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COMMONWEALTH PENNSYLVANIA v. DOMINIC PETRELLI (04/02/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 2, 1980.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
DOMINIC PETRELLI, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Dominic Petrelli, No. SA 840 of 1978.

COUNSEL

Harold H. Cramer, Assistant Attorney General, with him Regis J. McCoy, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Edward G. Biester, Jr., Attorney General, for appellant.

Paul G. Kachulis, for appellee.

Judges Wilkinson, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Craig. President Judge Bowman did not participate in the decision in this case.

Author: Craig

[ 50 Pa. Commw. Page 304]

The Pennsylvania Department of Transportation (department) appeals from an order of the Court of Common Pleas of Allegheny County dated November 13, 1978, which reversed a motor vehicle license suspension order issued by the department and reinstated the operating privileges of Dominic Petrelli (Petrelli).

On September 8, 1976, the department notified Petrelli that his driver's license was to be suspended because he refused to undergo a breathalyzer test as required by Section 624.1(a) of the Vehicle Code.*fn1 Petrelli did not appeal the department's action to the Allegheny County Court of Common Pleas until July 21, 1978. That court, by order issued November 13, 1978, sustained Petrelli's appeal.

However, in its opinion of January 31, 1979, the court below repudiated its jurisdiction to hear Petrelli's appeal which was filed outside the thirty-day requirement of Section 620 of the Code*fn2 and cases interpreting

[ 50 Pa. Commw. Page 305]

    that section. Department of Transportation v. Ehret, 46 Pa. Commonwealth Ct. 131, 405 A.2d 1355 (1979). We agree. Petrelli's appeal was late, and the lower court acted without power in sustaining it. Department of Transportation v. Royster, 31 Pa. Commonwealth Ct. 647, 377 A.2d 1038 (1977).

Petrelli argues that the jurisdiction question is moot because the department issued a letter purporting to "restore" his operator's privileges, under date of August 11, 1978. We disagree. The suspension notice of September 8, 1976 stated that Petrelli's operator's license suspension was to begin October 12, 1976 (upon the surrender of his license to the department). However, Petrelli never surrendered his license. Under 75 Pa. C.S. § 1541 (a section which took effect June 17, 1976)*fn3 Petrelli's failure to surrender his license to the department has precluded the running of the six-month suspension period imposed by former Section 624.1 of the Vehicle Code. Moreover, 75 Pa. C.S. § 1541 renders Petrelli ineligible for restoration of his operating privileges until the expiration of the suspension period. Consequently, we hold that the department's action of August 11, 1978, purporting to restore Petrelli's operating privileges, was ineffective because it was contrary to law; where a license has not yet been actually suspended, it cannot be restored.

Accordingly, we reverse the decision of the lower court and reinstate the department's suspension of Dominic Petrelli's operating privileges, such suspension to be effective on the thirtieth day after our order becomes final.

Order

And Now, this 2nd day of April, 1980, the order of the Court of Common Pleas of Allegheny County at No. 1978-840, dated November 13, 1978, sustaining the

[ 50 Pa. Commw. Page 306]

    appeal of Dominic Petrelli, is hereby reversed, and his appeal from the suspension of his motor vehicle operating privileges accordingly dismissed.

The six-month suspension shall take effect, pursuant to law, as of the thirtieth day after this order becomes final.

President Judge Bowman did not participate in the decision in this case.

Disposition

Reversed. Suspension order reinstated.


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