IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Stanley Joseph Zukos :
:
v. : No. 372 C.D. 2017 : Submitted: November 22, 2017 Commonwealth of Pennsylvania, : Department of Transportation, : Bureau of Driver Licensing, :

Appellant :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK
, Judge HONORABLE J. WESLEY OLER, JR. , Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY PRESIDENT JUDGE LEAVITT FILED: March 15, 2018

The Departmen t of Transportation, Bureau of Driver Licensing (PennDOT)
, appeals an order of the Court of Common Pleas of Luzerne County (trial court) sustaining the statutory appeal of Stanley Joseph Zukos (Licensee) of
PennDOT’s three

- month suspension of his driver’s license . PennDOT contends that
the trial court erred in allowing Licensee to appeal nunc pro tunc and in deciding the merits of his appeal. W e vacate and remand.

On Se ptember 24, 2010, a truck registered to Groundworks Landscaping, a sole proprietorship
, was i nvolved in an accident. The truck was not
insured. Licensee was not operating the truck or present at the accident scene

. The police officer who investigated the accident cited Licensee , the owner of
Groundworks Lan d scaping
, for a violation of Section 1786(f) of the Vehicle Code
, which states:
Any owner of a motor vehicle for which the existence of

financial responsibility is a requirement for its legal operation2 shall not operate the motor vehicle or permit it to be operated upon a highway of this Commonwealth without the financial responsibility required by this chapter.

75 Pa. C.S. §1786(f). On January 13, 2011, a magisterial district judge convicted
Licensee , who did not appeal the summary offense conviction. Notes of Te stimony (N.T .), 7/13/2016, at 23; Reproduced Record at 22a (R.R. __).

Thereafter, by notice mailed January 21, 2011, PennDOT advised
Licensee that:

Your driving privilege is scheduled to be suspended on 02/25/2011, because you failed to produce proof of f inancial responsibility on 09/24/2010, the date of your traffic offense.

1. Your driving privilege will be suspended for three months effective 02/25/2011 at 12:01 A.M. as authorized by Section 1786(d) of the Vehicle Code.

R.R. 35a. 1 Section 1786(d) (1) o f the Vehicle Code provides, in relevant part, as
follows:
[PennDOT] shall suspend the registration of a vehicle for a

period of three months if it determines the required financial responsibility was not secured as required by this chapter and shall suspe nd the operating privilege of the owner or registrant for a period of three months if the department determines that the

1 On January 20, 2011, PennDOT sent a separate notice addressed to Groundworks Landscaping
, stating that: At the time the offense occurred [on September 24, 2010], you were unable to provide proof of financial responsibility (insurance). As a result, the reg istration for the vehicle listed above will be suspended for three months effective 02/24/2011 at 12:01 A.M. as authorized by Section 1786(d) of the Vehicle Code. R.R. 33a. The vehicle registration suspension is not an issue in this case.3 owner or registrant has operated or permitted the operation of the vehicle without the required financial responsibility.

75 Pa. C.S. § 1786(d) (1)

. PennDOT’s notice stated that Licensee had the right to appeal “within 30 days of the mail date, J anuary 21, 2011, of this letter, ” i.e., February 21, 2011. R.R. 36a.

On February 24, 2011, Licensee appealed his license suspension. The notice of appeal stated:

This is to certify that [Licensee] has formally appealed the Driver[’s] License Suspension from which he was notifie d on or about January 25, 2011.

R.R. 37a. The trial court took no action on Licensee’s appeal until September 16, 2014, when Licensee filed a motion for hearing and a rule to show cause why his appeal should not be sustained. The same day, the trial court entered an order scheduling a hearing for October 20, 2014. Thereaf ter, the trial court ord ered Licensee’s appeal “continued generally

. ” Trial Court Disposition Sheet, 10/20/2014; R.R. 14a.

In the meantime, Licensee had appealed three separate conviction s for
the summary offense of driving with a suspended license in violation of Section
15 43 (a) of the Vehicle Code, 75 Pa. C.S. § 1543 (a)

. 2 Those appeals were consolidated before the trial court, and oral argument was held on September 17,

2 Section 1543(a ) of the Vehicle Code provides, in pertinent part: Except as provided in subsection (b), any person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the opera ting 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. 75 Pa. C.S. §1543 (a).4

2014. Licensee maintained that his driver’s license was not suspended on any of the
three occasions in question because his February 24, 2011, license suspension appeal triggered a n automatic supersedeas of his license suspension under Section 1550(b)
of the Vehicle Code

. 3

On October 10, 2014, the trial court dismissed Licensee’s appeals of his summary convictions . In so doing, the trial court found that the last day for Licensee to appeal his license suspension was February 21, 2011 , and Licensee appealed on February 24, 2011. Accordingly, the trial court concluded that there

was no su persedeas in effect when Licensee was charged with the summary offenses
under Section 1543 (a) of the Vehicle Code. Licensee appealed to the Superior Court.

W hile Licensee’s appeals were pending before the Superior Court, the
trial court entered an order o n January 16, 2015, dismissing Licensee’s license suspension appeal. In a January 27, 2015, letter to Licensee , the trial judge explained
that he dismissed Licensee’s appeal because he did not appear at the January 12, 2015, hearing scheduled on his licen se suspension appeal :

I had an opportunity to review correspondence between counsel dated January 16, 2015 concerning the appeal of the suspension issued by [Penn]DOT in the above

- captioned matter.
Please note that Order was issued based upon the non

- appe arance of the moving party and [PennDOT] informed the Court that [Licensee] could not overcome the hearing argument of timeliness. Since the evidence was uncontroverted, I issued the

3 Section 1550(b) provides, in pertinent part: (b) Supersedeas.

— (1)(i ) Except as provided in subparagraphs (ii) and (iii), filing and service of a petition for appeal from a suspension or revocation shall operate as a supersedeas until final determination of the matter by the court vested with the jurisdiction of such appea ls. 75 Pa. C.S. § 1550(b).5 Order. The letter seems to suggest that compliance with the Order may b e at issue. If this is correct, please notify this Court and we will vacate the previous order and schedule argument for the timeliness and merits.

R.R. 48a. Licensee did not appeal the trial court’s January 16, 2015, order dismissing his license suspe nsion appeal

.

One and a half years later, on June 29, 2016, Licensee filed a mot ion to relist hearing. Licensee asserted that upon receiv ing the trial court’s January 1 6
, 2015, order dismissing his license suspension appeal, he promptly notified the trial
court that he did not receive the notice. The trial court responded with the above

quoted January 27, 201 5, letter

. Motion to Relist Hearing, ¶¶ 6

- 7; R.R. 43a. Licensee
further asserted that the Superior Court had “granted additional time for [the trial court] to have a hearing on the [license suspension] matter with [PennDOT].” Motion to Relist Hearing, ¶9; R.R. 43a. The same day, the trial court scheduled a hearing for July 13, 2016, to hear “the merits of the [license suspension] matter.”
Trial Cou rt Order, 6/29/2016; R.R. 50a. 4

In his pre

- hearing memorandum of law, Licensee argued, inter alia , that
there had been a breakdown “in the administrative and judicial process,” and the trial court “may review this matter on a [ n] unc [p]ro [t] unc basis.” R.R. 53a

- 54a.
Lic ensee further argued that he was neither the driver nor owner of the uninsured truck that was involved in the accident. Therefore, “[a] t all times relevant hereto,”

Licensee believed the suspension “was for Groundworks [Landsca ping] and not for him.” R.R. 54a. Licensee argued that he should not be punished “for something he
was not involved with.” Id

.

4 Licensee explained at the July 13, 2016, hearing that the Superior Court ruled “[f]rom the [b]ench.” N.T. 28; R.R. 23a. He did not have a copy of the decision “because they [sic] haven’t put it in writing yet.” N.T. 29; R.R. 23 a.6 At the July 13, 2016, hearing, Licensee testified that on the date of the
accident he was out of town “on an estimate for a job.” N.T. 35; R.R. 25a. Licensee acknowledged that the truck was registered to Groundworks Landscaping, a sole proprietorship he has owned since 1985. Licensee testified that the truck was used “as a p low truck for [w]inter purposes ” and that he “had n o reason to insure it during the summer months.” N.T. 36; R.R. 25a. Licensee testified that he did not permit anyone to operate the truck and that the worker driving it at the time of the accident did so without Licensee’s knowledge or permission

.

Lice nsee reiterated his argument that the trial court should “acc ept the filing of his suspension appeal nunc pro tunc .” N.T. 51

- 52; R.R. 29a. The trial court asked Licensee’s counsel whether he wanted “to take evidence to [the nunc pro tunc issue].” N.T. 52; R.R. 29a. Counsel responded, “No. I’ll address it in my brief.”
Id

. The trial court took the matter under advisement. Before the trial court
ruled on the issues heard at the July 13, 2016, he aring
, the Superior Court ruled o n
Licen see’s appeal of the trial court’s order of October 10, 2014 . The Superior Court
held that the trial court erred in dismissing Licensee’s summary conviction appeals prior to a hearing on his license suspension appeal , “which effectively deprived [Licensee] of a hearing to determine the condition precedent of his summary
convictions

– namely, whether [Licensee]’s driver’s license properly had been suspended.” Commonwealth v. Zukos , (Pa. Super., No. 1929 MDA 2014, filed August 9, 2016) slip. op. at 4 ; R.R. 123a. The Superior Court remanded the matter
for the trial court

to conduct a hearing in the driver’s license suspension matter, at which time the timeliness and merits of [Licensee]’s appeal in that case may be explored. Thereafter, the trial co urt shall issue7 an order on [Licensee]’s summary appeals of his convictions under [75 Pa. C.S. ] §1543(a) at issue herein.

Id. In response, the trial court entered an order scheduling the hearing on the driver’s license suspension matter for January 31, 20 17, at 9:00 a.m.

At the hearing on January 31, 2017, the trial court stated that the “timeliness [of the suspension appeal] remains an issue.” N.T.
, 1/31/2017
, at 15

- 16;
R.R. 133a. Licensee a cknowledged that PennDOT ’s notice of suspension stated that

an y appeal ha d to be filed within 30 days from the mail date of January 21, 2011

. He further acknowledged that he filed the appeal on February 24, 2011. Licensee maintained, however, that PennDOT lacked authority to suspend his license under Section 1786(d ) of the Vehicle Code because he did not own or operate the truck
involved in the accident. PennDOT rejoined that the suspension was proper because
Licensee had first been convicted of failure to prove financial responsibility under
Sectio n 1786(f) of the Vehicle Code. The parties presented no evidence at the hearing, and Licensee’s counsel agreed that the trial court should make a decision “on the prior record, ” i.e., presumably the one developed on July 13, 2016. N.T. 21;
R.R. 134a.
On February 9, 2017, the trial court sustained Licensee’s license suspension appeal and reinstated his driver’s license. Crediting Licensee’s testimony, the trial court found that Licensee was not the owner or operator of the
truck at the time of the acciden t, and he had not permitted his employees to use that vehicle. To punish him “for the actions of others” would be “fundamental[ly]8

unfair[].” Trial Court op. at 1. Without giving any reason, the trial court found Licensee’s appeal “timely.” Id . PennDO T now appeals to this Court. 5

On appeal, PennDOT raises three issues, which we combine into two for clarity. First, it contends that the trial court abused its discretion in permitting Licensee to appeal his license suspension nunc pro tunc because ther e was no evidence to support such relief

. Alternatively
, PennDOT argues that the evidence does not support the trial court’s finding that Licensee was neither the owner nor operator of the vehicle under Section 1786(d) of the Vehicle Code.

In its first issue, PennDOT argues that the trial court erred in allowing Licensee to appeal nunc pro tunc because he did not prove “a breakdown in the administrative or judicial process.” PennDOT Brief at 23. Further, because Licensee did not appeal the trial court’ s January 16, 2015, order dismissing his license suspension appeal, a ny proceedings that followed were a “nullity.”
PennDOT Brief at 27. Licensee responds that PennDOT ’s two suspension notices
constitute a breakdown in the administrative process

. One notified Groundworks Landscaping that the truck’s registr ation was suspended. The other notice suspended
Licensee’s personal driver’s license for the stated reason that he owned the truck and permitted its operation without the required financial resp onsibility

. 75 Pa. C.S.

5 Our review of an order allowing an appeal nunc pro tunc determin es whether the trial court abused its discretion or committed an error of law. Department of Transportation, Bureau of Driver Licensing v. Kruc , 557 A.2d 443, 445 n. 6 (Pa. Cmwlth. 1989). Abuse of discretion represents “a manifestly unreasonable exercise of judgment, or a final result that evidences partiality, prejudice, bias, or ill

- will.” Centrum Prime Meats, Inc. v. Pennsylvania Liquor Control Board, 455 A.2d 742, 745 ( Pa. Cmwlth

. 1983) (citing Mielcuszny v. Rosol, 176 A. 236, 237 (Pa. 1934)). Our review in a driver ’ s license suspension appeal determin es whether the trial court ’ s findings are supported by competent evidence and whether the trial court committed an error of law or abused its discretion. Tirado v. Department of Transportation, Bureau of Driver Licensing
, 876 A.2d 1082, 1085 n. 6 (Pa. Cmwlth. 2005).9

§178 6(d). Licensee maintains that he offered “clear and unequivocal evidence” to rebut these claims. Licensee reasonably believed that “the suspension was for
Groundworks and not for him.” Licensee Brief at 5, 8. Stated oth erwi se, Licensee argues that PennDOT’s suspension notice applied only to Groundworks’ vehicle registration. Generally, a licensee has thirty days from the mailing date of the notice of suspension to file an appeal to the court of common pleas . 42 Pa. C.S. §5571(b)

. 6 Failure to file an appeal within the 30

- day period deprives the court of common pleas of subject matter jurisdiction over the appeal. Hudson v. Department of Transportation, Bureau of Driver Licensing , 830 A .2d 594, 598 (Pa. Cmwlth . 2003). Nevertheless, jurisdiction may be extended in extraordinary circumstances :

[S]tatutory appeal periods are mandatory and may not be extended as a matter of grace or mere indulgence. By allowing a licensee to file a late appeal, the trial court ex tends the time in which an appeal may be filed, thereby extending itself jurisdiction it would not otherwise have. Such an extension is appropriate only when the licensee proves that either fraud or an administrative breakdown cause d the delay in filing t he appeal.

Id. ( internal citations omitted) (emphasis added)

. See also Baum v. Department of Transportation, Bureau of Driver Licensing, 949 A.2d 345, 348 (Pa. Cmwlth. 2008 ) ( late appeal must relate to “non

- negligent circumstances

. ” )

.

6 Section 5571(b) of the Judicial Code states : Except as otherwise provided in subsections (a) and (c) and in section 5 571.1 (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)

.10 In sum , an appeal nunc pro tunc is permitted where a licensee shows: (1) the licensee’s notice of appeal was filed late as a result of non

- negligent circumstances, either as they relate to the licensee or the licensee’ s counsel; (2) the
licensee filed the notice of appeal s hortly after the expiration date; and (3) the appellee was not prejudiced by the delay. Baum , 949 A.2d at 348 (citing Criss v.
Wise, 781 A.2d 1156 ( Pa. 2001) )

. T he Supreme Court has cautioned that allowing an appeal nunc pro tunc based on non

- negligent circumstances “ is meant to apply only in unique and compelling cases .” Criss
, 781 A.2d at 1160.

As noted above, the Superior Court directed the trial court “ to conduct a hearing in the driver’s license suspension matter, at which time the timeliness and merits of [Licensee]’s appeal in that case may be explored

. ” Commonwealth v.
Zukos , (Pa. Super., No. 1929 MDA 2014, filed August 9, 2016) slip. op. at 4; R.R. 123a (emphasis added). The trial court hel d this hearing on January 31, 2017.

A cknowledging that the timeliness of the license suspension appeal

“ remains an issue,” 7 N.T. 1/31/2017 at 15

- 16, R.R. 133a, the trial court based its decision upon “the prior record.” N.T. 21; R.R. 134a. In its opinion and order dated February 9, 2017, sustain ing Licensee’s license suspension appeal , the trial court
concluded that Licensee’s appeal was “timely” without explanation

. Trial Court op.

at 1.

A n unc pro tunc appeal is allowed where “fraud or an a dministrative [or judicial] breakdown cause[d] the delay in filing the appeal.” Baum, 949 A.2d at
348

. Licensee asserts that a breakdown in the administrative p rocess occurred
because PennDOT sent two notices

– one to Groundworks Landscaping and another

7 The grant of nunc pro tunc relief is a “question of subject matter jurisdiction,” which “ may be raised at any time, even on appeal, by the parties or by the court sua sponte

. ” Department of Transportation, Bureau of Driver Licensing v. Gelormino , 636 A.2d 224, 226 (Pa. Cmwlth. 1993).11

to him

– “blaming both for the same violation.” Licensee Brief at 8. Licensee

attributes his delay in filing the appeal to the confusion caused by PennDOT’s two
notices. Licensee Brief at 5. Because evidence was necessary to support Licensee’s claim of confusion, the trial court should have conducted a hearing

.

We hold that the trial court erred in allowing Licensee’s appeal nunc
pro tunc without an evidentiary record . As we explained in Department of Transportation, Bureau of Driver Licen sing v. Schillaci , 639 A.2d 924, 925

- 26 (Pa. Cmwlth. 1994) , a hearing on the substantive merits of a licensee’s appeal cannot negate a trial court’s error in failing to first hold a hearing on whether the licensee
could appeal nunc pro tunc

. Where nunc pr o tunc relief is improperly granted, the
trial court lacks jurisdiction to consider the merits of Licensee’s appeal. Id. at 926.

For these reasons, we vacate the trial court’s order sust aining
Licensee’s license suspension appeal and remand this matter for a hearing on whether Licensee should be granted leave to appeal nunc pro tunc

. 8

_____________________________________ MARY HANNAH LEAVITT, President Judge

8 Because we vacate and remand, we do not reach PennDOT’s allegation of error related to the trial court’s review of the merits of the a ction.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Stanley Joseph Zukos :
:
v. : No. 372 C.D. 2017

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

Appellant :

O R D E R
AND NOW, this 15 th day of March , 2018, the order of the Court of Common Pleas of Luzerne County, dated February 9, 2017, in the above

- captioned
matter, is VACATED, and the matter is REMANDED for further proceedings

consistent wit h the attached opinion

.

Jurisdiction relinquished.

_____________________________________ MARY HANNAH LEAVITT, President Judge