J-A18039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

STANLEY JOSEPH ZUKOS, JR.,

                            Appellant               No. 1929 MDA 2014

                   Appeal from the Order October 14, 2014
              In the Court of Common Pleas of Luzerne County
  Criminal Division at No(s): CP-40-SA-0000064-2013-CP-40-SA-0000236-
                        2014-CP-40-SA-0000237-2014

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*

JUDGMENT ORDER BY STEVENS, P.J.E.:                FILED AUGUST 09, 2016

       Appellant, Stanley Joseph Zukos, Jr., appeals from the Order entered

in the Court of Common Pleas of Luzerne County on October 10, 2014,

dismissing his summary appeals of his convictions for violations of Driving

while operating privileges were suspended or revoked, 75 Pa.C.S.A. §

1543(a). Upon our review, we vacate and remand with instructions.

       By way of background, on February 24, 2011, Appellant filed a notice

of appeal in a separate matter from PennDOT’s suspension of his driver’s

license. A hearing was scheduled in that case before the Honorable Joseph

F. Sklarosky, Jr., on October 20, 2014; however, it never occurred.




____________________________________________




*Former Justice specially assigned to the Superior Court.
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       The instant matter concerns Appellant’s appeal of three, separate

summary citations for driving with a suspended license.        The cases were

consolidated and argument was held before the Honorable Senior Judge

Hugh F. Mundy on September 17, 2014. At that time, Appellant averred a

supersedeas was in effect in accordance with 75 Pa.C.S.A. § 1550(b)(1),1

and that Judge Mundy did not have jurisdiction to rule on the summary

appeals until Judge Sklarosky issued a determination in his pending appeal

of his driver’s license suspension.

       In his Order of October 10, 2014, issued ten days prior to the

scheduled hearing in the driver’s license suspension matter, Judge Mundy

determined Appellant’s appeal therein had been untimely filed and held

Section 1550 of the Vehicle Code was, therefore, inapplicable to the within

matter. Specifically, Judge Mundy noted that PennDOT mailed the Notice of

Suspension of Driving Privileges to Appellant on January 21, 2011, and

indicated that Appellant had the right to appeal that action to the trial court

within 30 days of that date, or by February 21, 2011, but he failed to do so

____________________________________________


1
    This statute reads as follows:
        (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.A. § 1550(b)(1).



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until February 24, 2011.     See Findings of Fact and Conclusions of Law,

10/10/14, at ¶¶ 12-14. Thus, Judge Mundy concluded the supersedeas had

not been in effect at the time Appellant was charged with the various

offenses under Section 1543(a) of the Vehicle Code. Id. at ¶¶ 15, 17.

      Appellant filed a timely notice of appeal with this Court on November

10, 2014.    In his brief, Appellant presents the following question for our

review:
      WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW OR
      ABUSED ITS DISCRETION IN DISMISSING AN APPEAL FROM
      SUMMARY TRAFFIC OFFENSES WHEN THERE WAS A
      COLLATERAL HEARING SCHEDULED BEFORE ANOTHER COURT
      AND WHEN THE INSTANT TRIAL COURT DID NOT HAVE
      JURISDICTION TO HEAR THE APPEAL FROM THE APPEAL FROM
      THE PENNSYLVANIA DEPARTMENT OF TRANSPORTATION?

Brief of Appellant at 3.

      Appellant stresses that PennDOT which is not a party in the instant

matter bears the burden of proof in a driver’s license suspension appeal and

concludes that if there had been no suspension of his driver’s license, the

citations under Section 1543(a) would be dismissed. Appellant acknowledges

Judge Mundy found that the notice of appeal in the driver’s license

suspension matter had been untimely filed but argues that the issue of

timeliness therein should have been considered only after a hearing on the

merits and that Judge Mundy did not have jurisdiction over that pending

collateral appeal.

      Appellant further states that even assuming the Commonwealth is

correct that a trial court has jurisdiction over matters brought outside of the


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thirty-day appeal period only where the appealing party requests a nunc pro

tunc appeal, there was no need to do so herein, because a hearing on the

license suspension matter had been scheduled and counsel for PennDOT

previously had entered their appearance.      As such, Appellant posits that

once he filed and served his appeal in his driver’s license suspension case, a

supersedeas had been in effect under 75 P.S. § 1550(b)(1); therefore, Judge

Mundy abused his discretion and committed a clear error of law in dismissing

his summary appeals.    Brief of Appellant at 8-10.

      Based upon the foregoing, we conclude Judge Mundy erred when he

issued his decision herein which effectively deprived Appellant of a hearing

to determine the condition precedent of his summary convictions- namely,

whether Appellant’s driver’s license properly had been suspended.         It is

undisputed herein that Appellant filed a notice of appeal in that matter on

February 24, 2011, and a hearing on that appeal had been scheduled, for

October 14, 2014, although it never was held.         In addition, Judge Mundy

heard no testimony on September 17, 2014.         Accordingly, we vacate the

Judge Mundy’s October 10, 2014, Order and remand to the trial court to

conduct a hearing in the driver’s license suspension matter, at which time

the timeliness and merits of Appellant’s appeal in that case may be explored.

Thereafter, the trial court shall issue an order on Appellant’s summary

appeals of his convictions under Pa.C.S.A. § 1543(a) at issue herein.

      Order vacated.      Case remanded with instructions.         Jurisdiction

relinquished.

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J-A18039-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2016




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