Opinion
No. 1829 C.D. 2014
07-09-2015
Justin Tassone v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
The Department of Transportation, Bureau of Driver Licensing (DOT) appeals from an order of the Court of Common Pleas of Allegheny County (trial court) that sustained the statutory appeal of Justin Tassone (Licensee) from a one year suspension of his driving privilege. DOT imposed the suspension on Licensee under 75 Pa. C.S. §1547(b)(1)(i) as a result of his reported refusal to submit to chemical testing in connection with his arrest for violating 75 Pa. C.S. §3802 (driving under the influence of alcohol) (DUI). DOT contends the trial court erred or abused its discretion by allowing Licensee to proceed on a nunc pro tunc basis (late appeal by permission) where: (1) Licensee failed to offer any competent evidence to establish that his untimely appeal resulted from fraud or judicial or administrative breakdown; and, (2) Licensee's counsel (Counsel) admitted that the late filing partially resulted from an administrative error in his office. For the reasons that follow, we vacate and remand for further proceedings.
I. Background
By official notice with a mailing date of March 17, 2014, DOT notified Licensee that his current driver's licenses, including his commercial driver's license, would be suspended for one year as authorized by 75 Pa. C.S. §1547(b)(1)(i) as a result of his chemical test refusal. See Reproduced Record (R.R.) at 25a-27a. 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). This made the appeal deadline Wednesday, April 16, 2014. Five days later, on Monday, April 21, 2014, Licensee filed a petition to appeal nunc pro tunc. See R.R. at 13a. In explaining why he did not file a timely appeal, Licensee stated:
DEFENSE ATTORNEY'S CLERICAL STAFF MISMARKED FILE AND HAS BEEN OUT OF OFFICE FOR DIAGNOSTIC TREATMENT. THIS DELAY WAS DISCOVERED ON APRIL 19, 2014. DEFENSE ATTY HAS ALSO BEEN ILL AND ONLY WORKING RESTRICTED HOURS.
Id.
In May 2014, the trial court held a hearing on Licensee's petition. Counsel, a cancer patient, argued his secretary also fell ill and the trial court was closed over the weekend preceding the Monday Licensee's appeal was filed. Thus, Counsel argued, his untimely appeal constituted a de minimis infraction. See Notes of Testimony (N.T.), 5/8/14, at 2-3; R.R. at 9a. N.T., 5/8/14, at 2-3; R.R. at 9a-10a. The following discussion then took place:
[DOT's Counsel]: Your Honor, for these nunc pro tunc hearings, there is no such thing as a d[e] minimis error. Either you are timely or [it] fits within the standard for allowance of filing a late appeal.N.T., 5/8/14, at 3-4; R.R. at 10a-11a. The trial court then entered an order granting Licensee's petition to appeal nunc pro tunc.
[The Court]: You are either pregnant or you're not.
[Licensee's Counsel]: I understand. It is discretionary. That is why we have a hearing for a nunc pro tunc.
[The Court]: That's the way it works. Even if I grant it, they are going to take an appeal. Even if you win the case.
[Licensee's Counsel]: I have a good underlying defense.
[The Court]: They will take the appeal on the nunc pro tunc if you win. I'm going to grant it for him.
In September 2014, the trial court held a hearing on the merits of Licensee's appeal. However, DOT advised the court that it was unable to proceed as a result of the arresting officer's failure to appear. See N.T., 9/30/14, at 2-3; R.R. at 20a-21a. The trial court then granted Licensee's request and sustained his appeal. DOT appeals.
Our 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). --------
II. Issues
DOT contends the trial court erred or abused its discretion by allowing Licensee to appeal nunc pro tunc where: (1) Licensee failed to offer any competent evidence to establish that his untimely appeal resulted from fraud or judicial or administrative breakdown; and, (2) Counsel admitted that the late filing partially resulted from an administrative error in his office.
III. Discussion
A. Argument
1. Lack of Competent Evidence
DOT first contends the trial court erred and abused its discretion in permitting Licensee to appeal nunc pro tunc where Licensee 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 resulted 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, 462 A.2d 902 (Pa. Cmwlth. 1983).
Here, at the nunc pro tunc hearing, Licensee called no witnesses and presented no documentation or other evidence. Rather, Counsel engaged in a colloquy with the trial court and DOT. An attorney's statements or questions at trial are not evidence. Commonwealth v. La Cava, 666 A.2d 221 (Pa. 1995); Anderson v. Dep't of Transp., Bureau of Driver Licensing, 744 A.2d 825 (Pa. Cmwlth. 2000).
2. Administrative Error by Counsel's Office
In addition to failing to offer any competent evidence to support his petition to appeal nunc pro tunc, DOT asserts Licensee admitted at the hearing that his untimely appeal resulted in part from an administrative error within his attorney's office. See N.T., 5/8/14, at 2; R.R. at 9a. In addition, in his petition to appeal nunc pro tunc, Licensee stated, "DEFENSE ATTORNEY'S CLERICAL STAFF MISMARKED FILE ...." R.R. at 13a. DOT argues Licensee is bound by his counsel's admission that an error committed by his counsel's office was at least partially to blame for his untimely appeal. See Walck v. Dep't of Transp., Bureau of Driver Licensing, 625 A.2d 1276 (Pa. Cmwlth. 1993) (an attorney is the agent of his client; as such, the statements he makes during a hearing are binding on his client).
In response to Licensee's position that his untimely appeal merely constituted a de minimis infraction, DOT argues that statutory appeal periods are mandatory and may not be extended as a matter of grace or mere indulgence. Hudson. By permitting a licensee to file a late appeal, the trial court extends the appeal period, thereby extending itself jurisdiction it would not otherwise have. Id.
3. Non-Negligent Circumstances
DOT also acknowledges that in Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979), the Supreme Court extended the traditional grounds for allowing an appeal nunc pro tunc to include situations where the untimely filing resulted from non-negligent circumstances related to the appellant's attorney and staff. In Bass, the appellant decided to file an appeal from a Commonwealth Court decision, which the attorney prepared and placed on a corner of his secretary's desk for filing at the end of the day on Friday, July 7. However, the secretary became ill that Friday and left work early. She remained out sick during the following week and returned on Monday, July 17. Upon her return to work, the secretary immediately took steps to file a petition to appeal nunc pro tunc. Ultimately, the Supreme Court granted the appellant's petition, noting the attorney was responsible for the non-negligent failure to file a timely appeal, and he acted immediately to correct the situation, which resulted in minimal prejudice to the opposing party.
DOT also cites Criss v. Wise, 781 A.2d 1156 (Pa. 2001), wherein the Supreme Court determined that a delay in filing an appeal based on a party's failure to anticipate a potential Christmas holiday delay in the U.S. mail did not constitute a non-negligent circumstance beyond the party's control. To that end, the Supreme Court reasoned: "as delays in the U.S. mail are both foreseeable and avoidable, Appellee's failure to anticipate a potential delay in the mail was not such a non-negligent circumstance for which an appeal nunc pro tunc may be granted." Id. at 1160.
Here, DOT summarizes, Counsel admitted that an administrative error committed in his office contributed to the untimely appeal. An administrative error does not constitute non-negligent circumstances warranting the grant of an appeal nunc pro tunc. Criss.
B. Analysis
In its opinion in support of its order granting Licensee's petition to appeal nunc pro tunc, the trial court observed that Counsel admitted his secretary mismarked the file. Tr. Ct., Slip. Op., 12/3/14, at 3; R.R. at 50a. Counsel's secretary was thereafter absent for medical treatment. Id. Counsel also was ill and worked limited hours during the relevant time period. Id. In addition, at the hearing, DOT did not controvert any of the averments in Licensee's petition. Id. Ultimately, the trial court reasoned (with emphasis added):
This situation presents a rather unique and compelling case where an error was compounded by the necessary absence of Counsel's staff member for medical treatment. The fact that Counsel was also ill and working limited hours was also unforeseeable and unavoidable. The totality of the circumstances prevented [Licensee] from having his appeal filed in a timely manner due to non-negligent factors. While the original error [mismarking the file] may have been negligent, the unavoidable consequences of illness of Counsel and his secretary's absence due to medical treatment were non-negligent. The facts of each case must be examined to determine if nunc pro tunc relief is warranted. The Court determined it was warranted under these circumstances where the [p]etition was filed within 5 days of discovery of the error and there is no prejudice to DOT whatsoever.
Id.
Citing the above language, Licensee contends the trial court determined that if Counsel and his secretary did not fall ill, they would have discovered the error in time to file his appeal in a timely manner. See Appellee's Br. at 8. To that end, Licensee asserts, "The [t]rial [c]ourt expressly considered whether or not any negligence was a factor, and expressly found that non-negligent circumstances were of so severe a nature that the date would have been missed as a result of the non-negligent factors, and not the potential negligence of a mismarked date." Id.
As to the lack of evidence supporting Licensee's averments of illness, Counsel explains (with emphasis added):
The [t]rial [j]udge was displaying a level of compassion in not making counsel testify as to all the details of his condition in a public forum, since the Court already knew what the condition was. Counsel could have, and would have proceeded to testify as to his condition. He was prepared to do so. He did not do so only because the Court already ruled, making the testimony moot.Appellee's Br. at 8-9.
As reflected by the transcript of the hearing on Licensee's petition to appeal nunc pro tunc, the trial court granted Licensee's petition without affording Licensee an opportunity to present testimony or documentary evidence supporting his claim that he and his secretary were unable to timely file Licensee's appeal because of illness. However, Counsel explained he fell gravely ill with cancer and just received surgery in order to treat it as quickly and as early as possible. Id. at 7-8. As a result of his surgery and follow-up treatments and therapies, Counsel was not in his office on a regular basis. Id. at 8.
In addition, Counsel's secretary also became ill and was out of the office for diagnostic testing. Id. at 7. Because both Counsel and his secretary were ill and out of the office at the same time, they missed the deadline on Licensee's appeal. Id.
This statutory appeal presents the unusual circumstance that there has never been a full hearing on any matter in dispute, either procedural or the merits. Procedurally, regardless of whether the trial court had knowledge of the fact that Counsel and his secretary fell victim to sudden and unforeseeable medical problems preventing them from filing a timely appeal, we are constrained by case law to require that evidence of such conditions be placed on the record. See Smith v. Dep't of Transp., Bureau of Driver Licensing, 749 A.2d 1065 (Pa. Cmwlth. 2000); Lajevic v. Dep't of Transp, Bureau of Driver Licensing, 718 A.2d 371 (Pa. Cmwlth. 1998); Anderson. Placing evidence on the record also affords DOT an opportunity to test that evidence through cross-examination or other means, important aspects of a fair hearing.
Consequently, given the unique circumstances here, a remand is necessary to afford Counsel an opportunity to present evidence of the medical conditions and related treatment, including hospitalization, which prevented Counsel and his secretary from timely filing Licensee's appeal on April 16, 2014. DOT should be afforded an opportunity to test that evidence.
In addition, in the interests of justice and public safety, we believe DOT must likewise be afforded another opportunity to present evidence of Licensee's refusal to submit to chemical testing following a DUI arrest.
Therefore, on remand, the trial court must first determine, based on Licensee's evidence, whether Licensee is entitled to an appeal nunc pro tunc. In the event the trial court finds sufficient evidence for a nunc pro tunc appeal, the trial court must further determine, based on DOT's evidence, whether DOT met its burden of proving it properly suspended Licensee's driving privileges as a result of his refusal to submit to chemical testing following a DUI arrest. See Zwibel v. Dep't of Transp., Bureau of Driver Licensing, 832 A.2d 599 (Pa. Cmwlth. 2003).
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 9th day of July, 2015, the order of the Court of Common Pleas of Allegheny County sustaining Justin Tassone's statutory appeal is VACATED and this case is REMANDED for further proceedings consistent with the foregoing opinion. Jurisdiction is relinquished.
/s/_________
ROBERT SIMPSON, Judge