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COMMONWEALTH PENNSYLVANIA v. BRADLEY G. ERMISCH (01/19/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 19, 1983.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLANT
v.
BRADLEY G. ERMISCH, APPELLEE

Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Commonwealth of Pennsylvania v. Bradley G. Ermisch, No. 1811-C of 1980.

COUNSEL

Harold H. Cramer, Assistant Counsel, with him Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.

Robert Freeman, with him Edward M. Pulaski and Terrance J. Herron, for appellee.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 71 Pa. Commw. Page 278]

The Pennsylvania Department of Transportation (DOT) has appealed an order of the Court of Common Pleas of Luzerne County which sustained an appeal by Bradley G. Ermisch and set aside a driver's license revocation order issued by DOT.

After receipt of a certification, from the Lebanon County Clerk of Courts, of a misdemeanor conviction of Ermisch, for homicide by vehicle, DOT imposed a one-year revocation of Ermisch's driving privileges, as mandated by Section 1532(a)(3) of The Vehicle Code.*fn1

[ 71 Pa. Commw. Page 279]

The common pleas court set aside the revocation on the ground that the DOT's delay in acting upon the certification was prejudicial to Ermisch.*fn2

In appealing the lower court's decision, the Commonwealth has raised two issues: (1) whether Ermisch's appeal to the trial court was timely under Section 5571(b) of the Judicial Code;*fn3 and (2) whether the trial court erred in setting aside Ermisch's license revocation due to a finding of prejudice.

We cannot reach the second issue.*fn4 DOT mailed its notice to Ermisch on April 25, 1980, and Ermisch filed his appeal on May 29, 1980. Because the last day to appeal was Monday, May 26, 1980,*fn5 we conclude that Ermisch's appeal was not timely and that the Court of Common Pleas of Luzerne County hence had no jurisdiction to sustain Ermisch's appeal and

[ 71 Pa. Commw. Page 280]

    set aside his license revocation. Therefore, we must reverse the trial court and reinstate DOT's revocation of the driving privileges.

Order

Now, January 19, 1983, the order of the Court of Common Pleas of Luzerne County, dated June 30, 1980, is reversed, and the revocation of the driving privileges of Bradley G. Ermisch is reinstated.

Disposition

Reversed. Revocation order reinstated.


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