Com. v. Zukos, S. ( 2016 )

J-A18039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STANLEY JOSEPH ZUKOS, JR.,
Appellant No. 1929 MDA 2014
Appeal from the Order October 14, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-SA-0000064-2013-CP-40-SA-0000236-
2014-CP-40-SA-0000237-2014
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*
JUDGMENT ORDER BY STEVENS, P.J.E.: FILED AUGUST 09, 2016
Appellant, Stanley Joseph Zukos, Jr., appeals from the Order entered
in the Court of Common Pleas of Luzerne County on October 10, 2014,
dismissing his summary appeals of his convictions for violations of Driving
while operating privileges were suspended or revoked, 75 Pa.C.S.A. §
1543(a). Upon our review, we vacate and remand with instructions.
By way of background, on February 24, 2011, Appellant filed a notice
of appeal in a separate matter from PennDOT’s suspension of his driver’s
license. A hearing was scheduled in that case before the Honorable Joseph
F. Sklarosky, Jr., on October 20, 2014; however, it never occurred.
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*Former Justice specially assigned to the Superior Court.
J-A18039-16
The instant matter concerns Appellant’s appeal of three, separate
summary citations for driving with a suspended license. The cases were
consolidated and argument was held before the Honorable Senior Judge
Hugh F. Mundy on September 17, 2014. At that time, Appellant averred a
supersedeas was in effect in accordance with 75 Pa.C.S.A. § 1550(b)(1),1
and that Judge Mundy did not have jurisdiction to rule on the summary
appeals until Judge Sklarosky issued a determination in his pending appeal
of his driver’s license suspension.
In his Order of October 10, 2014, issued ten days prior to the
scheduled hearing in the driver’s license suspension matter, Judge Mundy
determined Appellant’s appeal therein had been untimely filed and held
Section 1550 of the Vehicle Code was, therefore, inapplicable to the within
matter. Specifically, Judge Mundy noted that PennDOT mailed the Notice of
Suspension of Driving Privileges to Appellant on January 21, 2011, and
indicated that Appellant had the right to appeal that action to the trial court
within 30 days of that date, or by February 21, 2011, but he failed to do so
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1
This statute reads as follows:
(b) Supersedeas.--
(1) (i) Except as provided in subparagraphs (ii) and (iii),
filing and service of a petition for appeal from a suspension or
revocation shall operate as a supersedeas until final
determination of the matter by the court vested with the
jurisdiction of such appeals.
75 Pa.C.S.A. § 1550(b)(1).
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until February 24, 2011. See Findings of Fact and Conclusions of Law,
10/10/14, at ¶¶ 12-14. Thus, Judge Mundy concluded the supersedeas had
not been in effect at the time Appellant was charged with the various
offenses under Section 1543(a) of the Vehicle Code. Id. at ¶¶ 15, 17.
Appellant filed a timely notice of appeal with this Court on November
10, 2014. In his brief, Appellant presents the following question for our
review:
WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW OR
ABUSED ITS DISCRETION IN DISMISSING AN APPEAL FROM
SUMMARY TRAFFIC OFFENSES WHEN THERE WAS A
COLLATERAL HEARING SCHEDULED BEFORE ANOTHER COURT
AND WHEN THE INSTANT TRIAL COURT DID NOT HAVE
JURISDICTION TO HEAR THE APPEAL FROM THE APPEAL FROM
THE PENNSYLVANIA DEPARTMENT OF TRANSPORTATION?
Brief of Appellant at 3.
Appellant stresses that PennDOT which is not a party in the instant
matter bears the burden of proof in a driver’s license suspension appeal and
concludes that if there had been no suspension of his driver’s license, the
citations under Section 1543(a) would be dismissed. Appellant acknowledges
Judge Mundy found that the notice of appeal in the driver’s license
suspension matter had been untimely filed but argues that the issue of
timeliness therein should have been considered only after a hearing on the
merits and that Judge Mundy did not have jurisdiction over that pending
collateral appeal.
Appellant further states that even assuming the Commonwealth is
correct that a trial court has jurisdiction over matters brought outside of the
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thirty-day appeal period only where the appealing party requests a nunc pro
tunc appeal, there was no need to do so herein, because a hearing on the
license suspension matter had been scheduled and counsel for PennDOT
previously had entered their appearance. As such, Appellant posits that
once he filed and served his appeal in his driver’s license suspension case, a
supersedeas had been in effect under 75 P.S. § 1550(b)(1); therefore, Judge
Mundy abused his discretion and committed a clear error of law in dismissing
his summary appeals. Brief of Appellant at 8-10.
Based upon the foregoing, we conclude Judge Mundy erred when he
issued his decision herein which effectively deprived Appellant of a hearing
to determine the condition precedent of his summary convictions- namely,
whether Appellant’s driver’s license properly had been suspended. It is
undisputed herein that Appellant filed a notice of appeal in that matter on
February 24, 2011, and a hearing on that appeal had been scheduled, for
October 14, 2014, although it never was held. In addition, Judge Mundy
heard no testimony on September 17, 2014. Accordingly, we vacate the
Judge Mundy’s October 10, 2014, Order and remand to the trial court to
conduct a hearing in the driver’s license suspension matter, at which time
the timeliness and merits of Appellant’s appeal in that case may be explored.
Thereafter, the trial court shall issue an order on Appellant’s summary
appeals of his convictions under Pa.C.S.A. § 1543(a) at issue herein.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2016
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