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HomeMy WebLinkAbout14-3136/1/--- 313 +e'm- 230A-5 ADMINISTRATIVE APPEALS J[ 230A.03 In that case, the statute specifically provides that an appeal must be taken within twenty (20) days.'° FORM 230A.03-10 Petition for Leave to Appeal Nunc Pro liinc From Order of Government Agency IN THE COURT OF COMMON PLEAS OF kri1PSAd COUNTY Ah- )7 US— bonny v\ieit 801st min 04 Petitioner m UIJv. (name of government agency ) Respondent C 3 J. , TERM (year) No. / — 3/36° C) -0 3 rn Q' W I— r- — CD c;:p —j "t7 PE 1MON FOR LEAVE TO FILE APPEAL NUNC PRO TUNC FROM ORDER OF (name of government agency) Petitione&noti , by the undersigned counsel, seeks leave to appeal nunc pro tunc from the order of the (name of government agency) dated / 7 , and in support represents as follows: 1. On '7---2-/y (date), the U (name of government agency) entered an order which li�p�sr- QIe escribe the nature of the agency's action as �—LI C`eii;SG sc r 5i 01V set forth in the order). A copy of the order is attached as Exhibit "A." 2. The (name of government agency) negligently failed to serve petitioner with a copy of the order. (or) 2. The (name of government agency) negligently directed notice of the order to petitioner at the wrong address. 3. Petitioner was required to file any appeal within thirty (30) days after entry of the order. 4. By reason of the negligent conduct of the (name of government agency), petitioner was prevented from learning of the entry of the order until (date), when (describe circumstances under which petitioner became aware of the entry of the order). 5. The failure of the (name of government agency) to properly serve petitioner with a copy of the order constitutes a material breakdown in the agency's operations which justifies the allowance of an appeal at this time. WHEREFORE, petitioner respectfully requests that this Court enter an order 1° 47 Pa. Stat. Ann. § 4-464. (ReL 62-5/2011 Pub.260) /03. 7'/°p,? ","dit. et /24.r 3 00-0 7 FORM 230A.03-20 COURTS; CRIM. PROC.; APPEALS 230A-6 extending the time for filing an appeal in this matter and allowing petitioner to appeal nunc pro tunc from the i/ - 7 - / if (date) order of the 0..ac4 k(name of government agency). (Verification) FORM 230A.03-20 Rule to Show Cause Why Leave Should Not Be Granted to Appeal Nunc Pro Tune From Order of Government Agency RULE AND NOW, (date), upon consideration of the petition of for leave to appeal nunc pro tunc from the (date) order of the (name of government agency), a RULE is hereby entered on the (name of government agency) to show cause why the time for filing an appeal in this matter should not be extended. eiIT'7Y=ed, PrAttorney foPetitioner got M Qtr'- rk (Address) '73/S By the Court: J. FORM 230A.03-30 Order Granting Leave to Appeal Nunc Pro Tunc from Order of Administrative Agency ORDER AND NOW, (date), upon consideration of the petition of for leave to appeal nunc pro tunc from the (date), order of the (name of government agency), it is hereby ORDERED that the time for filing an appeal in this matter is extended and petitioner is permitted to appeal nunc pro tunc from the (date) order of the (name of government agency), provided such appeal is filed no later than (date) (or days from entry of this order). By the Court: J. q 230A.04 Administrative Appeals to Common Pleas Court—Commonwealth Government Agencies—Generally (42 Pa. Cons. Stat. Ann. § 933(a)(1)) The courts of common pleas have jurisdiction over appeals from final orders of (ReL 62-5/2011 Pub.260) q 230A.03 COURTS; CRIM. PROC.; APPEALS 230A-4 personal service by hand and acceptance of personal service.8 q 230A.03 Administrative Appeals to Common Pleas Court—Time for Taking Appeal—Generally (42 Pa. Cons. Stat. Ann. I} 5571) Except as otherwise provided by statute, an appeal from a government unit to a court must be commenced within thirty days after the entry of the order from which the appeal is taken.' For purposes of appeal, the date of entry of an order of a government unit is the date of service, or the date of mailing if service is by mai1.2 In certain limited circumstances, leave of court may be obtained to file an untimely appeal nunc pro tune. The phrase "none pro tune" means "now for then" and is applied to acts which are allowed to be done after the time when they should be done with the same effect as if they had been done on times In Pennsylvania, a court generally may not extend a statutory or regulatory time period for filing an appeal "absent a showing of fraud or its equivalent."4 Negligence on the part of administrative officials may be deemed to be the equivalent of fraud if such negligence is the cause of a petitioner's failure to meet a deadline. The Pennsylvania Board of Probation and Parole's sending of notice of a recommitment order to the wrong address was held by the Pennsylvania Commonwealth Court to be a breakdown in operations constituting negligence for purposes of the rule.° The court noted that a mere allegation of failure to receive notice is insufficient cause for allowing a nunc pro tunc appeal.e The fraud or its equivalent rule will be relaxed only in "very unique or exceptional circumstances," typically where the petitioner acted reasonably and injustice would result by not allowing the filing.' "Something more than mere hardship is necessary to justify an extension of time."2 A reasonable misunderstanding of an applicable deadline induced by a recently passed and ambiguous statute has been held to be sufficient basis to permit an appeal nunc pro tune.° An exception to the thirty (30) day appeal period applies in the case of an appeal from the Liquor Control Board's refusal to grant, renew, or transfer a liquor license. 5 Gilmore v. Commonwealth., 139 Pa. COMM. 499.590 A.2d 1369 (1991). 1 42 Pa. Cons. Stat. Ann. § 5571(b). 2 42 Pa. Cons. Stat. Ann. § 5572. 3 Commonwealth v. Jefferson, 430 Pa. 532 (1968). 4 Moore v. Commonwealth, 94 Pa Commw. 527 (1986). 5 Moore v. Commonwealth, 94 Pa. Commw. 527 (1986); Branch v. Workmen's Compensation Appeal Board, 38 Pa. Commw. 374 393 A.2d 55 (1978). 5 Moore v. Commonwealth, 94 Pa. Commw. 527 (1986), (citing In re Franklin, 2 Pa. Commw. 496 (1971)). 7 Academy Plaza Ass'n., Ltd. v. Board of Revision, 94 Pa. Commw. 517 (1986), 8 Yeager v. United Natural Gas Co., 197 Pa. Super. 25, 29 (1961) (citing Wise v. Cambridge Springs Borough, .262 Pa 139, 142, 143 (1918)). e Philadelphia v. Rohm & Haas Co., 5 Pa. Comm 287 (1972) (granting an appeal nunc pro tune where the statue setting the deadline was relatively new, party was mislead by the wording of the statute, and there was no precedent to guide counsel). u (IteL 62-5f201I Pub -260) i)»-/Lova/ a°a s . •_ fi a a A1 0 I alba _t III . ijA 'A It. :. a AD on QnLI____ E - C- i - - MG r dOOi r . * 1._ tom) cp__rn_e,- E1 a ,i 'I N.tLIAO, k - da ` A -. 1 i ()D rvi&1 prD -bnG" .- " '1 - (_9e_e__ 'h C h V c c° r(-nom 04 fl \7i a 4-S A \-(—a-d- fA.,. nen- . Ca L)-% \\ R01 a' rte. `: li & a1 - naeba � f ihita_ciddia___.e -Piadei.lezie,_4,41LI___a_v_a_ii_d_r4.5.4att-Illu.__ „i I.Y , oat Ati_r_LcIaloF,416k-b •. h d ham,t o al- .5 hi iflev&r- ci,i6ve-___v_Ehirk. Tr nxi 4 -1CLIet.filiff---- (), L Int al LL0(I ' u rial p _ _ l A ,111.x, cli■ I&& `-((/,(/ 4 v- / r `e I t1 v 4 LI z2 I 114 I ) I ao,aote 0 . - v' d_ h5_411.01 ol _ 1 AM* I, . a 4/r A____,Ae5i-d//- .IN,. " )/ € ra/ /9 y474/ COMMONWEALTH OF P NNSYLVANiA CITATION NO. C14 - l. Malik/anal -District No. TRA Fl CITATION Dock .. av 3. Ad s of 1.,terial Dis t Office • A 75- r 71rd A.1Cit ir . 1;1 4i //c fc e, .)16,› 0 PT (6, q I J • ''..i Driver Number. ..711 7.5-Y 73 ' .1- A 6. S te ri PA 7. D. B. 4 it Sr ftl M 0 r 9, Defendant Name . Firstp..., d Last ie. Defendant Applilress akreet..Cire•State•Zip Code) 470r 0 rt...11. 7 t7 A ,::: -, 7, x... pi, 13y - Ii. afi. Reg .12.ites Z I) S. Yr. ,i 13. State • PA 14. Make C.3 re.- _.1) IS.fpk Id. Color Le. ) rr 17. Veh.eg RNo. It eg. Yr. _. State LI PA Matte 20. Mak 21. Typo 2.2 .oior 23, Owner/Lessee ae Carrier- Name & Address 0 Secwe as Defendant Not Puttered ga 4 . . "r Ad j , , 4571, • Charge i D Maxtnorn Speed Limits 0 Drivers Required to be Licensed L3 Careless Driving 28. S1A'WTEme 0 ORDINANCE 0 Stop Signs & Yield Signs 0 Registration A Certification of Title Required D onviq Vehicle at Sale Speed 0 Unlawful Activities [3 Tral6c-Control Signals 0 Operation of Vehicle without OffiCali Certificate of Inspection 27. SEC. 28. SUB SEC. 0 Driving while Operating Pi-inteee is Suspended or Revoked 29. FINE'. 0 er CA' X Other 'r i OZNi 1.,4•C...../ i......) /A/(r 5 ' "'VP.... 30. E.M.' -C2P-AlVt- 4) F 7,46,s Trt A- "r i • r...s 31. GENERAL CJ 0 Radar 0 Clocked 0 A.O.V. 25. Nature of Offense 0 50.99thrig_--. MPH Auo..me ____ MPH 0 ESP D Vucar 0 Omer -[..] 32. COSTS 7 - Operated Vehicle with Expired Inspection F.:21 Operated Vehicle *adman -Valid License 0 Operated Vehicle with Suspended/Revoked License fl Operated Unregistered Vehicle 33. ).C.P.1k11. 10.00 0 via...a 67 Pa, Code Ref. 49 CFR t i I , D Other 5 L.) 6 w. IN P. ""1" V l'• ar,-• 34. TOTA . / - .1" Sus 4- I 3 A3-9 9/9/4 q'.23 gpo i 0 Hod on Info. Received _._.. e err 12 / i / 2c., 13 0 L.66 Services Rogues -Led Fires were doubted because: 0 Highway Safety Correia* 0 Active Wore Zone ....., . . _ -- 1 e 35. 1-°carion a,4 --rt 36: u 7 i frel I 37. Route e I , . tZ. . i A.J6 ( 39. gilds . 'lt. 40. Dir. of T v N S E.w 41. Date . 42. TIme 1. '1 f. 43 • .. 44. Cowry „ „...,,, ,.,,,,. e ..sts,...,1. 45. Code alba .. , 4 . 40 .r 9 Find 4 I v . at °' (acts set forth in this citation are ' e and correct to the best deny xnowledge, information de aubtct to • e penalties of Section 4904 of the Crimes Code (18 Pa.CS. 5 4904) relating to unsworn OFFICER'STLIP.EA/BADGE V I • 6frep<._e .41, 7 V O/ and belief. This verification is falsif.cation to authorities •. , 49. Or Address of Police Officer' ,i,14 at . P e- 14-1 e - . SO. l Number .... Timing Device Operator Aes Fol wi • . illiesTimed 54. Secs, Timed SL Speed buip SerIal No. 56, Soren Equip. Tested 57. Due Eq.*. Tested 58, Accident Report No.A..livtinsile ry d 911. Pare= Noae0 YES 0 NO 60. Cot,,,,,, Veh. YES . Has. Mat. 0 vss 62. Rernares/Subpoena List ) VI z LE IV- E D Mt,g 03 NOTICE If you plead guilty or are found guilty, points may be assessed against your driver's record. An accumulation of points may result in the suspension of your driving privilege. Also, your driving privilege WILL BE SUSPENDED if you plead guilty or are found guilty of certain offenses under the Vehicle Code, including but not limited to: 75 Pa.C.S. § 1371;3341, 3345, 3l..32.1878733, 3734, 3736, subsequent convictions of 75 Pe.C.S. 1501, a violation of 75 Pa.C.S, § 3361 when occurring in an active work zone and an accident report is submitted by the police, and a violation of 75 Va.C.S. § 3362 when occurrin9 in an active work zone. AOPC 406-95 (Rev. 1 /20 'MAGISTERIAL DISTRICT JUDGE Cl r- USE BALL POINT PRTHT & PRESS HARD LICENSE NO. : 24758738 PAGE 2 PROOF OF INSURANCE -Within 30 days of your ELIGIBILITY DATE, provide a copy of one of the following to PENNDOT to show that all motor vehicles currently registered in Pennsylvania in your name are insured; *Insurance ID card *Declaration page of your insurance policy *Insurance Binder *An application of insurance to the PA Auto Insurance Plan If you do not own a motor vehicle currently registered in Pennsylvania, send a signed statement of this fact to PENNDOT which reads "I do not own any motor vehicles currently registered in Pennsylvania". Please include your name, address - driver -is number and date of birth on the ateme� DRIVER'S LICENSE RETURN -You are required to return any and all current PENNSYLVANIA driver's license(s), learner's permit(s) and/or camera card(s) to PENNDOT. If these are not in your possession, are expired, or you have never been issued a PENNSYLVANIA driver's license, complete and return an Acknowledgment Form (DL-16LC) to PENNDOT. If you are an OUT OF STATE licensed driver or an OUT OF STATE resident who has never been issued a driver's license, complete and return an Acknowledgment Form (DL-16LC) to PENNDOT. An Acknowledgment Form (DL-16LC) may be obtained at any PENNDOT Driver's License Center. You may also write or call the address or phone number at the end of this letter to obtain this form. TERM SUSPENSION/REVOCATION -You have a 3 MONTH(S) suspension/revocation that began (or will begin) on 04/25/14. Refer to the DRIVER'S LICENSE RETURN section in this letter for information on getting credit started for serving this suspension/revocation. The suspension/revocation is a result of 1532B, SUSPENSION. U Oes WO\ Coon+y COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING HARRISBURG, PA 17123 04/07/14 RONNIE A WELLS DRIVER'S LICENSE NUMBER: 24758738 80 PINE TREE RD BIRTH DATE: 08/16/70 MANCHESTER PA 17345 Dear MR. WELLS : This is a RESTORATION REQUIREMENTS—LETTER. It lists what you --- must do to restore your driving privilege. PLEASE BE AWARE THAT THIS LETTER DOES NOT AUTHORIZE YOU TO DRIVE. You will be notified by the Department of Transportation (PENNDOT) that your driving privilege has been restored. Only after that may you drive. The date when you are eligible to have your driving privilege restored has not been determined. To determine this ELIGIBILITY DATE, you must resolve any issues listed in this letter as DRIVER'S LICENSE RETURN, INDEFINITE SUSPENSION, INDEFINITE CANCEL, INDEFINITE RECALL, and/or PRISON RELEASE REQUIREMENT. Please read the following information carefully and be sure to complete all requirements to have your driving privilege restored. Unless another address is indicated, return any documents and/or fees to the MAILING ADDRESS listed at the end of this letter. RESTORATION FEE -You must pay a $75.00 restoration fee to PENNDOT. Write your driver's license number (listed above) on the check or money order to ensure proper credit. Your check or money order should be made payable to PENNDOT. Please note: Paying the restoration fee DOES NOT satisfy the requirement to acknowledge your suspension/revocation. If you have not acknowledged your suspension/revocation, please follow the instructions listed under "Driver's License Return". 7 RONNY WELLS, IN THE COURT OF COMMON PLEAS OF Petitioner CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIIL ACTION—LAW COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU : 14 -:313 OF DRIVER LICENSING, Respondent NO. - IN RE: PETITION FOR LEAVE TO APPEAL NUNC PRO TUNC FROM ORDER OF GOVERNMENT AGENCY ORDER OF COURT AND NOW, this 20th day of June, 2014, upon consideration the Petition for Leave To Appeal Nunc Pro Tunc from Order of Government Agency, a Rule is hereby issued upon Respondent to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, (kv�- -61pa< Chri tylee L. Peck, J. �nny Wells 80 Pine Tree Road Manchester, PA 17345 « C= Petitioner, pro Se - � s C::� �. Philip Bricknell, Esq. Assistant Counsel Department of Transportation Motor Vehicle & Traffic Safety Sections Office of Chief Counsel 1101 South Front Street Harrisburg, PA 171014-2516 Attorney for Respondent :rc FACT SHEET Involuntary Transfer of Ownership of a Vehicle by Court Order PURPOSE This Fact Sheet outlines the procedures that must be followed when applying for a Certificate of Title involving the involuntary transfer of a vehicle's ownership. This procedure involves obtaining a court order and should be used only in those circumstances where it is impossible to transfer ownership of a vehicle by the use of a Certificate of Title or .Vehicle Manufacturer's Certificate of Origin. Since every set of facts and surrounding circumstances will be unique, a person attempting to be declared owner of a vehicle where proper ownership documents are not available should seek the advice of a private attorney. PennDOT WILL NOT OFFER LEGAL ADVICE REGARDING THE INVOLUNTARY TRANSFER OF OWNERSHIP OF A VEHICLE. PROCEDURES 1. A person attempting to obtain ownership of a vehicle must commence a proceeding with a court of competent jurisdiction setting forth the facts and circumstances of the case. The ownership of the vehicle will be determined by the court. Please note that a sample court order is provided on the reverse side of this fact sheet. UNLESS THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION IS THE OWNER OF THE VEHICLE IN QUESTION, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION IS NOT AN INTERESTED PARTY TO THIS COURT PROCEEDING. THEREFORE, THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION SHOULD NOT BE A NAMED PARTY IN THE PROCEEDING. 2. A person attempting to be declared owner of a vehicle by court order must notify all persons with an interest in the vehicle of the pendency of the court proceeding. The notification must be sent by certified. mail, return receipt requested, and must include the following: (1) A specific description of the vehicle (i.e., year, make, model and VIN); (2) The court of competent jurisdiction where an action will be or has been filed; and (3) The time, date and place of any court proceeding. AT A MINIMUM, THE NOTICE MUST BE SENT TO THE PERSON(S) TO WHOM THE VEHICLE IS PRESENTLY TITLED AND REGISTERED AND EVERY LIENHOLDER THAT IS LISTED ON THE TITLE RECORD. PLEASE NOTE THAT IF A PERSON ATTEMPTING TO BE DECLARED OWNER OF A VEHICLE IS UNAWARE OF ANY PERSON WITH AN INTEREST IN THE VEHICLE, THE PERSON ATTEMPTING TO OBTAIN OWNERSHIP OF THE VEHICLE MAY OBTAIN A CERTIFIED COPY OF THE VEHICLE'S COMPUTER RECORD BY COMPLETING FORM DL-135 (REQUEST FOR VEHICLE INFORMATION), AND SUBMITTING TO PENNDOT ALONG WITH THE APPROPRIATE FEES. July 2010 -over- fpennsytvania DEPARTMENT OF TRANSPORTATION www.dmv.state.pa.us 3. In the event the notice sent to a person with an interest in the vehicle is returned as "Unclaimed," the person attempting to be declared owner of the vehicle must advertise a legal notice at least once in the county legal journal(s) and at least once per week for three consecutive weeks in the newspaper(s) of general circulation where any person known to claim an interest in the vehicle may be located and where the vehicle is located, if these two locations are different. Please refer to the Pennsylvania BarAssociation Lawyers Directory&Product Guide to determine the appropriate legal journal. The advertisement should include the following: (1) A specific description of the vehicle (i.e., year, make, model and VIN); (2) The court of competent jurisdiction where an action will be or has been filed; and (3) The time, date and place of any court proceeding. 4. When the above procedure is followed and the court of competent jurisdiction enters an order declaring an individual the rightful owner of the vehicle, PennDOT may issue a Certificate of Title to the person named in the court order upon receipt of the following: (1) A certified copy of the court order entered declaring the individual owner of the vehicle; (2) Form MV-1, "Application for Certificate of Title," and check or money order payable to the Commonwealth of Pennsylvania. (3) Appropriate sales tax, title and registration fees. Unless the petitioner is eligible to claim a Sales Tax Exemption, sales tax must be paid on the Fair Market Value of the vehicle as listed in a current edition of a Penn'DOT-approved publication.Approved PennDOT publications include the following: N.A.D.A., The Automobile Red Book, The Black Book Official Used Car Guide, American Used Car Guide, and The Kelley Blue Book Used Car Guide. SAMPLE COURT ORDER AND NOW, � this day of 1120 , after reasonable notice and an opportunity for hearing having been pro k' toall'interested parties, the Court hereby awards ownership of one [year], [make],,"\' el]; 'bearing vehicle identification number to [name of applicant], and the right, title and interest of any other person to `sa d,vetiide` is hereby extinguished. The Commonwealth of Pennsylvania, DepartmentofTra sptation may accept this order as evidence of ownership in lieu of a Certificate of Title. The-Petitioner shall submit the appropriate forms, taxes and fees and comply with any other procedures of the Commonwealth of Pennsylvania, Department of Transportation in order to receive the appropriate Certificate of Title for said vehicle. BY THE COURT: Judge RONNY WELLS, Petitioner v. COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, Respondent IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 14-3136 CIVIL TERM CIVIL ACTION - LAW LICENSE SUSPENSION APPEAL ORDER AND NOW, this 8.e2� day of 2014, upon consideration of the Petition for Leave to Appeal Nunc Pro Tunc from Order f a Government Agency and the Response to the Rule to Show Cause why that Petition should not be granted: CD LLJ Petitioner's petition for leave to appeal nunc pro tunc from PennDOT's order suspending his license is DENIED. ?OR AUG -8 PH 3: 4.7 a hearing on Petitioner's petition for leave to appeal nunc pro tunc from PennDOT's order suspending his license to determine whether nunc pro tunc relief is SCHEDULED for October 16, 2014, at 9:30 a.m. in Courtroom 5 of the Cumberland County Courthouse, One Courthouse Square, 4th Floor, Carlisle, Pennsylvania. BY THE COURT Judge s RONNY WELLS, : IN THE COURT OF Petitioner : COMMON PLEAS OF : CUMBERLAND COUNTY • v. • COMMONWEALTH OF PENNSYLVANIA, : NO. 14-3136 CIVIL TERM DEPARTMENT OF TRANSPORTATION, • BUREAU OF MOTOR VEHICLES, : APPEAL OF DRIVER Respondent : LICENSE SUSPENSION ORDER AND NOW, this 16th day of October, 2014, the appeal filed in the above- captioned matter is: REMANDED to the Department of Transportation for correction of its records. DISMISSED and the suspension which is the basis of this appeal shall be REINSTATED. SUSTAINED and the suspension which is the basis of this appeal shall be RESCINDED. WITHDRAWN and the suspension which is the basis of this appeal shall be REINSTATED. CONTINUED and RESCHEDULED for the day of , 20 , at .m., in Courtroom t-) r.a - Room No. of the Cumberland County Courth , rncoca _, Carlisle, Pennsylvania. zm 4'f:: cn Z, ab CDc BY THE COURT: ca cp A yj zpc,dc J. Attest: ��"1�/S` 7`r-h--CO a r-4/ A A j 7 z-/6'6 : S LiS we !i v�✓�GL / i Ronny Wells, , Manchccter,-; '-73 - Philip M. Bricknell, Esq., PennDOT, Riverfront Office Center, Office of Chief Counsel, 3rd Floor, 1101 South Front Street, Harrisburg, PA 17104-2516 &dies Majeol r0/,"/,y g