Appeal from the Order of the Court of Common Pleas of Lancaster County in case of Commonwealth of Pennsylvania v. Daniel M. Groff, Trust Book 46, Page 460.
Daniel M. Groff, appellant, for himself.
John V. Rovinsky, Assistant Counsel, with him Harold H. Cramer, Traffic Safety Counsel, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.
Judges Rogers, MacPhail and Barry, sitting as a panel of three. Opinion by Judge Rogers.
[ 78 Pa. Commw. Page 581]
Daniel M. Groff, who represents himself, has appealed from an order of the Court of Common Pleas of Lancaster County upholding the suspension by the Pennsylvania Department of Transportation (DOT) of his operator's license for failure to respond to a citation to appear before a court for violation of the Vehicle Code. See 75 Pa. C.S. § 1533.
A judge of the common pleas court scheduled a hearing at which we are told counsel for DOT moved to quash Groff's appeal as untimely. In support of the motion, DOT offered into evidence a copy of a notice of suspension addressed to the appellant dated December 19, 1980 to which was attached a certification over the signature of the Director of the Bureau of Traffic Safety Operations that the notice was "dated and mailed 12/19/80." Groff's appeal had been filed on April 22, 1981.
The motion to quash was grounded on Sections 5571(b) and 5572 of the Judicial Code, 42 Pa. C.S. §§ 5571(b) and 5572, providing, respectively, that appeals
[ 78 Pa. Commw. Page 582]
from a government unit to a court must be commenced within thirty days after entry of the order and that the date of mailing, if service is made by mail, shall be deemed to be the date of entry. The hearing judge granted the motion to quash. The judge filed a short opinion in which he noted that Groff "states that he only received actual notice of the suspension on March 24, 1981". The judge rejected this argument on the authority of Commonwealth v. Forte, 29 Pa. Commonwealth Ct. 415, 371 A.2d 526 (1977), in which it was held that the date of mailing, not the date of receipt, of the notice marks the beginning of the time within which the appeal must be taken.
A number of circumstances impel us to vacate the court's order and to remand for a hearing and further disposition of DOT's motion to quash and thereafter for a decision of the merits, if necessary. No transcript of the proceedings before the trial judge, if one was made, is in the record certified to us; hence, we do not know whether the appellant had an opportunity to give evidence. No copy of the notice dated December 19, 1980 is in the record certified from the court of common pleas, although a notice bearing that date is attached to DOT's brief. Among the records which were certified is the appellant's petition for review filed in common pleas to which are attached two notices, each dated February 6, 1981, one of which is similar in substance to the December 19, 1980 notice attached to DOT's brief. Groff alleges in the petition that the notices dated February 6, 1981 were handed to him by a state policeman on March 24, 1981.
Also, none of the copies of notices we have found in the record and briefs bears a date of mailing. In Schmidt v. Commonwealth, 495 Pa. 238, 241, 433 A.2d 456, 458 (1981), the Supreme Court held that where ...