           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kierston Patrece Williams                      :
                                               :
              v.                               :    No. 874 C.D. 2017
                                               :    Submitted: February 9, 2018
Commonwealth of Pennsylvania,                  :
Department of Transportation,                  :
Bureau of Driver Licensing,                    :
                         Appellant             :

BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE CHRISTINE FIZZANO CANNON, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                               FILED: April 2, 2018

              The Department of Transportation, Bureau of Driver Licensing
(Department) appeals from the order of the York County Court of Common Pleas
(trial court) that sustained the statutory appeal of Kierston Patrece Williams
(Licensee) pursuant to Section 1547(b) of the Vehicle Code, 75 Pa. C.S. §1547(b),
commonly known as the Implied Consent Law.1                    The Department suspended
Licensee’s operating privilege for one year for refusing to submit to a blood test.
The Department argues the trial court erred in permitting Licensee’s untimely
appeal. As to the merits, the Department asserts Licensee did not prove she was
unable to make a knowing and conscious refusal based on her medical condition.




       1
          Section 1547(b)(1)(i) requires any person placed under arrest for driving under the
influence (DUI) “to submit to chemical testing and [if that person] refuses to do so, the testing
shall not be conducted but upon notice by the police officer, the [D]epartment shall suspend the
operating privilege of the person … for a period of 12 months.” 75 Pa. C.S. §1547(b)(1)(i).
Upon review, we vacate and remand with directions to quash the statutory appeal as
untimely.
                                   I. Background
             In August 2016, Licensee was arrested on suspicion of driving under
the influence (DUI) after she collided with a telephone pole, injuring her head. After
an ambulance transported her to the hospital, police recited the DL-26B warning to
Licensee while she was in a hospital bed. The warning advises that a refusal to
submit to a blood test can result in a suspension of driving privileges for one year.
After initially consenting, Licensee ultimately refused the test and declined to sign
the DL-26B Form.


             By official notice dated September 5, 2016, the Department notified
Licensee that her operating privilege was suspended for one year effective October
10, 2016 (Notice). The Notice was sent to Licensee’s address of record on file with
the Department. Licensee did not appeal the Notice within the 30-day appeal period.


             On October 19, 2016, Licensee filed a motion to appeal nunc pro tunc
(Motion). The trial court granted the Motion without holding a hearing. Then,
Licensee filed a statutory appeal of her suspension, to which she appended the
Notice.


             The trial court held a de novo hearing on the merits of the suspension.
During the hearing, Officer Jacob Clevenger (Officer) testified regarding what he
observed when he found Licensee at the crash site, and later at the hospital. His




                                          2
police report was admitted without objection. Reproduced Record (R.R.) at 41a.
The trial court adjourned the hearing, leaving the record open.


             When the trial court reconvened the hearing, Licensee presented
medical testimony from Dr. Daniel Carney, who treated her in the hospital. He
described Licensee’s medical condition, and the effects of her head injury. Licensee
testified on her own behalf as to her recollection of her interactions with Officer. In
addition, Licensee presented the testimony of her mother regarding her observations
of Licensee at the hospital. Licensee stipulated that her blood alcohol content was
.125% when taken at the hospital.


             After the close of evidence, the trial court sustained Licensee’s appeal.
The Department appealed.


             The trial court directed the Department to file a concise statement of
errors complained of on appeal pursuant to Pa. R.A.P. 1925(b). It also requested
that the parties file briefs in support of their respective positions.


             In its 1925(b) Statement, the Department challenged the trial court’s
acceptance of Licensee’s untimely appeal. It also argued Licensee did not prove her
refusal was knowing and conscious, despite her obvious head injury.               The
Department contended Licensee’s medical expert could not rule out intoxication as
a cause for her confusion.




                                            3
             The trial court issued an opinion explaining its reasons for granting
Licensee’s Motion, and for deciding the merits in Licensee’s favor. As to the
Motion, it reasoned there was an administrative breakdown because the Department
did not use Licensee’s current address that was contained in the criminal complaint.
The trial court “found that the [p]olice [c]riminal complaint clearly stated her address
in Hanover, which in turn should have prompted the Department to determine the
correct address.” Tr. Ct., Slip Op., 8/31/17, at 9. The trial court’s rationale was based
on the fact that Officer obtained her current address at the time of arrest.


             On the merits, the trial court determined Licensee met her burden to
show that her refusal of chemical testing was not knowing or conscious. The trial
court credited the expert medical testimony that “no person with [Licensee’s] [head]
injury, regardless of alcohol consumption[,] should be making significant legal
decisions or signing legal documents.” Id. at 12.


             After briefing, the matter is ready for disposition.


                                    II. Discussion
             “Where the trial court permits an untimely appeal to be filed nunc pro
tunc, our review is limited to determining whether the trial court abused its discretion
or committed an error of law.” Puckett v. Dep’t of Transp., Bureau of Driver
Licensing, 804 A.2d 140, 144 n.6 (Pa. Cmwlth. 2002). An abuse of discretion occurs
when there is a “‘manifestly unreasonable exercise of judgment, or a final result that
evidences partiality, bias or ill will.’” Rutkowski v. Dep’t of Transp., Bureau of
Driver Licensing, 987 A .2d 841, 846 (Pa. Cmwlth. 2009) (citation omitted).



                                           4
                                A. Untimely Appeal
             A licensee must file her appeal within 30 days from the date the
Department mails a notice of suspension. Ercolani v. Dep’t of Transp., Bureau of
Driver Licensing, 922 A.2d 1034 (Pa. Cmwlth.) (en banc), appeal denied, 932 A.2d
77 (Pa. 2007); see 75 Pa. C.S. §1550; 42 Pa. C.S. §§5571(b), 5572. This statutory
appeal period is mandatory, and “may not be extended as a matter of grace or mere
indulgence ….” Hudson v. Dep’t of Transp., Bureau of Driver Licensing, 830 A.2d
594, 598 (Pa. Cmwlth. 2003).


             “[B]y allowing an appeal nunc pro tunc, the trial court extends the time
in which an appeal may be filed, thereby extending itself jurisdiction it would not
otherwise have.” Dep’t of Transp., Bureau of Driver Licensing v. Gelormino, 636
A.2d 224, 226 (Pa. Cmwlth. 1993). Stated differently, an untimely appeal deprives
the trial court of authority to address the merits. Freedman v. Dep’t of Transp.,
Bureau of Driver Licensing, 842 A.2d 494 (Pa. Cmwlth. 2004) (en banc).


             However, the trial court may entertain an untimely statutory appeal
when the untimeliness results from extraordinary circumstances involving fraud or
a breakdown in the administrative or judicial process. Williamson v. Dep’t of
Transp., Bureau of Driver Licensing, 129 A.3d 597 (Pa. Cmwlth. 2015). The
licensee bears the burden of establishing such extraordinary circumstances. Id.


             Here, there is no dispute Licensee filed her appeal 14 days late. The
Notice specifies the date of mailing was September 5, 2016, yet Licensee filed her
appeal on October 19, 2016. That is 44 days after her purported receipt of the Notice.



                                          5
See Certified Record (C.R.), Item No. 15, Licensee’s Appeal at ¶2 (stating “[o]n or
about September 5, 2016, [Licensee] received a Notice from the [Department] ….”).


             The administrative breakdown that Licensee cited was that the
Department mailed the Notice to her old address. The Department mailed the Notice
to Springdale Road in York. Licensee concedes the York address “was the address of
record at [the Department].” Appellee’s Br. at 3. Nonetheless, Licensee contends the
Department should have sent the Notice to her current address in Hanover, which was
the address contained in the criminal complaint. See C.R., Item No. 18 at Ex. C.


             Pursuant to Section 1540(b) of the Vehicle Code, 75 Pa. C.S. §1540(b),
the Department is required to notify a licensee of a license suspension at the
“address of record.” Gelormino. Section 1515 of the Vehicle Code places an
affirmative duty upon a licensee to notify the Department of a change in address
within 15 days. 75 Pa. C.S. §1515. “A licensee who fails to so notify the Department
may not use the fact that the Department mailed a suspension notice to [her] old
address in the Department’s records as grounds for filing an untimely appeal nunc
pro tunc.” Redenbach v. Dep’t of Transp., Bureau of Driver Licensing, 817 A.2d
1230, 1235 (Pa. Cmwlth. 2003) (emphasis added) (affirming trial court).


             Here, the trial court recognized that Licensee “neglected to notify the
Department of her change of address in a timely manner, as required by 75 Pa. C.S.
§1515.” Tr. Ct., Slip. Op., at 9. Nevertheless, the trial court determined that there
was an administrative breakdown when the Department did not use the Hanover
address. In so doing, the trial court committed legal error.



                                          6
             The trial court reasoned that the Department should have used the
Hanover address contained in the criminal complaint. Specifically, it stated, “the
Criminal Complaint clearly stated her address in Hanover, which in turn should have
prompted the Department to determine the correct address.” Id. (emphasis added).


             In effect, the trial court shifted the burden of discerning Licensee’s
correct address on the Department. This is inconsistent with Section 1515 of the
Vehicle Code and our case law. This Court consistently holds “the statutory
responsibility of notifying the Department in writing of any address change is placed
unequivocally upon the licensee.” Maxion v. Dep’t of Transp., Bureau of Driver
Licensing, 728 A.2d 442, 444 (Pa. Cmwlth. 1999). The trial court erred in excusing
Licensee’s unexplained noncompliance with her statutory duty.


             Further, the trial court’s reasoning presumes some communication
between the Department and Officer about the accuracy of Licensee’s address. As
the Department notes, “there is no evidence that a copy of [Officer’s] criminal
complaint was ever sent to, or received by the Department.” Appellant’s Br. at 25.
Even if the Department received the criminal complaint, there is no reason the
Department should have discerned that the Hanover address on the criminal
complaint was Licensee’s accurate address. The Department relied on its address of
record, which was consistent with the York address contained on the DL-26B Form.
See R.R. at 116a. On this record, there is simply no basis for imputing Officer’s
knowledge to the Department.




                                         7
             Other than sending the Notice to her former address, the Motion does
not identify any breakdown in the administrative process. An alleged breakdown
caused by lack of communication between an arresting officer and the Department
as to a licensee’s current address is not a viable ground for failing to file a timely
appeal. Redenbach; Maxion.


             This Court previously rejected arguments similar to Licensee’s here,
that impose the burden of discerning a correct address on the Department. See
Redenbach, 817 A.2d at 1235 (reasoning “the Vehicle Code does not provide that
the Department is required to scour its databases for a record” indicating a licensee’s
current address); Maxion (rejecting argument that licensee satisfied his burden of
notifying the Department of his new address by advising the arresting officer of his
new address); Dep’t of Transp., Bureau of Driver Licensing v. Lang, 610 A.2d 1076,
1077 (Pa. Cmwlth. 1991) (rejecting licensee’s argument that she was entitled to nunc
pro tunc relief because the Department had her new address “within its bureaucratic
network” where she allegedly had changed her address on her vehicle registration,
but failed to change her address for driver’s license purposes).


             We reach the same conclusion here. The Department provided proper
notice when it sent the Notice to Licensee at her address of record. 75 Pa. C.S.
§1540(b). In determining that there was an administrative breakdown when the
Department sent the Notice to Licensee’s old address, the trial court committed legal
error. See Redenbach; Maxion; Lang; Korell v. Dep’t of Transp., Bureau of Driver
Licensing, 551 A.2d 398 (Pa. Cmwlth. 1988), appeal denied, 575 A.2d 571 (Pa.
1990).



                                          8
               Additionally, Licensee’s filings contain discrepancies as to when
Licensee received the Notice.2 A petitioner seeking an untimely appeal must proceed
with reasonable diligence once she knows of the necessity to take action. Ercolani.
Licensee did not establish she acted with reasonable diligence to merit relief.


                                           B. Merits
               Because we find that the trial court erred in allowing Licensee to file an
untimely appeal, which is a jurisdictional defect, we need not address the merits.
Williamson.


                                       III. Conclusion
               For the foregoing reasons, we vacate the order of the trial court. The




       2
          There is no evidence as to receipt because the trial court did not hold a hearing before
deciding the Motion. That Licensee received the Notice at some point is evident because it was
appended to her Motion. In the Motion, Licensee alleged that she “never received notice from [the
Department] that her driver’s license was being suspended for a refusal.” Certified Record (C.R.),
Item No. 18 (Mot. at ¶9). Yet, in her appeal, she alleged that she received the Notice “on or about
September 5, 2016.” Licensee’s Appeal at ¶2.
        To the extent she denied receiving the Notice, it is also unclear when Licensee obtained
actual notice of her suspension. In the Motion, Licensee represented she “discovered that her
driver’s license was suspended when she appeared at [the Department] after reading the complaint
and seeing that [Officer] considered her actions to be a refusal.” Mot. at ¶13. Yet, in her brief
Licensee claims she “only discovered that her driver’s license was suspended after she was stopped
from driving under suspension on 10/13/2016, and after the stop she contacted [the Department]
to find out why.” Appellee’s Br. at 3.
        This Court cannot reconcile these different explanations as to when and how Licensee
received notice. These are critical facts on which Licensee bore the burden of proof to show
reasonable diligence in pursuing an appeal. However, none of Licensee’s versions of the facts
alters our legal analysis.

                                                9
matter is remanded to the trial court with instructions to quash the statutory appeal
as untimely.    See Freedman.      Accordingly, the Department’s suspension is
reinstated.




                                       ROBERT SIMPSON, Judge




                                         10
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kierston Patrece Williams                   :
                                            :
            v.                              :   No. 874 C.D. 2017
                                            :
Commonwealth of Pennsylvania,               :
Department of Transportation,               :
Bureau of Driver Licensing,                 :
                         Appellant          :


                                     ORDER

            AND NOW, this 2nd day of April, 2018, the order of the York County
Court of Common Pleas is VACATED, and the matter is hereby REMANDED with
instructions to quash the statutory appeal as untimely. Accordingly, the suspension
imposed by the Department of Transportation, Bureau of Driver Licensing on
Kierston Patrece Williams’ operating privilege is REINSTATED.


            Jurisdiction is relinquished.




                                       ROBERT SIMPSON, Judge
