. Maddesi, 138 Pa.Commw. 467, 471, 588 A.2d 580, 582 (1991). See also: Bye v. Commonwealth, Department of Transportation, 147 Pa.Commw. 205, 209, 607 A.2d 325, 327 (1992); McGraw v. Commonwealth, Department of Transportation, 123 Pa.Commw. 120, 122, 552 A.2d 1165, 1166-1167 (1989). "An appeal nunc pro tunc may be permitted upon showing that the delay in filing the appeal resulted from extraordinary circumstances involving fraud or a breakdown in the court's operations which caused injury to the appealing party." Commonwealth, Department of Transportation v. Emery, 135 Pa.Commw. 274, 279, 580 A.2d 909, 912 (1990). See also: Commonwealth v. Jarema, 404 Pa.Super. 121, 126, 590 A.2d 310, 312 (1991); Commonwealth v. Bassion, 390 Pa.Super. 564, 568, 568 A.2d 1316, 1318-1319 (1990); Riddle v. Commonwealth, Department of Transportation, 136 Pa.Commw. 508, 512, 583 A.2d 865, 867 (1990). "The decision whether to permit an appeal nunc pro tunc is an equitable matter and [an appellate court's] scope of review is limited to a determination of whether the trial court has abused its discretion or committed an error of law." Commonwealth, Department of Transportation v. Rick, 75 Pa.Commw. 514, 516, 462 A.2d 902, 903 (1983). See also: McKeown v. Commonwealth, Department of Transportation, 144 Pa.Commw. 322, 325, 601 A.2d 486, 487 (1991); Holmes v. Board of Zoning Appeals, 130 Pa.Commw. 349, 354, 568 A.2d 301, 303 (1990).

In this case, the first notice of suspension was mailed to Johnson on August 3, 1992, and the second and third notices were mailed by the Department on August 5, 1992. Johnson did not file a statutory appeal until December 17, 1992, when he sought leave of court to appeal nunc pro tunc. His request, clearly, was untimely. Can the untimeliness of the appeal be excused by the failure of the Department to send notice to the address for defendant shown on the court's certification of the convictions? We think not. The Vehicle Code required that notice of suspension be sent to Johnson's "address of record." See: 75 Pa.C.S. § 1540(b). Another section of the Vehicle Code required Johnson, if he moved from such address, to notify the department in writing of the new address within 15 days after the move. See: 75 Pa.C.S. § 1515. ³

In Commonwealth v. McDonough, 533 Pa. 283, 621 A.2d 569 (1993), an equally divided Supreme Court affirmed a defendant's conviction for driving while her operating privileges were suspended. In doing so, the Court rejected the defendant's argument that the Commonwealth had failed to prove that she had had actual notice of the suspension of her driver's license, in that the Department of Transportation had mailed the notice of suspension to her former address. The opinion in support of affirmance reasoned as follows:

Appellant's argument must fail because her admitted failure to notify PennDot of her new address violates 75 Pa.C.S.A. § 1515 and thus, precludes her reliance on the defense of insufficient notice, where notice was sent to her address of record. Commonwealth v. Heckman, 404 Pa.Super. 335, 590 A.2d 1261 (1991). Commonwealth v. Kane, supra, [460 Pa. 582, 333 A.2d 925 (1975) ], is inapposite because, in that case, the defendant's notice of suspension was not sent to defendant's address of record with PennDot, but instead, due to a typographical error, was sent to an address at which defendant had never resided. Unlike Kane, in the present case, it was appellant's own conduct which rendered actual notice impossible. We cannot allow appellant to use a violation of one law to circumvent a violation of another law. Therefore, we conclude that, although actual notice of suspension is still a necessary element of the crime of driving while operating privilege is suspended or revoked (75 Pa.C.S.A. § 1543), a defendant's failure to notify PennDot of a change of address pursuant to 75 Pa.C.S.A. § 1515, precludes his or her reliance on the defense of insufficient notice.

Commonwealth v. McDonough, supra 533 Pa. at 287-288, 621 A.2d at 572 (Opinion In Support of Affirmance) (footnote omitted).

In Commonwealth v. Heckman, 404 Pa.Super. 335, 590 A.2d 1261 (1991), the Superior Court had held that "when a defendant fails to notify PennDot of a change in address pursuant to 75 Pa.C.S.A. § 1515, the defendant cannot rely on this violation of the law to insulate him from more serious violations by claiming lack of actual notice." Id. at 346-347, 590 A.2d at 1267 (footnote omitted).

The Commonwealth Court has reached a similar result. In Korell v. Commonwealth, Department of Transportation, 122 Pa.Commw. 96, 551 A.2d 398 (1988), the Court held that a failure to file a timely appeal would not be excused by a failure to receive notice where the licensee had failed to notify the Department of a change of address. The Court said:

In order for an appeal nunc pro tunc to be permitted there must be fraud or a breakdown in the court's operations. Department of Transportation, Bureau of Traffic Safety v. Rick, 75 Pa.Commonwealth Ct. 514, 462 A.2d 902 (1983). Appellant contends that [the Department] was aware of his correct address, but mailed the notices to an incorrect address, and that this constituted a breakdown in the administrative operations of [the Department].

....

[A]lthough two of the many citations which were issued to Appellant appear to contain Appellant's new address, the fact remains that Appellant failed to notify [the Department] of his change in address as required by the Vehicle Code. Under these circumstances we conclude that the delay in filing the appeal was not due to a breakdown in the administrative operations of [the Department], but due to Appellant's own failure to comply with the change of address provision of the Vehicle Code. Accordingly, we hold that the trial court properly denied Appellant permission to appeal nunc pro tunc.

Id. 122 Pa.Cmwlth. at 98-99, 551 A.2d at 400 (footnote omitted).

Subsequently, in Commonwealth, Department of Transportation v. Lang, 148 Pa.Commw. 19, 610 A.2d 1076 (1991), the Commonwealth Court reversed a trial court's order allowing a motorist to file a nunc pro tunc appeal from the suspension of her driver's license where the trial court had permitted the nunc pro tunc appeal on grounds that notice of the suspension had been mailed to the motorist's former address, even though "the Department had within its bureaucratic network the [motorist's] current mailing address." Id. at 23, 610 A.2d at 1077. The Commonwealth Court rejected the trial court's analysis and held...