G.F. Rosado, Jr. v. Bureau of Driver Licensing ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Geronimo F. Rosado, Jr., :
Appellant :
:
v. : No. 400 C.D. 2021
: Submitted: December 3, 2021
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: April 29, 2022
Geronimo F. Rosado, Jr. (Licensee), pro se, appeals an order of the
Court of Common Pleas of Chester County (trial court) that denied his petition to
appeal, nunc pro tunc, the suspension of his driver’s license. The Department of
Transportation, Bureau of Driver Licensing (PennDOT), suspended Licensee’s
operating privilege under Section 1547(b)(1)(i) of the Vehicle Code for his refusal
to submit to chemical testing after his arrest for driving under the influence of
alcohol.2 Licensee argues that because he did not receive PennDOT’s notice of
1
This matter was assigned to the panel before January 3, 2022, when President Judge Emerita
Leavitt became a senior judge on the Court.
2
Section 1547(b)(1)(i) states as follows:
(b) Civil penalties for refusal.--
(1) If any person placed under arrest for a violation of section 3802 is
requested to submit to chemical testing and refuses to do so, the testing shall
not be conducted but upon notice by the police officer, the department shall
suspend the operating privilege of the person as follows:
suspension, he should be allowed to appeal nunc pro tunc. For the reasons that
follow, we affirm the trial court.
On July 21, 2017, Licensee was arrested and charged with, inter alia,
Driving Under the Influence of Alcohol or a Controlled Substance in violation of
Section 3802 of the Vehicle Code, 75 Pa. C.S. §3802. The arresting officer
transported Licensee to Chester County Hospital for chemical testing. The Implied
Consent Form DL-26, signed by the officer, recorded that Licensee refused to submit
to a blood test. Reproduced Record at 262a (R.R. __).3 On August 30, 2017,
PennDOT notified Licensee that his operating privilege would be suspended for one
year, effective January 25, 2030, for violating 75 Pa. C.S. §1547(b)(1)(i) of the
Vehicle Code (Implied Consent Law). PennDOT’s notice stated that Licensee had
a right to appeal the suspension, so long as he filed the appeal within 30 days.
Three years later, on September 11, 2020, Licensee filed a “petition to
file nunc pro tunc” alleging that he never received PennDOT’s August 30, 2017,
suspension notice. R.R. 14a-19a. On November 19, 2020, the trial court conducted
a hearing on Licensee’s application to appeal nunc pro tunc.
At the hearing, Licensee testified that in July 2017, he was arrested for
driving under the influence and was asked to consent to a chemical test. He refused.
Licensee also testified that he did not learn that his operating privilege had been
suspended until August 30, 2020, when he was pulled over for a traffic violation.
(i) Except as set forth in subparagraph (ii), for a period of 12
months.
75 Pa. C.S. §1547(b)(1)(i).
3
Licensee’s Reproduced Record fails to comply with Pennsylvania Rule of Appellate Procedure
2173 because he did not number the pages. See PA. R.A.P. 2173 (the pages of the reproduced
record shall be numbered separately in Arabic figures and followed by a small a, thus 1a, 2a, 3a,
etc.). For ease of reference and clarity, the Court will cite the Reproduced Record as if the pages
were properly numbered, starting with the cover page as page 1a.
2
Notes of Testimony, 11/19/2020, at 9 (N.T. __); R.R. 241a. Licensee confirmed that
his address is 401 West Gay Street in West Chester, Pennsylvania. Licensee
explained that he has problems with his mail delivery because his
address is 401 West Gay Street. The police station’s address is
401 East Gay Street. And for some odd reason [its] mail . . . ends
up at my house and my mail either gets delayed or it never even
comes. And I’ve been having a problem with the Social Security
office sending me mail and it’s delayed or it never comes. I
addressed this in other court hearings in this Department, in this
courthouse and also their Circuit Court of Appeals as well with
affidavits that I have been having ongoing problems with my
mail and I never received any notice from PennDOT in 2017.
And to that extent, the court – the Clerk of Courts docket reflects
that I have filed over 30 petitions in regards to this [driving under
the influence] related case. In that event, if I received notice from
the chemical test refusal at that time, I would have filed an appeal
and [taken] action[.]
N.T. 11; R.R. 243a. On cross-examination, Licensee stated that although he has
been driving since October of 2001, he does not have a driver’s license because he
has been “incarcerated about 85[%]” of his life. N.T. 19; R.R. 251a.
PennDOT submitted documentary evidence that on July 21, 2017,
Licensee was stopped for driving under the influence and refused chemical testing.
On August 30, 2017, PennDOT notified Licensee that his “driving privilege” was
suspended for a period of 1 year, effective 1/25/2030 at 12:01
a.m. This suspension is in addition to any other suspensions
already on your record.
R.R. 259a.
3
Following the hearing, the trial court entered an order denying
Licensee’s petition for leave to appeal nunc pro tunc PennDOT’s suspension of his
operating privilege. 4 Licensee appealed.
At the trial court’s direction, Licensee filed a statement of errors
complained of on appeal pursuant to PA. R.A.P. 1925(b).5 The trial court then issued
a PA. R.A.P. 1925(a) opinion holding that Licensee’s incoherent Rule 1925(b)
Statement identified only one issue remotely relevant to the trial court’s order
denying nunc pro tunc relief. Specifically, Licensee asserted that he was not allowed
to prove that he has problems with his mail delivery. The trial court explained that
Licensee’s testimony did not support an inference that mail addressed to him was
mistakenly delivered to the police station. Trial Court 1925(a) Op. at 2; R.R. 295a.
The trial court held that Licensee’s inadequate Rule 1925(b) Statement waived all
issues on appeal. Alternatively, to the extent any issues were found to be preserved,
4
The trial court’s order stated, in pertinent part:
AND NOW, this 19th day of November 2020, after hearing, upon consideration of
[Licensee’s] Petition for Leave to Appeal Nunc Pro Tunc, it is hereby ORDERED
and DECREED that [Licensee’s] petition is:
 DENIED and the suspension shall REMAIN IN EFFECT.
R.R. 160a (emphasis in original).
5
On February 12, 2021, Licensee requested additional time to file the Rule 1925(b) statement. On
February 22, 2021, Licensee filed a document entitled “Sui-Juris Statement of Errors Complained
on Appeal Pursuant [to] Pa.R.A.P. No. 1925(b). (1).” R.R. 210a-28a. In this Statement, Licensee
identified 14 errors by the trial court, including, inter alia, that the trial court erred in denying him
“the [r]ight to introduce evidence into the record directly in connection to the alleged [c]hemical
[t]est refusal, [n]ever received notice, denial [of] due process[;]” the “right to be heard, introduce
evidence, provide testimony he never received any notice from [PennDOT] to appeal[;]” the right
“to enter into evidence testimony since his release from [State Correctional Institution-]Dallas the
police station mail comes to his residence (401 W. Gay St) the police station mail address is (401
E. Gay St) provided direct and recent mail as evident [sic] in support[;]” and “due process rights
by . . . denying [n]unc [p]ro [t]unc relief by mail[.]” R.R. 216a-18a.
4
the trial court explained that Licensee’s testimony was “so lacking in credibility that
it could not be the basis of proving anything[.]” Trial Court 1925(a) Op. at 2.
On appeal,6 Licensee raises several issues.7 First, Licensee argues that
the trial court erred by overlooking the unrebutted evidence that he did not receive
PennDOT’s suspension notice dated August 3, 2017. Second, Licensee argues that
the trial court erred by presuming that PennDOT’s suspension notice was mailed and
that he received it. Third, Licensee argues that the trial court erred in not permitting
him to present evidence on the merits of the chemical test refusal. Fourth, Licensee
argues that PennDOT’s actions have violated his federal constitutional rights.
In response, PennDOT argues that Licensee failed to preserve any of
these issues for appeal because his Rule 1925(b) Statement did not comply with PA.
R.A.P. 1925(b). Licensee’s Statement is 16 pages long and raises 14 issues, only 3
of which relate to the trial court’s denial of his petition to appeal nunc pro tunc.
Instead, Licensee’s Statement complains about the Federal Rules of Civil Procedure,
the Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S. §§5701-5782,
and other subjects that bear no relation to the denial of his petition to appeal nunc
pro tunc.
Under Rule 1925(b), a Statement of Errors Complained of on Appeal
must (1) set forth the errors intended to be asserted on appeal, (2) concisely identify
each error with sufficient detail to allow the judge to identify it, and (3) specify the
issues without redundancy or unnecessary length. PA. R.A.P. 1925(b)(4)(i), (ii), (iv).
The purpose of Rule 1925(b) “is to aid the trial court in drafting an opinion
6
This Court’s review determines whether the trial court abused its discretion or committed an error
of law, or whether the trial court’s findings are supported by substantial evidence. Rawson v.
Department of Transportation, Bureau of Driver Licensing, 99 A.3d 143, 147 n.2 (Pa. Cmwlth.
2014).
7
Licensee’s issues on appeal have been reordered and restated for clarity.
5
identifying and focusing on those issues that the parties plan to raise on appeal.”
Commonwealth v. Johnson, 771 A.2d 751, 756 (Pa. 2001). PennDOT argues that
Licensee’s Rule 1925(b) Statement does not meet any of the standards for a concise
statement.
We agree that Licensee’s Rule 1925(b) Statement is not concise and
that many of the issues raised and argued therein are not relevant to his appeal.
Nevertheless, the trial court understood that Licensee asserted that he was not
permitted to establish a problem with his mail; the trial court addressed this issue.
Accordingly, we will address the merits of Licensee’s appeal.
The Judicial Code gives a Licensee 30 days from the mailing date of
PennDOT’s notice of suspension to file an appeal with the trial court. 42 Pa. C.S.
§§5571(b), 5572. “Appeals filed beyond the 30-day appeal period are untimely and
deprive the common pleas court of subject matter jurisdiction over such appeals.”
Department of Transportation, Bureau of Driver Licensing v. Maddesi, 588 A.2d
580, 582 (Pa. Cmwlth. 1991). Here, it is undisputed that Licensee’s appeal, filed on
September 11, 2020, was filed three years too late. Nevertheless, an appeal nunc
pro tunc will be allowed where the appeal was untimely filed due to fraud or a
breakdown in the agency’s operations or other “extraordinary circumstances.”
Commonwealth v. Stock, 679 A.2d 760, 764 (Pa. 1996). Further, the appellant must
demonstrate that the delay could not be attributed to any negligence by the appellant.
Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130 (Pa. 1996).
Further, “allegations that one has failed to receive a mailing are insufficient for
allowing a nunc pro tunc appeal.” J.A. v. Department of Public Welfare, 873 A.2d
782, 786 (Pa. Cmwlth. 2005). “The so-called ‘mailbox rule’ creates a rebuttable
6
presumption that the item mailed was received and mere denial of receipt is not
sufficient to defeat this presumption.” Id.Here, Licensee had the burden of proving that his failure to file a timely
appeal resulted from fraud or a breakdown in the agency’s operations that was
extraordinary and not the result of Licensee’s negligence. Licensee did not proffer
any evidence of a breakdown on the part of PennDOT; to the contrary, Licensee
admitted that the notice was addressed to the correct address. Licensee testified that
he receives mail addressed to a police station and, apparently, expected the trial court
to infer that the police station received his notice from PennDOT. However,
Licensee did not call a witness from the police station to support this supposition,
and the trial court did not find Licensee’s testimony believable. “Determinations as
to the credibility of witnesses and the weight assigned to the evidence are solely
within the province of the trial court as fact-finder.” Reinhart v. Department of
Transportation, Bureau of Driver Licensing, 954 A.2d 761, 765 (Pa. Cmwlth. 2008).
“As fact-finder, the trial court may accept or reject the testimony of any witness in
whole or in part.” Id. Simply, there was no evidence to support a finding that
Licensee did not receive PennDOT’s suspension notice.
Because the record lacks evidence of fraud, administrative breakdown
or other extraordinary circumstances, Licensee did not prove a basis for a nunc pro
tunc appeal.8 Accordingly, we affirm the trial court.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
8
Because we conclude that Licensee is not entitled to an appeal nunc pro tunc, we do not address
his remaining issues on appeal.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Geronimo F. Rosado, Jr., :
Appellant :
:
v. : No. 400 C.D. 2021
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing :
ORDER
AND NOW, this 29th day of April, 2022, the order of the Court of Common
Pleas of Chester County in the above-captioned matter dated November 19, 2020, is
AFFIRMED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita