          IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Patrick J. Doheny, Jr.,                          :
                                                 :
                               Appellant         :
                                                 :
                v.                               :    No. 2019 C.D. 2014
                                                 :
Commonwealth of Pennsylvania,                    :    Argued: November 16, 2015
Department of Transportation,                    :
Bureau of Driver Licensing                       :



BEFORE:         HONORABLE BERNARD L. McGINLEY, Judge
                HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                                        FILED: December 23, 2015


      Patrick J. Doheny, Jr. (Licensee), an attorney representing himself, appeals
from an October 17, 2014 Order of the Court of Common Pleas of Allegheny
County (trial court) dismissing Licensee’s appeal of the one-year suspension,
pursuant to Section 3804(e)(2)(i) of the Vehicle Code,1 of his operating privilege,

      1
          75 Pa. C.S. § 3804(e)(2)(i). Section 3804(e) provides, in relevant part, as follows:

      (e) Suspension of operating privileges upon conviction.--

           (1) The department shall suspend the operating privilege of an individual
           under paragraph (2) upon receiving a certified record of the individual's
           conviction of or an adjudication of delinquency for:
                                                                                   (Continued…)
effective August 7, 2014, as a result of his conviction for violating Section 3802(b)
of the Vehicle Code2 prohibiting driving under the influence – high rate of alcohol
(DUI). Because we conclude that Licensee’s appeal to the trial court was untimely
and that the trial court erred in granting Licensee allowance to appeal nunc pro
tunc, we vacate the trial court’s Order and reinstate Licensee’s operating privilege
suspension.


       On January 23, 2013, Licensee was convicted of two violations of the
Vehicle Code arising out of a motor vehicle accident: (1) aggravated assault by
vehicle while driving under the influence (AA-DUI), a violation of Section 3735.1

               (i) an offense under section 3802; or
               (ii) an offense which is substantially similar to an offense enumerated
               in section 3802 reported to the department under Article III of the
               compact in section 1581 (relating to Driver's License Compact).

            (2) Suspension under paragraph (1) shall be in accordance with the
            following:
               (i) Except as provided for in subparagraph (iii), 12 months for an
               ungraded misdemeanor or misdemeanor of the second degree under
               this chapter.

75 Pa. C.S. § 3804(e).

       2
           75 Pa. C.S. § 3802(b). Section 3802(b) provides as follows:

       (b) High rate of alcohol.--An individual may not drive, operate or be in actual
       physical control of the movement of a vehicle after imbibing a sufficient amount
       of alcohol such that the alcohol concentration in the individual’s blood or breath
       is at least 0.10% but less than 0.16% within two hours after the individual has
       driven, operated or been in actual physical control of the movement of the
       vehicle.

Id.



                                                 2
of the Vehicle Code3; and (2) DUI, a violation of Section 3802(b) of the Vehicle
Code.         The Department of Transportation, Bureau of Driver Licensing
(Department), subsequently sent Licensee two separate notices imposing two
separate one-year suspensions of Licensee’s operating privilege. Both notices
listed a mailing date of July 3, 2013. According to the first notice, the Department
suspended Licensee’s operating privilege for one-year, effective August 7, 2013,
pursuant to Section 1532(a) of the Vehicle Code,4 as a result of Licensee’s
conviction for AA-DUI.5 (AA-DUI Suspension Notice, S.R.R. at 6b.) The second
notice stated that Licensee’s operating privilege was suspended for one year,
effective August 7, 2014, as a result of his DUI conviction. (DUI Suspension


        3
            75 Pa. C.S. § 3735.1. Section 3735.1 provides as follows:

        (a) Offense defined.--Any person who negligently causes serious bodily injury to
        another person as the result of a violation of section 3802 (relating to driving
        under influence of alcohol or controlled substance) and who is convicted of
        violating section 3802 commits a felony of the second degree when the violation
        is the cause of the injury.

Id.

        4
            75 Pa. C.S. § 1532(a). Section 1532(a) provides, in relevant part:

        (a) One-year suspension.--The department shall suspend the operating privilege
            of any driver for one year upon receiving a certified record of the driver’s
            conviction of or an adjudication of delinquency based on . . .
                                                   ....
               (3) Any violation of . . . Section 3735.1(relating to aggravated assault by
        vehicle while driving under the influence).

Id.

        5
          Licensee did not appeal the one-year suspension of his operating privilege imposed as a
result of his AA-DUI conviction to the trial court.

                                                   3
Notice, S.R.R. at 2b.) The second notice further stated that “[t]his suspension is in
addition to any other suspensions already on your record.” (DUI Suspension
Notice 2, S.R.R. at 2b.)


      On September 17, 2013, Licensee filed a Petition to File Appeal Nunc Pro
Tunc (Petition) with the trial court. The Petition states that Licensee’s appeal was
not timely filed because Licensee received the two suspension notices on the same
day and “[I]t was not clear that [his] license was being suspended for two years, as
opposed to one until subsequent restoration letter [was] received.” (Petition, C.R.
at Item 2.) A hearing on the Petition was held before the trial court on September
26, 2013. The entire transcript of the proceeding reads as follows.

             THE CLERK: [Calling the case number]. This is a nunc pro
      tunc request.

             [COUNSEL FOR THE DEPARTMENT]:                     [Licensee] is
      seeking leave to file a late appeal from a one-year suspension of his
      driving privileges due to his conviction for an ungraded misdemeanor
      violation of Section 3802(b) of the Vehicle Code, which is driving
      under the influence with a high BAC. Mainly, a BAC of at least .01,
      but less than .16 and/or seeking a late appeal of a one-year suspension
      for a violation of [Section] 3735.1 of the Vehicle Code, which is
      aggravated assault by a vehicle while driving under the influence.
             The dates of these offenses are the same. They arose out of a
      single episode.

             THE COURT:         But each are a consecutive one year[?]

            [COUNSEL FOR THE DEPARTMENT]: The statute requires
      that they run consecutively. And, in fact, I will hand up the
      documents and the Court will note . . . [the two suspension notices]
      both identify separate sections of the Vehicle Code that [Licensee]
      was convicted of. And they also indicate different effective dates.
      The aggravated assault by vehicle while DUI indicates an effective
      date of [. . .] August 7, 2013.
                                         4
              The notice of the one-year suspension for the DUI conviction
       indicates an effective date of August 7, 2014.
              [Licensee]’s confusion is that these were to run concurrently for
       him receiving a single suspension for these two offenses due to his
       inability to pick up on the fact that there were two different effective
       dates.

              THE COURT: So, your reason for asking for a nunc pro tunc
       order to file is that you were confused. You wouldn’t have appealed
       if it was one year and now you learned that it was two, is that correct?

             [LICENSEE]: Correct, Your Honor. I do not contest that I’m
       subject to a one-year suspension. That was certainly part of my
       sentencing.

             THE COURT: The certification marked as Exhibit 1 is
       admitted. Anything else?

              [LICENSEE]: No, Your Honor.

              [COUNSEL FOR THE DEPARTMENT]: No, Your Honor.

              THE COURT: I will grant it.

              (Hearing concludes).

(Hr’g Tr. at 2-4, September 26, 2013, S.R.R. at 22b-24b.) Licensee then filed his
statutory appeal challenging his operating privilege suspension related to his DUI
conviction with the trial court on the same day. After a hearing on the merits, the
trial court dismissed Licensee’s appeal6 and this appeal followed.


       The first issue before this Court is whether the trial court erred or abused its
discretion by granting Licensee’s Petition and permitting him to appeal, nunc pro


       6
          The trial court rejected Licensee’s argument that the operating privilege suspensions
arising out of his two criminal convictions merged into a single one-year suspension.

                                              5
tunc, the one-year suspension of his operating privilege.7 The Department argues
that Licensee did not present any competent evidence to prove that the 46 day
delay in filing the appeal of his suspension was due to fraud or an administrative or
judicial breakdown. In response, Licensee asserts that the trial court did not err or
abuse its discretion because the Department never raised any objection before,
during, or after the trial court’s grant of nunc pro tunc relief and, in fact, consented
to the granting of nunc pro tunc relief in the hearing by making his case for him.
Licensee asserts that he would have given the trial court additional reasons
warranting the grant of nunc pro tunc relief if the Department had not spoken for
him during the hearing. Licensee further contends that because precedent from this
Court made it clear at the time his operating privilege was suspended in July 2013
that he should have received only one suspension, and the Department was aware
of this precedent, the Department’s imposition of two consecutive suspensions
constituted a fraud upon Licensee and justified nunc pro tunc relief.


       Initially, we note that a trial court’s grant of a petition to file an appeal nunc
pro tunc is a question of jurisdiction that cannot be waived.                   Department of
Transportation, Bureau of Driver Licensing v. Kruc, 557 A.2d 443, 445 (Pa.
Cmwlth. 1989).         The fact that the Department did not vigorously oppose
Licensee’s Petition, or appears to have consented to the Petition, does not provide
the basis for jurisdiction.           See Mastrocola v. Southeastern Pennsylvania


       7
          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).



                                                6
Transportation Authority, 941 A.2d 81, 88 (Pa. Cmwlth. 2008) (stating that
“parties [cannot] confer subject matter jurisdiction on a court or tribunal by
agreement or stipulation”).


      Section 1550(a) of the Vehicle Code provides:

      Any person who has been denied a driver’s license, whose driver’s
      license has been canceled, whose commercial driver’s license
      designation has been removed or whose operating privilege has been
      recalled, suspended, revoked or disqualified by the department shall
      have the right to appeal to the court vested with jurisdiction of such
      appeals by or pursuant to Title 42 (relating to judiciary and judicial
      procedure).


75 Pa. C.S. § 1550(a). The relevant section of Title 42, Section 5571(b) of the
Judicial Code, states that “an appeal from a tribunal or other government unit to a
court . . . must be commenced within 30 days after the entry of the order from
which the appeal is taken . . . .” 42 Pa. C.S. § 5571(b). Further, Section 5572 of
the Judicial Code provides that the “date of mailing if service is by mail, shall be
deemed to be the date of entry of the order.” 42 Pa. C.S. § 5572. We have
interpreted these provisions as requiring a licensee to file an appeal within thirty
days of the date on which the Department mails notice of the suspension. See
McGraw v. Department of Transportation, Bureau of Traffic Safety, 552 A.2d
1165, 1166 (Pa. Cmwlth. 1989) (stating that “[i]f an appeal is not filed within the
statutorily mandated period of thirty days, the court has no jurisdiction to hear the
appeal of the suspension”).




                                         7
      Here, the Department’s two suspension notices had a mailing date of July 3,
2013. Licensee filed his Petition on September 17, 2013, far beyond the thirty-day
appeal period. When a party has not filed a timely notice of appeal, a court hearing
the matter on appeal “may grant a party equitable relief in the form of an appeal
nunc pro tunc in certain extraordinary circumstances.” Criss v. Wise, 781 A.2d
1156, 1159 (Pa. 2001). A licensee seeking allowance of appeal nunc pro tunc “has
the burden to prove that his delay in filing his appeal was caused by fraud or a
breakdown in the administrative process.”            Anderson v. Department of
Transportation, Bureau of Driver Licensing, 744 A.2d 825, 827 (Pa. Cmwlth.
2000). Courts have also granted allowance of appeal nunc pro tunc when the delay
is due to non-negligent circumstances. Schofield v. Department of Transportation,
Bureau of Driver Licensing, 828 A.2d 510, 512 (Pa. Cmwlth. 2003). Yet, such
“non-negligent circumstances is limited to unique and compelling cases in which
an appellant has clearly established that he attempted to file an appeal but was
precluded from doing so due to unforeseeable and unavoidable events.” Id.


      A review of the September 26, 2013 hearing transcript and Licensee’s
Petition shows that Licensee did not meet his burden to justify allowance of appeal
nunc pro tunc. Although we find it peculiar that it was the Department who
summarized the Petition at the hearing when it was Licensee’s burden to justify
nunc pro tunc relief, Licensee did not take the opportunity afforded to him to
provide additional argument on his Petition.       The only justification raised by
Licensee in his Petition and at the hearing to explain the delay in filing his appeal,
was that Licensee was confused and did not understand that the Department
imposed two suspensions of his operating privilege because both notices were


                                          8
received on the same day. Additionally, the trial court asked Licensee if he had
anything to add prior to granting the Petition, to which Licensee responded “No.”8
(Hr’g Tr. at 3-4, S.R.R. at 23b-24b.) As such, it appears that Licensee was given
the opportunity during the hearing to provide additional reasons as to why he
believed he was entitled to nunc pro tunc relief which he did not utilize.


       A misunderstanding rooted in a licensee’s failure to read a suspension notice
carefully is not a basis for allowing an appeal nunc pro tunc and the record does
not contain any evidence showing either extraordinary or non-negligent
circumstances. If Licensee acted with reasonable diligence and read the notices
carefully he would have realized that he received two one-year suspensions that
were to run consecutively. Consequently, we must conclude that the trial court
erred in allowing the nunc pro tunc appeal.


       Having concluded that the trial court erred by granting Licensee’s Petition,
we must forgo consideration of the merits of Licensee’s appeal. Consequently, the
trial court’s Order is vacated and Licensee’s one-year suspension of his operating
privilege is reinstated.



                                              ________________________________
                                              RENÉE COHN JUBELIRER, Judge


       8
          Licensee’s argument that the Department defrauded him by imposing two suspensions
when the law at the time only required one suspension is waived as it was not raised before the
trial court. Thoman v. Department of Transportation, Bureau of Driver Licensing, 965 A.2d 385,
389 (Pa. Cmwlth. 2009).

                                              9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Patrick J. Doheny, Jr.,                 :
                                        :
                          Appellant     :
                                        :
             v.                         :   No. 2019 C.D. 2014
                                        :
Commonwealth of Pennsylvania,           :
Department of Transportation,           :
Bureau of Driver Licensing              :


                                      ORDER



      NOW, December 23, 2015, the October 17, 2014 Order of the Court of
Common Pleas of Allegheny County, entered in the above-captioned matter, is
VACATED and Patrick J. Doheny, Jr.’s operating privilege suspension is
REINSTATED.



                                        ________________________________
                                        RENÉE COHN JUBELIRER, Judge
