           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shaunnon Barnes                              :
                                             :
                v.                           : No. 36 C.D. 2019
                                             : Submitted: August 16, 2019
Commonwealth of Pennsylvania,                :
Department of Transportation,                :
Bureau of Driver Licensing,                  :
                                             :
                              Appellant      :

BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ROBERT SIMPSON, Judge1
               HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                              FILED: October 16, 2019


               The Department of Transportation, Bureau of Driver Licensing (DOT)
appeals the order of the Allegheny County Court of Common Pleas (trial court)
sustaining the statutory appeal of Shaunnon Barnes (Licensee) from a 12-month
suspension of her operating privilege imposed by DOT pursuant to Section
1547(b)(1)(i) of the Vehicle Code2 for failure to submit to chemical testing. Because
Licensee’s appeal was untimely and she failed to demonstrate circumstances




       1
        This matter was assigned to this panel before September 1, 2019, when Judge Simpson
assumed the status of senior judge.

       2
          75 Pa. C.S. §1547(b)(1)(i). This section authorizes DOT to suspend the driving privilege
of a licensee for 12 months as a consequence of her refusal to submit to chemical testing in
connection with her arrest for violating Section 3802 of the Vehicle Code, 75 Pa. C.S. §3802
(relating to driving under the influence of alcohol or controlled substance (DUI)).
justifying an appeal nunc pro tunc, we vacate the trial court’s order and remand with
directions to quash Licensee’s untimely appeal.
              On June 6, 2018, DOT mailed Licensee a notice informing her that her
operating privilege was suspended for 12 months, effective July 11, 2018, for
refusing a police officer’s request to submit to a chemical test on May 25, 2018.
Reproduced Record (R.R.) at 5a. DOT sent the notice to Licensee’s address of
record, and the notice informed Licensee that she had 30 days to file an appeal. Id.
On July 10, 2018, two business days after the deadline to file an appeal, Licensee
filed a petition to appeal nunc pro tunc with the trial court, challenging the
suspension of her operating privilege. Id. at 4a. The trial court held a hearing on
Licensee’s petition to appeal nunc pro tunc on July 26, 2018. Id. at 13a-15a.
              At the hearing, Licensee testified that the notice of suspension was
mailed to her parents’ home, rather than to her apartment, and that she was in
Mississippi handling her uncle’s estate at the time, so she “received [the notice] late.”
Id. at 14a. Licensee said that she called her attorney, and he advised her to file a late
appeal. Id.
              Licensee agreed that the notice of suspension was mailed to the address
that Licensee provided to DOT. Id. at 15a. Licensee did not dispute that she failed
to notify DOT of her address change, as required under Section 1515(a) of the
Vehicle Code. 75 Pa. C.S. §1515(a). Additionally, DOT’s counsel argued that under
relevant appellate decisions, Licensee’s absence from home when the notice of
suspension was mailed is not grounds for granting an appeal nunc pro tunc.
Notwithstanding, the trial court granted Licensee’s petition to appeal nunc pro tunc
on July 26, 2018. Following a hearing, the trial court sustained Licensee’s statutory
appeal on the merits on December 20, 2018. R.R. at 15a-17a, 26a-29a. DOT


                                           2
appealed to this Court, arguing that the trial court erred and abused its discretion in
allowing Licensee to appeal nunc pro tunc.3, 4 We agree.
               As this Court has explained:

                      Pursuant to Sections 5571(b) and 5572 of the
               Judicial Code, a motorist has 30 days from the mailing
               date of [DOT]’s notice of suspension to file an appeal with
               the trial court. 42 Pa. C.S. §§5571(b), 5572[5]; Dep’t of
               Transp., Bureau of Driver Licensing v. Matlack, [600 A.2d
               998, 999 (Pa. Cmwlth. 1991)] (appeal must be filed within
               30 days of mailing date of suspension notice). “Appeals
               filed beyond the 30-day appeal period are untimely and
               deprive the common pleas court of subject matter
               jurisdiction over such appeals.” Dep’t of Transp., Bureau
               of Driver Licensing v. Maddesi, [588 A.2d 580, 582 (Pa.
               Cmwlth. 1991)].

                     Further, statutory appeal periods are mandatory and
               may not be extended as a matter of grace or mere
               indulgence. Stanton v. Dep’t of Transp., Bureau of Driver
               Licensing, [623 A.2d 925, 926 (Pa. Cmwlth. 1993)]. 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
               had. Id.

       3
          Our scope of review where a trial court permits an untimely appeal from a DOT decision
to be filed nunc pro tunc is limited to determining whether the trial court abused its discretion or
committed an error of law. Department of Transportation, Bureau of Driver Licensing v.
Gelormino, 636 A.2d 224, 226 (Pa. Cmwlth. 1993).

       4
         By order dated August 9, 2019, we precluded Licensee from filing an appellate brief or
participating in oral argument based on her failure to comply with our prior order of July 3, 2019,
directing her to file a brief within 14 days.

       5
          Section 5571(b) states, in relevant part, 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, in the case of an interlocutory or final order.” 42 Pa. C.S. §5571(b). In
turn, Section 5572 states, in pertinent part, that “[t]he date of service of an order of a government
unit, which shall be the date of mailing if service is by mail, shall be deemed to be the date of entry
of the order for purposes of this subchapter.” 42 Pa. C.S. §5572.
                                                  3
Hudson v. Department of Transportation, Bureau of Driver Licensing, 830 A.2d
594, 598 (Pa. Cmwlth. 2003) (footnote omitted).
            Leave to appeal nunc pro tunc is only granted in extraordinary
circumstances when a party’s failure to timely appeal is due to fraud, an
administrative breakdown in operations, or non-negligent circumstances. Id. at 598;
Schofield v. Department of Transportation, Bureau of Driver Licensing, 828 A.2d
510, 512 (Pa. Cmwlth.), appeal denied, 837 A.2d 1179 (Pa. 2003). The licensee
bears the burden of establishing the existence of such extraordinary circumstances.
Williamson v. Department of Transportation, Bureau of Driver Licensing, 129 A.3d
597, 600 (Pa. Cmwlth. 2015). The Pennsylvania Supreme Court has articulated a
narrow application of the non-negligent circumstances exception:

                   The exception for allowance of an appeal nunc pro
            tunc in non-negligent circumstances is meant to apply only
            in unique and compelling cases in which the appellant has
            clearly established that she attempted to file an appeal, but
            unforeseeable and unavoidable events precluded her from
            actually doing so.         See Cook [v. Unemployment
            Compensation Board of Review, 671 A.2d 1130, 1132 (Pa.
            1996) (granting appeal nunc pro tunc where claimant filed
            appeal four days late because he was hospitalized)]; Perry
            v. Unemployment [Compensation Board of Review, 459
            A.2d 1342, 1343 (Pa. Cmwlth. 1983)] (fact that law clerk’s
            car broke down while he was on route to the post office,
            precluding him from getting to the post office before
            closing time, was a non-negligent happenstance for
            granting appeal nunc pro tunc); Tony Grande, Inc. v.
            Workmen’s [Compensation Appeal Board (Rodriquez),
            455 A.2d 299, 300 (Pa. Cmwlth. 1983)] (hospitalization of
            appellant’s attorney for unexpected and serious cardiac
            problems ten days into twenty day appeal period was
            reason to allow appeal nunc pro tunc); Walker v.
            Unemployment [Compensation Board of Review, 461
            A.2d 346, 347 (Pa. Cmwlth. 1983)] (U.S. Postal Service’s

                                         4
              failure to forward notice of referee’s decision to
              appellant’s address, as appellant had requested, warranted
              appeal nunc pro tunc).

Criss v. Wise, 781 A.2d 1156, 1160 (Pa. 2001).
              Pursuant to Section 1540(b) of the Vehicle Code, 75 Pa. C.S. §1540(b),
DOT is required to notify a licensee of a license suspension at the “licensee’s address
of record.”     Department of Transportation, Bureau of Driver Licensing v.
Gelormino, 636 A.2d 224, 226 (Pa. Cmwlth. 1993). Section 1515(a) of the Vehicle
Code places an affirmative duty upon a licensee to notify DOT of a change of address
within 15 days of moving. 75 Pa. C.S. §1515(a). “A licensee who fails to so notify
[DOT] may not use the fact that [DOT] mailed a suspension notice to his or her old
address in [DOT]’s records as grounds for filing an untimely appeal nunc pro tunc.”
Redenbach v. Department of Transportation, Bureau of Driver Licensing, 817 A.2d
1230, 1235 (Pa. Cmwlth. 2003).
              In this case, there is no dispute that the notice was mailed to the address
provided by Licensee to DOT, and it was received by Licensee even though she was
no longer residing at that address. R.R. at 15a. Licensee’s failure to update her
address with DOT within 15 days of moving is not grounds for the granting of an
appeal nunc pro tunc. See Redenbach, 817 A.2d at 1235.
              Additionally, Licensee presented no evidence of fraud, administrative
breakdown, or non-negligent circumstances causing the appeal to be filed late.
Licensee was simply out of town when the notice arrived at her address of record.
R.R. at 14a. The trial court’s conclusion that these circumstances, coupled with the
fact that the appeal was filed only two business days late and DOT was not
prejudiced, warrant nunc pro tunc relief is contrary to well settled law. See Criss,
781 A.2d at 1160. Because the trial court lacked subject matter jurisdiction to

                                            5
consider Licensee’s untimely appeal, its order sustaining the appeal must be vacated
and the matter remanded for the trial court to quash the appeal. Hudson, 830 A.2d
at 600; Gelormino, 636 A.2d at 227.
            Accordingly, the trial court’s order is vacated and the matter is
remanded to the trial court to quash Licensee’s appeal as untimely.




                                      MICHAEL H. WOJCIK, Judge




                                         6
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Shaunnon Barnes                          :
                                         :
              v.                         : 36 C.D. 2019
                                         :
Commonwealth of Pennsylvania,            :
Department of Transportation,            :
Bureau of Driver Licensing,              :
                                         :
                         Appellant       :



                                     ORDER


            AND NOW, this 16th day of October, 2019, the order of the Allegheny
County Court of Common Pleas dated December 20, 2018, at No. SA-18-548 is
VACATED and the matter is REMANDED to the trial court with instructions to
QUASH the statutory appeal of Shaunnon Barnes as untimely and REINSTATE the
suspension of her operating privilege.
            Jurisdiction is RELINQUISHED.




                                         __________________________________
                                         MICHAEL H. WOJCIK, Judge
