decided: April 28, 1980.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
HARRY ROBERT WEAVER, JR., APPELLEE
Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Henry Robert Weaver, Jr., No. 9381 of 1978.
Harold H. Cramer, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General and Edward G. Biester, Jr., Attorney General, for appellant.
William A. Degillio, for appellee.
Judges Blatt, MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Blatt. President Judge Bowman did not participate in the decision in this case.
[ 51 Pa. Commw. Page 71]
The Department of Transportation, Bureau of Traffic Safety (Bureau), appeals here from an order of the Court of Common Pleas of Luzerne County which overturned the Bureau's suspension of the operator's license of Harry Robert Weaver. We need not recount the factual background of this matter, for we believe that the failure of the operator to file a timely appeal from the suspension notice is dispositive.
Under Section 1377 of the Vehicle Code, 75 Pa. C.S. § 1377, an operator must file an appeal from a suspension notice within 30 days of the date it is mailed. A court to which an untimely appeal is taken lacks jurisdiction and is incompetent to act thereon. Department of Transportation, Bureau of Traffic Safety v. Ehret, Pa. Commonwealth Ct. , 405 A.2d 1355 (1979). It is indisputable here that notice of the suspension was mailed by the Bureau on August 21, 1978 and that the operator filed his appeal in the court of common pleas on September 26, 1978, which was five days late. Moreover, although the issue of timeliness was not raised below, lack of subject-matter
[ 51 Pa. Commw. Page 72]
jurisdiction may be raised at any stage of a proceeding Ehret, supra. We have no choice, therefore, but to reverse the court of common pleas.
And Now, this 28th day of April, 1980, the order of the Court of Common Pleas of Luzerne County in the above-captioned matter is hereby set aside and the order of the Department of Transportation, Bureau of Traffic Safety, revoking the operating privileges of Harry Robert Weaver, Jr., is hereby reinstated.
President Judge Bowman did not participate in the decision in this case.
Reversed. Revocation order reinstated.
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