Com., Dept. of Transp., Bureau of Driver Licensing v. Emery
| Decision Date | 26 September 1990 |
| Citation | 135 Pa.Cmwlth. 274,580 A.2d 909 |
| Parties | COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant, v. Benjamin Howard EMERY, Appellee. |
| Court | Pennsylvania Commonwealth Court |
William A. Kuhar, Jr., Asst. Counsel, with him, Timothy P. Wile, Asst. Counsel in Charge of Appellate Section, Harold H. Cramer, Asst. Chief Counsel, and John L. Heaton, Chief Counsel, for appellant.
David H. Patterson, Meyer, Darragh, Buckler, Bebenek, Eck & Hall, Pittsburgh, for appellee.
Before SMITH and PELLEGRINI, JJ., and SILVESTRI, Senior Judge.
Before this Court is an appeal by the Department of Transportation (DOT) from an order of the Court of Common Pleas of Allegheny County, dated December 13, 1989, which permitted Benjamin Howard Emery (Emery) to appeal nunc pro tunc from an indefinite suspension of his operator's license by DOT pursuant to Section 1538(c) of the Vehicle Code, 75 Pa. C.S. § 1538(c) (), and which sustained his appeal of the suspension. The issues before this Court are whether the trial court properly granted Emery's petition to appeal nunc pro tunc and whether DOT satisfied its initial burden of proof by producing records of convictions justifying the suspension of Emery's operator's license. This Court finds that the appeal nunc pro tunc was properly granted and that DOT failed to satisfy its initial burden of proof.
On November 21, 1988, Emery was issued a citation (November 1988 citation) by the Pennsylvania State Police for violation of Section 3362(a) of the Vehicle Code, 75 Pa. C.S. § 3362(a) (). On January 9, 1989, Emery responded to the citation by posting $102.50 as collateral for his appearance at trial and entering a plea of not guilty. However, the posting of collateral and the plea of not guilty were recorded in error at the district justice's office as payment of the fine and a plea of guilty. As a consequence of the recording error, the office of the district justice inaccurately reported to DOT that Emery entered a plea of guilty. 1 Thereafter, Emery received an official notice dated March 22, 1989 stating that because of his "conviction", he accumulated six points on his driving record and was required to attend a departmental hearing on April 18, 1989. Emery failed to attend that hearing. He also received a notice dated April 5, 1989 from District Justice Brenda M. Knepper stating that a hearing would be held on the November 1988 citation on April 25, 1989. Emery was found not guilty at that hearing.
By official notice dated and mailed May 31, 1989, DOT informed Emery that his operating privileges were scheduled for indefinite suspension pursuant to Section 1538(c) of the Vehicle Code. Upon notification by Emery of the recording error that resulted in the suspension, District Justice Knepper forwarded a letter dated September 15, 1989 to DOT stating that Emery was found not guilty on the November 1988 citation. DOT, however, refused to correct Emery's driving record. On October 17, 1989, Emery filed a petition to appeal nunc pro tunc from the suspension in the Court of Common Pleas of Allegheny County. At a de novo hearing before the trial court, DOT moved to quash the appeal as untimely. The trial court denied DOT's motion and sustained Emery's appeal from the suspension because he was found not guilty on the November 1988 citation. 2
DOT contends that the trial court lacked jurisdiction to hear Emery's appeal from the suspension because the appeal was untimely. Section 1550(a) of the Vehicle Code, as amended, 75 Pa. C.S. § 1550(a), grants the right to appeal to any person whose operator's license has been suspended by DOT. Section 5571(b) of the Judicial Code, 42 Pa. C.S. § 5571(b), requires that an appeal from a government unit such as DOT be commenced within thirty days after the entry of the order. Section 5572 of the Judicial Code, 42 Pa C.S. § 5572, provides that the date of mailing the order shall be the date of entry of the order. Emery filed his appeal from the suspension on October 17, 1989, more than four months after the mailing of the suspension notice. Thus, there is no dispute that Emery failed to comply with the statutory requirements for filing his appeal. Despite untimeliness of the appeal, the trial court did not lack jurisdiction under the circumstances in this case.
DOT also contends that the trial court improperly granted Emery's appeal nunc pro tunc because he failed to present evidence that constituted grounds for permitting an appeal nunc pro tunc. 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. Rick, 75 Pa. Commonwealth Ct. at 516, 462 A.2d at 903 (1983). The delay in filing Emery's appeal resulted from the recording error at the district justice's office which clearly constituted a breakdown in court operations. Moreover, the recording error is an example of "wrongful or negligent acts of [an] official ... [which] ... may be a proper reason for holding that, as to an injured person, the statutory period does not run and that the wrong may be corrected by means of a petition filed nunc pro tunc within a reasonable time." Wess v. Department of Welfare, 75 Pa. Commonwealth Ct. 628, 631, 462 A.2d 955, 957 (1983). Thus, the recording error constituted proper grounds for the trial court to grant Emery's petition to appeal nunc pro tunc.
DOT also argues that, even if the trial court properly granted Emery's petition to appeal nunc pro tunc, Emery failed to present evidence to rebut DOT's proof of the conviction that justified suspension of his operating privileges. In the case of a suspension of an operator's license based upon the accumulation of points, the initial burden of proof is upon DOT to produce the records of convictions justifying the suspension. George Appeal, 101 Pa. Commonwealth Ct. 241, 515 A.2d 1047 (1986); Commonwealth v. Siedlecki, 7 Pa. Commonwealth Ct. 130, 300 A.2d 287 (1973). This Court has held that "[a] conviction occurs when there is a finding of guilt and a sentence imposed." Department of Transportation, Bureau of Traffic Safety v. Edwards, 103 Pa. Commonwealth Ct. 43, 45, 519 A.2d 1083, 1084 (1987). At the April 18, 1989 hearing before District Justice Knepper, Emery was found not guilty. Consequently, there was no conviction on the November 1988 citation. DOT could not have produced the record of a conviction that did not occur. Thus, DOT failed to satisfy its initial burden of proof because it did not produce the records of convictions justifying the suspension of Emery's operator's license.
Even if DOT did satisfy its initial burden of proof, Emery presented evidence to rebut DOT's evidence of a conviction. Emery presented the September 15, 1989 letter of District Justice Knepper stating that he was found not guilty. DOT contends that the letter is inadmissible hearsay, and does not qualify as an official record under Section 6103 of the Judicial Code, 42 Pa. C.S. § 6103. 3 In an appeal from an operator's license suspension, copies of a district justice's records that contain the necessary elements of certification, including the signature and seal of a judicial officer, are admissible to prove the disposition of a motor vehicle violation. See Department of Transportation, Bureau of Traffic Safety v. Kluger, 12 Pa. Commonwealth Ct. 460, 317 A.2d 686 (1974). The letter that Emery presented at the trial court stating that he was found not guilty contained the signature and official seal of District Justice Knepper. The letter, properly certified, was admissible as an official record within the meaning of Section 6103. Thus, Emery satisfied the requirement that, in order to rebut evidence of a conviction, a licensee "prove by competent and convincing evidence that he was not convicted." George, 101 Pa. Commonwealth Ct. at 243, ...
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