Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

COMMONWEALTH PENNSYLVANIA v. EMILIE THORNTON FORTE (03/24/77)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 24, 1977.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
EMILIE THORNTON FORTE

Appeal from the Order of the Court of Common Pleas of Chester County in case of Emilie Thornton Forte v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety, Misc. No. 12-1975.

COUNSEL

John L. Heaton, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant.

Joseph I. Diamond, for appellee.

Judges Kramer, Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 29 Pa. Commw. Page 416]

This is an appeal by the Department of Transportation of the Commonwealth of Pennsylvania (Department) from an order of the Court of Common Pleas of Chester County, dated December 30, 1975, which reversed a motor vehicle license revocation order issued by the Secretary of the Department of Transportation and reinstated the operating privileges of Emilie Thornton Forte (Forte).

On November 2, 1973, Forte was arrested and charged with operating a motor vehicle while under the influence of an intoxicating liquor in violation of Section 1037 of The Vehicle Code*fn1 (Code). Because

[ 29 Pa. Commw. Page 417]

    she refused to submit to a breathalyzer test at the time of her arrest, her operating privileges were suspended by the Department on January 4, 1974 for six months pursuant to Section 624.1(a) of the Code, 75 P.S. § 624.1(a).

On February 8, 1974, Forte pleaded guilty to the charge of violating Section 1037. The Clerk of Courts of Delaware County certified the record in the case to the Department on June 28, 1974. The Department acted upon the certification on December 3, 1974, when it issued the order revoking Forte's operating privileges, effective January 7, 1975, pursuant to Section 616(a)(1) of the Code, 75 P.S. § 616(a)(1). Forte appealed the revocation order to the Court of Common Pleas of Chester County on January 29, 1975.

After a hearing, the court below sustained Forte's appeal on the ground that the Department's nearly five-month delay in acting upon the certification of her conviction did not comply with the directive in Section 616(a) that, upon receiving such certification, the "secretary shall forthwith revoke operating privileges."

Two issues are raised on the appeal: (1) whether Forte's appeal to the lower court was timely under Section 620 of the Code, 75 P.S. § 620; and (2) whether the lower court was correct in holding the revocation order invalid under Section 616(a) due to the delay of five months between certification of conviction and issuance of the order. We will not reach the second issue, for we conclude that Forte's appeal to the lower court was not timely and, therefore, that court was without jurisdiction to reverse the Department's order.

In pertinent part, Section 620 provides:

Any person whose operator's license or learner's permit has been suspended, or who

[ 29 Pa. Commw. Page 418]

    has been deprived of the privilege of applying for an operator's license or learner's permit under the provisions of this act, shall have the right to file a petition, within thirty (30) days thereafter, for a hearing in the matter in the court of common pleas of the county in which the operator or permittee resides. . . .

Although Section 620 does not expressly govern appeals from license revocations, it has been held to apply to such appeals. Bureau of Traffic Safety v. Balestrieri, 12 Pa. Commonwealth Ct. 137, 315 A.2d 679 (1974); Department of Transportation v. Hosek, 3 Pa. Commonwealth Ct. 580, 284 A.2d 524 (1971).

Although the issue was not raised before the court below, the timeliness of an appeal goes to the jurisdiction of an appellate court and its competency to act. Commonwealth v. Bey, 437 Pa. 134, 136, 262 A.2d 144, 145 (1970); Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 368, 214 A.2d 203, 205 (1965); Duggan v. Environmental Hearing Board, 13 Pa. Commonwealth Ct. 339, 342, 321 A.2d 392, 393 (1974). An objection to the lack of subject matter jurisdiction can never be waived; it may be raised at any stage of a case, even on the appellate level, by the parties or by a court on its own motion. Commonwealth v. Little, 455 Pa. 163, 314 A.2d 270 (1974); Commonwealth v. Yorktowne Paper Mills, Inc., supra; Von Kaenel Unemployment Compensation Case, 163 Pa. Superior Ct. 173, 60 A.2d 586 (1948). The issue of timeliness of Forte's appeal to the lower court is thus properly before this Court despite the fact that it was not raised until this appeal.

Resolution of this issue turns upon the question of what event triggers the running of the time for appeal under Section 620. The Department contends that the appeal time runs from the date that notice of the revocation order is mailed to the licensee.

[ 29 Pa. Commw. Page 419]

Forte contends that the appeal time commences running upon the date the licensee receives notice of the revocation. Both positions find support among the lower court cases,*fn2 but no appellate court has been faced with precisely these contentions. See Ames v. Bureau of Traffic Safety, 12 Pa. Commonwealth Ct. 89, 315 A.2d 638 (1974); Bureau of Traffic Safety v. Balestrieri, supra; Brown v. Department of Transportation, 4 Pa. Commonwealth Ct. 308, 286 A.2d 492 (1972); Klitsch Motor Vehicle License Case, 213 Pa. Superior Ct. 53, 245 A.2d 688 (1968).

The opinion in Klitsch, supra, apparently held that receipt of notice triggered the running of the appeal time. However, that case involved only the contention that the appeal period ran from the date upon which a suspension became effective. We agree with the Superior Court's clear rejection of that contention. However, the court in Klitsch was not as clear as to precisely what the triggering event is as it was with regard to what it is not. At various points in the opinion, the court speaks of the triggering event as the making of the order,*fn3 the giving of notice,*fn4 and the receipt of notice.*fn5 Because of these inconsistencies, we consider the question to remain unresolved.*fn6

[ 29 Pa. Commw. Page 420]

Our reading of Section 620 discloses no evidence of any legislative intent to make the receipt of notice the event which triggers the running of the time for appeal. Had the Legislature, which is not unfamiliar with the term "receipt" or its legal effect, intended receipt of notice to be the triggering event, it would have so stated. Zimmer v. Susquehanna County Planning Commission, 14 Pa. Commonwealth Ct. 435, 322 A.2d 420 (1974). We conclude that the date upon which a revocation order is mailed*fn7 is the date upon which the appeal time commences to run.*fn8

Because the revocation order in this case was mailed on December 3, 1974 and Forte did not appeal it to the court below until January 29, 1975, the appeal

[ 29 Pa. Commw. Page 421]

    was 27 days late. We must reverse the order of the court below and reinstate the Department's revocation of Forte's operating privileges.

Order

And Now, this 24th day of March, 1977, the order of the Court of Common Pleas of Chester County, dated December 30, 1975, in the above-captioned matter is hereby reversed, and the order of the Department of Transportation revoking the operating privileges of Emilie Thornton Forte is hereby reinstated.

Disposition

Reversed. Revocation order reinstated.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.