IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Justin Mills :

: No. 88 C.D. 2015

v. :

: Submitted: June 26, 2015

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing, :

Appellant :

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: August 4, 2015

The Department of Transportation, Bureau of Driver Licensing 

(Department) appeals from the January 8, 2015 order of the Court of Common Pleas 

of Delaware County (trial court), which sustained the statutory appeal of Justin Mills 

(Licensee) from the Department’s suspension of his driving privilege, effective 

January 25, 2013. The Department contends that the trial court erred in granting 

Licensee’s petition to appeal nunc pro tunc. For the reasons that follow, we reverse.

The Department issued a notice of suspension informing Licensee that 

his operating privileges were being suspended for 18 months pursuant to section 1547 

of the Vehicle Code, 75 Pa.C.S. §1547, for refusing to submit to chemical testing on 

May 26, 2012. (Reproduced Record (R.R.) at 52a-53a.) The notice bore a mail date 
2

of June 20, 2012, and Licensee’s correct address, 106 Woodland Way, Millsboro, 

Delaware. 

On July 1, 2014, Licensee filed a petition to appeal his suspension nunc 

pro tunc. (R.R. at 8a-9a.) Licensee alleged in the petition that he never received the 

June 20, 2012 notice from the Department. Rather, Licensee asserted that he first 

learned of the suspension for a refusal to submit to chemical testing in May 2014, 

when he contacted the Department to inquire about the time remaining on the 

suspension of his license for other offenses, specifically, a May 23, 2012 violation of 

section 3802(d) of the Vehicle Code, 75 Pa.C.S. §3802(d) (driving under the 

influence of a controlled substance), and a May 26, 2012 violation of section 1543 of 

the Vehicle Code, 75 Pa.C.S §1543 (driving while operating privilege is suspended). 

(R.R. at 8a.) Licensee asserted that the Department’s failure to properly notify him of 

the suspension constituted a material breakdown in administrative operations 

sufficient to justify an appeal nunc pro tunc. (Petition, ¶¶3, 4, 7-9, R.R. at 8a-9a.) 

The trial court held a hearing on September 2, 2014. Initially, the 

Department’s attorney, Joanne Faul, Esquire, incorrectly stated that the Department 

sent Licensee notice on September 26, 2012, informing him that his license was being 

suspended pursuant to section 1547 of the Vehicle Code for refusing to submit to 

chemical testing on May 26, 2012. The Department then submitted into evidence a 

packet of certified documents. (R.R. at 44a-64a.) The documents included two 

notices of suspension dated September 26, 2012, one for the May 23, 2012 violation 

of section 3802(d) of the Vehicle Code and another for the May 26, 2012 violation of 

section 1543 of the Vehicle Code.

1

 The June 20, 2012 notice at issue here for 

 

1 Both of the September 26, 2012 notices were addressed to Licensee at 106 Woodland Way,

Willsboro, Delaware. (R.R. at 45a-51a.).
3

refusing chemical testing also was included, as was a December 21, 2011 suspension 

notice sent to Licensee at 731 Colwell Road, Swarthmore, Pennsylvania, for a prior 

violation of section 3802(d). (R.R. at 25a, 52a-53a, 55a-56a.)

Licensee’s attorney, Michael Burns, Esquire (Counsel), first stated that 

Licensee “had pled guilty to a Second Offense DUI . . . . And . . . the nature of the 

charge was the drugs. So, there was no refusal that was even possible. He had to 

have had blood drawn at that time.”2 (R.R. at 26a.) Counsel noted that Licensee is a 

Delaware-licensed driver and has never been licensed in Pennsylvania. (Id.)

According to Counsel, Licensee contacted the Department sometime in 

2014 regarding his other suspensions and discovered that the suspension period was 

18 months longer than he expected due to an additional suspension for refusal to 

submit to chemical testing. Counsel added that he personally contacted the 

Department, asked where notice of the section 1547 suspension had been sent, and 

was told that it had been sent to the 731 Colwell Road, Swarthmore, Pennsylvania

address. Counsel stated that he asked for proof of mailing but did not receive 

anything. However, Counsel acknowledged that the June 20, 2012 notice submitted

at the hearing reflected Licensee’s correct address in Millsboro, Delaware. (R.R. at 

26a-27a.)

The trial court asked if the Department had anything to add, and the 

following exchange occurred: 

 

2

The “Second Offense DUI” occurred on May 23, 2012, (R.R. at 51a); the violation of 

section 1547 (refusal of testing) occurred on May 26, 2012. (R.R. at 47a.) See Department Exhibit 

number 6, a form DL-26, dated May 26, 2012, which sets forth Licensee’s correct name, address, 

date of birth, and driver’s license number and an illegible signature where “Signature of Operator” 

is requested. (R.R. at 54a.)
4

[Attorney Faul]: Will there be any evidence being 

presented by [Licensee], Your Honor?

[Trial court]: Other than [Counsel’s] testimony that . . . 

[Attorney Faul]: Was – testimony? Do I get to cross 

examine?

[Trial court]: I mean [Counsel’s] representation . . . 

* * *

[Attorney Faul]: Your Honor, I thought that was opening 

argument. I’m going to object to anything that [Counsel] is 

relaying to the Court as far as hearsay, as far as anything 

anybody from [the Department] told him. . . . And I believe 

it is [Licensee’s] burden to establish, through testimony and 

evidence, that [he] is entitled to nunc pro tunc relief. 

(R.R. at 28a-29a.) 

The trial court then asked how Licensee would receive notice if it was 

sent to the Pennsylvania address, and Attorney Faul responded that the notice was 

sent to the Millsboro, Delaware address, as reflected by the Department’s 

documentation. Counsel interjected that he had been informed by the Department

that the notice was sent to a different address. (R.R. at 29a-30a.) The exchanges 

continued:

[Trial court]: Here it is. 731 Colwell Road, Swarthmore.

[Counsel]: There you go, that’s what it was.

[Attorney Faul]: Where?

[Trial court]: In your exhibit. I’m looking at it. Was that 

the address you were given?

[Counsel]: Yes, Your Honor. Thank you for refreshing my 

memory. 
5

[Trial court]: Number seven.[3]

[Attorney Faul]: And then it was resent, Your Honor, on 

June 20 of 2012 to 106 Woodland Way, Delaware and 

that’s [exhibit number] 5. I’m sorry, Your Honor, that 

looks like it’s a different refusal.[4]

[Counsel]: Yeah, that was the issue, Your Honor. And that 

was the reason for the nunc – otherwise it would have been 

timely filed, because there are certainly facts that would 

dispute the refusal in and of itself. 

[Trial court]: I think you’re right, [Counsel], because 

they’re two different letters. 

[Attorney Faul]: They are, Your Honor, because they’re 

from two different refusals.

[Trial court]: I’m going to grant your petition, [Counsel].

[Counsel]: Thank you, Your Honor.

[Attorney Faul]: There will be no testimony from 

[Licensee], Your Honor, about his address or where he 

lived?

[Trial court]: No, I’m using the [Department’s] evidence.

(R.R. at 30a-32a) (emphasis added.) The trial court noted the 30-day appeal period 

and concluded the hearing. That same day, the trial court entered an order granting 

Licensee’s petition to appeal nunc pro tunc. 

 

3

Exhibit No. 7 is the December 21, 2011 suspension notice. (R.R. at 55a.)

4

Exhibit No. 5 is the June 20, 2012 notice. (R.R. at 52a.)
6

Thereafter, because a police officer did not attend two scheduled 

hearings, a different trial judge granted Licensee’s statutory appeal and rescinded his 

license suspension. (Trial court op. at 1-2.) 

The Department now appeals to this Court,5asserting that the trial court 

abused its discretion in granting Licensee nunc pro tunc relief because Licensee

failed to meet his burden of proving that his untimely filing was due to fraud or a 

breakdown in the administrative process.

A licensee must file an appeal within 30 days after a suspension notice is 

mailed. Sections 5571(b) and 5572 of the Judicial Code, 42 Pa.C.S. §§5571(b), 5572. 

A statutory appeal period is mandatory and may not be extended as a matter of grace 

or mere indulgence. Union Electric Corp. v. Board of Property Assessment, Appeals 

& Review of Allegheny County, 746 A.2d 581, 583 (Pa. 2000). An appeal nunc pro 

tunc may be permitted only where a delay in filing the appeal was caused by 

extraordinary circumstances involving fraud or some breakdown in the administrative 

process, such as where the Department mails a suspension notice to an incorrect 

address, or non-negligent circumstances related to an appellant, his counsel, or a third 

party. Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130, 1131

(Pa. 1996); Ercolani v. Commonwealth, 922 A.2d 1034, 1037 (Pa. Cmwlth. 2007);

McCrea v. Department of Transportation, 783 A.2d 380, 384 (Pa. Cmwlth. 2001). In 

addition, the appellant must establish that: (1) the appeal was filed within a short 

period of time after learning of and having an opportunity to address the 

 

5 Our scope of review of a trial court’s decision permitting an appeal nunc pro tunc is 

limited to determining whether the trial court committed an error of law or abused its discretion. 

Anderson v. Department of Transportation, Bureau of Driver Licensing, 744 A.2d 825, 827 n.2 (Pa. 

Cmwlth. 2000).
7

untimeliness; (2) the elapsed time period is of very short duration; and (3) the 

appellee has not been prejudiced by the delay. Cook, 671 A.2d at 1132. The burden 

of establishing a basis for permitting an appeal nunc pro tunc is on the licensee. 

Anderson v. Department of Transportation, Bureau of Driver Licensing, 744 A.2d 

825 (Pa. Cmwlth. 2000). 

Here, Licensee appealed a suspension notice with a mail date of June 20, 

2012. Under the mailbox rule, proof of mailing raises a rebuttable presumption that 

the mailed item was received. Department of Transportation, Bureau of Driver 

Licensing v. Grasse, 606 A.2d 544, 546 (Pa. Cmwlth. 1991). The Department’s 

certified copy of the notice, bearing a mailing date of June 20, 2012, raised a 

rebuttable presumption that Licensee received notice that his license was being 

suspended for refusing to submit to chemical testing. (R.R. at 52a-53a.) Department 

of Transportation, Bureau of Traffic Safety v. Warenczuk, 636 A.2d 1225, 1226 (Pa. 

Cmwlth. 1991). “Further, the Department’s certification of a driving record showing 

that notice was given is competent to establish that notice was sent.” Grasse, 606 

A.2d at 545-46. Importantly, Counsel acknowledged that the June 20, 2012 notice 

contained Licensee’s correct address.6 (R.R. at 27a.)

Licensee offered no evidence to demonstrate that the delay in filing his 

appeal was caused by fraud or a breakdown in the administrative process to support 

his petition. It is well settled that an attorney’s statements cannot be considered as 

evidence. Anderson v. Department of Transportation, Bureau of Driver Licensing, 

744 A.2d 825, 827 (Pa. Cmwlth. 2000). Moreover, even if it was competent 

 

6

“An attorney is the agent of his client and, as such, acts he performs and statements he 

makes within the scope of his employment and authority are binding on his client.” Walck v. 

Department of Transportation, Bureau of Driver Licensing, 625 A.2d 1276, 1279 (Pa. Cmwlth. 

1993).
8

testimony, Counsel’s complaint that he was given incorrect information when he 

called in May 2014 had no bearing on Licensee’s failure to appeal from a suspension 

that had been issued two years earlier. We also note that Licensee did not file his 

petition to proceed nunc pro tunc until July 1, 2014, at least one month after learning 

of the suspension.

We are cognizant that when an appellant asserts that non-negligent 

circumstances caused an untimely appeal, due process generally requires a court to 

conduct an evidentiary hearing to allow the appellant an opportunity to prove the 

existence of those circumstances. City of Philadelphia v. Trill, 906 A.2d 663, 666 

(Pa. Cmwlth. 2006). The essential elements of due process are notice and the 

opportunity to be heard in a full and fair hearing before an impartial decision-maker. 

Abramovich v. Pennsylvania Liquor Control Board, 416 A.2d 474, 476 (Pa. 1980). 

Licensee does not dispute that these elements were satisfied, nor does he suggest that 

the development of any additional facts would lend further support to his position. 

Instead, in response to the Department’s arguments, Licensee asserts that 

the trial court properly relied on the Department’s own records to establish his right 

to a nunc pro tunc appeal. Licensee cites the trial court’s references to the evidence 

but, like the trial court, mischaracterizes the documents at issue. Exhibit number 7, 

bearing the Swarthmore, Pennsylvania address, is a December 21, 2011 notice of 

suspension resulting from Licensee’s “conviction of violating Section 3802D of the 

Vehicle Code DUI CONTROLLED SUBSTANCES on 06/09/2011.” (R.R. at 55a.) 

Exhibit number 5, the document referenced by Attorney Faul, is a June 20, 2012 

notice which bears Licensee’s Millsboro, Delaware address and identifies Licensee’s 

“violation of Section 1547 of the Vehicle Code, CHEMICAL TEST REFUSAL, on 

05/26/2012.” (R.R. at 52a.) Although the verbal exchanges of record do not 
9

exemplify clarity, the Department submitted certified documents that on their face set 

forth the relevant facts. 

In sum, Licensee alleged in his petition that his untimely appeal was 

caused by the Department’s failure to provide him proper notice of the section 1547 

suspension, a material breakdown in the administrative process justifying the 

allowance of a nunc pro tunc appeal. (R.R. at 9a.) However, Licensee offered no 

competent evidence in support of those allegations, and, in fact, acknowledged that 

the June 20, 2012 suspension notice – the only document at issue in this case –

reflected his correct address. Whether or not the trial court misconstrued Counsel’s 

statements as evidence, the trial court erred in failing to recognize the presumption of 

receipt created by the Department’s evidence. Licensee bore the burden of 

demonstrating that non-negligent circumstances caused the delay in filing his appeal, 

and his mere assertion that the suspension notice was not received, without 

corroboration, is insufficient to overcome the presumption of receipt. Donegal 

Mutual Insurance Co. v. Insurance Department, 719 A.2d 825, 827 (Pa. Cmwlth. 

1998). 

Accordingly, we reverse the trial court’s order permitting a nunc pro 

tunc appeal and reinstate the license suspension imposed by the Department under 

section 1547 of the Vehicle Code, as set forth in the notice of suspension dated June 

20, 2012.

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Justin Mills :

: No. 88 C.D. 2015

v. :

:

Commonwealth of Pennsylvania, :

Department of Transportation, :

Bureau of Driver Licensing, :

Appellant :

ORDER

AND NOW, this 4

th day of August, 2015, the January 8, 2015 order of 

the Court of Common Pleas of Delaware County is reversed. 

________________________________

PATRICIA A. McCULLOUGH, Judge