Advice for Handling Driver's License Cases - Driver's License Cases
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Driver’s License Cases
Advice for Handling
Driver’s License Cases
Compiled with assistance from
Scott A. Kuhagen
J.D. Candidate, 2012
Temple University Beasley School of LawAdvice for Handling
Driver’s License Cases
Advice for Handling Driver’s License Cases
Introduction ..........................................................................................................................................2
How can a driver’s license be suspended? ...........................................................................................2
Three Month Suspensions ................................................................................................................2
Six Month Suspensions ....................................................................................................................3
One Year Suspensions......................................................................................................................3
Three Year Suspensions ...................................................................................................................3
Increasing Suspension Periods for Specific Convictions .................................................................3
Other alcohol-related offenses .........................................................................................................4
Failing to Respond to Citations........................................................................................................4
Speeding when an accident occurs in a work zone ..........................................................................4
Receiving 11 points or more ............................................................................................................4
Habitual Offender.............................................................................................................................5
Driving while license is suspended or revoked ................................................................................5
Additional suspension for receiving points or suspension during already existing suspension
period................................................................................................................................................5
Judgments from motor vehicle accidents .........................................................................................5
Failure to secure insurance/financial responsibility .........................................................................6
Driving under the influence of alcohol or other controlled substances............................................6
When does a driver start to receive credit for serving his or her suspension? .....................................7
When suspension is the result of a criminal conviction under § 1532 .............................................7
When suspension is result of any other situation .............................................................................7
Credit for suspension time does not necessarily start on the effective date. ....................................7
No credit for certain convictions until released from prison............................................................7
Change of Address Considerations ..................................................................................................8
Requesting application of credit toward a suspension .....................................................................8
Occupational Limited Licenses and Probationary Licenses ................................................................9
Occupational limited licenses...........................................................................................................9
Probationary licenses........................................................................................................................9
Does a driver receive points on their license when their operating privilege is restored? .................11
What are the basics about appealing a driver’s license suspension?..................................................11
Timely Appeals ..............................................................................................................................11Can a Pennsylvania court of common pleas take a licensee’s economic hardship into account
when it is considering a timely appeal of a driver’s license suspension filed pursuant to 75
Pa.C.S. § 1550(a)?......................................................................................................................12
Nunc Pro Tunc Appeals .................................................................................................................13
Delays in Effective Dates of Operating Privilege Suspension...........................................................14
Forms..................................................................................................................................................15
FORM 230A.05-30 Petition for Review of Order of Department of Transportation Suspending
Operating Privilege ........................................................................................................................16
FORM 230A.03-10 Petition for Leave to Appeal Nunc Pro Tunc From Order of Government
Agency ...........................................................................................................................................19
FORM 148.04-10 Petition to Strike Default Judgment--Failure to Comply With Pa. R.C.P. 237.1
........................................................................................................................................................22
FORM 148.04-11 Petition to Strike Default Judgment--Failure to Comply With Pa. R.C.P.
1018.1 .............................................................................................................................................24
FORM 148.04-20 Petition to Open Default Judgment ..................................................................25
Introduction
If your client has had their Pennsylvania driver’s license suspended or revoked, what are the
violations that can lead to suspension or revocation? And how can you, as a volunteer attorney, help
to fix your client’s driver’s license problems? This guide will walk you through the various reasons
that someone’s driver’s license could be suspended, along with the basics of appealing driver’s
license suspensions in Common Pleas Court, along with moving to strike or open default judgment
that may be the result of identity theft or insufficient service of process.
How can a driver’s license be suspended?
Chapters 15 and 37 of the Vehicle Code (Title 75 of the Pa. Consolidated Statutes) are the sources
for much of Pennsylvania’s driver licensing and moving violations law.
Pa. Vehicle Code § 1532 (75 Pa.C.S. § 1532) describes many of the situations in which someone’s
driver’s license can be suspended.
Licenses can be suspended for three months due to being convicted of violating the following
sections of the Vehicle Code:
• Section 1371 (relating to operation following suspension of registration).
• Section 3718 (relating to minor prohibited from operating with any alcohol in system).
• conviction of or an adjudication of delinquency based on section 3714(c) (unintentional serious
bodily injury).
2Licenses can be suspended for six months due to being convicted of violating the following
sections of the Vehicle Code:
• Section 3367 (relating to racing on highways).
• Section 3714(b) (relating to careless driving).
• Section 3734 (relating to driving without lights to avoid identification or arrest).
• Section 3736 (relating to reckless driving).
• Section 3743 (relating to accidents involving damage to attended vehicle or property).
• Conviction of a subsequent offense under section 1501(a) (relating to drivers required to be
licensed) if the prior offense occurred within five years of the violation date of the subsequent
offense.
Licenses can be suspended for one year due to being convicted under the following sections of the
Vehicle Code:
• Any felony in the commission of which a court determines that a vehicle was essentially
involved.
• Any violation of the following provisions of the Vehicle Code
o Section 3735.1 (relating to aggravated assault by vehicle while driving under the
influence).
o Section 3742 (relating to accidents involving death or personal injury).
o Section 3742.1 (relating to accidents involving death or personal injury while not
properly licensed).
o Section 7111 (relating to dealing in titles and plates for stolen vehicles).
o Section 7121 (relating to false application for certificate of title or registration).
o Section 7122 (relating to altered, forged or counterfeit documents and plates).
• Conviction under Section 3733 (relating to fleeing or attempting to elude police officer) or a
substantially similar offense reported to the department under Article III of section 1581
(relating to Driver's License Compact)
o Six month suspension for consent decree granted under 42 Pa.C.S. Ch. 63 (relating to
juvenile matters) based on section 3733.
A driver’s license can also be suspended for a year when a driver refuses to submit to a chemical
test of one’s breath, blood, or urine for the purpose of determining alcoholic content of the blood
or presence of a controlled substance. The suspension can be extended to 18 months if the person
already has had a license suspended once for refusing to submit to a chemical test.
Licenses can be suspended for three years due to being convicted for the following violations:
• Any violation of section 3732 (relating to homicide by vehicle).
• Any violation of section 3735 (relating to homicide by vehicle while driving under influence).
Licenses can also be suspended for increasingly longer periods due to convictions for some
offenses. For the following offenses, the first offense can result in a suspension for six months; the
second offense results in a one-year suspension, and the third and any subsequent offense results in
a suspension of two years.
• Possession, sale, delivery, offering for sale, holding for sale or giving away of any controlled
substance under the laws of the United States, this Commonwealth or any other state,
3• Terroristic threats (18 Pa.C.S. § 2706), when the person convicted is under the age of 21 and the
offense is committed on any school property, including any public school grounds, during any
school-sponsored activity or on any conveyance providing transportation to a school entity or
school-sponsored activity.
Under 75 Pa.C.S. § 1532(d) and 18 Pa.C.S. § 6310.4, convictions of the following offenses results
in increasingly longer suspension periods; the first offense results in a suspension of 90 days, the
second offense results in a one-year suspension, and the third and any subsequent offense results in
a suspension of two years.
• Violation under 18 Pa.C.S. § 6307 (relating to misrepresentation of age to secure liquor or malt
or brewed beverages).
• Violation under 18 Pa.C.S. § 6308 (relating to purchase, consumption, possession or
transportation of liquor or malt or brewed beverages).
• Violation under 18 Pa.C.S. § 6310.3 (relating to carrying a false identification card).
Pa. Vehicle Code § 1533 discusses license suspensions for failing to respond to citations or pay
fines for motor vehicle violations. Licenses can be suspended for an indefinite period of time for
the following reasons:
• Failing to respond to a citation or summons to appear before a Pennsylvania issuing authority or
a Pennsylvania court of competent jurisdiction for any violation of the Vehicle Code, other than
parking.
• Failing to pay any fine or costs imposed by an issuing authority or such courts for violation of
this title, other than parking, upon being duly notified by an issuing authority or a Pennsylvania
court.
• Failing to respond to a citation, summons or similar writ to appear before a court of competent
jurisdiction of the United States or any state which has entered into an enforcement agreement
with the department, as authorized under section 6146 (relating to enforcement agreements), for
any violation of the motor vehicle laws of such state, other than parking.
• Failing to pay any fine or costs imposed by such court upon being duly notified in accordance
with the laws of such jurisdiction in which the violation occurred.
The suspension is lifted when the person responds to the citation and pays whatever fines and
penalties have been levied against the person.
Pa. Vehicle Code § 1535 also allows someone’s license to be suspended for a period of fifteen days
once someone has been convicted of speeding when an accident occurred in an active work zone (§
1535(e)(1)), or when there was a speeding conviction in an active work zone without an accident (§
1535(e)(2)).
Pa. Vehicle Code § 1539 requires PennDOT to suspend the license of any driver who accumulates
11 points or more on their license. During the first suspension, the suspension lasts for five days
for each point; during the second, 10 days for each point; during the third, 15 days for each point;
and for each subsequent suspension, the duration shall be for one year. See Commonwealth, DOT,
Bureau of Driver Licensing v. Grasse, 606 A.2d 544, 545 (Pa. Commw. Ct. 1991) (reiterating
statutory scheme for suspension under § 1539). Assignment of points cannot be appealed unless
4assignment results in a suspension of someone’s license. Ross v. Commonwealth, 399 A.2d 158 (Pa.
Commw. Ct. 1979).
PA Vehicle Code § 1542 provides for the revocation of a driver’s license for five years if someone
is a “habitual offender.” The statute defines a habitual offender as someone who has accumulated
three separate convictions within a five year period. The convictions that qualify include:
• Any violation of Subchapter B of Chapter 37 of the Vehicle Code (relating to serious traffic
offenses).
• Any violation of Chapter 38 of the Vehicle Code (relating to driving after imbibing alcohol or
utilizing drugs) except for sections 3808(a)(1) and (b) (relating to illegally operating a motor
vehicle not equipped with ignition interlock) and 3809 (relating to restriction on alcoholic
beverages).
• Any violation of Pa. Vehicle Code § 1543(b)(1.1) (relating to driving while operating privilege
is suspended or revoked).
• Any violation of Pa. Vehicle Code § 3367 (relating to racing on highways).
• Any violation of Pa. Vehicle Code § 3742 (relating to accidents involving death or personal
injury).
• Any violation of Pa. Vehicle Code § 3742.1 (relating to accidents involving death or personal
injury while not properly licensed).
• Any violation of Pa. Vehicle Code § 3743 (relating to accidents involving damage to attended
vehicle or property).
If a court convicts someone of an additional offense beyond the three offenses in five years, the
person’s license can be revoked for an additional two years.
Pa. Vehicle Code § 1543 provides for a potential one- or two-year additional suspension and $200
fine for someone found to be driving while their license is suspended or revoked.
Pa. Vehicle Code § 1544 provides for additional points or an additional suspension if someone
receives additional points or another suspension during an already existing suspension period.
In many of our cases, a driver’s license is suspended due to judgments from motor vehicle
accidents and failure to obtain financial responsibility.
Pa. Vehicle Code §§ 1771-1772 provide for a driver’s operating privilege to be suspended
indefinitely for failing to satisfy a judgment arising from a motor vehicle accident within 60 days of
the judgment being awarded. The creditor may forward a copy of the judgment to PennDOT, which
under § 1772 can then suspend the driver’s operating privilege indefinitely. However, the judgment
creditor can consent in writing to allow the driver’s operating privilege to be retained or restored. §
1772(b). The driver can also prevent suspension by sending evidence satisfactory to PennDOT that
at the time of the accident that led to the judgment, “that financial responsibility was in force and
effect at the time of the accident resulting in the judgment and is or should be available for the
satisfaction of the judgment.” § 1772(c). Case law suggests that the evidence must be sufficiently
detailed for PennDOT to accept it as valid for purposes of § 1772(c); in one case the
Commonwealth Court found that PennDOT did not abuse its discretion in finding evidence
insufficient when a driver had his insurance company send a letter to PennDOT stating the driver
was insured at the time of the accident, when the letter was equivocal about whether specific costs
of the accident were covered. Commonwealth, Dep't of Transp., Bureau of Driver Licensing v.
5Bauserman, 535 A.2d 700, 702 (Pa. Commw. Ct. 1988). Under § 1773, the driver will not have his
operating privilege restored until the driver satisfies all judgments1 and provides evidence of the
required financial responsibility. Under § 1774, judgments are deemed satisfied in the following
situations:
• If there is a judgment greater than $15,000 related to the injury of one person in one accident,
and the driver pays $15,000 to be credited toward the judgment.
• If there is a judgment greater than $30,000 related to the injury of two or more people in one
accident, and the driver pays $30,000 to be credited toward the judgment.
• If there is a judgment greater than $5,000 related to property damage of others in one accident,
and the driver pays $5,000 to be credited toward the judgment.
If the judgment creditor cannot be found, the driver can escrow payments to satisfy the judgment
with the Prothonotary. § 1774(c).
Pa. Vehicle Code § 1775 allows a judgment debtor, after notifying the judgment creditor, to apply
to the court for the privilege of paying the judgment in installments. The court, at its discretion, may
“fix the amounts and times of payment of the installments;” paying installments does not prejudice
any other remedies the creditor may have. § 1775(a). When a driver has obtained a court order
allowing him to pay a judgment in installments, PennDOT cannot suspend the driver’s operating
privilege and must restore the operating privilege of a driver whose operating privilege was
suspended due to nonpayment of a judgment. § 1775(b). However, if the judgment debtor “fails to
pay any installment as specified by the order,” PennDOT will suspend the driver’s operating
privilege until the judgment is satisfied. § 1775(c).
Pa. Vehicle Code § 1786 requires a driver’s operating privilege to be suspended for three months if
a driver does not secure automobile insurance/financial responsibility as required by Chapter
17 of the Vehicle Code. The suspension is not lifted until the restoration fee outlined in a
Restoration Requirements Letter is paid.
Pa. Vehicle Code § 3804(e) requires a driver’s license to be suspended if the driver is convicted of
an offense under § 3802 (driving under influence of alcohol or controlled substance). However,
the statutory “no suspension exception” means that there is no suspension for drivers that meet the
following three conditions: drivers must be convicted of an “ungraded misdemeanor under section
3802(a),” are subject to the penalties described in § 3804(a), and have no prior DUI offense (as
defined in 75 Pa.C.S. § 3806). 75 Pa.C.S. § 3804(e)(2)(iii). See also Glidden v. Commmonwealth,
Dept. of Transp., Bureau of Driver Licensing, 962 A.2d 9, 12 (Pa. Commw. 2008), 16C West's Pa.
Prac., Criminal Practice § 37:48 (2010).
1
Specifically, § 1773 states in full: “A person's operating privilege shall remain suspended and shall not be renewed in
the name of that person unless and until every judgment is stayed, satisfied in full or to the extent provided in this
subchapter, and until the person furnishes proof of financial responsibility as required” (emphasis added). The
satisfaction of judgments “to the extent provided in this subchapter” includes making payments that do not completely
satisfy judgments in full but qualify as “deemed satisfied” under 75 Pa.C.S. § 1774. There is anecdotal evidence that
some plaintiffs’ attorneys have insisted that defendants satisfy judgments in full, perhaps leading defendants to believe
that they cannot pay in lesser amounts and/or installments as allowed by § 1774 and § 1775.
6When does a driver start to receive credit for serving his or her suspension?
When suspension is the result of a criminal conviction under § 1532
When a driver’s operating privilege is suspended because of a criminal conviction under § 1532, the
court can require the driver to surrender his license and will send it to PennDOT along with a record
of the conviction. In that situation “[t]he suspension shall be effective upon a date determined by the
court or district attorney or upon the date of surrender of the license to the court or district attorney,
whichever shall first occur.” 75 Pa.C.S. § 1540(a). Police officers and sheriff’s deputies, among
others, are authorized to seize driver’s licenses when they are ordered to be surrendered by a court.
75 Pa.C.S. § 1540(c). However, the Vehicle Code states that “[n]o credit toward the revocation,
suspension or disqualification shall be earned until the driver's license is surrendered to the
department, a court or a district attorney, as the case may be.” 75 Pa.C.S. § 1541(a).
When suspension is the result of any other situation
PennDOT will send a letter to the driver notifying the driver of the suspension and requiring the
driver to surrender his license. The date that the suspension is effective is either a date determined
by PennDOT, or the date the license (or an acknowledgement that the license has been lost or
stolen) is mailed to PennDOT if that date is “subsequent to the department's notice to surrender the
license.” 75 Pa.C.S. § 1540(b)(3)(ii). PennDOT will send a receipt showing the date they received
the license or the acknowledgement. 75 Pa.C.S. § 1540(b)(4).
N.B.: Credit for suspension time does not necessarily start on the effective date.
The 2008 Pennsylvania Bar Institute training manual on driver’s license problems states:
Understand that the “effective date” and “credit date” of a suspension are not the
same. The “effective date” is the date the suspension begins. The “credit date” is the
date upon which one begins earning credit for serving the suspension. A suspension
can be effective without credit toward serving that suspension being earned.
However, credit cannot be earned until the suspension is effective.
Pennsylvania Bar Institute, Solving Driver’s Licensing Problems, 82 (2008).
No credit for certain convictions until released from prison
There are some offenses for which a driver cannot earn credit until he or she is released from
prison. 75 Pa.C.S. § 1541(A.1). These offenses are convictions under the following Vehicle
Code sections:
• 1543(b)(1.1) (relating to driving while operating privilege is suspended or revoked),
• 3732 (relating to homicide by vehicle),
• 3735 (relating to homicide by vehicle while driving under influence),
• 3735.1 (relating to aggravated assault by vehicle while driving under the influence),
• 3742 (relating to accidents involving death or personal injury),
• 3802 (relating to driving under influence of alcohol or controlled substance), and
7• 3808(a)(2) (relating to illegally operating a motor vehicle not equipped with ignition
interlock).
Change of Address Considerations
The Vehicle Code, at 75 Pa.C.S. § 1515, requires drivers to notify PennDOT of a change of
address within 15 days after moving to the new address. This requirement has implications
for credit served toward a suspension, because if a driver has not updated his or her address,
it is possible the driver will not receive the suspension notice, and will subsequently not
surrender their license, which leads to not earning credit for the suspension. Solving Driver’s
Licensing Problems at 83. Also, “[g]enerally, the Department’s [PennDOT’s] mail is not
forwarded even if there is a forwarding order recorded with the U.S. Postal Service.
Therefore, the address change must be made directly with the Department.” Id., at 84.
Requesting application of credit toward a suspension
Pa. Vehicle Code § 1541 provides that a person whose driver’s license has been suspended
may request an administrative hearing before PennDOT if the driver “believes that credit
toward the person’s suspension or revocation has not been given by the department under
section 1540 [which provides for, among other things, the effective date of the suspension].”
75 Pa.C.S. § 1541(e). Similarly, Pa. Vehicle Code § 1516(d) provides that a driver may
request PennDOT to update his driver’s record, including a recalculation of suspension
credit.
The rules for administrative hearings for credit or for a review of the driver’s record are
governed by 67 Pa. Code § 491.1 et seq. There is also a Standing Practice Order in effect
that governs some aspects of administrative hearings before PennDOT. This order is
reproduced in Solving Driver’s Licensing Problems at 196.
Drivers whose licenses have been suspended can also make an informal request for credit,
rather than filing the Petition for a Credit Hearing, by writing to:
Director of Bureau Licensing
1101 S. Front Street
Harrisburg, PA 17104-2516
Such a request…
… should be based upon the same considerations that one would
prove in a hearing, including the submission of any necessary
documentation to the Department. These informal requests should
be utilized when money is a factor for the client and/or when it is
obvious that through a processing error by the Department, the
driving record is not correct. Solving Driver’s Licensing Problems
at 88-89.
8Occupational Limited Licenses and Probationary Licenses
Some clients may benefit from obtaining an occupational limited license or a probationary
license.
Occupational limited licenses
Section 1553 of the Vehicle Code, 75 Pa.C.S. § 1553, governs the issuance of occupational limited
licenses. A driver must petition PennDOT for such a license, on Form DL-15, Occupational Limited
License Petition.2 The driver will have to identify the precise vehicles that he/she wishes to drive,
and will also have to
include an explanation as to why the operation of a motor vehicle is essential to
the petitioner's occupation, work, trade, treatment or study. The petition shall
identify the petitioner's employer, educational institution or treatment facility, as
appropriate, and shall include proof of financial responsibility covering all
vehicles which the petitioner requests to be allowed to operate. 75 Pa.C.S. §
1553(b)(1).
Along with the petition, the driver must surrender his/her license in accordance with the terms of §
1540 (surrender of license). As an OLL is only available to a motorist once every five years,
“deciding to use the OLL is a decision that should be made with great care.” Solving Driver’s
Licensing Problems at 102 (discussing 75 Pa.C.S. § 1553(d)(5)).
At § 1553(d), there is a long list of who is not eligible for an occupational limited license. “[T]he
class of persons who are not qualified for the OLL is still substantially larger than those who are
qualified...” Solving Driver’s Licensing Problems at 102. Among those who are not qualified are:
• any drivers with unsatisfied judgments against them as the result of an accident,
• any drivers who have refused to submit to chemical testing to determine blood alcohol content,
• any drivers whose operating privilege has been suspended for a drug offense (e.g. under 75
Pa.C.S. § 1532(c)),
• any drivers whose operating privilege is suspended for failure to respond to citations, and
• any drivers whose operating privilege is suspended for failing to maintain financial
responsibility. 75 Pa.C.S. § 1553(d)(3), (7), (10), (12), and (13).3
A driver who obtains an occupational limited license must inform PennDOT of any changes in
circumstances that led to the issuance of the OLL. § 1553(g). A driver whose petition for an OLL is
denied may ask for an administrative hearing to appeal such a denial. § 1553(h).
Probationary licenses
2
This form is included in the appendix at the end of this guide.
3
Attorneys and drivers should also consult the PennDOT Occupational Limited License Fact Sheet (March 2009),
available: http://www.dmv.state.pa.us/pdotforms/fact_sheets/fs-OLL.pdf. This fact sheet contains the full list of drivers
who are ineligible to receive an OLL. It is also included as an appendix at the end of this guide.
9Section 1554 of the Vehicle Code, 75 Pa.C.S. § 1554, governs the issuance of probationary licenses.
A driver must petition PennDOT for such a license, on Form DL-20, Probationary License Petition.
As part of the petition, the driver must describe
in detail the need for operating a motor vehicle. The petition shall be on a form
prescribed by the department and shall identify the specific motor vehicles the
petitioner seeks permission to operate. The petition shall include the operator's
name, address and operator number, and proof of financial responsibility. The
department may require additional information as well as verification of the
information contained in the petition. All fines, costs and restoration fees must be
paid at the time of the petition. 75 Pa.C.S. § 1554(b)(1).4
The following drivers are eligible for a probationary license:
(1) a person who has been designated as a habitual offender under section 1542
(relating to revocation of habitual offender's license) and whose operating
privilege has been revoked; or
(2) a person with an accumulation of suspensions or revocations wherein the
cumulative term of suspension or revocation is five or more years. 75 Pa.C.S. §
1554(a)(1)-(2).
Note that for drivers who are not designated as habitual offenders, they will only qualify for a
probationary license if the cumulative length of their suspension is five or more years.
Also, drivers “whose records are sufficiently poor to potentially qualify for the PL usually have other
issues which must be addressed before it is advisable to apply for the probationary license.” Solving
Driver’s Licensing Problems at 109.
Even if a driver fits into one of these categories, the driver must have served and earned credit
toward part of his cumulative suspension for varying periods of time based on how many offenses
led to his suspension. 75 Pa.C.S. § 1554(b)(2). Critically, “[t]he applicant must prove to the
satisfaction of the department that the applicant has not driven a motor vehicle during the minimum
period of suspension or revocation.” 75 Pa.C.S. § 1554(b)(3).
Unlike an OLL, a driver applying for a probationary license must be interviewed by PennDOT. 75
Pa.C.S. § 1554(d)(1). The driver may also have to complete any of the programs listed at 75 Pa.C.S.
§ 1554(d)(2) prior to being issued a probationary license.
The probationary license is valid for only one year, but may be renewed on an annual basis. 75
Pa.C.S. § 1554(i). For the first three years that a driver has a probationary license, the driver can
only drive the specific vehicles identified in the petition and can only drive them between 6:00am
and 7:00pm, unless PennDOT agrees to a later hours. 75 Pa.C.S. § 1554(h)(1).
4
Form DL-20 and the Probationary License Fact Sheet are both included as appendices.
10Does a driver receive points on his license when his operating privilege is restored?
Yes. Pa. Vehicle Code § 1545 provides that a person will receive five points on his license when his
operating privilege is restored.
See also Commonwealth, Dep't of Transp., Bureau of Traffic Safety v. Gearhart, 413 A.2d 1161,
1162 (Pa. Commw. Ct. 1980) (plain language of Section 1545 requires that an operator's driving
record reflect five points upon restoration of his privilege after any suspension incurred under
subchapter B of the Code, including both suspensions resulting from point accumulations and
suspensions imposed for reasons unrelated to point accumulations); Hamilton v. Commonwealth,
510 A.2d 857, 859 (Pa. Commw. Ct. 1986) (when five points are assigned after operating privilege
is restored, PennDOT must notify the licensee of those points); Dardozzi v. Department of Transp.,
Bureau of Driver Licensing, 660 A.2d 205, 208 (Pa. Commw. Ct. 1995) (“Points assessed under
section 1545 come into existence and are shown on a licensee's driving record as of the date of
restoration”).
What are the basics about appealing a driver’s license suspension?
As a preliminary matter, attorneys should file Form DL-503 with PennDOT to obtain a Certified
Driver Record, which “[i]ncludes name, address, driver number, date of birth, class, license status,
Departmental actions and violations for the complete history of the driver on file in Pennsylvania
certified by the Department.” PennDOT Form DL-503, pg. 2. This will give the attorney a full
history of the driver’s interaction with PennDOT.
The client should ideally already have a Restoration Requirements Letter, which details the steps
the client must take to have his license restored, including the payment of a separate restoration fee
and providing evidence of financial responsibility.5 If the client has not already obtained a
Restoration Requirements Letter, the client can call PennDOT’s Customer Call Center at 1-800-
932-4600 (in-state) or (717) 412-5300 (out-of-state) to request one. The client will have to provide
his driver’s/operator’s license number (if it is known), his name, and his date of birth. PennDOT
provides the letter at no cost, and it will be mailed to the client’s address of record.
1. Timely Appeals
The Vehicle Code, at 75 Pa.C.S. § 1550, provides for appeals of PennDOT decisions to suspend or
revoke a license. These appeals must be filed in the appropriate court of common pleas, and take the
form of a petition for review.
Appeals must be filed within thirty days of receiving notice from PennDOT of the
suspension/revocation. 42 Pa.C.S. § 5571. Failure to appeal within thirty days prevents one from
challenging PennDOT in the future over the suspension/revocation. See Commonwealth, Dep't of
Transp., Bureau of Traffic Safety v. Padilla, 92 Pa. Commw. 610, 614-615 (Pa. Commw. Ct. 1985);
Baum v. Commonwealth, Dep’t of Transp., Bureau of Driver Licensing, 949 A.2d 345, 349-350 (Pa.
Commw. Ct. 2008). See also Commonwealth, Dep't of Transp., Bureau of Driver Licensing v.
5
Examples of Restoration Requirements Letters are included as an appendix.
11Pineno, 538 A.2d 141, 143 (Pa. Commw. Ct. 1988) (court of common pleas lacked jurisdiction over
appeal filed pursuant to § 1550 because it was untimely due to being filed after thirty days).
Generally, the appeal period of thirty days is measured from the time of the mailing of the notice
and not the time of receipt. Commonwealth, Dep't of Transp., Bureau of Driver Licensing v. Karff,
529 A.2d 76, 77 (Pa. Commw. Ct. 1987). The suspension notice should have a date near the top that
is the date it was mailed; this is the date that controls the timing of appeals.6
Filing an appeal of a driver’s license suspension operates as a supersedeas until the court of
jurisdiction makes a final determination of the matter. 75 Pa.C.S. § 1550(b)(1).7
The court will set the hearing upon 60 days’ notice to PennDOT. At the hearing, the court shall
“determine whether the petitioner's driver's license should be denied or canceled, the petitioner's
operating privilege should be suspended, revoked or recalled or the petitioner's endorsement should
be removed.” 75 Pa.C.S. § 1550(c). Venue is in the court of common pleas in the county of
residence of the motorist.
Can a Pennsylvania court of common pleas take a licensee’s economic hardship into account
when it is considering a timely appeal of a driver’s license suspension filed pursuant to 75
Pa.C.S. § 1550(a)?
No. In most circumstances, the Pennsylvania Department of Transportation is given no discretion to
alter or modify the length of a driver’s license suspension, as the Vehicle Code provides for
mandatory suspension of a driver’s operating privilege once it learns of a variety of factors, such as
specific criminal convictions or the entry of judgments in automobile accidents. See, e.g.,
Commonwealth v. Gretz, 538 A.2d 976, 978 (Pa. Commw. Ct. 1988) (quoting Commonwealth,
Dep't of Transp. Bureau of Traffic Safety v. Yarbinitz, 508 A.2d 641, 642 (Pa. Commw. Ct. 1986))
(lower courts have no power to modify or alter the length of a suspension or award credit).
The statutory construction of the sections imposing the suspensions also reinforce the point that
most suspensions are mandatory, as they frequently state “[t]he Department shall suspend the
operating privilege” rather than “the Department may suspend…” 75 Pa.C.S. § 1532 (emphasis
6
An example suspension notice is included as an appendix.
7
If a litigant challenging a suspension loses at the trial court and wants to appeal to Commonwealth Court, the test for
whether a supersedeas of the trial court order is governed by Pa. Public Util. Comm. v. Process Gas Consumers Group,
467 A.2d 805, 809 (Pa. 1983) (citing Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d
921 (D.C.Cir.1958)). The four-part Process Gas test is:
1. The petitioner makes a strong showing that he is likely to prevail on the merits.
2. The petitioner has shown that without the requested relief, he will suffer irreparable injury.
3. The issuance of a stay will not substantially harm other interested parties in the proceedings.
4. The issuance of a stay will not adversely affect the public interest.
a. The Commonwealth Court in 2005 clarified that: “[w]hen confronted with a case in which the other three
factors strongly favor interim relief, a court may exercise its discretion to grant a stay if the movant has
made a substantial case on the merits.” Witmer v. Commonwealth, 889 A.2d 638, 640 (Pa. Commw. Ct.
2005).
12added). See Department of Labor & Indus. v. Ganc, 729 A.2d 668, 671 (Pa. Commw. Ct. 1999)
(“…the word "shall" is to be construed as mandatory unless the statutory language is ambiguous.”)
Furthermore, the appellate courts of Pennsylvania have repeatedly reversed decisions of the courts
of common pleas when those lower courts have taken economic hardship into account when
deciding driver’s license suspension appeals. For instance, in one case from 1968, the Superior
Court of Pennsylvania noted that when an official’s action is mandated by statute, neither the
official nor a court can take extenuating circumstances into account. Rather,
[t]he merit of the suspension is no longer a matter for determination by either the
secretary or the courts. … In our opinion the court below had no power to reverse
the suspension on the basis that the appellee had been sufficiently punished and that
she, her employers and patients would suffer a hardship. This constituted an abuse of
discretion.
Commonwealth v. Virnelson, 243 A.2d 464, 469-470 (Pa. Super. Ct. 1968).
Quoting Klitsch Motor Vehicle Operator License Case, 213 Pa. Superior Ct. 53, 58, 245 A. 2d 688,
691 (1968), the Commonwealth Court held in 1971 that a lower court improperly reversed the
suspension of a driver’s operating privilege when it solely used economic hardship as the reason for
reversal. “The hearing court may not reverse the secretary solely on the ground of economic
hardship and where it does it constitutes an abuse of discretion.” Commonwealth Dep't of Transp.,
etc. v. McCartney, 279 A.2d 77, 79 (Pa. Commw. Ct. 1971) (internal citations omitted).
The Commonwealth Court reiterated this holding in 1978. Commonwealth v. Bailey, 388 A.2d
1133, 1136 (Pa. Commw. Ct. 1978) (lower court had improperly considered economic hardship of
the licensee when reviewing decision to suspend a driver’s license) (citing McCartney). McCartney
was also cited with approval as recently as 2009 with regard to a similar question. Snyder v.
Commonwealth, 970 A.2d 523, 527 (Pa. Commw. Ct. 2009).
2. Nunc Pro Tunc Appeals
On some occasions, a nunc pro tunc appeal may be filed. The standard for whether a court will
allow a nunc pro tunc appeal is whether there was fraud or a breakdown in the administrative
system. “Courts have no power to permit a licensee to appeal nunc pro tunc, absent fraud or a
breakdown in the administrative or judicial process caused through default of its officers.”
Commonwealth, DOT, Bureau of Driver Licensing v. Grasse, 606 A.2d 544, 546 (Pa. Commw. Ct.
1991). See also Hudson v. DOT, Bureau of Driver Licensing, 830 A.2d 594, 599 (Pa. Commw. Ct.
2003) (“Courts lack power to permit a licensee to appeal "now for then," absent proof of fraud or
administrative breakdown”) (citing Hess v. Dep't of Transp., Bureau of Driver Licensing, 821 A.2d
663, (Pa. Cmwlth. 2003)); Commonwealth, Dep't of Transp., Bureau of Traffic Safety v. Rick, 75 Pa.
Commw. 514, 516-517 (Pa. Commw. Ct. 1983) (citing In re Franklin, 276 A.2d 549 (Pa. Commw.
Ct. 1971)). The most recent reiteration of this standard was in Baum v. DOT, Bureau of Driver
Licensing, 949 A.2d 345, 348 (Pa. Commw. Ct. 2008).
In extremely limited circumstances, an appeal nunc pro tunc will be allowed in certain non-
negligent situations. Citing their prior decision in Bass v. Commonwealth, 485 Pa. 256 (Pa. 1979),
13the Pennsylvania Supreme Court in Criss v. Wise, 566 Pa. 437 (Pa. 2001) described the test for
allowing a nunc pro tunc appeal in non-negligent circumstances as follows:
…the appellant proves that: (1) the appellant's notice of appeal was filed late as a
result of non-negligent circumstances, either as they relate to the appellant or the
appellant's counsel; (2) the appellant filed the notice of appeal shortly after the
expiration date; and (3) the appellee was not prejudiced by the delay.
Criss, 556 Pa. at 442.
For an example of an appeal nunc pro tunc granted before the Criss test was announced, see
Commonwealth v. Stock, 679 A.2d 760, 764 (Pa. 1996), where the failure of an attorney to file an
appeal when requested constituted an unconstitutional denial of the appellant’s right to appeal,
justifying an appeal nunc pro tunc.
An appeal nunc pro tunc is not allowed due to the following situations, as highlighted in Solving
Driver’s Licensing Problems at 134-135:
• Incarceration of the client. McKeown v. Commonwealth, Dept. of Transp., 601 A.2d 486 (Pa.
Commw. 1991). In McKeown, the Commonwealth Court said that an appeal nunc pro tunc was
improper when a person’s suspension notice was properly mailed to the person’s address of
record, even though the licensee was not aware of the suspension due to incarceration.
• Negligence of an attorney in filing an untimely appeal. Commonwealth, Dept. of Transp. v.
Rick, 462 A.2d 902 (Pa. Commw. 1983).
• Failure to notify PennDOT of a change of address. Korell v. Commonwealth, Dept. of Transp.,
551 A.2d 398 (Pa. Commw. 1988). If a person fails to notify PennDOT of a new address
pursuant to 75 Pa.C.S. § 1515, and the notice of suspension is sent to the address of record
instead of the new address, any delay in filing an appeal is not the sort of breakdown that
entitles the person to a nunc pro tunc appeal. See also Redenbach v. Commonwealth, Dept. of
Transp., Bureau of Driver Licensing, 817 A.2d 1230, 1235 (Pa. Commw. Ct. 2003) (reiterating
the same).
Delays in Effective Dates of Operating Privilege Suspension
Pa. Vehicle Code § 1541 allows a driver whose license has been suspended to apply to PennDOT
for a delay of the suspension’s effective date for a period of up to six months “whenever the
department determines that failure to grant the extension will result in hardship to the person whose
license has been suspended or disqualified.” 75 Pa.C.S. § 1541(a). To make this request, send a
letter to:
Diane Green
PennDOT, Bureau of Driver Licensing
1101 S. Front Street
Harrisburg, PA 17104
Fax number: 717-783-8051
14You must include the driver’s name, driver’s/operator’s license number, and the reason why a delay
is needed. This letter must be received before the suspension starts.
Pa. Vehicle Code § 1555 allows a driver whose license has been suspended and who has filed a
timely appeal to apply to PennDOT for a delay of the suspension’s effective date for a period of up
to six months. The driver can obtain an additional six-month delay if the court certifies that the
timely appeal is still pending before it. 75 Pa.C.S. § 1555.
Forms
Following are forms that can be used for timely and nunc pro tunc appeals, as well as forms for
striking or opening default judgments. Please note that the circumstances described in these forms
may not precisely match the facts of the case you are handling.
15LEXSTAT 14-230A PAFORM P 230A.05
Dunlap-Hanna Pennsylvania Forms
Copyright 2010, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
12 DISTRICT JUSTICE COURTS; CRIMINAL PROCEEDINGS; APPEALS
CHAPTER 230A Administrative Appeals to the Courts of Common Pleas
14-230A Dunlap-Hanna Pennsylvania Forms P 230A.05
FORM 230A.05-30 Petition for Review of Order of Department of Transportation
Suspending Operating Privilege
__________________________________________________________________
___________________, Petitioner )
v. ) ____________________, TERM
COMMONWEALTH OF ) ____________________ (year )
PENNSYLVANIA, DEPARTMENT OF ) NO. ____________________
TRANSPORTATION, Respondent )
__________________________________________________________________
IN THE COURT OF COMMON PLEAS OF ____________________ COUNTY
Petitioner ____________________, by the undersigned counsel, respectfully petitions the Court
pursuant to 75 Pa. Cons. Stat. Ann. § 1550 for review of an order of the Department of
Transportation suspending petitioner's operating privilege, and in support thereof represents as
follows:
1. Petitioner ____________________ is an adult individual residing at ____________________
(address), ____________________, Pennsylvania.
2. Petitioner currently possesses a valid driver's license issued to him on ____________________
(date), which has not heretofore been suspended, cancelled, or revoked.
3. By letter dated ____________________, petitioner was notified in writing the Department of
Transportation of the entry of an order suspending his driver's license (or operating privilege) for
the following reasons as set forth in the notice (or order): ____________________ (e.g., refusal to
submit to chemical testing upon arrest for driving while under the influence of alcohol or a
16controlled substance; or accumulation of points). A copy of the notice (or order) is attached as
Exhibit "A."
4. The suspension is improper and unlawful for the following reasons: ____________________
(e.g., the arresting officer lacked reasonable grounds to believe that petitioner had been driving
while under the influence of alcohol; or the arresting officer failed to inform the petitioner that his
operating privilege would be suspended upon refusal to submit to chemical testing; or the
petitioner's temporary inability to make a decision whether or not to submit to chemical testing at
the time did not constitute a refusal, when petitioner ultimately consented to testing; the Department
of Transportation failed to give timely notice of suspension as a result of the accumulation of points
in accordance with 75 Pa. Cons. Stat. Ann. § 1551; etc.)
WHEREFORE, petitioner respectfully requests that the Court set this matter down forthwith for de
novo hearing pursuant to 75 Pa. Cons. Stat. Ann. § 1550 and that the order of the Department of
Transportation be set aside.
_________________
Attorney for Petitioner
_________________
(Address)
(Verification)
FORM 230A.05-40 Order for Hearing--Suspension of Operating Privilege
ORDER FOR HEARING
AND NOW, ____________________ (date), upon consideration of the petition of
____________________ for review of an order of the Department of Transportation suspending
petitioner's operating privilege, a hearing de novo is granted to determine whether the action of the
Department of Transportation in suspending petitioner's operating privilege should be set aside.
Hearing on the above-captioned matter is set for ___________________ (date), at
____________________.m. in Courtroom ____________________, located at
___________________ (address), City of ___________________, County of
___________________, Commonwealth of Pennsylvania.
The Prothonotary (or court administrator) is directed forthwith to notify the Department of
Transportation of the appeal and the hearing date.
(or)
17The petitioner is directed forthwith to serve a notice of the appeal and copies of the petition for
review and order for hearing on the Department of Transportation at the address shown in the
department's notice of entry of order, by certified mail, return receipt requested.
By the Court:
_________________
J.
18LEXSTAT 14-230A PAFORM P 230A.03
Dunlap-Hanna Pennsylvania Forms
Copyright 2010, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
12 DISTRICT JUSTICE COURTS; CRIMINAL PROCEEDINGS; APPEALS
CHAPTER 230A Administrative Appeals to the Courts of Common Pleas
14-230A Dunlap-Hanna Pennsylvania Forms P 230A.03
FORM 230A.03-10 Petition for Leave to Appeal Nunc Pro Tunc From Order of
Government Agency
IN THE COURT OF COMMON PLEAS OF ____________________ COUNTY
__________________________________________________________________
___________________ )
Petitioner )
v. ) ____________________, TERM
___________________ (name of ) ____________________ (year )
government agency ) ) No. ____________________
Respondent )
)
__________________________________________________________________
PETITION FOR LEAVE TO FILE APPEAL
NUNC PRO TUNC FROM ORDER
OF ____________________ (name of government agency)
Petitioner ____________________, by the undersigned counsel, seeks leave to appeal nunc pro
tunc from the order of the ____________________ (name of government agency) dated
____________________, and in support represents as follows:
1. On ____________________ (date), the ____________________ (name of government
agency) entered an order which ____________________ (describe the nature of the agency's
action as set forth in the order). A copy of the order is attached as Exhibit "A."
192. The ____________________ (name of government agency) negligently failed to serve
petitioner with a copy of the order.
(or)
2. The ____________________ (name of government agency) negligently directed notice of the
order to petitioner at the wrong address.
3. Petitioner was required to file any appeal within thirty (30) days after entry of the order.
4. By reason of the negligent conduct of the ____________________ (name of government
agency), petitioner was prevented from learning of the entry of the order until
____________________ (date), when ____________________ (describe circumstances under
which petitioner became aware of the entry of the order).
5. The failure of the ____________________ (name of government agency) to properly serve
petitioner with a copy of the order constitutes a material breakdown in the agency's operations
which justifies the allowance of an appeal at this time.
WHEREFORE, petitioner respectfully requests that this Court enter an order extending the time
for filing an appeal in this matter and allowing petitioner to appeal nunc pro tunc from the
____________________ (date) order of the ____________________ (name of government
agency).
Respectfully submitted,
_________________
Attorney for Petitioner
_________________
(Address)
(Verification)
FORM 230A.03-20 Rule to Show Cause Why Leave Should Not Be Granted to Appeal
Nunc Pro Tunc From Order of Government Agency
RULE
AND NOW, ____________________ (date), upon consideration of the petition of
____________________ for leave to appeal nunc pro tunc from the ____________________
20(date) order of the ____________________ (name of government agency), a RULE is hereby
entered on the ____________________ (name of government agency) to show cause why the
time for filing an appeal in this matter should not be extended.
By the Court:
_________________
J.
FORM 230A.03-30 Order Granting Leave to Appeal
Nunc Pro Tunc from Order of
Administrative Agency
ORDER
AND NOW, ____________________ (date), upon consideration of the petition of
____________________ for leave to appeal nunc pro tunc from the ____________________
(date), order of the ____________________ (name of government agency), it is hereby
ORDERED that the time for filing an appeal in this matter is extended and petitioner is permitted
to appeal nunc pro tunc from the ____________________ (date) order of the
____________________ (name of government agency), provided such appeal is filed no later
than ____________________ (date) (or _____ days from entry of this order).
By the Court:
_________________
J.
21LEXSTAT 11-148 DUNLAP-HANNA PENNSYLVANIA FORMS P 148.04
Dunlap-Hanna Pennsylvania Forms
Copyright 2010, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
9 CIVIL LITIGATION--ACTIONS AT LAW
CHAPTER 148 Judgments Before Trial
11-148 Dunlap-Hanna Pennsylvania Forms P 148.04
FORM 148.04-10 Petition to Strike Default Judgment--Failure to Comply With Pa.
R.C.P. 237.1
(Caption)
DEFENDANT'S PETITION TO STRIKE
DEFAULT JUDGMENT
Defendant ___________________, by his or her attorney, ___________________, respectfully
petitions this Court to strike the default judgment entered against defendant on
____________________ (date), following reasons:
1. Plaintiff commenced this action against defendant on ___________________ by complaint in
order to recover for personal injuries allegedly sustained when ____________________
(describe the plaintiff's cause of action).
2. On or about ____________________ (date), the complaint with a notice to defend was served
upon defendant.
3. On or about ____________________ (date), an entry of appearance by counsel was filed on
defendant's behalf, a copy of which is attached as Exhibit "A."
4. On or about ____________________ (date), defendant received notice pursuant to Pa. R.C.P.
236 of the entry of default judgment against him or her on ____________________ (date), a
copy of which is attached as Exhibit "B."
5. No notice of intention to file a praecipe for the entry of default judgment was ever served upon
defendant and his or her counsel of record as required by Pa. R.C.P. 237.1(a).
22or
5. Plaintiff's notice of Intention to File a Praecipe for Entry of Default Judgment was timely
served upon defendant, but was not served upon the undersigned as his or her attorney of record
as required by Pa. R.C.P. 237.1.(a).
or
5. On ____________________ (date), plaintiff served upon defendant and his or her attorney of
record a Notice of Intention to File Praecipe for the Entry of Default Judgment, a copy of which
is attached as Exhibit "C," but plaintiff's notice fails to substantially conform to the requirements
of Pa. R.C.P. 237.1(a) and (c) in that it ___________________ (specify deficiencies).
or
5. The parties entered into a written agreement for extension of time to plead to plaintiff's
complaint as evidenced by plaintiff's letter dated ____________________ (date), a copy of
which is attached as Exhibit "C." However, plaintiff's letter and the parties' agreement fails to
specify the time within which the required action must be taken, fails to sufficiently
communicate plaintiff's intention to take a default judgment upon defendant's failure to plead,
and fails to sufficiently evidence any meeting of the minds with respect to the possible entry of
the default judgment.
or
5. Upon receipt of notice of the entry of default judgment, a copy of the court file was obtained.
Attached as Exhibit "C" is a true and correct copy of the plaintiff's Praecipe for Entry of Default
Judgment. The praecipe filed with the Court on ___________________ (date), was defective in
that it did not have attached the certification of service of the notice of Intention to File Praecipe
for Entry of Default Judgment (a copy of the notice or a copy of the agreement for extension of
time to plead) as required by Pa. R.C.P. 237.1.
6. Based on the above, it appears from the record that plaintiff's Praecipe for the Entry of Default
Judgment was not entered in conformity with the requirements of Pa. R.C.P. 237.1. Accordingly,
the default judgment against defendant was entered improperly and must be stricken.
WHEREFORE, defendant ___________________ respectfully requests that this Court strike the
default judgment entered in the above-captioned matter and allow defendant
___________________ to plead to the complaint within twenty days thereafter.
_________________
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