          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
              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.
                                              2
                 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).


                                                  3
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).
                                                4
              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 above-
quoted 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.
                                              5
              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

                                           6
             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]




                                           7
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).


                                                8
§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).
                                               9
              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).
                                               10
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.
                                            11
          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              :


                                    ORDER
            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
