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Kinsey v. Commonwealth11/18/2003
1581, Article IV of the Compact. The notice further informed Licensee that pursuant to Section 1550(a) of the Code, any person whose operating privilege was suspended by the Department has the right to appeal. 75 Pa. C.S. § 1550(a).
Section 5571(b) of the Judicial Code, 42 Pa. C.S. § 5571(b), provides that appeals from a government unit to a court must be commenced within 30 days after entry of the order from which the appeal is taken. Moreover, appeals from Department actions are to be taken in the county of the licensee's residence, unless otherwise fixed by statute. 42 Pa. C.S. § 933(a)(1)(ii). Consequently, Licensee was required to appeal the Department's suspension of his operating privilege to the Court of Common Pleas of Montgomery County by September 30, 2003.
The trial court's docket sheet indicates that on October 17, 2002, Licensee commenced his appeal by filing "An Amended Petition for Appeal from a Suspension of Operating Privilege." Paragraph 2 of that petition reads as follows:
2. This Petition was initially filed in the Bucks County Court of Common Pleas on or about September 27, 2002; due the undersigned counsel's mistaken belief that [Licensee] was a resident of Bucks County and not Montgomery County. A true and correct copy of said Petition is attached hereto and marked as Exhibit "A".
(C.R. 1) The remainder of the amended petition sets forth the allegations upon which Licensee's appeal was based. It does not, however, indicate whether Bucks County transferred the matter to Montgomery County. Nevertheless, because the trial court's docket sheet and certified record do not contain a certified copy of the Bucks County docket sheet as required by Pa. R.C.P. No. 1006(e), it is clear that the initial appeal was not transferred from Bucks County to the trial court.
Furthermore, the Department includes in its supplemental reproduced record a copy of the Bucks County docket sheet, which indicates that Licensee's filing fee was refunded to Licensee's counsel because the action was filed in the wrong county. Although the Department's copy of the Bucks County docket sheet is not certified and does not appear in the trial court's certified record, we may take judicial notice of the relevant facts contained therein because they are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Pa. R.E. 201(b); Niedermeyer v. Department of Transportation, Bureau of Driver Licensing, 797 A.2d 409, 410 n.5 (Pa. Cmwlth. 2002). A review of that docket indicates that the initial appeal was voluntarily withdrawn by Licensee.
Because the initial appeal was not transferred to the trial court but rather was voluntarily withdrawn, Licensee's amended petition, filed October 17, 2002, was untimely. Where a licensee fails to appeal from a suspension of his operating privilege within the statutorily mandated 30-day appeal period, the court is without jurisdiction. Henning v. Department of Transportation, Bureau of Driver Licensing, 687 A.2d 20 (Pa. Cmwlth. 1996).
Accordingly, we conclude that the trial court lacked jurisdiction to hear Licensee's statutory appeal. The trial court's order is therefore affirmed.
ORDER
AND NOW, this 18th day of November, 2003, the February 25, 2003 order of the Court of Common Pleas of Montgomery County is AFFIRMED.
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