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Rutkowski v. Commonwealth

December 24, 2009


The opinion of the court was delivered by: Judge Leavitt

Submitted: August 21, 2009



The Pennsylvania Department of Transportation, Bureau of Driver Licensing (Department), appeals an order of the Court of Common Pleas of Westmoreland County (trial court), which allowed Richard A. Rutkowski (Licensee) to appeal his driver license suspension on a nunc pro tunc basis. The Department contends that the trial court abused its discretion in allowing his appeal because Licensee failed to prove that fraud or a breakdown in the administrative or judicial process had occurred. On the merits, the Department argues that its documentary evidence of Licensee's driving history proved a violation of the financial responsibility requirements of the Vehicle Code.

The relevant facts are not in dispute. Licensee has a long history of driving citations dating back to 1977, including, inter alia, five incidents of speeding and four counts of driving without a valid license. On July 14, 2008, Licensee was cited for various traffic offenses: driving an unregistered vehicle; operating a vehicle without an inspection certificate; operating a vehicle without the required financial responsibility; and failure to carry a registration card. Licensee was convicted of these offenses on August 14, 2008. It is his conviction for failure to prove financial responsibility under Section 1786(f) of the Vehicle Code*fn1 that is at issue in this case.

On August 22, 2008, the Department sent Licensee a Notice of Suspension advising him as follows:

Your driving privilege is scheduled to be suspended on 09/26/2008, because you failed to produce proof of financial responsibility on 07/14/2008, the date of your traffic offense.

1. Your driving privilege will be suspended for three months effective 09/26/2008 at 12:01 A.M. as authorized by Section 1786(d) of the Vehicle Code.*fn2

Reproduced Record at 6a (R.R. __). The notice of suspension included a standard notice that Licensee had the right to appeal "within 30 days of the mail date, August 22, 2008, of this letter." R.R. 7a. Accordingly, the deadline for the suspension appeal was September 22, 2008.

On September 4, 2008, Licensee appealed his August 14, 2008, conviction for failing to produce proof of financial responsibility. In addition, by letter of August 15, 2008, Licensee's counsel requested the Department to defer Licensee's suspension until his conviction appeal was decided. The Department denied the delay request by letter dated September 23, 2008, one day after the appeal period had run. Licensee's counsel received the Department's denial on September 29, 2008, and on the next day she petitioned the trial court for leave to appeal Licensee's license suspension nunc pro tunc.

On October 3, 2008, the trial court held a hearing on Licensee's nunc pro tunc petition. Licensee's attorney stated that she requested the delay of suspension because, otherwise, Licensee's conviction appeal would have been rendered meaningless. Counsel described filing a request for delay along with the summary conviction appeal as "our normal course." Notes of Testimony (N.T.) October 3, 2008, at 2; Reproduced Record at 10a (R.R. ___). The Department's counsel agreed that "ordinarily in a summary situation, that would be sufficient." Id. He explained further that where a driver's license is suspended for failure to produce proof of financial responsibility, "[the parties] can still proceed through testimony," notwithstanding the outcome of the appeal of the conviction. The Department did not offer any reason for departing from its normal practice to defer Licensee's suspension.*fn3 The Department also did not explain why it waited over 30 days to respond to Licensee's request to postpone the suspension.

At the conclusion of the October 3, 2008, hearing, the trial court granted Licensee's request for nunc pro tunc relief. The trial court scheduled a hearing for December 12, 2008, on the merits of Licensee's suspension. However, the Department's witness, the police officer who cited Licensee on July 14, 2008, did not appear at the December hearing. The suspension hearing was continued to March, at the Department's request.

On March 6, 2009, the trial court conducted the rescheduled hearing. Without objection, the following certified documents were admitted into evidence:

(1) a copy of the Notice of Suspension; (2) a copy of a "Conviction Detail" showing Licensee's conviction on August 14, 2008, of violating 75 Pa. C.S. ยง1786(f); and (3) Licensee's Certified Driving Record. Neither the Department nor Licensee presented any evidence of whether Licensee actually had insurance, the usual ...

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