Appeal from the Order of the Common Pleas Court of Delaware County, in the case of Commonwealth of Pennsylvania, Department of Transportation v. James Eugene Dwyer, No. 83-5846.
Christopher J. Clements, Assistant Counsel, with him, Harold H. Cramer, Assistant Counsel, Spencer A. Manthorpe, Chief Counsel, Henry G. Barr, General Counsel, for appellant.
Edward A. Savastio, for appellee.
Judges MacPhail and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Dissenting Opinion by Judge MacPhail.
[ 116 Pa. Commw. Page 645]
The Department of Transportation, Bureau of Driver Licensing (DOT) appeals an order of the Delaware County Court of Common Pleas reinstating the operating privilege of James Eugene Dwyer.
Dwyer was arrested on May 7, 1982, for violating Section 3731(a)(1) of the Vehicle Code (Code),*fn1 (driving under the influence of alcohol), and refused to submit to a breath test. By way of official notice dated May 21, 1982, DOT informed Dwyer that it was suspending his operating privilege for six months pursuant to Section 1547(b) of the Code.*fn2 The effective date of the refusal
[ 116 Pa. Commw. Page 646]
suspension was to be June 25, 1982. Dwyer appealed the refusal suspension which entitled him to a supersedeas pursuant to Section 1550(b) of the Code.*fn3
On September 9, 1982, Dwyer was admitted into Delaware County's Accelerated Rehabilitative Disposition (ARD) Program. Dwyer received a three month suspension of his operating privilege as a condition of his acceptance into the ARD Program. Dwyer turned in his driver's license to the probation personnel on September 9, 1982, and DOT suspended his license for three months.
On September 13, 1982, the trial court held a hearing on Dwyer's appeal of the six month refusal suspension. By order dated November 22, 1982, the trial court dismissed the appeal, affirming the refusal suspension. Since Dwyer did not appeal this order, it became final and the period of supersession ended.
DOT claims that upon the conclusion of the three month ARD suspension, it advised Dwyer that his license was reinstated and returned his driver's license by way of official notice dated December 10, 1982. Dwyer claims that he never received the reinstatement notice with his driver's license.
By way of official notice dated January 31, 1983, DOT advised Dwyer that the six month refusal suspension would commence March 7, 1983, and that he was to return his driver's license by that date. After receiving the January 31, 1983, notice, Dwyer and subsequently his attorney, contacted DOT by telephone stating that Dwyer's license had never been returned upon completion of the three month ARD suspension. Receiving no satisfactory response, Dwyer's ...