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COMMONWEALTH PENNSYLVANIA v. ROBERT SLABAUGH (01/17/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 17, 1980.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
ROBERT SLABAUGH, APPELLEE

Appeal from the Order of the Court of Common Pleas of Fayette County in case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety, Appellant v. Robert Slabaugh, Appellee, No. 503 of 1978 G.D.

COUNSEL

Harold H. Cramer, Assistant Attorney General, with him Francis P. Bach, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, Edward G. Biester, Jr., Attorney General, and Gerald Gornish, Attorney General, for appellant.

Jack R. Heneks, Jr., with him Russell I. Jenkins, for appellee.

Judges Mencer, DiSalle and Craig, sitting as a panel of three. Opinion by Judge Mencer. This decision was reached prior to the expiration of the term of office of Judge DiSalle.

Author: Mencer

[ 48 Pa. Commw. Page 537]

The Department of Transportation (Department) has appealed an order of the Court of Common Pleas of Fayette County which reversed the Department's revocation of the motor vehicle operating privilege of Robert Slabaugh (Slabaugh). We reverse.

Pursuant to Section 616 of The Vehicle Code,*fn1 formerly 75 P.S. § 616, the Department revoked Slabaugh's license for one year after it had received notice that Slabaugh had been convicted of driving under the influence of alcohol. Notice of the Department's action was mailed to Slabaugh on March 23, 1978. On April 27, 1978, Slabaugh filed his appeal with the lower court.

The Department argues that Slabaugh's appeal to the court below was untimely.*fn2 We agree.

At the time in question, Section 1550(a) of the Vehicle Code, 75 Pa. C.S. § 1550(a),*fn3 provided, in pertinent part:

[ 48 Pa. Commw. Page 538]

Any person denied a driver's license or whose operating privilege has been . . . revoked by the department shall have the right to appeal by filing a petition within 30 days from the date notice is mailed for a hearing in the court of common pleas of the county in which the driver resides. . . . (Emphasis added.)

As indicated by the emphasized language and as previously held by this Court in interpreting Section 1550's predecessor,*fn4 the 30-day appeal period commences on the date the notice of revocation is mailed, not the date it is received. Commonwealth v. Klinedinst, 34 Pa. Commonwealth Ct. 110, 383 A.2d 236 (1978); Department of Transportation, Bureau of Traffic Safety v. Forte, 29 Pa. Commonwealth Ct. 415, 371 A.2d 526 (1977). Since it is undisputed that the Department mailed its revocation notice on March 23, 1978 and Slabaugh perfected his appeal below on April 27, 1978, his appeal was 5 days late. Accordingly, we reverse the order of the lower court and reinstate the Department's revocation order.

Order

And Now, this 17th day of January, 1980, the order of the Court of Common Pleas of Fayette County in the above captioned case, dated October 10, 1978, is reversed, and the order of the Department of Transportation revoking the motor vehicle operating privilege of Robert Slabaugh is reinstated.

This decision was reached prior to the expiration of the term of office of Judge DiSalle.

Disposition

Reversed. Revocation order reinstated.


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