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 Department 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. We vacate and remand.

On September 24, 2010, a truck registered to Groundworks 

Landscaping, a sole proprietorship, was involved 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 Landscaping, 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 operation 
2

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 Testimony 

(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 financial 

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) of 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 suspend 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 registration 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, January 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 notified 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. Thereafter, the trial court ordered 

Licensee’s appeal “continued generally.” Trial Court Disposition Sheet, 

10/20/2014; R.R. 14a. 

In the meantime, Licensee had appealed three separate convictions for 

the summary offense of driving with a suspended license in violation of Section 

1543(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 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.

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 an 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 supersedeas in effect when Licensee was charged with the summary offenses 

under Section 1543(a) of the Vehicle Code. Licensee appealed to the Superior Court.

While Licensee’s appeals were pending before the Superior Court, the 

trial court entered an order on 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 license 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-appearance 

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 appeals.

75 Pa. C.S. §1550(b). 
5

Order. The letter seems to suggest that compliance with the 

Order may be 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 suspension appeal.

One and a half years later, on June 29, 2016, Licensee filed a motion to 

relist hearing. Licensee asserted that upon receiving the trial court’s January 16, 

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 abovequoted January 27, 2015, 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 Court 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. 

Licensee 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 [Landscaping] 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. 23a. 
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 plow truck for [w]inter purposes” and that he “had no 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. 

Licensee reiterated his argument that the trial court should “accept 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, hearing, the Superior Court ruled on 

Licensee’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 court shall issue 
7

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, 2017, 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 acknowledged that PennDOT’s notice of suspension stated that 

any appeal had 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 

Section 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 accident, 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. PennDOT 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 there 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, any 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 registration 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 responsibility. 75 Pa. C.S. 

 

5 Our review of an order allowing an appeal nunc pro tunc determines 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 determines 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

§1786(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 otherwise, 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 extends 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 caused the delay in filing the 

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 5571.1 

(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 shortly 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)). The 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 held this hearing on January 31, 2017.

Acknowledging 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, sustaining Licensee’s license suspension appeal, the trial court 

concluded that Licensee’s appeal was “timely” without explanation. Trial Court op. 

at 1. 

A nunc pro tunc appeal is allowed where “fraud or an administrative 

[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 process 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 Licensing 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 pro 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 sustaining

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 action.
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 15th 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 with the attached opinion.

Jurisdiction relinquished. 

 _____________________________________

 MARY HANNAH LEAVITT, President Judge