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Home My WebLink About02-3590COMMONWEALTH V. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2K o ROBERT D. PENNINOTON : PETITION TO APPEAL NUNCPRO TUNC TO THE HONORABLE, THE .FUDGES OF THE SAID COURT: AND NOW, comes Robert D. Permington, Petitioner, by and through his attorney, Gregory Barton Abeln, Esquire, who petitions this Honorable Court to appeal his license suspension nune pro tune and represents as follows: 1. Robert D. Pennington, Petitioner, is an adult individual living at 101 E. Perry Street, Enola, Cumberland County, PA 17025. 2. The Petitioner is currently licensed to drive in the state of Pennsylvania, PA Driver License Number 17849815. 3. In October 1981, the Petitioner lost his left eye as a result of an accident. 4. On October 20, 1981, due to the accident, his license was cancelled effective December 1, 1981. 5. According to PennDOT records, his operating privileges were restored September 22, 1982. 6. In 1982, the Petitioner was charged with Driving Under the Influence in a violation of the Drug Device and Cosmetic Act, which suspended his license until October 24, 1985. 7. The Petitioner moved to the state of Ohio in 1983 and after a period of years without a license, applied and received an Ohio driver's license. 8. On April 25, 2002, during a routine traffic stop, Petitioner was told that he was driving while his license was revoked, even though Petitioner had a valid Ohio driver's license. 9. On June 7, 2002, Petitioner had a hearing on the license suspension in front of District Justice Robert Yanich, Harrisburg, Pennsylvania, wherein the Petitioner was found guilty of the offense because he did not appear and produce a copy of his driving record (Attachment A). 10. Petitioner was never informed of his right to appeal. 11. On June 17, 2002, the Commonwealth of Pennsylvania, Pennsylvania Department of Transportation, sent an official notice of license revocation as a result of the June 7, 2002 conviction. (Attachment B). 12. The reason for the revocation was because the Petitioner never paid the $25.00 fee for reinstatement of his Peunsylvarfia license back in 1985. 13. The Commonwealth Court has recently held that a motorist's operating privileges cannot be suspended after a timed-certain period of suspension where a motorist has simply not complied with the Bureau's administrative process of restoration, and in the instant case, simply failed to pay a $25.00 restoration fee. Commonwealth v. Rossi, No. 2366 C.D. 2001 (Commw. Ct., April 29, 2002). (Attachment C). 14. Petitioner contacted Abeln Law Offices in a timely fashion to request that the undersigned review his license suspension notice and was given an appointment on, July 24, 2002, a date which is beyond the thirty days from the original mail notice date from PennDOT. 15. It is believed that if this appeal is allowed, the Petitioner will prevail on the merits. 16. It is submitted that because the Department of Transportation suspended the Defendant's license after the effective date of Commonwealth v. Rossi, Supra, this constitutes a breakdown in the court process, and would otherwise cause such a harm that it would shock the conscience of the Court. WHEREFORE, it is respectfully requested of this Honorable Court that the Petitioner be allowed to appeal nuncpro tunc his operator's license suspension. Respectfully submitted, ABELN LAW OFFICES 37 E. Pomfret Street Carlisle, PA 17013 717/245-2851 PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING CERTIFIED DRIVING HISTORY JUL 24 2002 PAGE 1 DRIVER: ROBERT D PENNINGTON 101 EAST PERRY ST ENOLA, PA 17025 DRIVER LICENSE (DL) LICENSE CLASS : C LICENSE ISSUE DATE: APR 29 2002 LICENSE EXPIRES : JUN 30 2005 MED RESTRICTIONS : NONE LEARNER PERMITS : LICENSE STATUS : REVOKED DRIVER LICENSE NO DATE OF BIRTH SEX RECORD TYPE : 17849815 : JUN 29 1957 : MALE : REG LICENSE COMMERCIAL DRIVER LICENSE (CDL) CDL LICENSE CLASS : CDL LICENSE ISSUED : CDL LICENSE EXPIRES: CDL ENDORSEMENTS : NONE CDL RESTRICTIONS : NONE CDL LEARNER PERMITS: CDL LICENSE STATUS : REVOKED SB ENDORSEMENT : PROBATIONARy LICENSE (PL) PL LICENSE CLASS : PL LICENSE ORIG ISS: PL LICENSE ISSUED : PL LICENSE EXPIRES : PL LICENSE STATUS : OCCUPATIONAL LIMITED LICENSE (OLL) OLL LICENSE CLASS : OLL LICENSE ISSUED : OLL LICENSE EXPIRES: OLL LICENSE STATUS : *** CONTINUED *** CERTIFIED DRIVING HISTORY - JUL 24 2002 - LICENSE NUMBER 17849815 CONTINUED REPORT OF VIOLATIONS AND DEPARTMENTAL ACTIONS VIOLATION DATE: VIOLATION: DESCRIPTION: CONVICTION DATE: ACTION: OCT 26 1979 VEHICLE CODE: 3362 EXCEEDING MAXIMUM SPEED 066 MPH IN A 055 MPH ZONE NOV 07 1979 ASSIGNED POINTS VIOLATION DATE: VIOLATION: VEHICLE CODE: 1572 DESCRIPTION: CANCELLATION OF LICENSE CONVICTION DATE: OCT 20 1981 ACTION: CANCELLATION EFFECTIVE DEC 01 1981 ACTION: RESTORATION OF OPERATING PRIVILEGES SEP 22 1982 VIOLATION DATE= VIOLATION: DESCRIPTION: CONVICTION DATE: ACTION: MAR 10 1982 VEHICLE CODE: 3731 MAJOR VIOLATION DRIVING UNDER INFLUENCE JUL 20 1982 SUSPENSION FOR 6 MONTH(S) EFFECTIVE JUN 14 1983 OFFICIAL NOTICE MAILED MAy 10 1983 VIOLATION DATE: VIOLATION: DESCRIPTION: CONVICTION DATE: ACTION: MAR 10 1982 DRUG/DEVICE/COSMETIC ACT: 13A30 DELIVERY OF CTRL SUB JUL 20 1982 DRIVING PRIV REVOKED FOR 1 YEAR(S) OFFICIAL NOTICE MAILED OCT 24 1985 EFFECTIVE OCT 24 1985 ACTION: RESTORATION OF OPERATING PRIVILEGES APR 29 2002 *** CONTINUED *** PAGE 3 CERTIFIED DRIVING HISTORY - JUL 24 2002 - LICENSE NUMBER 17849815 CONTINUED VIOLATION DATE: VIOLATION: DESCRIPTION= CONVICTION DATE: ACTION: APR 25 2002 VEHICLE CODE: 1543A DRIVING WHILE SUSP/REVOKE JUN 07 2002 DRIVING PRIV REVOKED FOR 2 YEAR(S) EFFECTIVE JUL 22 OFFICIAL NOTICE MAILED JUN 17 2002 2002 LICENSE RECEIVED JUL 22 2002 REPORT OF MEDICALS AND DEPARTMENTAL ACTIONS NO MEDICALS OR DEPARTMENTAL ACTIONS DURING THIS REPORTING PERIOD REPORT OF ACCIDENTS AND DEPARTMENTAL ACTIONS MOTOR VEHICLE ACCIDENT RECORDS LISTED ON THIS OPERATING REPORT DO NOT INDICATE FAULT FOR THE ACCIDENT. THE RECORD ONLY INDICATES THAT THIS INDIVIDUAL OR THE INDIVIDUAL'S VEHICLE WAS INVOLVED IN AN ACCIDENT ON THE DATE LISTED. ACCIDENT DATE: MAY 28 1986 LOCATION: ALLEGHENY CNTY VEHICLE TYPE: MOTORCYCLE *** END OF RECORD *** - PAGE 4 CERTIFIED DRIVING HISTORY JUL 24 2002 - LICENSE NUMBER 17849815 CONTINUED IN COMPLIANCE WITH YOUR REQUEST, I HEREBY CERTIFy THAT I HAVE CAUSED A SEARCH TO BE MADE OF THE FILES OF THE DEPART- MENT OF TRANSPORTATION, AND HAVE SET FORTH ABOVE AN ACCURATE SUMMARY OF ALL RECORDS IN THE NAME OF THE PERSON INDICATED. SINCERELY, SEAL DIRECTOR, BUREAU OF DRIVER LICENSING FOR SECRETARy OF TRANSPORTATION COMMONWEALTH OF PENNSYLVANIA SS: DATE:JUL 24 2002 I HEREBY CERTIFy THAT REBECCA L. BICKLEY, DIRECTOR OF THE BUREAu OF DRIVER LICENSING, OF THE PENNSYLVANIA DEPARTMENT OF TRANSPORTATION IS THE LEGAL CUSTODIAN OF THE DRIVER LICENSING RECORDS OF THE DEPARTMENT OF TRANSPORTATION. AS THE DIRECTOR OF THE AFORESAID BUREAU, SHE HAS LEGAL CUSTODY OF THE ORIGINAL OR MICROFILM RECORDS W~ICHARE THE SUBJECT OF THE ABOVE CERTIFICATION. IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL OF THIS DEPARTMENT THE DAY AND YEAR AFORESAID. SINCERELY, SEAL SECRETARY OF TRANSPORTATION COMMONWEALTH OF PENNSYLVANIA COUNTY OF: DAUPHIN 12-2-01 BOB YANICH Address: 1281_~S. 28th Street Harrisburg, PA (717) 558-1160 ROBERT D. P~NNINOTON 101 PERRy ST. ENOLA, PA 17025 DL-38 17111-0000 COMMONWEALTH OF PENNSYLVANIA DEFENDANT: VS. NAME and ADDRESS ~PENNINC-TON, ROBERT D. 101 PERRY ST. ENOLA, PA 17025 ~ Docket No.: ,~~ -j 4/25/02 / _e Filed: TR-O001677-02 REQUEST FOR SUSPENSION OF DRIVING PRIVILEGE FOR FAILURE TO RESPOND TO A CITATION OR SUMMONS OR' PAY FINEs AND COSTS IMPOSED Date of additional notice: - 5/07/02 You have failed to respond to a citation or summons or pay any fines and costs imposed for a violation of the section of the Pennsylvania Vehicle Code shown below. Unless you respond to the citation and pay the fine, costs, and penalties shown, or post security for a trial within 15 days of the above date, your name will be referred to the Department of Transportation, which w suspend your driving privilege unti you respond to the citation and pay all fines, costs, and penalties imposed. If your license is suspended, you w be required to pay additional costs to restore operating privileges. TH S NOTICE DOES NOT PERTAIN TO ANY PARKING VIOLATIONS. your ~;i~iAnTg~;il~(~.nder suspension mandates at least a fine of $200.00 and an additiona 1 year suspension of your dr ring privilege. DATE OF VIOLATION LOCATION OF VIOLATION K005866S-5 4/25_~/02 DESCRIPTION OF VIdLATIO~-- -- _OPERATED VEH W/_SUSPLREVo _K=ED LI__CENsE~_ DRIVERS LICENSE NUMBER 17849815 LAST NAME PENNINGTON STREET ADDRESS CITY ]~fOLA REGISTRATION NO. ELE7798 CHARGE, SECTION AND SUBSECTION VIOLATED 7~5 $1543 FINE AND COSTS IF TRIAL REQUESTED $ 270.00 OR $ 276.00 STATE STATE PA DATE OF BIRTH FIRST NA-'-~ME -- ~ MI SE~ STATE PA ZIP CODE 17025 YEAR MAKE MODEL P~A 2~0 02 CHEVY SEDAN SUBMIT CHECK OR MONEY ORDER TO THE ABOVE NAMED DISTRICT JUSTICE OFFICE INSTRUCTIONS: /// 5/07/02 1. This violaeon may De d~sposed of w~tnout a trial by paying the fine and costs shown above, Payment of fine and costs prescribed is a plea of NOTE: make your check or money order payable to the magisterial d str ct number shown above g Y 2. You are entitled to a trial If you so desire, forward secur [y in the amount of the fine and costs shown plus an additional $6.00 costs to the district jusece together with your plea of not guilty. You will be notified Df a ina cate "you on not appear your security will be forfeltea 3. Fadure to pay the fine ann costs or post secur [y shall result tn [ne suspension of your driving puwleges AOPC 638A1-00 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Nail Date: JUNE 17, 2002 ROBERT D PENNINGTON 101 EAST PERRY ST ENOLA PA 17025 WID ~ 021619283294665 001 PROCESSING DATE 06/10/2002 DRIVER LICENSE # 17849815 DATE OF BIRTH 06/29/1957 ~ear MR. PENNINGTON= This is an O~flcla/ Notice of the Revocation of your Driving Privilege as authorized by Section 15q3 of the PennsYlvania Vehicle Code. As a result of your 06/07/2002 conviction of violating Section 15qSA of the Vehicle Code DRIVING WHILE SUSP/REVOKE on 0q/25/2002: · Your driving Privilege is REVOKED for a Perlod of 2 YEAR(S) effective 07/22/2002 at 12:01 a.m. Before PennDOT can restore Your driving Privilege, You must follow the instructions in this letter for COMPLYING WITH THIs REVOCATION, PAYING THE RESTORATION FEE and PROVIDING PROOF OF INSURANCE. You should follow ALL tnstructlons very carefully. Even 1f You have served a~! the ttme on the sUSpension/revocation, we cannot restore Your driving Pr/v- t/ege until a11 the requirements are satts~led. C~OMPLYING ~ITH THIs REVOCATIO~ You must return all CUrrent Pennsylvania driver's licenses, learner,s Permits and temporary driver's licenses (camera cards) in Your pOSSession on or before 07/22/2002. You may SUrrender these items before 07/22/2002, for earlier credit; however, You may not drive after these items are sUrren- dered. YOU MAY NOT RETAIN YOUR DRIVER,S LICENSE FOR IDENTIFICATION PURPOSEs. However, you may apply for and obtain a Photo identification card at any Driver License Center for a cost of ~9.00. You must Present two (2) forms of Proper iden- tification (e.g., birth certificate, valid U.S. Passport, marriage Certificate, etc.) in order to obtain Your Photo identification card. You w111 not recelve credit toward Serving any revocation untll we receive Your license(s). Complete the following steps to acknowledge this revocation. 02161928329~665 1. Return all current Pennsylvania driver's licenses, learner,s permits and/or camera cards to PennDOT. [f you do not have any of these items, send a sworn nota- rized letter stating You are aware of the revocation of Your driving Privilege. You must specify in Your letter why you are unable to return your driver's license. Remember: You may not retain Your driver's license for identification purposes. Please send these items to: Pennsylvania Department of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 2. Upon receipt, review and acceptance of your Pennsylvania driver's license(s), learner's Permit/s), camera card(s), and/or a sworn notarized letter, PennDOT will send you a receipt confirming the date that credit be- gan. If You do not receive a receipt from us within 3 weeks, P/ease contact our office. Otherwise, you will not be given credit toward serving this revocation. PennDOT Phone numbers are listed at the end of this letter. If you do not return all current driver license pro- ducts, we must refer this matter to the Pennsylvania State Police for Prosecution under SECT[ON 1571(a)(4) of the Pennsylvania Vehicle Code. PAYING THE RESTORATION FEp You must pay a restoration fee to PennDOT to be restored from a sUspension/revocation of your driving Privilege. To pay your restoration fee~ complete the following steps= 1. Return the encZosed APplication for Restoration. The amount due is Zisted on the apPZication. 2. Write your driver's license number (listed on the first page) on the check or money order to ensure Proper credit. FoZZow the payment and mailing instructions on the back of the appZication. 02161928329~665 ~ROVIDING PROOF OF INSURANCE Within the last 30 days of your suspension/revocation, we will send you a letter asking that You provide proof of in- surance at that time. This letter will list acceptable documents and what will be needed if you do not own a vehicle registered in Pennsylvania. ZmpoPtant= Please make sure that PennDOT is notified if you move from your current address. You may notify PennDOT of your address change by calling any of the phone numbers listed at the end of this letter. 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 17, 2002, of this letter. Z~ you ~tle an appeal In the County Court, the Court will glve you a time-stamped cePti~ted copy o~ 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 1710q-2516 Remember, this is an OFFZCZAL NOTZCE OF REVOCATZON. You must return all current Pennsylvania driver license products to PennDOT by 07/22/2002. SEND FEE/LICENSE/DL-16LC/TO: Department of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA I7106-8695 Sincerely, Rebecca L. Bickley, Director Bureau of Driver Licensing INFORMATION (7:00 IN STATE OUT-OF-STATE TDD IN STATE TDD OUT-OF-STATE AM TO 9:00 PM) 1-800-952-~600 717-591-6190 1-800-228-0676 717-391-6191 IN THE COMMONWEALTH COURT OF PENNSYLVANL4 Angela Lynne Rossi Vo Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant : No. 2366 C.D. 2001 : Submitted: March 8, 2002 BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE RENI~E L. COHN, Judge HONORABLE CHARLES p. MIRARCHI, JR., Senior Judge OPINION BY PRESIDENT JUDGE COLINS FILED: April 29, 2002 The Department of Transportation, Bureau of Driver Licensing appeals from an order of the Court of Common Pleas of Lancaster County that sustained Angela Lynn Rossi's appeal of the Bureau's one-year suspension of her operating privilege. The Bureau imposed the suspension pursuant to Section 1543(c)(1) of the Vehicle Code, 75 Pa. C.S. § 1543(c)(1), for Rossi's violation of Section 1543(a) of the Vehicle Code, 754 Pa. C.S. §1543(a),1 driving while operating privilege suspended or revoked. We afl.mu the trial court. 1543. Driving while operating privilege is suspended or revoked (a) Offense definetl--Except as provided in subsection Co), any person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege (Footnote continued on next page...) Rossi's operating privilege was suspended for 15 days effective August 31, 1999 for a speeding violation that occurred on March I1, 1999. An additional 15-day suspension, effective September 15, 1999, was added to that suspension for a stop sign violation that occurred on June 22, 1999. Rossi was stopped and cited for driving while her operating privilege was suspended or revoked on November 18, 1999. Rossi's appeal of her summary conviction of that offense was sustained by the Court of Common Pleas of Lancaster County. This appeal followed. At the hearing on her statutory appeal Rossi testified that she surrendered her license prior to August 31, 1999, and that she did not operate a motor vehicle during the period from August 31, 1999 through September 30, 1999. It was her understanding that her operating privilege was automatically restored following the statutory period of suspension. The Bureau claims that '~continued...) and before the operating privilege has been restored is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200. (c) Suspension or revocation of operating privilege.-- Upon receiving a certified record of the conviction of any person under this section, the department shall suspend or revoke that person's operating privilege as follows: (1) If the department's records show that the person was under suspension, recall or cancellation on the date of violation, and had not been restored, the department shall suspend the person's operating privilege for an additional one-year period. 2 Rossi's operating privilege was still suspended on November 18, 1999 because she had not complied with the Bureau's administrative process and paid a $25.00 restoration fee. The question we are asked to determine is whether a motorist's operating privilege remains suspended after a time-certain period of suspension where a motorist has not complied with the Bureau's administrative process of restoration. We addressed this issue in our decisions in Department of Transportation, Bureau of Driver Licensing v. Manuel, 546 A.2d 1336 (Pa. Cmwlth. 1988), petition for allowance of appeal denied, 521 Pa. 624, 557 A.2d 727 (1989) and Caruso v. Department of Transportation, 557 A.2d 54 (Pa. Cmwlth. 1989), petition for allowance of appeal denied, 525 Pa. 588, 575 A.2d 117 (1990). Our holding in each of these cases is that a period of suspension or revocation must end on the date certain detemained by the length of the statutorily specified suspension.2 Applying these cases to the one before us Rossi would not be guilty of driving while her operating privilege was suspended because her privileges were restored by operation of law when her suspension ended on September 30, 1999. The Bureau, however, claims that the General Assembly amended Section 1543(c)(1) in 19943 in response to Manuel and Caruso by adding the phrase "and had not been restored" to Section 1543(c)(1) to bring it into accord 2 Our original holding was in Manuel. We issued our decision in Caruso on reconsideration to bring it into accord with Manuel. 3 Manuel was decided in 1988, Caruso in 1989. If what the Bureau says is tree, we are left to wonder why the General Assembly waited five years to address this issue. 3 with this similar language from Section 1543(a): "and before the operating privilege has been restored." In its brief the Bureau tells us that the legislature inserted this language into Section 1543(c)(1) to expand the period where drivers convicted of violating Section 1543 would be liable for additional periods of suspension or revocation of their operating privileges from that outlined in Manuel and Caruso to also include those periods of time after a driver had served a time certain suspension up until the driver had completed the steps necessary for a restoration of operating privileges. Appellant's brief at 18. The disingenuousness, if not outfight dishonesty of this assertion is clearly demonstrated by the fact that the addition of "and had not been restored" to Section 1543(c)(1) does not in any way affect this statement that we made in Manuel: By delineating in Section 1543(a) that driving "before the ~operating privilege had been restored" the legislature clearly intended that such action would be penalized. However, the onset and expiration dates of suspension and revocation periods must still be recognized. Manuel 546 A.2d at 1337. Thus, in Manuel we specifically find that the existence in the statute of the phrase "before the operating privilege has been restored" does not change the fact that the "onset and expiration dates of suspension and revocation periods 4 must still be recognized." If the General Assembly did not agree with this clearly stated interpretation of its words and wanted to expand periods of revocation and suspension it would not do that by using language that we had already interpreted as having no effect on statutorily prescribed periods of suspension. We do not know why this phrase was inserted into the statute but it was not put there to change the effect of anything we said in Manuel or Caruso. The fact that Rossi was not in physical possession of her driver's license when she was stopped on November 18, 1999 is not relevant to the question of whether she possessed the privilege of operating a motor vehicle on that date. The physical possession of a driver's license does not confer such a privilege on a motorist whose privilege has been suspended or revoked any more than the failure to physically possess a license strips an otherwise qualified motorist of that privilege. Section 1511(a) of the Vehicle Code, 75 Pa. C.S. {}151 l(a), requires a motorist to carry a valid driver's license while operating a motor vehicle and to produce that license at the request of a police officer: '1511. Carrying and exhibiting driver's license on demand (a) General rule.--Every licensee shall possess a driver's license issued to the licensee at all times when driving a motor vehicle and shall exhibit the license upon demand by a police officer, and when requested by the police officer the licensee shall write the licensee's name in the presence of the officer in order to provide identity. 5 However, Section 1511(b) specifically provides that penalties for violating the statute, if any, shall be limited: Co) Production to avoid penalty.--No person shall be convicted of violating this section or section 1501(a) (relating to drivers required to be licensed)4 if the person: (1) produces at the headquarters of the police officer who demanded to see the person's license, within 15 days of the demand, a driver's license valid in this Commonwealth at the time of the demand; or (2) if a citation has been filed, produces at the office of the issuing authority, within 15 days of the filing of the citation, a driver's license valid in this Commonwealth on the date of the citation. There is no penalty for driving a vehicle while not carrying a driver's license if a person possesses the privilege to operate a motor vehicle in the Commonwealth at the time and can produce a valid license within 15 days. Section 1511CO) specifically prohibits an issuing authority from convicting a motorist found in violation Section 1511(a) of violating Section 1502(a). By drafting Section 1511 Co) in this way the General Assembly has made a clear and unambiguous distinction between physically carrying a driver's license and possessing the privilege to operate a motor vehicle. Section 1501. Drivers required to be licensed. (a) General rule.--No person, except those expressly exempted, shall drive any motor vehicle up on a highway or public property in th/s Commonwealth unless the person has a driver's license valid under the provisions of this chapter. 6 Rossi did not physically possess a driver's license when she was stopped on November 18, 1999, but she did possess a valid privilege to operate a motor vehicle in the Commonwealth on that date; she could not, therefore, have been operating a motor vehicle in violation of Section 1543(a). In so finding we reaffirm our holding expressed in Manuel and Caruso that suspensions and revocations of operating privileges are limited to the time-certain periods of those suspensions and revocations. Accordingly, we affirm the order of the Court of Common Pleas of Lancaster County in this matter. JAMES GARDNER COLINS, President Judge 7 IN THE COMMONWEALTH COURT OF PENNSYLVANL~. Angela Lynne Rossi Vo Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant : No. 2366 C.D. 2001 ORDER AND NOW, this 29th day of April 2002, the order of the Court of Common Pleas of Lancaster County in the above-captioned matter is hereby affirmed. JAMES GARDNER COLINS, President Judge COMMONWEALTH V. ROBERT D. PENNINGTON IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing PETITION TO APPEAL NUNC PRO TUNC by mailing a tree and exact copy addressed to the following: Date George Kabusk, Esquire Office of Chief Counsel Pennsylvania Department of Transportation 103 Transportation & Safety Building Harrisburg, PA 17120 Respectfully submitted, ABELN LAW OFFICES Darlene F. Mellinger Legal Assistant 37 East Pomfret Street Carlisle, PA 17013-3313 717/245-2851 COMMONWEALTH V. ROBERT D. PENNINGTON : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA :NO. O~-36'-?O SHOW CAUSE RULKTO. AND NOW this-g~~ day of~ ., 2002, a Rule is issued on thc Commonwealth to show cause why th Petition~'s Appeal from license suspension nuncpro tunc should not be granted. Rule returnable within ~-- days nrth- ~-'_ .... CC: George Kabusk, Esquire For the Commonwealth Gregory Barton Abeln, Esquire For the Petitioner By the Court, ROBERT D. PENNINGTON, PETITIONER COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, : RESPONDENT : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 02-3590, CIVIL LICENSE SUSPENSION APPEAL DEPARTMENT OF TRANSPORTATION'S RESPONSE TO RULE TO SHOW CAUSE AND NOW comes the Department of Transportation (hereinafter referred to as "Department") by and through its attorney, George H. Kabusk, Assistant Counsel, and hereby responds to the Order of Court dated July 30, 2002, as follows: The Department of Transportation notified the petitioner by notice dated June 17, 2002, that as a result of his June 7, 2002 conviction of violating of Section 1543 of the Vehicle Code, relating to Driving while Suspended or Revoked, on April 25, 2002, his driving privilege was being revoked ora period of two years effective July 22, 2002. July 17, 2002 was the last date on which the petitioner could have filed a timely appeal. On July 26, 2002, the petitioner, Robert D. Pennington, filed a Petition for Appeal Nunc Pro Tunc from a notice of suspension/revocation dated June 17, 2002. On July 30, 2002, an Order was issued upon the Department to show cause why the o petitioner should not be permitted to appeal his license suspension nuncpro tunc. Mr. Pennington's appeal is untimely; July 26, 2002, the date on which the appeal was flied, is clearly after July 17, 2002, the last date on which the petitioner could have filed a timely appeal. An appeal ora license suspension must be filed within thirty days of the mailing date of the Department's Notice of Suspension. See 75 Pa.C.S. § 1550 and 42 Pa.C.S. §§ 5571, 5572; Bye v. Department of Transportation, Bureau of Driver Licensing, 147 Pa. Commw. 205, 607 A.2d 325 (1992). Failure to file the appeal within the thirty-day appeal period deprives the court of jurisdiction to entertain the merits of the case. See Department of Transportation, Bureau of Motor Vehicles v. Shenter, 157 Pa. Commw. 380, 629 A.2d 1063 (1993), appeal denied, 536 Pa. 635, 637 A.2d 294 (1993), (appeal quashed when filed one day after the expiration of the 30 day appeal period.); Kulick v. Department of Transportation, Bureau of Driver Licensing, 666 A.2d 1148 (Pa. Cmwlth. 1995), appeal denied, 544 Pa. 616, 674 A.2d 1077 (1996). An appeal nuncpro tunc may only be allowed when there is proof of extraordinary cimumstances involving fraud or breakdown of administrative or judicial system which causes the late filing. Maxion v. Department of Transportation, Bureau of Driver Licensing, 728 A.2d 442 (Pa. Cmwlth. 1999); Kulick v. Department of Transportation, Bureau of Driver Licensing, 666 A.2d 1148 (Pa. Cmwlth. 1995), appeal denied, 544 Pa. 616, 674 A.2d 1077 (1996); Department of Transportation, Bureau of Traffic Safety v. Rick, 75 Pa. Commw. 514, 462 A.2d 902 (1983). The petitioner's alleged reason for allowance of appeal nuncpro tunc, that reason being that the Department suspended the petitioner al[er the Commonwealth Court decided Commonwealth v. Rossi, No. 2366 C.D. 2001 (Cmwth. Ct. 2002) and filed the Rossi opinion on April 29, 2002, is not an extraordinary circumstance involving fraud or the breakdown of the system meriting granting a nuncpro tunc appeal so as to excuse the petitioner from the statutory requirement that the petitioner file the appeal within 30 days from June 17, 2002, the date the notice of suspension was issued. WHEREFORE, the Department of Transportation respectfully requests that the Petitioner's request for relief be denied and the appeal be quashed. Dated: August 12, 2002 Respectfully submitted, George H. Kabusk Assistant Counsel Department of Transportation Riverfront Office Center 1101 South Front Street Harrisburg, PA 17104-2516 (717) 787-2830 ROBERT D. PENNINGTON, PETITIONER Ve COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, : RESPONDENT : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 02-3590, CIVIL LICENSE SUSPENSION APPEAL VERIFICATION Date: August 12, 2002 I verify that the statements made in the Department of Transportation's Response to Show Cause are true and correct. I understand that false statements are made subject to the penalties of 18 Pa. C. S. Section 4904, relating to unswom falsification to authorities. Assistant Counsel Department of Transportation Riverfront Office Center-3rd Floor 1101 South Front Street Harrisburg, PA 17104-2516 (717) 787-2830 ROBERT D. PENNINGTON, PETITIONER : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA,: DEPARTMENT OF TRANSPORTATION, : BUREAU OF DRIVER LICENSING, : RESPONDENT : No. 02-3590, CIVIL LICENSE SUSPENSION APPEAL .CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the Department of Transportation's Response to Show Cause upon the person, and in the manner, indicated below, which satisfies the requirements of the Pennsylvania Rules of Civil Procedure: By first class mail, prepaid, addressed to: Gregory B. Abeln, Esquire 17 East Pomfret Street Carlisle, PA 17013 Date: August 12, 2002 Assistant Counsel Department of Transportation Riverfront Office Center-3rd Floor 1101 South Front Street Harrisburg, PA 17104-2516 (717) 787-2830 ROBERT D. PENNINGTON, PETITIONER Ve COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, RESPONDENT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 02-3590, CIVIL LICENSE SUSPENSION APPEAL ORDER Show, this the appeal consideration of the Department s Response to Rulelto Court finds that was not filed and perfected within the thirty (30) days allowed by law. Accordingly, the license suspension appeal is quashed and dismissed for want of jurisdiction. The Department of Transportation, Bureau of Driver Licensing, is hereby ordered to reinstate the suspension which is the subject of this appeal. BY THE COURT DISTRIBUTION: George H. Kabusk, Esquire, PennDOT, Office of Chief Counsel, Riverfront Office Center-3rd Floor, 1101 South Front Street, Harrisburg, PA 17104-2516 Gregory B. Ablen, Esquire, 17 East Pomfret Street, Carlisle, PA 17013 C~ ~