J.M. Smith v. Bureau of Motor Vehicles

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James M. Smith :
:
v. :
: No. 1109 C.D. 2021
Commonwealth of Pennsylvania, :
Department of Transportation, : Submitted: June 24, 2022
Bureau of Motor Vehicles, :
Appellant :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: September 14, 2022
The Commonwealth of Pennsylvania, Department of Transportation
(Department), Bureau of Motor Vehicles (Bureau) appeals from an order of the Court
of Common Pleas of Fayette County (trial court) that sustained the statutory nunc pro
tunc appeal of James M. Smith (Smith) from a cumulative six-month suspension of his
certification as an Official Safety Inspector (Inspector Certification). The Bureau
imposed the suspension pursuant to section 4726(b) of the Vehicle Code, 75 Pa. C.S. §
4726(b), based on an inspection that Smith performed on January 17, 2021. In this
appeal, the Bureau argues that the trial court erred and abused its discretion in granting
Smith permission to file his otherwise untimely appeal nunc pro tunc. For the reasons
that follow, we are constrained to agree with the Bureau. Accordingly, we reverse.
I. BACKGROUND
Smith owns and operates Smith’s Garage, an auto repair garage in
Connellsville, Pennsylvania (the Station). For several decades, Smith has performed
vehicle inspections as an Official Safety Inspector pursuant to certifications issued
by the Bureau. On April 14, 2021, the Bureau issued two orders: 1) an “Order of
Suspension of Official Safety Inspector,” which suspended Smith’s certification as
an Official Safety Inspector (Inspector Order) (Reproduced Record (R.R.) at 8a-
12a), and 2) an “Order of Suspension of Official Inspection Station,” which
suspended the Station’s Certificate of Appointment as an Official Safety Inspection
Station (Station Order). (R.R. at 68a-70a.) Only the Inspector Order is at issue in
this appeal.1 In the Inspector Order, the Bureau advised Smith that the suspensions
were being imposed because Smith passed a vehicle while it had holes in the floor
and frame, was missing a muffler, and had an inoperable parking brake and torn
front bumper. (R.R. at 8a-10a.) The Bureau cited Smith with violations of 67 Pa.
Code § 175.51(a)(1)(iii) (faulty inspection of equipment or parts), 175.51(a)(2)(ii)
(improper recordkeeping), and 175.51(a)(2)(v) (improperly assigning certificate of
inspection), and imposed three consecutive two-month suspensions.2 The
cumulative six-month suspension took effect on May 25, 2021. Id.1
Smith filed a statutory appeal of the Inspector Order only. The trial court criticized the
Bureau at the merits hearing on September 13, 2021, and in its Pa.R.A.P. 1925(a) (Rule 1925(a))
opinion for not disclosing that Smith technically did not appeal the Station Order. (R.R. at 44a-46a,
50a-51a; N.T., 9/13/21, at 20:5-22:8; 26:14-27:7; R.R. at 99a-100a.) Although we do not find any
evidence in the record suggesting that the Bureau was less than forthright with the trial court, because
we ultimately conclude that the trial court lacked jurisdiction to consider the merits of either
suspension, this issue is moot.
2
Each of the three two-month suspensions is mandatory for first-time violators. See generally
67 Pa. Code § 175.51.
2
Pertinent to this appeal, the Inspector Order contained the following
language:
You have the right to appeal this Departmental Order of
Suspension to the Court of Common Pleas of the County in
which the above referenced inspection station is located,
WITHIN THIRTY (30) DAYS OF THE DATE OF THIS
ORDER. If you do file an appeal, a signed and time-stamped
copy of the appeal must be served upon the Department at the
mailing address listed below. FILING OF AN APPEAL
DOES NOT AUTOMATICALLY STAY THE
SUSPENSION. In order for your privileges to be restored
pending appeal, a signed Order of Supersedeas from the Court
directing the Department to stay the suspension must be served
upon the Department at the mailing address listed below . . . .
Id. (emphasis in original).
On June 2, 2021, Smith filed a “Petition for Appeal Nunc Pro Tunc” of
the Inspector Order. (R.R. at 5a.) The trial court held a hearing on the Petition on
July 16, 2021.3 At the hearing, Smith testified that he initially was not aware of the
appeal deadline and wasted time speaking with lawyers who he ultimately could not
afford. He obtained from the Prothonotary’s office a form for petitioning to appeal
nunc pro tunc and filed it pro se. (R.R. at 18a-19a; Notes of Testimony (N.T.),
7/16/22, at 6:17-7:15.) By orders entered on July 22, 2021, the trial court granted
Smith’s request to proceed nunc pro tunc and scheduled a hearing on the merits of
the appeal for September 13, 2021. (R.R. at 3a, 4a.)
At the merits hearing, the Bureau presented the testimony of Ronald
Miller, an inspection station supervisor or, officially, a Quality Assurance Officer.
(R.R. at 28a; N.T., 9/13/21, at 4:7-16.) Miller testified that on March 21, 2021, he
3
See Department of Transportation, Bureau of Driver Licensing v. Schillaci, 639 A.2d 924,
925 (Pa. Cmwlth. 1994) (trial court required to hold separate hearing on whether untimely statutory
appeal may be filed nunc pro tunc).
3
received a complaint about a vehicle Smith inspected on January 17, 2021. Miller
completed a re-inspection of the vehicle and took photographs of its condition. At the
time of the re-inspection, the vehicle was missing its muffler and had significant rust
and body corrosion, a rusted and inoperable parking brake cable, and a cracked front
bumper. (R.R. at 29a-31a; N.T., 9/13/21, at 5:11-7:9.) When Miller spoke with Smith
about the issue, Smith initially did not remember inspecting the vehicle. After further
conversation, however, he remembered the vehicle and told Miller that he trusted the
person who brought the vehicle in for inspection, who told Smith that it was in good
condition. (R.R. at 33a-44a; N.T., 9/13/21, at 9:19-10:5.) Based on Miller’s
inspection and report, the Bureau concluded that inspection, recordkeeping, and
certificate of inspection violations had occurred, each warranting a mandatory two-
month suspension of Smith’s Inspector Certification. (R.R. at 34a-36a; N.T., 9/13/21,
at 10:21-12:15.)
Smith testified that some or all of the damage to the vehicle did or could
have occurred after his inspection and that he never issued an inspection sticker to a
vehicle without a muffler. He indicated that the vehicle’s owner told him that the
muffler was knocked loose after the inspection and that she also had driven onto a curb
after the inspection, cracking the front bumper. Smith admitted that he did not check
the vehicle’s undercarriage and that he relied on the statements of the vehicle’s owner
in concluding that the vehicle was in good enough shape to pass inspection. (R.R. at
42a-44a; 46a-47a; N.T., 9/13/21, at 18:1-20:4; 22:20-23:24.)
The trial court ultimately sustained the appeal, lifted Smith’s suspension,
and directed the Bureau to “return all pertinent information, stickers and license, to []
Smith’s Garage as well as James Smith individually.” (R.R. at 51a; N.T., 9/13/21, at
27:8-17; R.R. at 85a.) The Bureau filed a timely notice of appeal on October 8, 2021.
(R.R. at 87a.) Both the trial court and the Bureau complied with Pa.R.A.P. 1925. (R.R.
at 91a-94a.)
4
II. DISCUSSION
The Bureau presents a single question for our review: “Did the trial court
err as a matter of law and abuse its discretion in permitting Smith to proceed on a nunc
pro tunc basis in his untimely filed statutory appeal?” (Bureau Brief at 5.) 4 Our review
of a trial court’s decision to permit an appeal nunc pro tunc is limited to determining
whether the trial court erred as a matter of law or abused its discretion. Williamson v.
Department of Transportation, Bureau of Driver Licensing, 129 A.3d 597, 599 (Pa.
Cmwlth. 2015). The Bureau argues that the trial court erred and abused its discretion
because it did not consider the appropriate factors prior to granting permission to appeal
nunc pro tunc. The Bureau further argues that, even if the trial court had considered
the appropriate factors, the record is devoid of sufficient evidence to support nunc pro
tunc relief.5 We are constrained to agree.
A. Applicable Law
Pursuant to sections 5571(b) and 5572 of the Judicial Code, a licensee has
30 days from the mailing date of the Bureau’s suspension notice to file an appeal to the
trial court. 42 Pa. C.S. §§ 5571(b), 5572. Hudson v. Department of Transportation,
Bureau of Driver Licensing, 830 A.2d 594, 598 (Pa. Cmwlth. 2003). “Appeals filed
beyond the 30-day appeal period are untimely and deprive the common pleas court of
4
Although the Bureau included several issues in its Rule 1925(b) concise statement, it argues
on appeal only the jurisdictional question of whether the trial court erred or abused its discretion in
permitting Smith’s untimely appeal to proceed nunc pro tunc. The Bureau has not briefed the question
of whether the trial court erred or abused its discretion in sustaining Smith’s appeal on the merits.
Because we ultimately conclude that the trial court lacked jurisdiction to consider that question, we
will not address herein the merits of the appeal.
5
By order entered April 19, 2022, we directed Smith to file his brief within 14 days or be
precluded from filing a brief and participating in oral argument. Because he did not timely comply,
on June 23, 2022, we precluded Smith from filing a brief and directed that the appeal be submitted
on briefs without argument.
5
subject matter jurisdiction over such appeals.” Id. (quoting Department of
Transportation, Bureau of Driver Licensing v. Maddesi, 588 A.2d 580, 582 (Pa.
Cmwlth. 1991)). “Further, statutory appeal periods are mandatory and may not be
extended as matter of grace or mere indulgence. By allowing a licensee to file a late
appeal, the trial court extends the time in which an appeal may be filed, thereby
extending itself jurisdiction it would not otherwise have.” Id. (internal citations
omitted).
Nevertheless, there are exceptions to the above rule. A licensee may
petition the trial court for permission to appeal nunc pro tunc in extraordinary
circumstances to prevent injustice. Arena Beverage Corp. v. Pennsylvania Liquor
Control Board, 97 A.3d 444, 448-49 (Pa. Cmwlth. 2014). “In determining whether
extraordinary circumstances exist, a court must consider whether there was fraud or a
breakdown in the court’s operations or whether the party seeking relief has proven that:
(1) the appellant’s notice of appeal was filed late as a result of non-negligent
circumstances, either as they relate to the appellant or the appellant’s counsel; (2) the
appellant filed the notice of appeal shortly after the expiration . . . [of the appeal period];
and (3) the appellee was not prejudiced by the delay.” Id. at 449 (citation and quotation
omitted). Thus, before permitting an appeal nunc pro tunc, a trial court must engage
in the above analysis to determine whether “extraordinary circumstances” exist due to
fraud, breakdown in court operations, or non-negligent circumstances involving the
appellant or counsel. Id. at 449. The appellant bears the burden to prove that such
circumstances exist. Kulick v. Department of Transportation, Bureau of Driver
Licensing, 666 A.2d 1148, 1150 (Pa. Cmwlth. 1995).
6
B. Analysis
At the nunc pro tunc hearing on July 16, 2021, the trial court asked Smith
why he filed his appeal 19 days late. Smith indicated that he at first was not aware of
the time limitations for filing the appeal and wasted his time speaking to lawyers he
could not afford:
THE COURT: So were you aware that it was late, that you only
had so many days [to] file it?
MR. SMITH: Not at first.
THE COURT: Okay, so it was just an admission [sic] on your
part up [sic] to properly read the form.
MR. SMITH: Yeah, I went to talk to couple of different lawyers
and they were so high. In my little business in the last year I
almost went under a couple times. I went and talked to a couple
different lawyers and it was so expensive that I couldn’t . . . that’s
probably where I wasted my time.
....
THE COURT: So the reason that you did not file it on time is
that you wasted time talking to lawyers, found out that you could
not afford them and you weren’t really paying attention to the
date of the appeal period.
MR. SMITH: No, I didn’t know that. This is the first time that
ever happened.
(R.R. at 19a; N.T., 7/16/21, at 7.) In its Rule 1925(a) opinion, the trial court supported
its decision to grant nunc pro tunc relief as follows:
“[W]hen a party has filed an untimely notice of appeal . . .
appellate courts may grant a party equitable relief in the form of
7
an appeal nunc pro tunc in certain extraordinary circumstances.”
Commonwealth v. Stock, 679 A.2d 760, 763 (Pa. 1996). Here,
[Smith] testified that he had attempted to secure the services of
an attorney but was unable to afford the same and that he filed
the appeal on his own thereafter. N.T., 7/16/2021, at 7. The
Court recognized that [Smith] filed the appeal delinquent but
excused his error and found no prejudice to [the Department].
(Rule 1925(a) Opinion at 2; R.R. at 97a.)
The trial court did not engage in any meaningful consideration of whether
extraordinary circumstances existed to support granting nunc pro tunc relief.
Moreover, as the Bureau argues, even if it had done so, the record is devoid of sufficient
evidence to support the trial court’s determination. First, there is no suggestion
anywhere in the record that any fraud or breakdown in the trial court’s operations
caused any delay in Smith’s filing. Rather, Smith testified that he was aided by both
the trial court and the Prothonotary’s office in locating the appropriate forms to file the
appeal himself. Second, although Smith testified that he initially did not realize that
there was a 30-day time limitation on filing an appeal, Smith’s misreading and/or
ignorance of the appeal language in the suspension notice does not constitute non-
negligent circumstances that would justify nunc pro tunc relief.
In Williamson, the appellant licensee failed to file a statutory appeal
within the 30-day appeal period. 129 A.3d at 598. Two days after the appeal period
expired, the licensee filed a counseled petition to appeal nunc pro tunc, in which he
asserted that he confused the effective date of his suspension with the appeal deadline.
He further argued that he quickly filed his nunc pro tunc petition, that the Bureau would
not be prejudiced, and that he had a meritorious defense to the suspension. Id. He
testified similarly at the nunc pro tunc hearing before the trial court. Id. In granting
nunc pro tunc relief, the trial court noted that the appeal was only two days late and
that the licensee did not fully understand the suspension notice and misread the appeal
8
deadline. Id. at 599. At the subsequent merits hearing, the Bureau failed to prosecute
the appeal. The licensee therefore moved to dismiss. The trial court granted the motion
and sustained the licensee’s appeal. The Bureau appealed to this Court. Id.On appeal, we concluded that the licensee’s misunderstanding of the
suspension notice was not a non-negligent circumstance justifying nunc pro tunc relief.
Id. at 601. Rather, we concluded that the appeal language in the licensee’s suspension
notice was unequivocal in advising of the right to appeal and the 30-day appeal period.
Id.6 We also charged the licensee with knowledge of the appeal period, which is
established by statute. Id. We concluded as follows:
Consequently, we are constrained by precedent to hold that [the
Licensee]’s subjective misunderstanding or confusion related to
the straightforward appeal language in the Bureau’s notice of
suspension cannot, by itself, justify extension of the statutorily
mandated 30-day appeal period. Although [the Licensee] filed
his appeal just two days late, this constituted a jurisdictional
defect that appellate courts may not overlook.
6
The appeal notice in Williamson, which is substantially similar but not identical to that
utilized by the Bureau in this case, provided as follows:
APPEAL
You have the right to appeal this action to the Court of Common Pleas (Civil
Division) within 30 days of the mail date, June 26, 2014, of this letter. If you file
an appeal in the County Court, the Court will give you a time-stamped certified
copy of the appeal. In order for your appeal to be valid, you must send this time-
stamped certified copy of the appeal by certified mail to:
Pennsylvania Department of Transportation
Office of Chief Counsel
Third Floor, Riverfront Office Center
Harrisburg, PA 17104-2516.
Id. at 601 (emphasis in original removed).
9
In sum, there is nothing extraordinary in the circumstances here,
which clearly do not approximate a breakdown of the
administrative system. Were this appeal allowed, any claim of
confusion could support a nunc pro tunc appeal.
Id. at 602.
We find Williamson to be controlling here. Smith, at most, misunderstood
the appeal language in his notice of suspension. He clearly was aware to some degree
that an appeal could be filed because he sought legal counsel to assist him with
accomplishing the same. Whether his error is construed as ignorance or a
misunderstanding, given the clear language in the appeal notice, such ignorance or
misunderstanding will not, without more, suffice to establish non-negligent
circumstances justifying nunc pro tunc relief.7
III. CONCLUSION
In sum, we conclude that the trial court erred and abused its discretion in
granting Smith’s request to file his statutory appeal nunc pro tunc. We accordingly
must reverse the trial court’s order and direct that Smith’s suspension be reinstated.8
________________________________
PATRICIA A. McCULLOUGH, Judge
7
Because we conclude that Smith did not satisfy his burden to establish extraordinary
circumstances that would justify an appeal nunc pro tunc, we need not consider the question of
whether the Bureau was prejudiced by Smith’s late filing.
8
The trial court’s order entered September 15, 2021, appears to direct the lifting of both
Smith’s and the Station’s suspensions. The Bureau argues that, because Smith did not appeal the
Station’s suspension, the trial court had no jurisdiction to grant any relief concerning it. Because we
conclude that the trial court erred in granting nunc pro tunc relief and therefore was without
jurisdiction to consider the merits of either suspension, the issue raised by the Bureau is moot. In
addition, although we do not reach the merits of Smith’s suspension, we note in passing that the record
contains no explanation for how some of the problems with the vehicle, namely, the faulty brake
cable, rust, and corrosion holes, did or could have occurred in the two months after the inspection.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James M. Smith :
:
v. :
: No. 1109 C.D. 2021
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Motor Vehicles, :
Appellant :
ORDER
AND NOW, this 14th day of September, 2022, for the reasons stated
in the foregoing opinion, the order of the Court of Common Pleas of Fayette County
entered September 15, 2021, is REVERSED, and the Commonwealth of
Pennsylvania, Department of Transportation, Bureau of Motor Vehicles hereby is
directed to REINSTATE 1) the six-month suspension of Appellee James M.
Smith’s certification as an Official Safety Inspector, and 2) the six-month suspension
of Smith’s Garage’s Certificate of Appointment as an Official Safety Inspection
Station.
________________________________
PATRICIA A. McCULLOUGH, Judge