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Boglin v. Commonwealth of Pennsylvania

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


July 23, 2010

REGINALD H. BOGLIN
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT

The opinion of the court was delivered by: Senior Judge Friedman

Submitted: June 25, 2010

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT) appeals from the August 20, 2009, order of the Court of Common Pleas of Philadelphia County (trial court), which sustained the appeal of Reginald H. Boglin (Licensee) challenging DOT's suspension of his driver's license. We reverse.

In October 2008, DOT notified Licensee that his operating privileges were suspended. Licensee filed a timely appeal, and a hearing was scheduled for January 13, 2009. When Licensee did not appear at the hearing, The Honorable Peter Rogers entered an order, dated January 13, 2009, denying Licensee's appeal. (R.R. at 27a.) Licensee did not appeal the order or seek reconsideration.

In an order filed on January 26, 2009, the trial court stated that, "by agreement," the matter was rescheduled for April 16, 2009.*fn1 (R.R. at 28a.) That hearing was later rescheduled for August 6, 2009, and, afterward, for August 20, 2009. (R.R. at 29a, 46a.) By order docketed on August 7, 2009, Judge Rogers vacated his January 13, 2009, order denying Licensee's appeal. (R.R. at 30a.)

DOT filed a motion for reconsideration, arguing that the August 7, 2009, order is a nullity because the trial court lacked jurisdiction to vacate the January 13, 2009, final order. In support of its motion, DOT cited section 5505 of the Judicial Code, 42 Pa. C.S. §5505 (stating that, except as otherwise provided by law, a court upon notice to the parties may rescind any order within thirty days after its entry if no appeal from such order has been taken). DOT also submitted a memorandum of law citing case law holding that: (1) a trial court loses jurisdiction to rescind an order once it becomes final; (2) the issue of jurisdiction cannot be waived; and (3) parties cannot confer jurisdiction on a court where jurisdiction is otherwise lacking. (R.R. at 39a-42a.) By order docketed on August 17, 2009, Judge Rogers vacated the August 7, 2009, order pending disposition of DOT's motion. (R.R. at 31a.) In another order dated August 17, 2009, Judge Rogers denied DOT's motion for reconsideration. (R.R. at 45a.)

On August 20, 2009, after a hearing, The Honorable Sandra Mazer Moss entered an order sustaining Licensee's appeal and rescinding DOT's suspension of Licensee's operating privileges. (R.R. at 24a, 47a.) DOT now appeals to this court.

DOT argues that: (1) the January 13, 2009, order was a final order; (2) the trial court did not rescind it within thirty days of entry pursuant to section 5505 of the Judicial Code; (3) the parties could not confer jurisdiction on the trial court by agreeing to reschedule the matter via the January 26, 2009, order; and, (4) thus, the trial court lacked jurisdiction when it issued the August 20, 2009, order sustaining Licensee's appeal. We agree.

A court may rescind an order within thirty days after its entry. 42 Pa. C.S. §5505. Here, the trial court did not rescind the January 13, 2009, order within thirty days of entry. The trial court did issue an order within thirty days rescheduling the matter. However, section 5505 does not contemplate the issuance of an order within thirty days that "implicitly vacates" an earlier order. Commonwealth v. Klein, 566 Pa. 396, 400, 781 A.2d 1133, 1135 (2001). In other words, a section 5505 order must clearly and unambiguously state that the prior order is rescinded. Because the trial court failed to rescind its January 13, 2009, order within thirty days of entry, the trial court lacked jurisdiction to issue its August 20, 2009, order.*fn2

Accordingly, we reverse.

ORDER

AND NOW, this 23rd day of July, 2010, the order of the Court of Common Pleas of Philadelphia County, dated August 20, 2009, is hereby reversed.

ROCHELLE S. FRIEDMAN, Senior Judge


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