Paul v. Commonwealth, Department of Transportation, Bureau of Driver Licensing

COLINS, Judge.

The Department of Transportation, Bureau of Driver Licensing (DOT) appeals from an order of the Court of Common Pleas of Montgomery County (Common Pleas) which sustained the appeal of William A. Paul (licensee) from a one-year license suspension imposed by DOT.

By a notice dated March 15, 1993, DOT informed the licensee that his operating privilege would be suspended for one year, pursuant to Section 1547(b)(1) of the Vehicle Code, 75 Pa.C.S. § 1547(b)(1), as a result of his reported refusal to submit to chemical testing. The filing due date for a timely statutory appeal of this March 15, 1993 suspension notice was on or before April 14, 1993. Licensee, represented by counsel, filed a statutory appeal of the suspension on or about April 19, 1993. The record notes that the original appeal petition was timestamped as filed by the Montgomery County prothonotary’s office at 11:57 A.M. on April 19, 1993, which is also indicated in the pro-thonotary’s docket entries.

A de novo hearing on licensee’s statutory appeal was held on September 20, 1993 before Common Pleas, during which DOT’s counsel moved to quash licensee’s appeal as having been filed five days late. Licensee’s counsel, while testifying under questioning from an associate, acknowledged that April 14, 1993 was the last day to have filed a timely appeal on licensee’s behalf. Licensee’s counsel also testified that on April 12, 1993, he mailed the licensee’s appeal petition, along with his April 12,1993 cover letter and filing fee check, to the Montgomery County prothonotary from the Flourtown post office. This fact was verified by a proof of mailing slip dated April 12, 1993, which was submitted to Common Pleas, and to which DOT’s counsel stipulated.

During the hearing, it was averred by licensee’s counsel that it was customary for him to mail documents for filing with the court, and that usually he receives a returned copy of the filed documents, dated two days after the mailing date. He went on to testify that when he did not receive copies of licensee’s appeal in a timely fashion, he personally went to the prothonotary’s office on April 19, where he located licensee’s appeal papers in a pile of work still to be processed. Further testimony from licensee’s counsel indicated that the prothonotary told him that licensee’s appeal would be filed that day (April 19, 1993) and gave him a letter documenting the unusually heavy backlog of uncompleted work in the prothonotary’s office. DOT’s counsel raised hearsay objections to both the prothoriotary’s alleged remarks and letter, as represented by licensee’s counsel; Common Pleas allowed the former but sustained DOT’s objections to the letter.

In rendering its decision, Common Pleas found that there had been a significant enough administrative breakdown in the court system to have caused the untimely filing of licensee’s appeal, denied DOT’s motion to quash, and ordered that licensee’s appeal proceed on the merits. By order and opinion dated September 20, 1993, licensee’s appeal was sustained and his operating privilege reinstated.

DOT now appeals from this order, arguing that the untimeliness of licensee’s appeal was not due to administrative breakdown in the court’s operations, fraud, or any non-negligent occurrence, but rather to the negligence of licensee’s counsel. This alleged negligence, according to DOT, consisted of counsel’s mailing the appeal petition so near to expiration of the appeal deadline, and in then allowing five days to elapse after the deadline before personally checking on the appeal’s status with the prothonotary’s office.

Our scope of review, where the trial court permits an untimely appeal 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, 160 Pa.Commonwealth Ct. 12, 636 A.2d 224 (1993). With respect to untimely appeals such as the present case, this Court has consistently reaffirmed that

statutory appeal periods are mandatory and may not be extended as a matter of grace or mere indulgence. Olson v. Borough of Homestead, 66 Pa.Commonwealth Ct. 120, 443 A.2d 875 (1982). Traditionally, extensions of time for filing an appeal have been permitted only in extraordinary circumstances involving fraud or a breakdown in the court’s operations. Department of Transportation, Bureau of Driver Licensing v. Maddesi, 138 Pa.Commonwealth Ct. 467, 588 A.2d 580 (1991).... However, our Supreme Court has held that an extension may be granted where the delay in filing was caused by a non-negligent failure of the appellant’s counsel. Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1138 (1979).

Relying on Bass, this Court has permitted the filing of untimely appeals in a number of cases where the delay was beyond the control of the appellant or his attorney.

Stanton v. Department of Transportation, Bureau of Driver Licensing, 154 Pa.Commonwealth Ct. 350, 353, 623 A.2d 925, 926 (1993) (footnote omitted).

Applying the foregoing rationale to the present case, we note that licensee’s failure to timely file his appeal, similar to the situation in Bass (wherein the secretary responsible for fifing the petition was absent from counsel’s office because of illness), was not due to counsel’s negligence. The untimely fifing in Bass was explained by an operational breakdown of the attorney’s internal office procedures, which the Supreme Court found to be beyond the attorney’s control and non-negfigent. The present matter concerns a breakdown in a prothonotary’s filing office operations, a situation more readily verifiable and substantiated by the record than in Bass and which unarguably cannot be attributed to licensee or his counsel. It is also relevant that in this ease, licensee’s counsel, as did the attorney in Bass, took immediate action to remedy the untimefiness once it was discovered. “As we noted in Department of Transportation, Bureau of Traffic Safety v. Johnson, 131 Pa.Commonwealth Ct. 51, 569 A.2d 409 (1990), a petitioner in an appeal nunc pro tunc must proceed with reasonable diligence once he knows of the necessity to take action.” Stanton, 154 Pa.Commonwealth Ct. at 355, 623 A.2d at 927. This Court found that the eleven-day time lapse in Stanton between licensee’s discovery of the untimefiness and the fifing of his nunc pro tunc appeal was not reasonably diligent. In the present matter, however, we find the five-day period during which licensee’s counsel waited to receive time-stamped return copies of the filed appeal petition before going personally to the prothonotary’s office was not unreasonably long.

Accordingly, we affirm the order of the Court of Common Pleas of Montgomery County.

ORDER

AND NOW, this 15th day of December, 1994, the September 20, 1993 order of the Court of Common Pleas of Montgomery County in the above-captioned matter is affirmed.