Williamson v. Commonwealth
| Decision Date | 23 October 2015 |
| Docket Number | No. 386 C.D. 2015,386 C.D. 2015 |
| Citation | 129 A.3d 597 |
| Parties | James R. WILLIAMSON v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant. |
| Court | Pennsylvania Commonwealth Court |
Terrance M. Edwards, Assistant Counsel, Harrisburg, for appellant.
BEFORE: BONNIE BRIGANCE LEADBETTER, Judge, and ROBERT SIMPSON, Judge, and JAMES GARDNER COLINS, Senior Judge.
OPINION BY Judge SIMPSON.
The Department of Transportation, Bureau of Driver Licensing (Bureau), appeals from an order of the Court of Common Pleas of Delaware County (trial court) that sustained the statutory appeal of James R. Williamson (Licensee) from an 18–month suspension of his driving privilege. The Bureau imposed the suspension under 75 Pa.C.S. § 1547(b)(1)(ii) as a result of Licensee's reported refusal to submit to chemical testing following his arrest for violating 75 Pa.C.S. § 3802 () (DUI). The Bureau contends the trial court erred in granting Licensee a nunc pro tunc appeal (late appeal by permission).1 For the reasons that follow, we must reverse the order of the trial court and direct that the Bureau reinstate the 18–month suspension of Licensee's driving privilege.
By official notice with a mailing date of June 26, 2014, the Bureau notified Licensee that his driving privilege would be suspended for 18 months as authorized by 75 Pa.C.S. § 1547(b)(1)(ii) as a result of his refusal to submit to chemical testing following a DUI arrest. In order to timely appeal his suspension, Licensee needed to file an appeal within 30 days of its mailing date. 42 Pa.C.S. §§ 5571(b), 5572 ; Hudson v. Dep't of Transp., Bureau of Driver Licensing, 830 A.2d 594 (Pa.Cmwlth.2003). Because the 30–day appeal period expired on Saturday, July 26, 2014, the appeal deadline was Monday, July 28, 2014.
On Wednesday July 30, 2014, Licensee consulted an attorney and immediately filed a petition to appeal nunc pro tunc. See R.R. at 6a–7a. Licensee attached the suspension notice to his petition. See R.R. at 9a–11a. In explaining why he did not file a timely appeal, Licensee stated:
[Licensee] misread and misunderstood the effective date of the suspension of his operating privileges, 7/31/14, as the deadline to file his appeal. [Licensee] is only two days late (the appeal was due 7/28/14 since 7/26/14 fell on the weekend) and therefor[e] there is no prejudice to the opposing party. Moreover, [Licensee] has a meritorious defense to the allegations that give rise to this appeal.
Petition for Leave to Appeal Nunc Pro Tunc; R.R. at 6a.
In October 2014, the trial court held a hearing on Licensee's petition. At the hearing, the trial court informed Licensee's counsel that Licensee would have to testify in support of his petition to appeal nunc pro tunc. Licensee testified that he misread the dates in the notice of suspension. See Tr. Ct. Hr'g, Notes of Testimony (N.T.), 10/28/14, at 5–6; R.R. at 25a–26a. Licensee further testified he believed he had a meritorious defense to the allegations that he refused chemical testing. N.T. at 6; R.R. at 26a. To that end, Licensee testified he did not receive due process because the arresting officer failed to advise him of the specific consequences of a refusal to submit to chemical testing. N.T. at 7; R.R. at 27a. Rather, Licensee claims the officer simply told him "it would be better" if he did submit to chemical testing. Id.
Thereafter, the Bureau's counsel cross-examined Licensee, who admitted receiving a previous license suspension in 1983. N.T. at 8; R.R. at 28a. Licensee further testified he received the current notice of suspension in the mail, but he could not remember the date. N.T. at 9–10; R.R. at 29a–30a. Licensee testified he read the notice, but he did not understand the way it was worded. N.T. at 12; R.R. at 32a.
In granting Licensee's petition, the trial court reasoned:
All right. Under the circumstances of the testimony, I'm going to grant the nunc pro tunc Appeal, it was only two days late. [Licensee] testified that he went to his attorney, didn't quite understand the document itself and misread the date and his attorney filed a nunc pro tunc Appeal, and I find that was filed on the 30th of July, so shortly thereafter, so I've granted the—
In November 2014, Licensee appealed the Bureau's suspension, and the trial court scheduled a hearing for February 17, 2015. The Bureau, however, failed to prosecute the matter, and the trial court granted Licensee's motion to dismiss. See Tr. Ct. Order, 2/17/15; R.R. at 43a. The trial court's order sustained Licensee's appeal and reinstated his driving privilege. Id.
The Bureau appealed. In an opinion in support of its order, the trial court noted Licensee credibly testified that he failed to understand the suspension notice and needed an attorney's assistance. Tr. Ct., Slip. Op. (Slip Op.), 4/24/15, at 3. Although Licensee did read the form, he could not understand its meaning. Id. Licensee met with an attorney, who immediately filed a petition for a nunc pro tunc appeal. Id. At most, Licensee filed his petition two days late. Id.
The trial court further observed that the Bureau raised no objections and presented no argument at the hearing on Licensee's petition. Slip. Op. at 3. Therefore, the trial court reasoned the Bureau waived any issues it sought to raise in this appeal. Id.
Appellate review of a trial court's decision to allow an appeal nunc pro tunc is limited to determining whether the trial court committed an error of law or abused its discretion. Baum v. Dep't of Transp., Bureau of Driver Licensing, 949 A.2d 345 (Pa.Cmwlth.2008). Here, the Bureau contends the trial court erred and abused its discretion in permitting Licensee to proceed with a nunc pro tunc appeal on the ground that he misread the suspension notice. The Bureau's argument is as follows.
Licensee testified he read the paragraph of the notice advising him of his right to appeal within 30 days of the mail date of June 26, 2014. See N.T. at 15–16; R.R. at 35a–36a. However, Licensee failed to file his appeal within that 30–day period. "Periods of time set for filing appeals are jurisdictional." Pa. Dental Ass'n v. Pa. Ins. Dep't, 512 Pa. 217, 516 A.2d 647, 654 (1986). Therefore, Licensee's failure to timely appeal a final order of an administrative agency constitutes a jurisdictional defect. Radhames v. Tax Review Bd., 994 A.2d 1170 (Pa.Cmwlth.2010). In short, where the legislature establishes a time period in which an appeal must be filed, that period is mandatory and may not be extended as a matter of grace or indulgence. Hudson.
Here, the Bureau contends the trial court erred and abused its discretion in permitting Licensee to appeal nunc pro tunc where he did not offer any competent evidence to satisfy his burden of proving fraud or a breakdown in the administrative or judicial process. See Kulick v. Dep't of Transp., Bureau of Driver Licensing, 666 A.2d 1148 (Pa.Cmwlth.1995) (a court may permit a licensee to appeal nunc pro tunc only where the licensee's failure to timely appeal results from extraordinary circumstances involving fraud or a breakdown in the administrative or judicial process). The licensee bears the burden of establishing such circumstances exist. Rick v. Dep't of Transp., Bureau of Traffic Safety, 75 Pa.Cmwlth. 514, 462 A.2d 902 (1983).
However, the Bureau acknowledges, in Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979), the Supreme Court extended the traditional grounds for allowing an appeal nunc pro tunc to include situations where the untimely filing results from non-negligent circumstances related to the appellant's attorney and staff. The Bureau further recognizes that in Cook v. Unemployment Compensation Board of Review, 543 Pa. 381, 671 A.2d 1130 (1996), the Supreme Court extended the Bass rationale to non-negligent circumstances involving the appellant himself.
Nevertheless, the Bureau argues Licensee's confusion as to when to file an appeal does not constitute extraordinary circumstances involving fraud or an administrative or judicial breakdown. In support of its position, the Bureau cites Kovalesky v. Department of Transportation, Bureau of Driver Licensing, 850 A.2d 26 (Pa.Cmwlth.2004), where this Court held a driver's misunderstanding regarding the operation of the reciprocity provisions in Article IV(a)(2) of the Driver's License Compact (Compact), 75 Pa.C.S. § 1581, did not warrant the trial court's grant of a nunc pro tunc appeal.
The Bureau further contends Licensee's failure to carefully read and understand his appeal rights as explained in the suspension notice cannot be considered a non-negligent circumstance justifying a nunc pro tunc appeal. See, e.g., W. Caln Twp. v. Dep't of Envtl. Res., 141 Pa.Cmwlth. 263, 595 A.2d 702 (1991) (); Fritz v. Workmen's Comp. Appeal Bd. (Kim Mfg., Co., Inc.), 107 Pa.Cmwlth. 168, 527 A.2d 636, 637 (1987) ().
Because Licensee failed to establish that fraud or a breakdown in the administrative or judicial process caused his untimely appeal, or that it could be attributed to non-negligent circumstances, the Bureau argues the trial court erred and abused its discretion in granting Licensee a nunc pro tunc appeal.
The Bureau further asserts its hearing counsel's decision not to present a closing argument opposing Licensee's petition for a nunc pro tunc appeal did not result in a waiver of its appellate right to challenge the trial court's grant of that petition. See McKeown v. Dep't of Transp., 144 Pa.Cmwlth. 322, 601 A.2d 486 (1991) (...
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Fetherman v. Commonwealth, 1943 C.D. 2016.
...date of DOT's notice of suspension to file an appeal with the trial court. 42 Pa. C.S. §§ 5571(b), 5572 ; Williamson v. Dep't of Transp., Bureau of Driver Licensing, 129 A.3d 597 (Pa. Cmwlth. 2015). Appeals filed after the expiration of the 30–day appeal period are untimely and deprive the ......