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JOHN JOSEPH MCGRAW v. COMMONWEALTH PENNSYLVANIA (01/25/89)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 25, 1989.

JOHN JOSEPH MCGRAW, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF TRAFFIC SAFETY, APPELLEE

Appeal from the Order of the Court of Common Pleas of Lackawanna County, in the case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. John Joseph McGraw, No. 88-CIV. 368.

COUNSEL

William R. Lee, for appellant.

Christopher J. Clements, Assistant Counsel, with him, Harold H. Cramer, Assistant Chief Counsel, and John L. Heaton, Chief Counsel, for appellee.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge McGinley.

Author: Mcginley

[ 123 Pa. Commw. Page 121]

On October 5, 1987, the Department of Transportation (Department) sent notice to John Joseph McGraw (McGraw) that his motor vehicle operating privilege was being suspended for an additional year, effective November 9, 1987,*fn1 due to his conviction for driving while under suspension.

McGraw appealed from his notice of suspension on January 19, 1988, to the Court of Common Pleas of Lackawanna County (trial court).*fn2 After a hearing on March 24, 1988, the trial court dismissed McGraw's appeal as untimely under Section 1550 of the Code, 75 Pa. C.S. § 1550. This appeal followed.

Our scope of review of a decision by a trial court in a license suspension case is limited to determining whether the findings of that court are supported by competent evidence, whether erroneous conclusions of law have been made or whether the decision of the trial

[ 123 Pa. Commw. Page 122]

    court demonstrates a manifest abuse of discretion. Department of Transportation v. Viglione, 113 Pa. Commonwealth Ct. 198, 537 A.2d 375 (1988).

On appeal, McGraw argues that the trial court erred in dismissing his appeal for lack of subject-matter jurisdiction.*fn3 The record reveals that the Department mailed the suspension notice to McGraw on October 5, 1987, suspending his license for one year effective November 9, 1987. McGraw had thirty days from October 5, 1987 to file a timely appeal. McGraw filed his appeal on January 19, 1988. Section 1550(a) of the Code provides: "Any person denied a drivers license or whose operating privilege has been recalled, canceled, suspended or revoked by the department shall have the right to appeal by or pursuant to title 42 (relating to judiciary and judicial procedure)." Appeals from department orders must be filed within thirty days from the date of mailing of the notice. 42 Pa. C.S. §§ 933, 5571, and 5572, Bureau of Traffic Safety v. Berrier, 65 Pa. Commonwealth Ct. 302, 442 A.2d 403 (1982). If an appeal is not filed within the statutorily mandated period of thirty days, the court has no jurisdiction to hear the appeal of the suspension, unless the delay in filing the appeal was caused by fraud, deception, coercion, duress or a breakdown in administrative procedure. Department of Transportation, Bureau of Driver Licensing v. Slott, 115 Pa. Commonwealth Ct. 241, 539 A.2d 943 (1988). McGraw has failed to allege

[ 123 Pa. Commw. Page 123]

    any exceptional circumstance that would justify his delay in filing. The trial court properly concluded that it lacked jurisdiction to hear McGraw's appeal.

Also, because McGraw failed to allege any grounds that would justify granting an appeal nunc pro tunc, the appeal is frivolous and the Department's request for counsel fees is granted.*fn4

Accordingly, the order of the trial court is affirmed and we remand the matter to the trial court for the limited purpose of awarding reasonable counsel fees to the Department.

Order

And Now, this 25th day of January, 1989, the order of the Court of Common Pleas of Lackawanna County, dated May 19, 1988, is affirmed and this matter is remanded to the trial court for imposition of reasonable counsel fees pursuant to Pa. R.A.P. 2744 against John Joseph McGraw.

Jurisdiction relinquished.

Disposition

Affirmed and remanded for imposition of counsel fees.


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