Gilmore v. Com.

• Decision Date: 06 May 1991
• Citation: 590 A.2d 1369,139 Pa.Cmwlth. 499
• Parties: Randy Michael GILMORE, Appellant, v. COMMONWEALTH of Pennsylvania, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 1369

590 A.2d 1369

139 Pa.Cmwlth. 499

Randy Michael GILMORE, Appellant, v. COMMONWEALTH of Pennsylvania, Appellee.

Commonwealth Court of Pennsylvania.

Argued Feb. 13, 1991.

Decided May 6, 1991.

Cheryl A. Ignasiak, with her, Jonathan E. Jones, Ogg, Jones, Desimone & Ignalzi, Pittsburgh, for appellant.

Harold H. Cramer, Asst. Chief Counsel, with him, David R. White, Asst. Counsel, Timothy P. Wile, Asst. Counsel-in-Charge of Appellate Section, and John L. Heaton, Chief Counsel, Harrisburg, for appellee.

Before CRAIG, President Judge, and DOYLE, COLINS, PALLADINO, SMITH, PELLEGRINI and BYER, JJ.

CRAIG, President Judge.

In this Vehicle Code appeal, the threshold question is:

When a motor vehicle operator has filed an appeal in a trial court under § 1550(a) of the Vehicle Code, 75 Pa.C.S. § 1550(a), from a license suspension or revocation imposed by the Pennsylvania Department of Transportation (DOT), must the appeal be perfected by serving a copy of the notice of appeal upon DOT?

Furthermore, if the validity of such a statutory civil appeal is dependent upon perfecting it by letting the appellee know of its existence, then, in some cases, a court may also have to consider the mode by which notice of the appeal is given to DOT.

The history of this case is straightforward and undisputed. By notice mailed December 20, 1989, DOT notified motor vehicle operator Gilmore that his operating privilege was to be suspended for one year under 75 Pa.C.S. § 1547(b), for refusal to submit to driver's alcohol test. Gilmore filed an appeal in the Common Pleas Court of Westmoreland County on January 19, 1990. There is no evidence in the record that Gilmore's counsel ever gave DOT any notice of that appeal. Indeed, in the record below and in the brief before this court, counsel for Gilmore does not even claim that he gave notice of the appeal to DOT by any means at any time.

The trial court set a hearing on the case for April 25, 1990, and the court's clerk gave notice of the hearing date to DOT. At the time of hearing, counsel for DOT moved that Gilmore be required to show that the appeal had been perfected by notice to DOT from the appellant. Because Gilmore's counsel had no knowledge or evidence that DOT was ever notified of the appeal, Trial Judge Bernard F. Scherer quashed the appeal in accordance with this court's decision in McNeilis v. Department of Transportation, 119 Pa.Commonwealth Ct. 272, 546 A.2d 1339 (1988).

1. Must A Civil Statutory Appeal Be Perfected By Notice to

the Appellee?

The duty of an appealing party to notify the opposing party, of the filing of the appeal, is axiomatic. It is unthinkable that an appellant could keep the filing of the appeal secret from the other party.

Failure to perfect an appeal by notice to the state has an especially pernicious aspect in this class of motor vehicle operator license suspension appeals. As this court stated in Department of Transportation, Bureau of Traffic Safety v. Samek, 71 Pa.Commonwealth Ct. 209, 210, 454 A.2d 229, 230 (1983):

This case, ... involving tardy service of an appeal notice in a license suspension appeal, indicates the disturbing growth of an unprofessional practice by attorneys for motorists, consisting of filing appeals whereby an automatic supersedeas of the suspension is obtained under 75 Pa.C.S. § 1550(b), but failing to perfect the appeal with notice to the Commonwealth. One result, if the state's defense is not frustrated altogether, inevitably is to delay adjudication of the appeal in the common pleas court--thus, of course, extending the period during which the motorist has the benefit of the automatic supersedeas.

In the Samek case, the motorist enjoyed the benefit of a stay of the suspension for over 2 1/2 years.

Failure to pursue the obvious step of notifying the other side in this type of case cannot be excused by reference to Pa.R.Crim.P. 86(d), which provides as to summary conviction appeals, that the clerk of the trial court shall serve notice of the appeal upon the prosecutor. In this statutory civil case, the criminal rules obviously are not applicable. Moreover, there is here no counterpart of the summary conviction's provision for service of notice of the appeal by the clerk of court. The Vehicle Code provision, at 75 Pa.C.S. § 1550(c), that the trial court is to give notice of the hearing date to DOT, is clearly distinguishable. Hence, any attorney can readily discern that the statute does not give the trial court or its clerk any duty with respect to giving notice that the appeal has been filed. And, in view of the problem we noted in Samek, prompt notice of the appeal to DOT is significant because DOT is unable to prevent delay by requesting a timely hearing if it does not know of the very existence of the appeal.

The problem of lack of perfection of the appeal by notice to DOT is no small one. In addition to its presence in McNeilis and Samek, it also arose in Department of Transportation, Bureau of Traffic Safety v. Pugliano, 80 Pa.Commonwealth Ct. 203, 471 A.2d 165 (1984), Commonwealth v. Korn, 78 Pa.Commonwealth Ct. 474, 467 A.2d 1203 (1983), and Department of Transportation, Bureau of Traffic Safety v. Samek, 71 Pa.Commonwealth Ct. 209, 454 A.2d 229 (1983), and Department of Transportation, Bureau of Traffic Safety v. Falzett, 71 Pa.Commonwealth Ct. 201, 454 A.2d 231 (1983).

Accordingly, this court must reiterate the principle that perfection of a statutory appeal requires notice to the appellee, a principle adopted and reiterated in all of the foregoing decisions.

In this case, because notification to DOT concerning the appeal was not supported by any evidence in the record nor even claimed by the motorist, Judge Scherer's decision must be affirmed.

2. By What Mode of Service Should Notice Of An Appeal Be Given?

Despite the absence of any evidence or claim that Gilmore's counsel gave any notice of the appeal to DOT, counsel seeks to save the validity of the present appeal by contending that our McNeilis decision was improperly attempting to write a rule of procedure when we approved the use of certified mail, return receipt requested, as a satisfactory method of supplying proof of service. Although the mode of perfecting an appeal by notice is not at issue here, we address the point for the sake of clarity.

McNeilis dealt with a group of five cases. In two of those cases, counsel acknowledged that they did not serve any notice of the appeal. In two other cases, counsel claimed service of notice by first class mail, but DOT denied receipt. In the fifth case, the mode was also first class mail, and DOT also denied receipt, but counsel had obtained a certificate of mailing from the post office. Therefore, to the extent that three of the cases posed the question of whether transmission by first class mail was a proper mode of service, this court concluded that it was not, in view of the availability of the postal return receipt procedure to provide effective proof.

Although this court's reference to announcing a specific "rule" could have been better phrased as referring to a "ruling" in the specific case, we did refer to our action as a "holding" when we proceeded to spell out the point that our decision would have only prospective effect as a precedent.

Of course, the promulgation of additional rules of practice are the province of the Pennsylvania Supreme Court and not this court. Where the absence of a pertinent rule creates a "vacuum," as we called it, this court can only reach a judicial decision with respect to the cases presented. Out of a concern for fairness to the bar, we took pains to label our ruling as having only prospective effect. That concern, for having the precedent operate fairly, should not be misunderstood or mischaracterized as evidencing an attempt to encroach upon the rulemaking power.

Moreover, there is nothing in the McNeilis opinion to indicate that the holding operated as a procedural rule requiring certified mail, return receipt requested, as the exclusive mode of service with respect to this class of statutory appeals. Because the difficult question presented in McNeilis related to claims of mail service by first class mail, we approved and adopted the trial judge's sensible view that a return receipt would solve the problem. Of course, other modes of service are acceptable when they achieve the purpose of providing an effective record, including personal service by hand and acceptance of service.

However, in this case the sound decision of Judge Scherer is affirmed simply because there is no record of the perfection of the appeal by any means.

ORDER

NOW, May 6, 1991, the order of the Court of Common Pleas of Westmoreland County, at SA 349 of 1990, dated April 25, 1990, is affirmed.

BYER, Judge, dissenting.

I respectfully dissent from the majority's decision to affirm the trial court's quashing of Gilmore's appeal based upon a requirement of service not found in any general rule or statute but created by this court without authority to do so.

The Pennsylvania Rules of Civil Procedure do not apply to statutory appeals filed in the courts of common pleas. See In re Appeal of Borough of Churchill, 525 Pa. 80, 575 A.2d 550 (1990). The Pennsylvania Rules of Appellate Procedure likewise do not apply to appeals filed in the courts of common pleas. See McNeilis v. Commonwealth, Department of Transportation, 119 Pa.Commonwealth Ct. 272, 546 A.2d 1339 (1988). Therefore, the provisions regarding service found in those rules do not apply to a statutory appeal from a license suspension under the Vehicle Code.

The General Assembly has not seen fit to provide any requirement of service in this type of case. The governing provision of the Vehicle Code provides merely that a person who is the subject of departmental action denying, recalling, canceling, suspending or revoking a driver's license "shall have the right to appeal to the court vested with jurisdiction of such...