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Wright v. Commonwealth11/14/2005
The Department of Transportation, Bureau of Driver Licensing (PennDOT) appeals an order of the Court of Common Pleas of Montgomery County (trial court) that sustained Michael T. Wright's (Licensee) license suspension appeal. The trial court determined Licensee was entitled to a nunc pro tunc or "now for then" appeal, and Licensee's Driving Under the Influence (DUI) and Aggravated Assault by Vehicle while DUI (AA-DUI) convictions merge for purposes of operating privilege suspension. We affirm.
The trial court made the following findings. In July 2004, Licensee pled guilty to charges of DUI and AA-DUI. Approximately a month later, PennDOT sent Licensee a notice of suspension for one year related to the DUI conviction and a notice of suspension for three years related to a purported Homicide by Vehicle-DUI conviction. Both suspension letters indicated Licensee had until September 20, 2004 to file an appeal.
Shortly thereafter, Licensee's wife contacted PennDOT and explained its error in the notice of suspension for a homicide by vehicle conviction. PennDOT informed Licensee's wife it could not take any action until it received an amended report of conviction listing the correct charges. PennDOT further informed Licensee's wife that once it received an amended report, it would issue new suspension letters with new appeal periods.
Licensee's wife promptly contacted the Montgomery County Clerk of Courts Office, which issued an amended report of conviction listing the correct charges. The Clerk's office faxed a copy of the amended report to Licensee and to PennDOT. Nevertheless, PennDOT did not issue corrected suspension letters; rather, it merely forwarded Licensee a Restoration Requirements Letter. This letter correctly listed Licensee's DUI and AA-DUI convictions and provided for a one-year operating privilege suspension for each, to run consecutively.
On September 13, 2004, Licensee, representing himself, attempted to appeal the suspensions referred to in the Restoration Requirements Letter. The Clerk of Courts' office returned the appeal, however, as it did not contain the required filing fee. Upon receiving the returned packet, Licensee's wife completed the necessary appeal form, attached a check for the appropriate filing fee, and forwarded the completed appeal to the Clerk's office. The trial court docketed the appeal on September 30, 2004.
Before the trial court, PennDOT asserted Licensee's appeal should be dismissed as untimely. The trial court disagreed, stating, based on the incorrect information in the suspension letters, an administrative breakdown occurred. The trial court stated this breakdown was exacerbated by PennDOT's advice to Licensee's wife that PennDOT would issue new suspension notices with new appeal periods. The trial court determined Licensee and his wife detrimentally relied on this advice. Thus, the trial court determined Licensee was entitled to an appeal nunc pro tunc.
The trial court then considered whether PennDOT could impose separate one-year operating privilege suspensions for Licensee's DUI and AA-DUI convictions. Relying on Zimmerman v. Dep't of Transp., Bureau of Driver Licensing, 759 A.2d 953 (Pa. Cmwlth. 2000), petition for allowance of appeal denied, 567 Pa. 753, 788 A.2d 382 (2001), the trial court determined Licensee's DUI and AA-DUI convictions merged for purposes of operating privilege suspension and, as a result, PennDOT could only impose a single one-year suspension. PennDOT now appeals to this Court.
On appeal, PennDOT raises two issues. First, it asserts Licensee failed to satisfy his burden of proving entitlement to appeal nunc pro tunc. Second, PennDOT maintains Zimmerma
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