Opinion
No. 237 C.D. 2012
10-04-2012
Primo Casoni v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
The Department of Transportation, Bureau of Driver Licensing (DOT) appeals the order of the Court of Common Pleas of Westmoreland County (trial court) that sustained the appeal of Primo Casoni (Casoni) from a one year suspension of his operating privilege pursuant to Section 3804(e)(2) of the Vehicle Code (Code), 75 Pa.C.S. §3804(e)(2).
Section 3804(e)(1-2) provides in pertinent part:
(e) Suspension of operating privileges upon conviction.—
(1) The department shall suspend the operating privilege of an individual under paragraph (2) upon receiving a certified record of the individual's conviction of or an adjudication of delinquency for:
(i) an offense under section 3802; or
(ii) an offense which is substantially similar to an offense enumerated in section 3802 reported to the department under Article III of the compact in section 1581 (relating to Driver's License Compact).
(2) Suspension under paragraph (1) shall be in accordance with the following:
(i) Except as provided for in subparagraph (iii), 12 months for an ungraded misdemeanor or misdemeanor of the second degree under this chapter.
(ii) 18 months for a misdemeanor of the first degree under this chapter.
(iii) There shall be no suspension for an ungraded misdemeanor under section 3802(a) where the person is subject to the penalties provided in subsection (a) and the person has no prior offense.
. . . .
On August 4, 2011, Casoni was convicted of driving under the influence. On September 13, 2011, DOT notified Casoni that his driving privilege was suspended for one year effective October 18, 2011.
Also, on September 13, 2011, DOT notified Casoni that his driving privilege was suspended for fifteen days following his conviction for careless driving. Also, on September 13, 2011, DOT notified Casoni that his commercial driving privilege was disqualified as a result of his DUI conviction on August 4, 2011. The trial court did not sustain Casoni's appeal for the suspension and the disqualification. These actions by DOT are not before this Court.
On October 14, 2011, Casoni appealed the suspension nunc pro tunc. On the "Petition for Appeal Nunc Pro Tunc from the Order of the Director of the Bureau of Traffic Safety Suspending Operating Privileges," Casoni indicated that he was unable to file his appeal on a timely basis because he was "waiting on lawyer to contact me." Petition for Appeal Nunc Pro Tunc from the Order of the Director of the Bureau of Traffic Safety Suspending Operating Privileges, October 14, 2011, at 1; Reproduced Record (R.R.) at 4a.
On October 28, 2011, the trial court heard Casoni's request to appeal nunc pro tunc. Casoni's counsel, Jason E. Nard (Attorney Nard), stated:
While my client was attempting to get ahold [sic] of me to see how he should proceed, due to a family illness with my fiancée, I was unavailable for an extended period of time. I did speak with him right as this was running to the end and told him he needed to get in there the next day. The next day, unfortunately, was the 14th."Notes of Testimony, October 28, 2011, (N.T.) at 4; R.R. at 19a.
The trial court granted the request to appeal nunc pro tunc and scheduled a hearing on the merits for January 20, 2012. N.T. at 6-7; R.R. at 21a-22a.
At the hearing on January 20, 2012, DOT introduced a packet of certified documents which contained proof of Casoni's conviction, Casoni's notice of suspension, and his driving record. DOT's attorney, William A, Kuhar (Attorney Kuhar), directed the trial court's attention to a document that established that Casoni was convicted on August 4, 2011 of DUI for an offense committed June 12, 2010. Attorney Kuhar also directed the trial court to another document which established that Casoni had been convicted of DUI on June 20, 2000, for an offense committed on September 18, 1998. Notes of Testimony, January 20, 2012, (N.T. 1/20/12) at 5-6; R.R. at 28a-29a. Attorney Kuhar explained the significance of this conviction:
Now, it was because of Mr. Casoni's June 20, 2000, DUI conviction; in addition, also because it was reported that he was not sentenced under Section 3804(a)(1) of the Vehicle Code for his June 12, 2010, ungraded misdemeanor violation of Section 3802(a)(1) of the Vehicle Code, that Mr. Casoni was given a one-year driving privilege suspension rather than no driving suspension for the June 12, 2010, DUI offense.N.T. 1/20/12 at 7; R.R. at 30a.
Attorney Kuhar explained that because Casoni had a conviction for DUI within the ten years prior to the current DUI incident he could not escape a suspension of his operator's license even though the current conviction was for an ungraded misdemeanor. N.T. 1/20/12 at 8; R.R. at 30a.
On behalf of Casoni, Attorney Nard explained that Casoni accepted Accelerated Rehabilitative Disposition (ARD) for the 1998 DUI in January 27, 1999, with a twelve month probation period. Because of a second DUI, the office of the district attorney took steps to revoke the ARD. The ARD was revoked on June 20, 2000. N.T. 1/20/12 at 15-16. Attorney Nard argued that the ARD acceptance was outside the ten year period from the most recent DUI and should not be considered for purposes of a suspension. He further pointed out that because the most recent conviction was eight days short of ten years, it was a de minimis infraction.
As Attorney Nard explained, Casoni actually had three DUI convictions: 1) Date of Violation: September 18, 1998; Conviction Date: June 20, 2000; 2) Date of Violation: September 2, 1999; Conviction Date: March 17, 2000; and 3) Date of Violation: June 12, 2010; Conviction Date: August 4, 2011.
The trial court sustained the appeal as to the one year suspension:
The pivotal question is whether or not a 10 year 'look back' period for habitual offenders is tolled by the date the licensee entered an A.R.D. disposition of the predicate offense or the date of a subsequent sentence imposed after that A.R.D. had been revoked.
Since Section 3806(b) of the Code provides in unambiguous language that entry of an A.R.D. is equivalent to a conviction and is listed in the disjunctive; it appears illogical and contrary to the scheme and purpose of this section of the statute that there should be the uncertainty of two tolling events upon which a suspension could be imposed pursuant to Code Section 3804(e)(2)(i). A timeline for the events relevant to my decision in this case is as follows:
September 18, 1998 - Date of tolling offense;
January 27, 1999 - Date of Entry of A.R.D.;Trial Court Opinion, April 10, 2012, at 1-3; R.R. at 91a-93a.
September 2, 1999, Date of A.R.D. revocation;
June 20, 2000 - Date of conviction and sentence due to revoked A.R.D.;
June 12, 2010 - Date of present offense;
August 4, 2011 - Date of conviction and sentence for ungraded misdemeanor providing for probation and 'no' license suspension.
I believe that the purpose of this statute and the 'look back' period is to discourage repeat violations and provide motivation to reform behavior with regard to violation of the Driving Under the Influence laws. To accomplish this purpose, a licensee should be informed with some reliable certainty as to the tolling and calculation of the 10 year period for which enhanced penalty will be imposed. Since it is the behavior of the licensee that is to be influenced by any of the triggering events listed at Section 3806(b), the earliest date determinable with certainty should control. It is interesting to note that these events are listed in the disjunctive not in the conjunctive.
. . . .
I also note for purposes of this appeal that the record contains an Order granting Licensee's [Casoni] appeal nunc pro tunc entered by Caruso, J. on October 14, 2011. This was granted after an ex parte hearing on an application to file nunc pro tunc. The record shows that DOT did not appeal that Order and that this Court is bound by that prior Order of the case. I therefore scheduled the de novo trial on the merits and thence issued the Order which DOT now appeals. Any complaint with regard to the nunc pro tunc Order was not preserved for this appeal. (Emphasis in original).
DOT contends that the trial court abused its discretion and committed an error of law when it permitted Casoni to pursue his untimely appeal on a nunc pro tunc basis and that the trial court erred as a matter of law when it held that Casoni's first DUI conviction was not a "prior offense" as defined by Section 3806(b) of the Code, 75 Pa.C.S. §3806(b).
This Court's review is limited to determining whether the trial court's findings are supported by competent evidence, whether errors of law were committed, or whether the trial court committed an abuse of discretion in making its determination. Department of Transportation v. Renwick, 543 Pa. 122, 669 A.2d 934 (1996).
Initially, DOT contends that the trial court erred when it permitted Casoni to pursue an untimely appeal nunc pro tunc.
In its opinion the trial court determined that DOT waived this argument because it did not appeal the order which granted Casoni permission to appeal nunc pro tunc and only raised this issue when the trial court granted the appeal of the license suspension.
Rule 341 of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 341 provides that an appeal may be taken as of right from any final order of an administrative agency or lower court. Pa.R.A.P. 341(b) defines a "final order" as "any order that: (1) disposes of all claims and of all parties; or (2) is expressly defined as a final order by statute; or (3) is entered as a final order pursuant to subdivision (c) of this rule." Clearly, the order permitting Casoni to appeal nunc pro tunc did not dispose of all claims of all parties because Casoni then proceeded to argue the merits of his appeal at the January 20, 2012, hearing. Such an order is not defined as a final order by statute. Further, Pa.R.A.P. 341(c) which deals with multiple claims by different parties does not apply here. DOT did not waive this issue. In any event, the lack of subject matter jurisdiction as a result of an untimely appeal may be raised at any time. See Department of Transportation, Bureau of Motor Vehicles v. Shemer, 629 A.2d 1063, 1065 (Pa. Cmwlth.), petition for allowance of appeal denied, 536 Pa. 635, 637 A.2d 294 (1993).
Now, this Court shall address the merits of whether the trial court properly issued a nunc pro tunc appeal. In order to timely appeal the suspension of his driving privilege, a licensee is required to file an appeal within thirty days of the mailing date of DOT's notice of suspension. See Sections 5571(b) and 5572 of the Judicial Code, 42 Pa. C.S. §§5571(b) and 5572. See also Smith v. Department of Transportation, Bureau of Driver Licensing, 749 A.2d 1065 (Pa. Cmwlth.), petition for allowance of appeal denied, 568 Pa. 669, 795 A.2d 980 (2000). Courts may grant leave to appeal nunc pro tunc in extraordinary circumstances. Traditionally, leave to appeal nunc pro tunc is only granted when a party fails to timely appeal due to fraud or an administrative breakdown in operations. More recently, leave to appeal nunc pro tunc has been extended when an appeal was filed late due to non-negligent circumstances on the part of the appellant or his counsel. Schofield v. Department of Transportation, Bureau of Driver Licensing, 828 A.2d 510 (Pa. Cmwlth.), petition of allowance of appeal denied, 575 Pa. 705, 837 A.2d 1179 (2003). Our Pennsylvania Supreme Court has explained that the exception for allowance of an appeal nunc pro tunc for non-negligent circumstances is limited to unique and compelling cases in which an appellant establishes an attempt to file the appeal but was precluded from doing so due to unforeseeable and unavoidable events. Criss v. Wise, 566 Pa. 437, 781 A.2d 1156 (2001).
Here, Casoni did not allege that there was any fraud or administrative breakdown in operations. Casoni asserted that he did not file a timely appeal because he did not get in touch with Attorney Nard until the last day of the appeal period and then did not file until the next day which was untimely. Attorney Nard stated at hearing that he was unavailable because of an illness involving his fiancée.
This Court does not agree with the trial court that this explanation justified the grant of a nunc pro tunc appeal. First, there is nothing in the record to suggest that Casoni could not have filed his appeal on the same day that he spoke with Attorney Nard. Had he done so, his appeal would have been timely. Second, Casoni cites no case law to support the proposition that the inability to get in touch with an attorney until the last day of the thirty day appeal period due to an illness in the attorney's fiancée's family justifies a nunc pro tunc appeal. Third, there is not a requirement that a licensee receive legal counsel prior to filing an appeal. The appeal from a license suspension does not require the licensee/appellant to state the defenses he may present at trial, the legal theories of the case, or a detailed statement of what laws, if any, DOT violated. See Mullin v. Department of Transportation, Bureau of Driver Licensing, 786 A.2d 331 (Pa. Cmwlth. 2001). Fourth, Casoni could have consulted another attorney, if he so desired, when he was unable to speak with Attorney Nard. This Court concludes that the trial court erred when it determined that Casoni met his burden to appeal nunc pro tunc.
Accordingly, this Court reverses.
This Court need not address the merits of DOT's contention that the trial court erred when it reversed DOT's imposition of a one year suspension of Casoni's operator's license. --------
/s/_________
BERNARD L. McGINLEY, Judge Judge McCullough dissents. ORDER
AND NOW, this 4th day of October, 2012, the order of the Court of Common Pleas of Westmoreland County in the above-captioned matter is reversed.
/s/_________
BERNARD L. McGINLEY, Judge
Section 3806 of the Vehicle Code governs prior offenses and provides as follows:
(a) General rule. - Except as set forth in subsection (b), the term "prior offense" as used in this chapter shall mean a conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation for any of the following:75 Pa.C.S. §3806.
(1) an offense under section 3802 (relating to driving under the influence of alcohol or controlled substance);
(2) an offense under former section 3731;
(3) an offense substantially similar to an offense under paragraph (1) or (2) in another jurisdiction; or
(4) any combination of the offenses set forth in paragraph (1), (2) or (3).
(b) Repeat offenses within ten years. - The calculation of prior offenses for purposes of section 1553(d.2) (relating to occupational limited license), 3803 (relating to grading) and 3804 (relating to penalties) shall include any conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition within the ten years before the present violation occurred for any of the following:
(1) an offense under section 3802;
(2) an offense under former section 3731;
(3) an offense substantially similar to an offense under paragraph (1) or (2) in another jurisdiction; or
(4) any combination of the offenses set forth in paragraph (1), (2) or (3).