IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Justin M. Hickox, :

Appellant :

:

v. : No. 1008 C.D. 2015 : Submitted: May 12, 2017 Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: June 30, 2017

This case comes to this C ourt following our remand to the Court of

Common Pleas of Cambria County (trial court). Justin M. Hickox, pro se , has

appealed the trial court’s remand order that affirmed a one

- year suspension of his

operating privileges imposed by the Department of Tran sportation, Bureau of

Driver Licensing (PennDOT). Hickox contends the trial court er red because

PennDOT’s four

- year delay in notifying him of the suspension has caused him

substantial prejudice

. Concluding that the trial court’s Rule 1925(a) opinion does

not address the merits of Hickox’s appeal , we are constrained to remand.

We begin with a history of the case. On February 11, 2010, Hickox

was convicted of a summary offense for driving while his operating privilege was

suspended. See Section 1543 of the Vehicle Code, 75 Pa. C.S. §1543. 1 On

1 It states, in relevant part, as follows: (Footnote continued on the next page . . . )2

February 19, 2010, PennDOT sent a notice to Hickox that his operating privileges

were suspended for one year, effective March 3, 2010. The notice further

explained that to serve the suspension, Hi ckox was required to return his driver’s

license to PennDOT.

On May 6, 2014, Hickox filed a nunc pro tunc appeal of his one

- year
suspension to the trial court

, asserting that he did not receive PennDOT’s

suspension notice when sent in 2010 . Shortly after his conviction on the summary

offense

, Hickox filed a change of address with PennDOT in anticipation of his

move to the State of Washington. Nevertheless, PennDOT mailed its suspension

notice to his prior address in Bellefonte, Pennsylvania . Hickox asser ted that

PennDOT’s error constituted a breakdown in its operations, warranting a nunc pro

(continued . . . )

(a) Offense defined.

- Except as provided in subsection (b) [relating to a suspension for driving under the influence of alcohol or a controlled substance], any person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspen sion, revocation or cancellation of the operating privilege and before the operating privilege has been restored is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200.

***
(c) Suspension or revocation of operating p rivilege

. -- Upon receiving a certified record of the conviction of any person under this section, the department shall suspend or revoke that person’s operating privilege as follows:
(1) If the department’s records show that the person was under suspension, recall or cancellation on the date of violation, and had not been restored, the department shall suspend the person’s operating privilege for an additional one

- year period. (2) If the department’s records show that the person was under

revocation on the d ate of violation, and had not been restored, the department shall revoke the person’s operating privilege for an

additional two

- year period.
75 Pa.C.S. §1543(a) and (c).3

tunc appeal

. Hickox explained that shortly after his move to Washington, he was

arrested and extradited to Pennsylvania . H e was incarcerated in Pennsylvania until

F ebruary 15, 2014. Upon his release, he learned, for the first time, of his 2010

driver license suspension.

The trial court granted Hickox’s nunc pro tunc appeal and conducted

a hearing on the merits of PennDOT’s suspension of his operating privilege

.

H ickox wa s the only party to testify

.

Hickox testified that o n February 4, 2010, he went to the driver

license center in Rockview, Pennsylvania, where he execute d a change of address

form and request to cancel his Pennsylvania driver’s license because he was

moving to another state

. At the trial court hearing, Hickox produced a copy of the

change of address form , and it was admitted into evidence. Certified Record

(C.R.), Item No. 10, Hickox Exhibit 1. On March 1, 2010, the State of Washington

issued him a driver’s license

. Hickox did not drive during the four years he was in

prison

. Hickox contended that to make him serve the suspension now will be

prejudicial because his current job requires him to drive , and he holds a

commercial license. 2

On September 11, 2014, the trial court dismissed Hickox’s suspension

appeal , and he appealed . O n September 22, 2014, the trial court issued an order

directing Hickox to file a concise statement of errors complained of on appeal

within 21 days. See P A

. R.A.P. 1925(b) (2)

. 3 When he did not meet that deadline,

2 Hickox’s Certified Driving History, dated May 30, 2014, lists his license as a Class B Commercial Driver’s License. PennDOT Supplemental Reproduced Record at 22b (S.R.R. __).

3 It states: If the judge entering the order giving rise to the notice of appeal (“judge”) desires clarification of the errors complained of on appeal, the judge m ay enter an order (Footnote continued on the next page . . . )4

the trial court refused to issue an opinion in support of its dismissal of Hickox’s

appeal

. On July 10, 2015, Hickox filed a petition for special relief stating that

“[b]ecause of a mixup with the mail system [he] did not receive the order until

after the expiration of the time limit to comply with this order.” S.R.R. 34b.

Hickox requested permission to file a statement of errors complained of on appeal

nunc pro tun c , but the trial court did not respond to the petition.

On appeal to this Court, Hickox asserted that he did not receive the

trial court’s order requiring him to file a statement of errors complained of on
appeal until after the court’s deadline for doing so had passed

. The Pennsylvania

Rules of Appellate Procedure authorize a remand for a determination of whether

the statement of errors complained of on appeal was timely served. P A

. R.A.P.

1925(c)(1). 4 T he Rules also authorize the filing of a statement of errors

(continued . . . ) directing the appellant to file of record in the trial court and serve on the judge a concise statement of the errors complained of on appeal (“Statement”).

***
2) Time for filing and service

-- The judge shall allow the appellant at least 21 days from the date of the order’s entry on the docket for the filing and service of the Statement. Upon application of the appellant and for good cause shown, the judge may enlarge the time period initially specified or permit an amended or supplemental Statement to be filed. Good cause includes, but is not limited to, delay in the production of a transcript necessary to develop the Statement so long as the delay is not attributable to a lack of diligence i n ordering or paying for such transcript by the party or counsel on appeal. In extraordinary circumstances, the judge may allow for the filing of a Statement or amended or supplemental Statement nunc pro tunc

. P A

. R.A.P. 1925(b)(2).

4 It states as follows : (Footnote continued on the next page . . . )5

complained of on appeal nunc pro tunc

. 5 Accordingly, we remanded to the trial

court for a disposition of Hickox ’s petition to file a statement of errors complained

of on appeal nunc pro tunc

. Hickox v. Department of Transportation, Bureau of

Dr iver Licensing , (Pa. Cmwlth.

, No. 1008 C.D. 2015, filed May 18 , 2016).

On July 26, 2016, the trial court granted Hickox’s petition , and he

filed a statement of errors . The statement contended that “the trial court erred in

affirming the suspension of [his ] operating privileges when [PennDOT] fa iled to

rebut evidence that [it] failed to properly serve him with an order of suspension.”

C ertified Record

, Item No. 40. The trial court then issued an opinion pursuant to

P A

. R.A.P. 1925(a)(1)

. 6 It states, in its entirety, as follows:

This Court received [Hickox’s] “Concise State ment of Errors Complained of on Appeal” on September 23, 2016 . [Hickox] submits in his statement that the Court “... erred in affirming the suspension of [his] operatin g privileges when the

(continued . . . )
An appellate court may remand in either a civil or criminal case for a determination as to whether a Statement had been filed and/or served or timely
filed and/or served.

P A

. R.A.P. 1925(c)(1).

5 It states , in relevant part , as follows : In extraordinary c ircumstances, the judge may allow for the filing of a Statement or amended or supplemental Statement nunc pro tunc

. P A

. R.A.P. 1925( b )(2).

6 Rule 1925(a)(1) states, in relevant part, as follows:
[U]pon receipt of the notice of appeal, the judge who entered the order giving rise to the notice of appeal, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief opinion of the reasons for the order, or
fo r the rulings or other errors complained of, or shall specify in writing the place in the record where such reasons may be found.

P A

. R.A.P. 1925 (a)(1).6 Commonwealth f

ailed to rebut evidence that [PennDOT] failed to properly serve him with an order of suspension.”

[Hickox] is mistaken. The record shows that he was eventually properly served with an Order of Suspension.

Trial Court Pa. R.A.P. 1925(a) Opinion at 1. Hickox has again appealed to this

Court.

On appeal, Hickox contends that PennDOT erred by sending the 2010

notice of suspension to the wrong address and that he was prejudiced by the delay

in the suspension because his curre nt job requires him to drive. He c ould have

easily served the one

- year suspension during the four years he was incarcerated

had he received the notice and learned that to serve the suspension he had to

surrender his Pennsylvania license

. He learned of th e suspension only after he

attempted to transfer his Washington State driver’s license to Pennsylvania. 7

Generally, a delay in imposing a suspension of a licensee’s operating

privileges will not sustain an appeal unless the delay has caused prejudice.

B rozena v. Department of Transportation, Bureau of Driver Licensing , 802 A.2d 1

(Pa. Cmwlth. 2002). Specifically, the standard is as follows:

In order to sustain an appeal of a license suspension based on delay, [a licensee] must prove that: (1) an unreason able delay chargeable to [PennDOT] led him to believe that his operating privileges would not be impaired; and (2) prejudice would result by having his operating privileges suspended after such delay.

7 Hickox testified he had a valid Washington driver’s license because he “was not in the national

drive r’s registry for being suspended in Pennsylvania.” Hearing of August 20, 2014, Notes of Testimony at 5.7

Id . at 5. “What constitutes an unreasonable delay will depend upon the

circumstances of each individual case.” Terraciano v. Department of

Transportation, Bureau of Driver Licensing , 753 A.2d 233, 236 (Pa. 2000).

Rule 1925(a) (1) requires the trial court to “file of record at least a

brief opinion of the reasons for the order, or for the rulings or other errors
complained of, or shall specify in writing the place in the record where such

reasons may be found. ” P A

. R.A.P. 1925(a) (1) . Where “the trial court [does] not

satisfy the requirements of Rule 1925(a)

, the proper course is to remand to the trial

court with instructions to prepare a proper opinion and return it to the reviewing

panel.” Miller D evelopment Corporation v. Union Township Municipal Authority

, 666 A.2d 391, 395 (Pa. Cmwlth. 1995).

Hi ckox asserts that in 2010 he filed a change of address form with

PennDOT

, which disregarded it . Instead, PennDOT sent the notice of suspension

to another address, which caused a four

- year delay in the suspension of his license.

This delay has caused him prejudice because his job requires a driver ’s license.

Notably, PennDOT, although present at the hearing, presented no

evidence. The trial court admitted Hickox’s change of address form without

objection from PennDOT. However, the trial court did not mak e a factual

determination on whether Hickox notified PennDOT of his new address in 2010 or
whether Hickox established prejudice. Because the trial court granted Hickox a

nunc pro tunc appeal, it appears to have accepted Hickox’s claim that there had

been a breakdown in the administrative process because PennDOT sent the

suspension notice to an incorrect address

.

The trial court’s 2014 order stated that the suspension was “proper ,”

and its Rule 1925(a) opinion states that the notice of suspension was “eventually”8

served on Hickox

. It cannot be ascertain ed from these statements whether the trial

court found that PennDOT erred in the mailing of its suspension notice or whether

it even considered Hickox’s claim of prejudice

. E xpress findings are needed

before this Court can conduct a meaningful appellate review.

Accordingly, the matter is again remanded to the trial court with

instructions to prepare an adequate Rule 1925(a) opinion.

______________________________________ MARY HANNAH LEAVITT, President JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Justin M. Hickox, :

Appellant :

:

v. : No. 1008 C.D. 2015

: Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing :

O R D E R

AND NOW, this 30 th day of June, 2017, the above

- caption ed matter is

REMANDED to the Court of Common Pleas of Cambria County with the

instructions that it prepare an opinion in accordance with Pennsylvania Rule of

Appellate Procedure 1925(a) within thirty (30) days of the date of this Order.

The Chief Clerk shall send a copy of this Order to the Honorable F.

Joseph Leahey, Senior Judge of the Court of Common Pleas of Cambria County

and to the Prothonotary of Cambria County.

Jurisdiction retained.

______________________________________

MARY HANNAH LEAVITT, President Judge