Com. v. Stadtfeld

• Citation: 665 A.2d 487,445 Pa.Super. 271
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Steven M. STADTFELD, Appellant.
• Decision Date: 11 September 1995
• Court: Pennsylvania Superior Court

Page 487

665 A.2d 487

445 Pa.Super. 271

COMMONWEALTH of Pennsylvania, Appellee, v. Steven M. STADTFELD, Appellant.

Superior Court of Pennsylvania.

Argued April 6, 1995.

Filed Sept. 11, 1995.

Joel B. Johnston, Pittsburgh, for appellant.

Kevin F. McCarthy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Before POPOVICH, FORD ELLIOTT and BROSKY, JJ.

POPOVICH, Judge:

This case involves an appeal from the order of the Court of Common Pleas of Allegheny County denying a Petition for Allowance of Appeal Nunc Pro Tunc by the defendant/appellant, Steven M. Stadtfeld. ¹ We reverse and remand.

On June 2, 1989, the appellant was cited for various violations of the Motor Vehicle Code, one of which was for driving while under suspension (75 Pa.C.S.A. § 1543(a)). As a result of the appellant's failure to respond to the citations, inaction which he alleges was "inadvertent," the Pennsylvania Department of Transportation (PennDOT) suspended his driving privileges indefinitely. It was not until September of 1992 that the appellant learned of his suspension and contacted PennDOT to determine what needed to be done to restore his driving privileges. He was informed by PennDOT that the suspension originated with the 1989 Driving While Under Suspension citation and the charge issued out of the District Justice's Office in Pittsburgh, PA.

The appellant contacted the District Justice's Office and "was informed that the only way to dispose of such outstanding charges was to pay the existing fine and associated court costs which was done on approximately January 15, 1993." See Paragraph 6. Notwithstanding the entry of a plea of guilty and payment of fines, the appellant's license was suspended for a period of one year by PennDOT for his January 15, 1993, conviction for Driving While Under Suspension. To-date, according to the appellant, his license has yet to be reinstated. See N.T. 10/14/93 at 3.

A Petition for Allowance of Appeal Nunc Pro Tunc was filed on November 9, 1993, averring, in pertinent part, that: 1) the passage of more than two years between the citation and advisement by the District Justice's Office to pay the same was violative of 42 Pa.C.S.A. § 5553(e), which prohibits taking "any action" on Motor Vehicle violations more than "two years after the commission of the offense"; and 2) the appellant was "affirmatively misadvised" that the payment of a $210 fine would result in driving privileges being restored "and that there would be no further results or punishment[.]" See Paragraph 9(c).

The Petition was argued in open court and denied on the ground that there was no evidence of fraud or "breakdown" in the judicial system warranting the allowance of appeal nunc pro tunc. Court Opinion, 10/6/94 at 2. This timely appeal followed and raises the sole claim that the lower court abused its discretion in summarily denying the Petition for Allowance of Appeal Nunc Pro Tunc without an evidentiary hearing to establish whether "misinformation" was received from the District Justice causing the appellant to refrain from appealing timely his summary conviction.

In this jurisdiction, an appeal nunc pro tunc will be granted where evidence of fraud or a wrongful or negligent act of a court official has caused a defendant to forego his/her right to a timely appeal of a conviction. Conrad v. Kemmerer, 301 Pa.Super. 410, 447 A.2d 1032, 1034 (1982). Further, the individual seeking leave to appeal nunc pro tunc must establish that he/she acted promptly to assert such a right once learning of the existence of the grounds relied upon for such requested relief. Commonwealth v. Bassion, 390 Pa.Super. 564, 568 A.2d 1316 (1990).

Sub judice, even assuming, arguendo, that the District Justice or his staff misinformed the appellant of the collateral consequences of payment of his citation for Driving While Under Suspension, we are confronted with the fact that the appellant has failed to act timely, once learning of the impending suspension, to file his Petition for Allowance of Appeal Nunc Pro Tunc.

To explicate, PennDOT advised the appellant by letter dated March 12, 1993, that his conviction on January 15, 1993, of Driving While Under Suspension would result in a suspension of his license for one year effective April 16, 1993. Moreover, PennDOT apprised the appellant:

You have the right to appeal to the Court of Common Pleas of the county of your residence within 30 days of the mail date (March 12, 1993) of this notice. Sending a copy to this department of a timely, filed appeal will stay the department's action pending a final decision by the court.

The next step that the appellant took was the filing of a pro se appeal to the Court of Common Pleas of Allegheny County on April 6, 1993, obtaining a hearing on his license suspension for September 22, 1993. ² In mid-September, the appellant secured counsel and shifted gears from a challenge of the license suspension to an attack of the criminal conviction arising out of his pleading guilty and payment of a fine on January 15, 1993, before the District Justice for the 1989 Driving While Under Suspension citation. This took the form of a Petition for Allowance of Appeal Nunc Pro Tunc claiming that the District Justice "lacked jurisdiction" to accept his plea and payment of his fine.

It is undisputed that the appellant's Petition was filed on November 9, 1993, a lapse of almost nine (9) months between the notice of suspension, appeal rights and the taking of action to guarantee the timeliness of any appeal to hold in abeyance the suspension of his driving privileges. See note 2, supra.

When the appellant became aware that he was going to lose his driving privilege as a consequence of pleading guilty and payment of a fine on a summary offense, "his only remedy [wa]s to seek allowance of appeal nunc pro tunc from the summary conviction" and not an appeal challenging his license suspension. Commonwealth v. Duffey, 536 Pa. 436, 443, 639 A.2d 1174, 1177 (1994) see also Com., Dept. of Transp. v Moore, 120 Pa.Cmwlth. 617, 554 A.2d 130 (1988).

Here, we find that the appellant failed to act with the requisite promptness upon learning of his license suspension from PennDOT by letter dated March 12, 1993, for his conviction on January 15, 1993, of Driving While Under Suspension. This manifested itself as an appeal of the appellant's license suspension on April 6, 1993. See note 2, supra. However, with the securement of counsel, the appellant was advised to alter his approach from an attack upon his license suspension to one assaulting the underlying criminal conviction ("Driving While Under Suspension") via a Petition for Allowance of Appeal Nunc Pro Tunc. See Appellant's Brief at 5.

The time-lapse between the notice of suspension (March 12, 1993) and the Petition (November 9, 1993) is not reflective of the "promptitude" expressed by our Court when affirming the grant of an appeal nunc pro tunc. See Commonwealth v. Liptak, 392 Pa.Super. 468, 573 A.2d 559, 561-62 (1990), overruled on other grounds sub nom. Com., Dept. of Transp. v. Tarnopolski, 533 Pa. 549, 626 A.2d 138, 141 (1993). This is so even assuming a "breakdown" in the judicial system can be proven. See Commonwealth v. Jarema, 404 Pa.Super. 121, 590 A.2d 310, 312 n. 2 (1991); Bassion, supra, 390 Pa.Super. at 568-70, 568 A.2d at 1319.

Our inquiry is not at an end, however, inasmuch as the appellant's Petition focused on the jurisdiction of the District Justice to accept his plea with the passage of over two (2) years between the date of his citation for driving under suspension (June 2, 1989) and payment of a fine (considered the taking of "action" under 42 Pa.C.S.A. § 5553(e)). ³ See Moore, supra, (Describing distinction between appeal of license suspension and appeal nunc pro tunc of underlying criminal conviction for suspension); see also Commonwealth v. Marr, 426 Pa.Super. 442, 627 A.2d 757 (1993) (Judgment entered for purposes of statute of limitation under 42 Pa.C.S.A. § 5553(e) with order directing the payment of fine).

42 Pa.C.S.A. § 5553(e) proscribes the conducting of any proceeding or the taking of any action regarding a summary offense more than two years after its commission. ⁴ Yet, the law is quite clear that license suspension cases do not fall within the prohibition of Section 5553(e). See Commonwealth v. Quinn, 405 Pa.Super. 487, 592 A.2d 1316 (1991) (en banc), allocatur denied; Com., Dept. of Transp., Bur. of Driver Licensing v. Danks, 114 Pa.Cmwlth. 37, 538 A.2d 120 (1988); Shughart v. Com., Dept. of Transp., Bureau of Traffic Safety, 65 Pa.Cmwlth. 480, 442 A.2d 1206 (1982).

At bar, the appellant pleaded guilty and paid a fine for a summary offense of Driving While Under Suspension over three-and-one-half (3 1/2) years after his citation for the same. Under a clear reading of Section 5553(e), the District Justice was without jurisdiction to enter judgment ("action" manifested in the form of accepting the appellant's plea of guilty/payment of a fine) following the passage of two (2) years after the issuance of the citation. The only caveat to such a prohibition: the statute of limitations is tolled for motor vehicle violations where any period of delay is attributable to the accused. See Marr, supra, Quinn, supra.

Whether the appellant was free from fault for the failure to file in a timely fashion is arguable, and we are not bound by the court's determination that he was since no testimony was proffered for credibility assessment by the court. Accordingly, we are not bound by the court's conclusion on this point. Cf. Com., Dept. of Transp., Bureau of Traffic Safety v. Rick, 75 Pa.Cmwlth. 514 462 A.2d 902, 904 (1983) ("... whether the Appellee was free from fault for the failure to file in a timely fashion is arguable, but the determination that he was, results from the trial court's assessment of his testimony and credibility and we are bound by its conclusion." ). More...