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

• Decision Date: 18 March 1991
• Docket Number: No. 1844,1844
• Parties: COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant, v. Shawn MADDESI, Appellee. C.D. 1990.
• Court: Pennsylvania Commonwealth Court

Page 580

588 A.2d 580

138 Pa.Cmwlth. 467

COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant, v. Shawn MADDESI, Appellee.

No. 1844 C.D. 1990.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Jan. 18, 1991.

Decided March 18, 1991.

Timothy P. Wile, Asst. Counsel-in-Charge of Appellate Section, with him, Harold H. Cramer, Asst. Chief Counsel, and John L. Heaton, Chief Counsel, King of Prussia, for appellant.

W. David Breen, Cronin, Emuryan & Breen, Woodlyn, for appellee.

Before COLINS and KELLEY, JJ., and BLATT, Senior Judge.

BLATT, Senior Judge.

This is an appeal by the Department of Transportation, Bureau of Driver Licensing (DOT) from an order of the Court of Common Pleas of Delaware County (trial court) which remanded the appeal of Shawn Maddesi (licensee) for the proper computation of points to be assigned to the licensee's driving record.

The findings of fact, as made by the trial court, are as follows:

1. Defendant received three (3) separate citations on March 30, 1989 which were all the result of a single traffic stop.

2. The citations were for violations of the following subsections of 75 Pa.C.S.A. Section 2535: 3361 (Driving too fast for conditions-2 points); 3112(a)(3)(i) (Failure to stop for a red light-3 points); and 3714 (Reckless driving-3 points).

3. Defendant received an Official Notice from Department March 15, 1990 stating that his driving privileges were being suspended for a period of one year due to the accumulation of 11 points following a violation of Section 3112(a)(3)(i) of the Vehicle Code on March 30, 1989. This suspension was pursuant to 75 Pa.C.S.A. Section 1539.

4. Defendant received a second Official Notice from Department on March 27, 1990. This notice stated that he had accumulated 8 (not 11) points as the result of a violation of Section 3714 of the Vehicle Code on March 30, 1989 and required him to appear at a Departmental Hearing on April 19, 1990.

5. Defendant consulted counsel who was aware that 75 Pa.C.S.A. Section 1535(b) provided that: "If a driver is convicted of two or more offenses as a result of the same act, points shall be assessed only for the offense for which the greatest number of points may be assessed."

6. Counsel advised Defendant to attend the Departmental Hearing and attempt to clear up, at that time, the ambiguity that resulted from the two, contradictory Official Notices. There is no dispute that the Hearing Officer was empowered to alter the suspension notice.

7. Defendant did attend the Departmental Hearing on April 19, 1990 and was assessed 3 points for violation of Section 3714 which brought his total, as far as the Hearing Office was concerned, to 8 points. The Hearing Office then advised Defendant to appeal as to the assessment of the additional points which the Notice of Suspension indicated brought Defendant's total up to 11 points.

8. Defendant filed his License Suspension Appeal on April 25, 1990 41 days after the suspension notice was mailed but only 6 days after the Department Hearing.

Trial Court's Opinion, September 24, 1990 at 1-3.

Based on these facts, the trial court concluded that there had been a "breakdown in administrative operations" which had injured the licensee and thus he was permitted to appeal his license suspension nunc pro tunc. The trial court also held that DOT improperly assessed points to the licensee's driving record in violation of Section 1535(b) of the Vehicle Code (Code), 75 Pa.C.S. § 1535(b). The trial court ultimately remanded the licensee's appeal to DOT for the proper computation of points to be assigned to the licensee's driving record. This appeal followed. ¹

On appeal, this Court is called upon to determine whether the trial court erred in permitting the licensee to appeal his license suspension nunc pro tunc, and also to determine whether the trial court erred in holding that the licensee's citations arose out of the same act, thus precluding a separate assessment and assignment of points for each citation under Section 1535(b) of the Code.

Pursuant to Section 5571(b) of the Judicial Code, 42 Pa.C.S. § 5571(b), a motorist has 30 days from the mailing date of DOT's notice of suspension in which to file an appeal with the appropriate court of common pleas. Department of Transportation, Bureau of Driver Licensing v. Gross, 115 Pa.Commonwealth Ct. 384, 540 A.2d 343 (1988). Appeals filed beyond the 30-day appeal period are untimely and deprive the common pleas court of subject matter jurisdiction over such appeals. Department of Transportation, v. Shain, 114 Pa.Commonwealth Ct. 360, 538 A.2d 994 (1988). Here, the record reveals that DOT mailed a notice of suspension to the licensee on March 15, 1990 and that an appeal was taken by him on April 25, 1990.

Generally speaking, appeals nunc pro tunc have only been permitted in extraordinary circumstances involving fraud or a breakdown in the court's operations through a default of its officers which has resulted in injury to the appealing party. Cadogan Township Board of Supervisors v. Department of Environmental Resources, 121 Pa.Commonwealth Ct. 18, 549 A.2d 1363 (1988). In this case, the trial court allowed the licensee to appeal his license suspension nunc pro tunc due to the fact that he had received two official notices from DOT which contradicted one another.

The first notice received by the licensee was a notice of suspension, dated March 15, 1990 which stated that a one-year license suspension was being imposed as a result of the licensee accumulating 11 points. The second notice received by the licensee was dated March 27, 1990 and informed him that he was required to attend a departmental hearing on April 19, 1990 because he had accumulated eight points. In its brief, DOT submits that while the order in which the notices were mailed to the licensee was unfortunate, such order of mailing does not amount to a breakdown in the administrative process so as to justify an appeal nunc pro tunc from the notice of suspension. We disagree. In our view, the order in which the notices were mailed, when viewed in conjunction with the contradictory contents of the notices, was sufficiently confusing to constitute a breakdown in the administrative process. Therefore, we hold that the trial court properly exercised its discretion in permitting the licensee to appeal his license suspension nunc pro tunc.

We must now determine whether the trial court erred in holding that the licensee's citations arose out of the same act, thus precluding DOT from separately assessing and assigning points for each citation.

The trial court found that the licensee received three separate citations ² on March 30, 1989 which were all the result of a "single traffic stop." Specifically, the trial court found that the licensee's violation of Section 3714 of the Code, 75 Pa.C.S. § 3714 (reckless driving), and his violation of Section 3112(a)(3)(i) of the Code, 75 Pa.C.S. § 3112(a)(3)(i) (failure to stop for a red light), arose from the same act, and thus pursuant to Section 1535(b) of the Code, DOT could only assess three points, and not six, against the licensee's driving record. ³ DOT contends that the violations for which the licensee was convicted were separate and distinct acts for the purposes of imposing penalties.

In Department of Transportation, Bureau of Traffic Safety v. Bishop, 102 Pa.Commonwealth Ct. 483, 518 A.2d 897 (1986), this Court had occasion to apply Section 1535(b) of the Code to a set of facts similar to those present here. In Bishop, the licensee received four citations, charging him with two violations of Section 3306 of the Code, 75 Pa.C.S. § 3306 (driving on the left side of the road and improper passing), and two violations of Section 3362 of the Code, 75 Pa.C.S. § 3362 (speeding). Each citation indicated that the time of arrest was 12:15 p.m. Two of the offenses occurred on Route 309 at the intersection of Route 292, and the...