Maxion v. Commonwealth4/23/1999
Submitted: March 12, 1999
Emil E. Maxion (Maxion) appeals from the order of the Court of Common Pleas of Montgomery County (trial court), which denied Maxion's petition for leave to file a nunc pro tunc statutory appeal from a one-year suspension of his operating privilege, imposed by the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Bureau), pursuant to Section 1547(b)(1) of the Vehicle Code, 75 Pa. C.S. §1547(b)(1).
The following facts gave rise to Maxion's appeal. Prior to October 10, 1997, Maxion lived at 1006 Glen Devon Drive, Ambler, Pennsylvania, which was his address of record with the Bureau. On or about October 10, 1997, Maxion moved from the foregoing address to that of his parents at 635 Allentown Road, Telford, Pennsylvania. He neglected to notify the Bureau in writing of his change of address, as required by Section 1515 of the Vehicle Code, 75 Pa. C.S. §1515.
On October 11, 1997, Maxion was arrested by Pennsylvania State Trooper Steven Ranck (Trooper Ranck) and was charged with driving under the influence (DUI). Maxion was asked to submit to chemical testing, and his response was deemed a refusal by Trooper Ranck, who reported that refusal to the Bureau. According to the record, several days after his arrest, Maxion contacted the Pennsylvania State Police barracks and left a message for Trooper Ranck indicating that he was temporarily living at his parent's house at 635 Allentown Road in Telford.
The Bureau, by official notice letter dated November 3, 1997 and mailed to Maxion's former Ambler address of record, notified Maxion that, as a result of his reported refusal to submit to chemical testing, his operating privilege was scheduled to be suspended for one year, effective December 8, 1997. Maxion, then living with his parents in Telford, avers that he did not receive the notice until December 17, 1997, after the 30-day appeal period had expired. On December 19, 1997, Maxion, acting through his attorney, filed a petition for leave to file a nunc pro tunc appeal from the suspension.
A hearing on this petition was held on September 28, 1998, at which Maxion recounted that the date he was arrested for his DUI offense, was the same day on which his wife asked him to leave their marital residence in Ambler, resulting in his move to Telford. Maxion also reiterated that he had left a message for Trooper Ranck advising the latter of his new residence. Trooper Ranck verified Maxion's testimony and stated that he provided Maxion's "new" Telford address to the district Justice, after Maxion failed to appear at the first scheduled preliminary hearing, but that he did not forward the address to the Department of Transportation. At the hearing, Maxion also testified that from November 12, 1997, through November 14, 1997, he was in the County Emergency Services and that from November 14, 1997, through December 1, 1997, he was an inpatient at the Horsham Clinic. He further testified that during the time he was absent from his marital residence, he was not permitted to check his mail, and that the only mail he received was that which his wife sporadically delivered to his father.
While expressing sympathy for Maxion's situation, the trial court nonetheless stated that a "petition nunc pro tunc for a license suspension on appeal has to show either fraud or a breakdown in the court system," and that "unfortunately, for Mr. Maxion, taking everything he says as true, and I accept everything that he says as true, neither of those propositions are made out by the testimony." (N.T. 9/28/98, p. 24). Accordingly, the trial court denied Maxion's petition, and this appeal followed.
Upon review
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