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':t::l f.,., --1:' I COMMONWEALTH OF PENNSYLVANIA I IN THE COURT OF COMMON PLEAS OF 'I I, PENNSYLVANIA DEPARTMENT I CUMBERLAND COUNTY, PENNSYLVANIA I OF TRANSPORTATION, I BUREAU OF DRIVER LICENSING, I Appellee I NO: II I I' v. I , I LICENSE SUSPENSION I RICHARD P. CUMMINGS, I APPEAL Appellant I CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Appeal upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules I of Civil Procedure, by depositing a copy of the same in the united States Camp Hill, Pennsylvania, through first class certified mail, I prepaid and addressed as follows: Pennsylvania Depar.tment of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104 Respectfully submitted, Datel C\ -L /')-(J/ _.,.--.--~--~--'--.::--.. .....) ,_" /t ~ "/" ",. / ///C / ~/ / ----. Patttck,F: Lauer, -. Jr;, Esquire 2108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 IDI 46430 Tel. (717) 763-1800 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATIDN BU~.8u of D~ive~ Licensing HB~~isbu~g. PA 17123 AUGUST 11, 1997 WORML[YSBURG PA l?043 ~?2l~~lOl73l~l2 DOl 08/04/1~~7 15%8058 02/25/1953 RICHARD P CUMMINGS blb N 2ND STR[[T DeB~ Moto~ist: As B ~esult of you~ violation of Section 1547 of the Ve- hicle Code, CHEMICAL TEST REFUSAL on 07/27/1997, you~ d~iving p~ivil.ge is being SUSPENDED fo~ a pe~iod of 1 YEAR(S). In o~d.~ to comply with this sanction you a~e ~equi~ed to ~.tu~n any cu~~ent d~ive~'s license, lea~ne~'s pe~mit and/o~ teIllPo~a~y d~ive~'s license (came~a card) in you~ possession no 1ate~ than the effective date 1i5ted. If you cannot com- plY with the requirements stated above, you are ~eQuired to submit a DL16LC Form or a sworn affidavit stating that you a~e awa~e of the sanction against you~ driving privilege. Failure to complY with this notice shall result in this Bu- reau referring thi~ matte~ to the Pennsylvania State Police fo~ prosecution under SECTION 1571(a)(4) of the Vehicle Code, Although the law mandates that your driving privilege is un- c.Je~ suspension even 1f you do not sur~ende~ your license, Credit will not begin until all current driver I s license p~oduct(s), the DL16LC For." or a lette~ acknowledging your sanction is received in this Bureau. WHEN THE DEPARTMENT RECEIVES YOUR LICENSE OR ACKNOWLEDGEMENT, WE WILL SEND YOU A RECEIPT. IF YOU DO NOT RECEIVE THIS RECEIPT WITHIN 15 DAYS CONTACT THE DEPARTMENT IMMEDIATELY. OTHERWISE, YOU WILL NOT BE GIVEN CREDIT TOWARD SERV1NG TH1S SANCTION. The effective date of suspension is 09/15/1997, 12.01 a.m, .................................................................... IWARNING, If you are convicted for driving while your license is I Isuspended, the penalties will be: not less than 90 days iIllP~ison-1 I.ent and a 1,000 fine and an additional 1 year suspension, I .................................................................... 97-5403 CIVIL TERM The Vehicle Code at 75 Pa.C,S. Section 1550 titled 'Judicial review,' provides: (a) General rule,-Any person denied a driver's license or whose operating privilege has been recalled, canceled, suspended, revoked or disqualified by the department shall have the right 10 appeal to the court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure). The Judicial Code al42 Pa,C.S. Section 5571(b) provides, In pertinent part: [a)n appeal from a . . . government unit to a court. . . must be commenced within 30 days after the enlry of the order from which the appeal Is taken, ,. (Emphasis added,) Section 5572 of the Judicial Code titled "Time of entry of order,' provides In pertinent part: 'The date of service of an order of a government unit, which shall be the date of mailing If service Is by mall, shall be deemed to be the date of the entry of the order for the purposes of this subchapter, (Emphasis added,) On October 2, 1997, 52 days after ttle mailing of the notice of the license suspension, Richard Cummings through his current attomey, filed the within petition at 97-5403 for leave to file an appeal nunc pro tunc from the license suspension. A h8l!lring was conducted on that petition on December 1, 1997, Attorney Lauer testified that he met Cummings sometime in the beginning of August. Cummings had been charged with driving under the Influence but had not yet received the notice of the suspension of his operating privilege for failing to submit to a chemical test. Lauer discussed the implications of the refusal with Cummings, On a later date, Cummings brought into Lauer's office the funds for his representation and the paperwork on the suspension of his driving privilege. Lauer .2, ('~' ---- . " 97-5403 CIVIL TERM testified that It was the polley In his office that Items dropped off by clients should be brought to his attention Immediately. Notwithstanding, Lauer testllled that his secretary put the suspension notice in Cummings' lIIe and it did not reach his desk for calendaring. He discovered the paperwork the day belore he liied the appeal from the license suspension. I In Riddle v. Commonwealth, Department 0' Transportation, 136 Pa, Commw, 508 (1990), a licensee appealed Irom an order 01 a trial court quashing his appeal from the suspension 01 his driving privilege by the Department pursuant to the Vehicle Code at 75 Pa.C.S. Section 1547 for his relusal to take a blood alcohol test. The appeal was IlIed thirty,three days alter the Department mailed the licensee notice of the suspension, The licensee claimed that his attorney was negligent lor filing the appeal three days latEl. Therefore, he maintained that he should have been allowed to present evidence 01 his attorney's negligence that would have warranted nunc pro tunc relief. The Commonwealth Court held that "Because timeliness is jurisdictional the trial court was without authority to act and properly quashed Licensee's appeal." The Court concluded: The thirty day period within which a license suspension appeal must be commenced cannot be extended absent a showing of extraordinary circumstances which are equivalent to Iraud or a breakdown In the operations of the C01Jrt through a default 01 its officers. Department 0' 1, Attorney Lauer also testified that the District Justice dismissed the driving under the Influence charge because there was no probable cS.use for the arrest. At a preliminary hearing, a District Justice determines whether there is a prima facie case. The District Justice does not conduct a suppression hearing. .3, 97.5403 CIVIL TERM Transportation v, Lefever, 111 Pa.Commonwealth Ct. 105, 533 A.2d 501 (1987). Licensee has failed to show the existence of such circumstances, The averments of Ineffective assistance and negligence on the part of Licensee's original attomey are Insufficient to establish either fraud or a breakdown In the court's operations. In Riddle, which Involved the negligence of an attorney in failing to file a timely appeal, the Commonwealth Court distinguished the decision of the Supreme Court of Pennsylvania In Bass v, Commonwealth of Pennsylvania, 485 Pa. 256 (1979), In Bass, the Court permitted an appeal which had been untimely filed because of the non-negligent conduct of an attorney. The facts were: Appellant decided to file an appeal in this Court from the order of Commonwealth Court. Appellant's counsel prepared the necessary appeal papers which were typed up by his secretary and were ready for filing on Friday, July 7, six days prior to thl! expiration of the time allowed for filing the appeal. The papers were placed In a folder on the comer of the secretary's desk, along with other papers to be taken to the courthouse for filing. During the late afternoon of that Friday, the secretary became sick and left work. She was out sick during the entire following week, returning to work on Monday, July 17, Although the normal office procedure was to have a secretary check the desk of a secretary who was ill, in this case the secretary who was ill was the one who routinely did this checking. The ill secretary, In her deposition concerning this matter, stated that she was too sick to think about calling the office, During her Illness, she was treated by a physician, When the secretary returned to the office, she became aware that the appeal had not been filed and immediately took steps to correct the situation. A petition for permission to file an appeal nunc pro tunc was filed in this Court on Monday, July 17, four days after the normal appeal period had expired, The Supreme Court stated: The negligence of an appellant, or an appellant's counsel, or an agent of appellant's counsel, has not been considered a sufficient excuse for the failure to file a timely appeal, In this case, however, we are presented with a non-negligent .4- 97.5403 CIVIL TERM failure to file a timely appeal after the client had made a decision to appeal. In allowing the filing of the appeal nunc pro tunc, the Supreme Court concluded: [a)t least in those circumstances involving the non,negllgent failure to tile an appeal, members of the public should not lose their day in court, Without doubt the passage of any but the briefest period of time during which an appeal is not timely filed would make it most difficult to arrive at a conclusion that the failure to file was non,negligent. Under the circumstances of this case, however, we fall to find any basis for concluding that either the attomey or his secretary acted negligently. Although there are some exceptions, ordinarily non-negligent conduct, although Its results in injury to another Is not actionable. This principle can be Illustrated by assuming that an attorney, while on his way to the Prothonotary's Office to file an appeal has an unexpected heart attack or other Illness which causes him to lose control of his vehicle, and Injure a bystander. The attorney (or other person) would not be held liable, Society and the courts have recognized that events occur sometimes because of unexpected non,negligent causes, Just as the attorney would not be liable for damages to the bystander resulting from his non-negligent driving, his client should not suffer because the attorney, as .a result of his Illness, was unable to file the appeal. The example we have given is akin to the case before us. There has been a non-negligent failure to file a timely appeal which was corrected within a very short time, during which any prejudice to the other side of the controversy would necessarily be minimal. Justice (later Chief Justice) Nix stated in a concurring opinion: . . . [t)he uncontroverted facts in this appeal would not justify a finding of 'FraueJ or some breakdown in the COl.:rt's operation.' West Penn Power Co. v, Goddard, 460 Pa. 551, 333 A.2d 909 (1975). It Is agreed that the time in which an appeal must be filed 'cannot be extended as a matter of grace.' West Penn Power Co. v. Goddard, supra, 460 Pa, at 556, 333 A.2d at 912, Finally, it is agreed that negligence of the party, or of counsel for the party, does not provide a basis for Ignoring the fact of an untimely filing of an appeal. * * * The uncontroverted evidence establishes that the omission of the .5-