Opinion
No. 2021 C.D. 2012
08-29-2013
Marcus Lamont Alford, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Marcus Lamont Alford (Licensee) appeals, pro se, an order of the Court of Common Pleas of Allegheny County (trial court) denying his petition to appeal nunc pro tunc the suspension and revocation of his driver's license. Licensee argues the Pennsylvania Department of Transportation (PennDOT) erred in sending its notices to his last known address, instead of to his prison address. Accordingly, this breakdown, he argues, authorizes his nunc pro tunc challenge to PennDOT's action. We affirm.
Licensee's driver's license has been suspended 28 times and revoked twice, based on fifteen Vehicle Code violations and thirteen convictions under The Controlled Substance, Drug, Device and Cosmetic Act. PennDOT mailed most of the suspension notices in 2004 to Licensee's last known address of record at 7068 Apple Street, Apt. 2, Pittsburgh, PA 15206. The first notice of suspension was mailed on August 3, 2004. The most recent notice, a revocation of his driver's license, was mailed on May 24, 2011. On July 7, 2012, Licensee appealed PennDOT's actions to this Court, which transferred the matter to the trial court. On September 20, 2012, the trial court conducted a de novo hearing.
75 Pa. C.S. §§101-9805. The Vehicle Code violations included, inter alia, failure to respond to a citation, reckless driving, leaving the scene of an accident, and driving with a suspended or revoked license.
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§780-101 - 780-144. Licensee's convictions under The Controlled Substance, Drug, Device and Cosmetic Act included delivery of a controlled substance, possession of a controlled substance, and possession of marijuana.
At the hearing, Licensee testified that he did not receive notice of the suspensions because he was incarcerated. He wrote to PennDOT several times but did not receive a response. Licensee did not provide copies of these letters to the trial court or testify about their content. PennDOT offered Licensee's certified driving record into evidence that showed his license suspensions and revocation. Licensee's certified driving record showed that all but one of Licensee's suspension notices were sent to his Pittsburgh address. PennDOT contended that Licensee failed to carry his burden to appeal nunc pro tunc.
The trial court denied Licensee's request to appeal nunc pro tunc. It found that it was incumbent upon Licensee to notify PennDOT of his change of address or to make arrangements for his mail to be forwarded to him in prison. Because Licensee did not do so, he was not entitled to file nunc pro tunc. Licensee then appealed to this Court.
This Court's review is limited to determining whether the trial court abused its discretion or committed an error of law. Puckett v. Department of Transportation, Bureau of Driver Licensing, 804 A.2d 140, 143 n.6 (Pa. Cmwlth. 2002).
On appeal, Licensee presents two issues for our review. First, Licensee argues that the trial court erred in not granting his petition to appeal nunc pro tunc. Second, Licensee argues that PennDOT erred in calculating his suspensions and revocations of driving privileges.
The issues presented have been reordered and restated for clarity.
Sections 5571(b) and 5572 of the Judicial Code give a motorist 30 days from the mailing date of PennDOT's notice of suspension to file an appeal with the trial court. 42 Pa.C.S. §§5571(b), 5572. "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, Bureau of Driver Licensing v. Maddesi, 588 A.2d 580, 582 (Pa. Cmwlth. 1991). It is undisputed that Licensee's appeal that was filed on July 7, 2012, was filed more than 30 days after the mailing date of PennDOT's most recent notice, the revocation mailed on May 24, 2011. Accordingly, the trial court lacked subject matter jurisdiction unless Licensee could identify grounds for an appeal nunc pro tunc.
Section 5571(b) of the Judicial Code states:
Except as otherwise provided in subsections (a) and (c) and in section 5571.1 (relating to appeals from ordinances, resolutions, maps, etc.), an appeal from a tribunal or other government unit to a court or from a court to an appellate court must be commenced within 30 days after the entry of the order from which the appeal is taken, in the case of an interlocutory or final order.42 Pa. C.S. §5571(b).
Section 5572 of the Judicial Code states:
The date of service of an order of a government unit, which shall be the date of mailing if service is by mail, shall be deemed to be the date of entry of the order for the purposes of this subchapter. The date of entry of an order of a court or magisterial district judge may be specified by general rules.42 Pa. C.S. §5572.
As a general rule, an appeal nunc pro tunc will be granted in civil cases only where the appeal was untimely filed due to fraud or a breakdown in the court's operations. Smith v. Department of Transportation, Bureau of Driver Licensing, 749 A.2d 1065, 1066 (Pa. Cmwlth. 2000). That standard has been described as requiring "extraordinary circumstances." Commonwealth v. Stock, 545 Pa. 13, 19, 679 A.2d 760, 764 (1996). Each case, however, is limited to the unique and compelling factual circumstances of that particular case. Smith, 749 A.2d at 1066.
The issue of extraordinary circumstances has been addressed by our appellate courts on numerous occasions. See Stock, 545 Pa. 13, 679 A.2d 760 (appeal nunc pro tunc allowed where counsel failed to perfect timely appeal requested by client); Cook v. Unemployment Compensation Board of Review, 543 Pa. 381, 671 A.2d 1130 (1996) (nunc pro tunc appeal allowed where litigant's hospitalization caused a non-negligent late filing of appeal); Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979) (nunc pro tunc appeal allowed where attorney's failure to file timely appeal was non-negligent and delay was minimal); Walker v. Unemployment Compensation Board of Review, 461 A.2d 346 (Pa. Cmwlth. 1983) (appeal nunc pro tunc allowed where untimely filing of appeal caused by post office's failure to forward referee's decision). Central to each of these holdings is that the litigant himself did not act in a negligent manner.
In this case, Licensee contends that the failure of PennDOT to send the notices of suspensions and revocations to his jail cell demonstrates a breakdown in court operations justifying an appeal nunc pro tunc. In support, Licensee points to Department of Transportation, Bureau of Traffic Safety v. Warenczuk, 534 Pa. 623, 633 A.2d 1167 (1993). In Warenczuk, the Supreme Court affirmed this Court's holding that a certified copy of the notice of suspension with a mailing date notation is sufficient evidence that notice was sent. Licensee argues that Warenczuk established that a licensee cannot waive his right to due process simply by failing to notify PennDOT of a change in address. First, Warenczuk is a per curiam affirmance issued by an equally divided vote of the Supreme Court; therefore, it is without precedential value. See Fairview Township v. Fairview Township Police Association, 795 A.2d 463, 469 (Pa. Cmwlth. 2002). Second, in Puckett v. Department of Transportation, Bureau of Driver Licensing, 804 A.2d 140 (Pa. Cmwlth. 2002), this Court held that Section 1515(a), 75 Pa. C.S. §1515(a), of the Vehicle Code requires a licensee to notify PennDOT of a new address within 15 days of a change of address. Failure to do so does not justify an appeal nunc pro tunc. Puckett, 804 A.2d at 143-44. Because the burden was on Licensee to notify PennDOT of a change in address for service of process, and he was not in any other way incapacitated from filing an appeal of his license suspension while serving out his sentence, we cannot say that extraordinary circumstances existed such that an appeal nunc pro tunc was appropriate.
Section 1515(a) of the Vehicle Code states:
Whenever any person after applying for or receiving a driver's license moves from the address named in the application or in the driver's license issued or when the name of a licensee is changed, such person shall, within 15 days thereafter, notify the department of the old and new addresses or of such former and new names and of the number of any license then held by the person. The department shall be notified of a change of name in writing.75 Pa. C.S. §1515(a).
For these reasons, we affirm the trial court.
Because we conclude that Licensee was not entitled to an appeal nunc pro tunc, we need not address his second issue. --------
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 29th day of August, 2013, the order of the Court of Common Pleas of Allegheny County dated October 2, 2012 in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge