Ercolani v. Commonwealth , 2007 Pa. Commw. LEXIS 230 ( 2007 )

OPINION BY

President Judge LEADBETTER.

The Department of Transportation, Bureau of Driver Licensing (DOT) appeals from the order of the Court of Common Pleas of Montgomery County (common pleas), which sustained the statutory appeal of Gregory C. Ercolani and rescinded the suspension of his operating privilege. We reverse and remand with directions to quash the statutory appeal as untimely.

On October 12, 2002, a Whitemarsh Township Police Officer arrested Ereolani and charged him with driving under the influence. On April 17, 2003, DOT suspended Ercolani’s license pursuant to Section 1547(b)(1) of the Vehicle Code, 75 Pa.C.S. § 1547(b)(1)¹ for refusing to submit to chemical testing. Ereolani filed a petition to appeal his suspension nunc pro tunc, which common pleas granted following a hearing on the matter. Thereafter, common pleas conducted a de novo hearing on the merits of Ercolani’s statutory appeal. Ereolani did not challenge that the Bureau established, as required for suspension pursuant to Section 1547(b) of the Vehicle Code, 75 Pa.C.S. § 1547(b), that he was arrested for driving under the influence of alcohol, was asked to submit to a chemical test and was specifically warned that a refusal would result in the revocation of his operating privilege. See Dep’t of Transp., Bureau of Driver Licensing v. Ingram, 538 Pa. 236, 648 A.2d 285 (1994). The only point of contention was whether Ereolani refused to undergo the testing, a fact that the Bureau bore the burden of proving. See Pappas v. Dep’t of Transp., Bureau of Driver Licensing, 669 A.2d 504 (Pa.Cmwlth.1996). On this point, Whitem-arsh Township Police Officer Samuel Dit-zler and Ereolani testified as to their version of the arrest and the breath test refusal. Common pleas credited Ercola-ni’s testimony and based thereon sustained his appeal and rescinded the suspension. Thereafter, DOT filed the present appeal, challenging the allowance of Ercolani’s appeal nunc pro tunc, asserting error in the failure to hold a second merits hearing after retirement of the initial hearing judge and consequent reassignment of the case,² and contending that Ercolani’s persistent questions regarding the safety of the blood test constituted a refusal.

A licensee must file his appeal within thirty days of the date on which the Bureau mails notice of the suspension. Schofield v. Dep’t of Transp., Bureau of Driver Licensing, 828 A.2d 510, 511 (Pa.Cmwlth.), petition for allowance of appeal denied, 575 Pa. 705, 837 A.2d 1179 (2003). Ereolani filed an appeal on July 16, 2003. The Bureau contends that it mailed Ercolani a suspension notice dated March 13, 2003, but Ereolani testified that he did not receive it. However, Ereolani attached to his petition a copy of his certified driving history, which documents that the Bureau mailed the notice of suspension on March 13, 2003.³ Under the “mailbox rule,” this documentation triggers the presumption that Ercolani received the notice. Dep’t of Transp., Bureau of Driver Licensing v. Grasse, 146 Pa.Cmwlth. 17, 606 A.2d 544, 546 (1991). Ercolani’s testimony to the contrary, standing alone, is not sufficient to rebut this presumption. Id.; Dep’t of Transp. v. Brayman Constr. Corp., 99 Pa.Cmwlth. 373, 513 A.2d 562, 566 (1986). Hence, Ercolani’s appeal, filed well outside the thirty days following his presumed receipt of the suspension notice, was out of time and could not properly be considered absent grounds justifying an allowance of the appeal nunc pro tunc.

A court may permit a licensee to appeal nunc pro tunc only where the licensee’s failure to file a timely appeal resulted from extraordinary circumstances involving fraud or a breakdown in the administrative or judicial process. Kulick v. Dep’t of Transp., Bureau of Driver Licensing, 666 A.2d 1148 (Pa.Cmwlth.1995), petition for allowance of appeal denied, 544 Pa. 616, 674 A.2d 1077 (1996); Dep’t of Transp., Bureau of Driver Licensing v. Lefever, 111 Pa.Cmwlth. 105, 533 A.2d 501 (1987). In his petition of July 16, 2003, seeking an appeal nunc pro tunc, Ercolani asserted nothing more than that he did not receive the suspension notice and became aware of the suspension only when he received a letter from the Bureau, dated May 20, 2003, explaining the requirements for eventual restoration of his driving privileges. Other than Ercolani’s single, and legally inadequate, assertion that he did not receive the notice, nothing in either his petition or his hearing testimony points to a breakdown in the administrative process that justifies nunc pro tunc relief.⁴

Moreover, a petitioner in a nunc pro tunc appeal must proceed with reasonable diligence once he knows of the necessity to take action. Schofield. In this matter, Ercolani explained that he waited a month or two after he received the restoration requirements letter, dated May 20, 2003, before he contacted an attorney. This delay shows a lack of reasonable diligence, which is not excused by the fact that the May 20 letter regarding license restoration did not advise Ercolani of any time limit within which to appeal the suspension. The time for appeal of a license suspension is established by statute and, therefore, Ercolani must be charged with knowledge of that information. Indeed, in his testimony, Ercolani stated that, after the incident triggering his license suspension, he was waiting to receive a suspension notice so he could appeal. The May 20 letter, by Ercolani’s own admission, alerted him to the suspension. Once aware of the suspension, an obligation ensued to act promptly and diligently. Erco-lani’s delay in pursuing an appeal is also not excused by the fact that the Court of Common Pleas of Philadelphia County initially refused to accept his appeal papers without the suspension letter, advising him to write to DOT and obtain a copy. Ail of this transpired after Ercolani eventually sought to appeal his suspension and does not explain his delay in taking action in the first instance.

Accordingly, we reverse and remand for quashal of the statutory appeal as untimely.

ORDER

AND NOW, this 7th day of May, 2007, the order of the Court of Common Pleas of Montgomery County in the above captioned matter is hereby REVERSED and REMANDED. Hereby, we direct common pleas to quash the statutory appeal as untimely.

1 . Section 1547(b)(1) provides:

Suspension for refusal.—

(1) If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months.

2 . There is no merit in this assertion of error. Judge Maurino J. Rossanese, Jr. received the case as an assignment after the retirement of Judge Lawrence A. Brown, who conducted the de novo merits hearing. On reassignment, Judge Rossanese did not substitute his decision for that of Judge Brown but merely wrote the opinion called for under Pa. R.A.P. 1925, explaining the reasons for Judge Brown's decision. In so doing, Judge Rossa-nese accepted all of Judge Brown’s determinations as to the credibility and weight of the testimony. Under these circumstances, where the hearing judge rendered his decision, stating very briefly on the record the basis therefor, and the judge who received the case by reassignment thereafter did not make any independent findings, there is no need to conduct a new hearing. Cf. Wasiolek v. Philadelphia, 146 Pa.Cmwlth. 582, 606 A.2d 642 (1992) (where the initial hearing judge failed to render a decision prior to the reassignment of the case, a new hearing must be conducted); Ciaffoni v. Ford, 211 Pa.Super. 472, 237 A.2d 250 (1968) (on reassignment, the substituted judge cannot render a decision based on the record made before the initial hearing judge).

3 . DOT did not formally offer Ercolani’s suspension notice or certified driving record into evidence at the nunc pro tunc hearing. However, pursuant to Pa. R.A.P.1921, the certified record on appeal, upon which we base our review, includes “the original papers and exhibits filed in the lower court.” In conformance with this rule, the record certified by common pleas contains Ercolani’s petition for allowance of appeal nunc pro tunc, to which he attached a copy of his certified driving record. Ercolani cannot avoid the presumption that arises as a result of information he put before the court as an attachment to his pleading by arguing that the Bureau did not introduce it into the record.

4 . Ercolani initially filed his license suspension appeal and petition to allow it nunc pro tunc in Philadelphia, where common pleas granted the petition without a hearing and noted that the Bureau reserved the right to move to quash the petition at the time the appeal was heard on the merits. Subsequently, the Philadelphia court transferred the case to Montgomery County, where common pleas conducted a de novo hearing on the petition to appeal nunc pro tunc. The Bureau did not move to quash. Ercolani now asserts that the Bureau’s failure to request quashal waived its objection to nunc pro tunc allowance. There is no merit in this contention. The Bureau has consistently opposed the petition and no legal authority directs or requires that such opposition be preserved in a motion to quash.