Opinion
No. 1435 C.D. 2013
04-04-2014
Mark S. Benyak v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) appeals from the July 19, 2013, order of the Court of Common Pleas of Westmoreland County (trial court), which sustained the statutory appeal of Mark S. Benyak from an 18-month suspension of his operating privilege after granting Benyak leave to appeal the suspension nunc pro tunc. Because we conclude that the trial court erred in granting Benyak permission to appeal nunc pro tunc, we vacate the trial court's order and reinstate Benyak's 18-month operating privilege suspension.
On February 2, 2013, Benyak was arrested for driving under the influence (DUI) and refused to submit to chemical testing. On February 21, 2013, DOT sent Benyak an official notice suspending his driving privilege for a period of 18 months, effective March 28, 2013. See Section 1547(b)(1) of the Vehicle Code (Code), 75 Pa. C.S. §1547(b)(1) (providing for the suspension of a driver's operating privilege for refusing to submit to chemical testing after being arrested for violating section 3802 of the Code, 75 Pa. C.S. §3802, which relates to DUI). The notice informed Benyak that he had the right to appeal the suspension within 30 days. Therefore, Benyak's appeal had to be filed by March 25, 2013.
On March 28, 2013, Benyak filed a petition requesting to proceed nunc pro tunc from the February 21, 2013, suspension notice. Counsel for Benyak explained that he had "miscalculated the deadline for filing the appeal." (Benyak Pet. Nunc Pro Tunc Appeal, 3/28/13, at 1.)
Benyak contended that the police officer lacked the authority to request that Benyak submit to chemical testing. (Benyak Pet. Nunc Pro Tunc Appeal, 3/28/13, at 1.)
On April 19, 2013, the trial court held a hearing regarding the nunc pro tunc request and, thereafter, granted Benyak leave to appeal nunc pro tunc. On July 19, 2013, the trial court held a de novo hearing on the merits and sustained Benyak's appeal.
On August 16, 2013, DOT appealed to this court. On October 1, 2013, the trial court issued an opinion pursuant to Pa. R.A.P. 1925(a), stating that it had erred in granting the appeal nunc pro tunc.
Before this court, DOT contends that the trial court erred in granting Benyak leave to appeal nunc pro tunc. We agree.
Our review of the 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. Department of Transportation, Bureau of Driver Licensing, 949 A.2d 345, 347 n.5 (Pa. Cmwlth. 2008). --------
A licensee is required to appeal a suspension of his driving privilege within 30 days of the mailing date of DOT's notice of suspension. See Section 5571(b) of the Judicial Code, 42 Pa. C.S. §5571(b); see also Baum, 949 A.2d at 348. A licensee's failure to appeal within the statutorily-prescribed 30-day time period precludes the trial court from exercising subject matter jurisdiction over the merits of the appeal. Baum, 949 A.2d at 348.
We have held that "statutory appeal periods are mandatory and may not be extended as a matter of grace or mere indulgence." Hudson v. Department of Transportation, Bureau of Driver Licensing, 830 A.2d 594, 598 (Pa. Cmwlth. 2003). However, an appeal may be filed late where there is fraud, a breakdown of the court's operations, or where an appeal is not timely due to non-negligent circumstances, either as they relate to an appellant or his/her counsel. Baum, 949 A.2d at 348. The three-part test for proving "non-negligent circumstances" for a late filing is whether: "(1) the appellant's notice of appeal was filed late as a result of non-negligent circumstances, either as they relate to the appellant or the appellant's counsel; (2) the appellant filed the notice of appeal shortly after the expiration date; and (3) the appellee was not prejudiced by the delay." Id. As our Supreme Court noted in Criss v. Wise, 566 Pa. 437, 443, 781 A.2d 1156, 1160 (2001), the non-negligent circumstances exception "is meant to apply only in unique and compelling cases in which the appellant has clearly established that [he or] she attempted to file an appeal, but unforeseeable and unavoidable events precluded [him or] her from actually doing so."
In this case, Benyak does not allege fraud or an administrative breakdown. Benyak's counsel acknowledged that the appeal was late due to his miscalculation of the dates. This excuse is not "unforeseeable" or "unavoidable" and certainly is not "non-negligent." Therefore, we conclude that the trial court erred in granting Benyak leave to appeal nunc pro tunc. Moreover, because Benyak did not appeal within 30 days of the mailing date on DOT's notice of suspension, the trial court did not have jurisdiction to entertain the appeal.
Accordingly, we vacate the trial court's order of July 19, 2013, for lack of jurisdiction and reinstate Benyak's 18-month operating privilege suspension imposed by DOT.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 4th day of April, 2014, we hereby vacate the July 19, 2013, order of the Court of Common Pleas of Westmoreland County for lack of jurisdiction and reinstate Mark S. Benyak's 18-month operating privilege suspension imposed by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge