Riddle v. Com., Dept. of Transp.

• Decision Date: 06 December 1990
• Citation: 583 A.2d 865,136 Pa.Cmwlth. 508
• Court: Pennsylvania Commonwealth Court
• Parties: Robert M. RIDDLE, Appellant, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, Appellee.

Page 865

583 A.2d 865

136 Pa.Cmwlth. 508

Robert M. RIDDLE, Appellant, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, Appellee.

Commonwealth Court of Pennsylvania.

Argued Oct. 3, 1990.

Decided Dec. 6, 1990.

Gregory Whitney, with him, Robert Paul Vincler, 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, for appellee.

Before CRAIG, President Judge, and DOYLE, COLINS, McGINLEY, PELLEGRINI, KELLEY and BYER, JJ.

McGINLEY, Judge.

Robert M. Riddle (Licensee) appeals from an order of the Court of Common Pleas of Allegheny County (trial court), dated February 28, 1990, quashing his appeal from the suspension of his driving privileges imposed by the Pennsylvania Department of Transportation (DOT). We affirm.

On November 3, 1989, DOT mailed an official notice to Licensee indicating that, beginning December 8, 1989, his driving privileges would be suspended for one year. The suspension was for violation of Section 1547 of the Vehicle Code, 75 Pa.C.S. § 1547 (implied consent). Licensee's defense, as set forth in the petition for supersedeas filed in the trial court, is that he did not refuse to take the blood-alcohol test but refused to pay for it.

On December 7, 1989, Licensee's original attorney filed Licensee's appeal to the trial court from DOT's notice of suspension. There is no dispute that this appeal was filed three days late. Despite the untimeliness of the appeal, the trial court scheduled a de novo hearing for February 21, 1990. Both Licensee and his attorney failed to appear.

DOT appeared at the hearing and moved to quash the appeal on the ground that it was filed more than thirty days after the mailing date of the official notice of suspension and was therefore untimely. By order dated February 28, 1990, the trial court granted DOT's motion to quash. Subsequently, Licensee retained present counsel who, on March 30, 1990, filed with the trial court a notice of appeal to this Court as well as a request for supersedeas pending appeal. ¹ At paragraph six of the petition for supersedeas, Licensee has alleged that his failure to timely appeal to the trial court was due to the negligence of his first attorney. By order dated March 30, 1990, the trial court granted supersedeas.

On appeal to this Court, Licensee argues that the trial court erred by refusing to grant a hearing either on the merits or for the purpose of determining whether a nunc pro tunc appeal was justified. DOT contends, to the contrary, that Licensee has alleged no grounds which would justify allowance of a nunc pro tunc appeal. DOT further asserts that, because the present appeal is frivolous and without merit, DOT is entitled to an award of counsel fees pursuant to Pa.R.A.P. 2744.

Furthermore, DOT asks us to vacate the supersedeas granted by the trial court pending appellate review. By order dated July 10, 1990, a single judge of this Court dismissed DOT's motion to vacate stating that, because Licensee is entitled to an automatic supersedeas, the trial court's grant of supersedeas was superfluous and DOT's motion is likewise superfluous. DOT filed an application for reargument which was granted on September 10, 1990. Thus, DOT's motion is also presently before us.

With regard to Licensee's untimely filing of the appeal to the trial court, Sections 5571(b) and 5572 of the Judicial Code, 42 Pa.C.S. § 5571(b) and 5572, mandate that an appeal from a license suspension imposed by DOT must be filed with the trial court within thirty days from the date that DOT mailed the official notice of suspension. DOT mailed the official notice on November 3, 1989 and Licensee filed his appeal more than thirty days later on December 7, 1989. Because timeliness is jurisdictional the trial court was without authority to act and properly quashed Licensee's appeal. See Department of Transportation v. Shain, 114 Pa.Commonwealth Ct. 360, 538 A.2d 994 (1988).

The thirty day period within which a license suspension appeal must be commenced cannot be extended absent a showing of extraordinary circumstances which are equivalent to fraud or a breakdown in the operations of the court through a default of its officers. Department of Transportation v. Lefever, 111 Pa.Commonwealth Ct. 105, 533 A.2d 501 (1987). Licensee has failed to show the existence of such circumstances. The averments of ineffective assistance and negligence on the part of Licensee's original attorney are insufficient to establish either fraud or a breakdown in the court's operations.

Nonetheless, Licensee urges us to remand this matter to the trial court, pursuant to Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979), and extend the opportunity for him to present facts to establish the nature of his attorney's failure to file a timely appeal and inform him of the hearing date. In Bass, the Supreme Court permitted an appeal which had been untimely filed due to the non-negligent conduct of an attorney. Id. However, Licensee's reliance on Bass at the appellate level is in direct conflict with the arguments presented to the trial court after it quashed the appeal.

As noted above, in Licensee's petition for supersedeas, he has characterized his attorney's conduct as negligent. In Rizzo v. Haines, 520 Pa. 484, 555 A.2d 58 (1989), the Supreme Court stated that admissions in pleadings constitute judicial admissions which cannot later be contradicted by the party who has made them. Consequently, Licensee's assertion that his attorney was negligent is binding upon Licensee.

Moreover, any negligence on the part of his attorney does not entitle Licensee to nunc pro tunc relief. In Hentz v. Civil Service Commission, 85 Pa.Commonwealth Ct. 358, 481 A.2d 998 (1984), this Court held that an attorney's fraudulent conduct was insufficient to justify allowance of an appeal nunc pro tunc. Hentz distinguished the non-negligent conduct in Bass from fraudulent and negligent conduct on the basis that, unlike non-negligent conduct, fraudulent and negligent conduct gives rise to a cause of action and can be remedied. Hentz. We find that the original attorney's alleged negligence provides no justification for allowing this untimely appeal.

With regard to DOT's request for counsel fees, Pa.R.A.P. 2744 permits an award of counsel fees when an appeal is frivolous. A frivolous appeal is one which is without merit. Hewitt v. Commonwealth, 116 Pa.Commonwealth Ct. 413, 541 A.2d 1183 (1988). Due to the confusing state of the record below and...