E.T. Fantinelli-Bosco v. PennDOT, Bureau of Driver Licensing ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edson T. Fantinelli-Bosco, :
Appellant :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, : No. 1895 C.D. 2016
Bureau of Driver Licensing : Submitted: April 21, 2017
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE COSGROVE FILED: October 20, 2017
Edson T. Fantinelli-Bosco (Appellant) appeals the October 3, 2016
order of the Court of Common Pleas of Philadelphia County (trial court) denying his
petition to appeal, nunc pro tunc, the suspension of his commercial driving privilege.
Upon review, we reverse and remand.
By official notice, with a mail date of June 17, 2016, the
Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver
Licensing (DOT), notified Appellant that his commercial driving privilege was
suspended for a period of six months, effective July 22, 2016, as a result of his
summary conviction for a violation of Section 1601(a)(1) of the Vehicle Code.1 This
notice advised that Appellant had thirty days from the mail date to file an appeal of
the suspension. On August 19, 2016, Appellant filed with the trial court a petition
seeking to appeal the suspension nunc pro tunc. The trial court held a hearing on
September 30, 2016 and denied the nunc pro tunc petition on October 3, 2016. This
appeal followed.2
Discussion
Appellant argues the trial court erred in denying his petition to appeal
nunc pro tunc where Appellant sufficiently demonstrated 1) a breakdown in DOT’s
operations which caused Appellant’s delay in filing and 2) Appellant used due
diligence in filing his petition to appeal upon learning the grounds relied upon for
relief.
DOT responds that Appellant failed to provide competent evidence to
satisfy his burden of proof that an administrative breakdown occurred. According
to DOT, Appellant was required to file his appeal within 30 days of the mail date of
the notice of suspension and failed to do so. The notice was mailed to Appellant’s
address of record, which Appellant acknowledged was the address on his driver’s
license on the date he was cited for violating Section 1606(a)(1) of the Vehicle Code.
1
Section 1601(a)(1) of the Vehicle Code provides that no person may drive a commercial
motor vehicle unless that person has been issued a commercial driver’s license. 75 Pa.C.S. §
1606(a)(1).
2
The decision whether to permit an appeal nunc pro tunc is an equitable matter and this
Court’s scope of review is limited to a determination of whether the trial court abused its discretion
or committed an error of law. Department of Transportation, Bureau of Traffic Safety v. Rick,
462 A.2d 902, 903 (Pa. Cmwlth. 1983).
2
An appeal from a government unit to a court must be commenced
within 30 days after entry of the order from which the appeal is taken. 42 Pa.C.S.
§§ 5571(b). The date of entry of the order of a government unit is the date of mailing
if service is by mail. 42 Pa.C.S. § 5572. The time for taking an appeal cannot be
extended as a matter of grace or mere indulgence. Bass v. Commonwealth, 401 A.2d
1133, 1135 (Pa. 1979). However, a showing of fraud or breakdown in the
administrative process may justify an appeal nunc pro tunc. Stana v. Unemployment
Compensation Board of Review, 791 A.2d 1269, 1271 (Pa. Cmwlth. 2002).
Negligence on the part of administrative officials may be deemed to be the
equivalent of fraud. Branch v. Workmen’s Compensation Appeal Board, 393 A.2d
55, 57 (Pa. Cmwlth. 1978).
In denying the petition to appeal nunc pro tunc, the trial court relied on
Section 1515 of the Vehicle Code, 75 Pa.C.S. § 1515, and the decision of this Court
in Redenbach v. Department of Transportation, Bureau of Driver Licensing 817
A.2d 1230 (Pa. Cmwlth. 2003). Section 1515 provides that a person must notify
DOT in writing of a change of address within 15 days of same. In Redenbach, this
Court held that a licensee who fails to 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.
Appellant admits that he did not comply with the requirements of
Section 1515. However at the September 30, 2016 hearing, he testified as follows:
Appellant notified DOT of his change of address at a DOT licensing center (licensing
center) on Levick Street in Philadelphia. (Reproduced Record (R.R.) at 14a.)
Appellant initially went to the licensing center to resolve a suspension of his
commercial driver’s license following receipt of a citation in March of 2016. Id. at
3
13a. After Appellant’s license was returned, he indicated to the clerk that the address
on his license was incorrect. Id. at 15a. Appellant wrote the correct address on the
form provided by the clerk and handed it back to her. Id. Appellant updated his
address at the licensing center prior to the June 2016 issuance of the suspension
notice by DOT. Id. Once Appellant received the suspension notice from DOT, he
contacted an attorney and returned to the licensing center to update his address. Id.at 15a-16a.
Against this backdrop, the trial court’s reliance on Section 1515 and
Redenbach is misplaced. Unlike the licensee in Redenbach, Appellant testified that
he went to a DOT licensing center and provided written notification of his new
address prior to issuance of DOT’s suspension notice. Appellant trusted that this
written notification would result in an update of Appellant’s address in DOT’s
system. When Appellant discovered that his address had not been updated, he went
back to the licensing center to correct the issue. Appellant also engaged an attorney
to prepare his appeal. While the trial court assessed this testimony and found it
vague and lacking in specifics (Trial Court opinion, December 23, 2016, at 7), it
made no finding whatsoever that Appellant was not credible. In fact, the trial court
specifically recognized that Appellant did, indeed, go “to the PennDOT licensing
center following th[e] incident [which led to his summary conviction] to restore his
license…” Id. at 6. What troubled the trial court was that Appellant “did not present
any testimony from other witnesses or present other documentation” to support his
position that he provided DOT with his change of address information when he went
to the licensing center. Id. But as it lamented lack of corroboration of Appellant’s
testimony, the trial court never found that this testimony lacked credibility. Without
such a finding, there is nothing to diminish the testimony that Appellant had indeed
4
advised DOT of his change of address prior to DOT’s forwarding the notice of
suspension at issue here.
The trial court’s reliance on Section 1515 is further undermined by the
fact that Section 1515, on its own, is of no moment to the present question. The trial
court suggests that by failing to comply with this section’s requirement, and in light
of Redenbach, Appellant was thus foreclosed from seeking nunc pro tunc relief
based on confusion regarding his correct address. This would perhaps be so if
Appellant had not taken steps (multiple steps in fact) in appearing at the DOT center
and personally providing the change of address information. The trial court,
however, seems to interpret the law in a way that no matter what one does, if the
change of address is not provided consistent with Section 1515 then nunc pro tunc
relief would never be available under any circumstances. That is not what the Court
in Redenbach said, nor what can be remotely applicable to the facts of this case. In
this light, we must conclude that the failure of DOT to update Appellant’s license
prior to the issuance of his suspension notice was the result of just such a breakdown
that requires nunc pro tunc relief.
DOT also argues that Appellant failed to show he proceeded with
reasonable diligence once he knew of the need to take action.
This Court has stated that although time is certainly a factor, due
diligence does not rest on the specific amount of time that elapses between an
appellant gaining knowledge of the need to act and the pursuit of nunc pro tunc
relief. Croft v. Board of Property Assessment, Appeals & Review, 134 A.3d 1129,
1136 (Pa. Cmwlth. 2016).
In Sprague v. Casey, 550 A.2d 184, 188 (Pa. 1988), our Supreme Court
concluded that the correct inquiry in determining whether an appellant failed to act
5
with due diligence is to focus, not upon what the appellant knew, but what he might
have known, by use of the means of information within his reach, with the vigilance
the law requires of him. The appellant is required to discover those facts which were
discoverable through the exercise of reasonable diligence. Id. The Supreme Court
ultimately concluded that a lapse of six and one half months between constructive
notice of factual circumstances and commencement of legal action did not
demonstrate lack of due diligence. Id.; see also Croft (eleven-month delay between
discovery of tax lien and filing of appeal did not demonstrate failure to exercise due
diligence where administrative breakdown occurred).
Presently, 63 days passed from the mailed-on date of DOT’s notice and
the date Appellant filed his appeal. DOT presented no evidence to show it was
prejudiced during those additional 33 days. The short period between Appellant’s
discovery of the Notice and the filing of his appeal nunc pro tunc, combined with
Appellant’s efforts to engage counsel to handle the matter, indicates an exercise of
due diligence in filing the appeal. Appellant had taken steps throughout these
proceedings which are consistent with the sort of diligence required for the requested
relief.
On the present record, and given the equitable underpinnings of nunc
pro tunc jurisprudence, see Criss v. Wise, 781 A.2d 1156 (Pa. 2001); see also Bass,
the Order of the trial court dated October 3, 2016 is reversed and this matter is
remanded for a hearing on the merits of Appellant’s appeal.
___________________________
JOSEPH M. COSGROVE, Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edson T. Fantinelli-Bosco, :
Appellant :
:
v. :
:
Commonwealth of Pennsylvania, :
Department of Transportation, : No. 1895 C.D. 2016
Bureau of Driver Licensing :
ORDER
AND NOW, this 20th day of October, 2017, the October 3, 2016 order
of the Court of Common Pleas of Philadelphia County is reversed and this matter is
remanded for further proceedings consistent with this opinion. Jurisdiction is
relinquished.
___________________________
JOSEPH M. COSGROVE, Judge