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DEPARTMENT TRANSPORTATION v. BROUGHER (06/08/72)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 8, 1972.

DEPARTMENT OF TRANSPORTATION
v.
BROUGHER

Appeal from the Order of the Court of Common Pleas of York County in case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. W. Dale Brougher, No. 335, October Term, 1969.

COUNSEL

Arthur D. Weeks, with him John A. Bracher, for appellant.

Jerry R. Richwine, Assistant Attorney General, with him Anthony J. Maiorana, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and J. Shane Creamer, Attorney General, for appellee.

President Judge Bowman and Judges Crumlish, Jr., and Kramer, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.

Author: Mencer

[ 5 Pa. Commw. Page 532]

On June 14, 1968, W. Dale Brougher (appellant) was arrested by the Pennsylvania State Police for a

[ 5 Pa. Commw. Page 533]

    speeding violation while operating his motor vehicle on Interstate 83. A hearing was held on July 17, 1968, before Justice of the Peace Ray E. Ness, at which time appellant was found guilty of a Vehicle Code violation. Appellant had been charged with and was found guilty of violating Section 1002(b)(9) of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. § 1002(b)(9).*fn1

An appeal was taken to the Court of Quarter Sessions of York County, and a trial thereon was held March 19, 1969. Appellant was found guilty of the aforementioned charge. Certification of conviction was forwarded by the Clerk of Courts of York County to the Secretary of Revenue as provided for in Section 619.1(b) of The Vehicle Code, 75 P.S. § 619.1(b).*fn2

Appellant was duly notified on October 1, 1969, that his license would be suspended as of October 16, 1969, for a period of sixty (60) days. This suspension was ordered as a penalty under the finding of the Secretary of Revenue that appellant exceeded the legal speed limit by thirty-six (36) miles per hour. Appellant filed an appeal of this suspension order to the Court of Common Pleas of York County. A hearing was held on

[ 5 Pa. Commw. Page 534]

May 19, 1971, and the action of the Secretary of Revenue was sustained by order dated May 19, 1971, and entered May 25, 1971. It is on appeal from this order that appellant comes before our Court. However, appellant did not file his appeal to this Court until August 10, 1971. Section 502(a) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, No. 223, Art. V, § 502, 17 P.S. § 211-502(a) provides that an appeal under that Act from any order shall be filed within thirty days of its entry. Appellant's appeal was filed 77 days from the entry of the order from which he appeals.

This case was argued before a panel of judges on December 8, 1971, and at this Court's direction was reargued before the court en banc on April 6, 1972. On March 22, 1972, following the listing of the case for reargument, the appellee filed a motion to quash the appeal as not being timely filed.

The timeliness of an appeal and compliance with the statutory provisions which grant the right of appeal go to the jurisdiction of the court to hear and decide the appeal. Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 214 A.2d 203 (1965).

In Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. at 367-68, the Supreme Court wrote:

"We first consider the effect of the Commonwealth's delay in raising the issue of timeliness of the appeal, since, if the Commonwealth is barred from raising that issue, this Court may then proceed directly to the merits.

"[F]ailure to take an appeal within the time allowed by statute is a defect which may not be disregarded and which may be raised by the court sua sponte. [Citations omitted.]

"It is settled that the parties may not stipulate appellate jurisdiction in disregard of statutory procedures.

[ 5 Pa. Commw. Page 535]

Cf. Foley Bros., Inc. v. Commonwealth, 400 Pa. 584, 163 A.2d 80 (1960). Nor may jurisdiction be conferred through the approval of such agreements by the court. Fenerty Disbarrment Case, 356 Pa. 614, 52 A.2d 576, cert. denied, 332 U.S. 773, 68 S. Ct. 89 (1947).

"It is therefore evident that whatever force the doctrine of laches may have in another context, it is not here relevant. The filing of a timely appeal being a jurisdictional requirement, see Fenerty Disbarrment Case, 356 Pa. 614, 52 A.2d 576 (1947); Yeager v. United Natural Gas Co., 197 Pa. Superior Ct. 25, 176 A.2d 455 (1961); Von Kaenel Unemployment Compensation Case, 163 Pa. Superior Ct. 173, 60 A.2d 586 (1948), the delay of the Commonwealth in raising the issue is of no consequence. Mere delay of one of the parties cannot be said to extend the jurisdiction of the Commonwealth Court to hear appeals beyond the period allowed by statute."

Motion to quash the appeal is granted and the appeal of W. Dale Brougher is quashed.

Disposition

Motion sustained and appeal quashed.


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