Commonwealth v. Suchko

92 Pa. Commw. 520 | Pa. Commw. Ct. | 1985

Opinion by

Judge Doyle,

This is a license suspension case in which the Department of Transportation (Department) appeals from the order of the Court of ¡Common Pleas of Westmoreland County which sustained ¡the appeal of Paul Suchfco.

On December 29, 1980, the Department suspended Suchfco’s license under ¡Section 1538 of the Vehicle Code (¡Code),¹ which provides for suspension upon failure to pass a special examination required of motorists who have accumulated six or more points against their record. The effective date of the suspension was February 2,1981.

Suchfco appealed the Department’s suspension on February 2, 1981. At the hearing before the court of common pleas, the Department moved to quash Suehfco’s appeal on the grounds it was not timely filed. In support of its motion, the Department offered into evidence certified copies of the notice of point accumulation and required examination, as well as the notice of suspension. No mailing date was indicated on the face of either document, although the Department’s eertifioation indicated that the documents had heen mailed on September 24,1980 and December 29, 1980, respectively.² Suchko objected to the 'admission of these documents on the grounds that there was no evidence that the notices were mailed to him. The court of common pleas ¡sustained Suchko’s objection, and excluded the documents. Because the Department could not prove when the notice of ¡suspension was mailed, the court ¡overruled the Department’¡s motion to quash. The court then sustained Suchko’is appeal on the grounds that the Department had failed to give requisite notice.

On appeal the Department argues that the notice of suspension was ¡sufficient to ishow that the Suchko’s appeal was untimely filed, and therefore that its motion to quash should have been granted. We cannot agree. The notice of .suspension which was offered into ¡evidence contained no mailing date. Where, as here, the beginning of the appeal period is the date of the mailing of notice, the government unit has the duty to advise the Appellant of the date ¡of mailing. Schmidt v. Commonwealth, 495 Pa. 238, 433 A.2d 456 (1981); Groff v. Department of Transportation, Bureau of Traffic Safety, 78 Pa. Commonwealth Ct. 580, 467 A.2d 1224 (1983). The Department suggests that the mailing date was established by the certification of the document which describes the document as the “Official Notice of Suspension effective February 2, 1981, mailed December 29,1980. ’ ’ This ¡suggestion has previously been considered and rejected by our Court. In Groff we were confronted with a notice of .suspension, dated December 19,1980, but in which the mailing date did not appear on the document; instead only the accompanying attestation described the mailing date. We held:

If the attested copy of the notice of suspension had disclosed the fact that it was mailed ... , it would have been admissible as evidence of that fact of mailing . . . under .Section 6104 [of the Judicial Code³] If, as we believe, the authenticated copy disclosed no date ¡of mailing, there was no admissible evidence on that fact. The fact cannot be supplied for the record by a notation dehors the authenticated copy typed on the attestation. (Emphasis added.)

78 Pa. Commonwealth Ct. at 583-84, 467 A.2d at 1226.

Thus we must conclude that the Department did not establish the date of mailing, and that the trial court properly denied its motion to quash.

The Department next argues that, even assuming the appeal was timely filed, it should have been dismissed on the merits because the Department had submitted sufficient evidence to support the suspension. Section 1536 of the Vehicle Code3 ⁴ ¡states:

Whenever points are assigned to a driver’s record, the department shall send to that person at his last known address a letter of notice pointing out the fact and emphasizing the nature and effects of the point .system. Failure to receive such letter shall not prevent the suspension of the operating privilege pursuant to this sub-chapter.

We have held that while this section does not require that the notice was received, it does require that the Department prove that the notice was given. Faulstick v. Commonwealth, 66 Pa. Commonwealth Ct. 529, 445 A.2d 554 (1982). In the present case, the Department submitted a document which purported to notify .Suchko of his accumulation of six points and of his requirement to take an examination. As was the case with the notice of suspension, this document contained no indication of when, if at all, it was mailed to Suchko.⁵ Without proof that this notice was mailed to the motorist, the .suspension which eventually resulted must be invalidated.⁶ Faulstick.

For the foregoing .reasons we conclude that the trial court was correct in sustaining Suchko’¡s appeal. Accordingly, the order of the court of common pleas is affirmed.

Order

Now,.November 1, 1985, the order of the Court of Common Pleas of Westmoreland County, No. 728 of 1981, dated March 15,1982, is hereby affirmed.

1 75 Pa. C. S. §1538.

2 Each document did 'have a date on its face: September 24, 1980 on the notice of point accumulation anid December 29, 1980 on the notice of suspension. These dates did not, however, establish the date the documents were supposedly mailed.

3 42 Pa. C. S. §6104.

4 75 Pa. C. S. §1536.

5 Unlike the notice of suspension, which Suchko admitted to •having eventually received, Suchko never admitted to having received the notice of point accumulation.

6 We note that any evidence that Suchko had received the notice would, of course, be sufficient to prove that the notice had been sent. Indeed, had it been dear that Suchko took the examination, it could have been inferred that he had received the notice requiring him to take it. The record is not clear, however, as to whether Suchko took the examination and failed, or whether he simply failed to (take the examination.