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Freedman v. Commonwealth2/10/2004
to Freedman's imagination. Because Freedman did not know any details about the requirement, he could not know all that he might wish to challenge in an appeal. From Freedman's point of view, his desire to appeal might depend upon the new information. However, as in Anderson, by the time Freedman received the second notice from DOT in January 2003, the appeal period had expired.
II. Void Ab Initio
Second, like Judge Smith-Ribner, I do not believe that our supreme court's decision in Commonwealth v. Mockaitis, ___ Pa. ___, 834 A.2d 488 (2003), has the impact stated by the majority on this court's holding in Watterson (holding that, inasmuch as DOT lacks statutory authority to impose the ignition interlock requirement, DOT's imposition of the requirement is void ab initio).
The majority states that our supreme court rejected the Watterson rationale in Mockaitis. I disagree. Our supreme court never stated in Mockaitis that DOT has the authority to require the installation of ignition interlock devices in all vehicles owned by a licensee before DOT restores the licensee's operating privileges. Thus, any attempt by DOT to require that a licensee install ignition interlock devices on his or her vehicles before issuing a restricted license is outside DOT's statutory authority.
Our supreme court's discussion of the equal protection claim in Mockaitis is proof that the court never intended to suggest that DOT can require the installation of ignition interlock devices in all vehicles owned by a licensee before issuing a restricted license. The trial court in Mockaitis concluded that requiring the installation of ignition interlock devices on all vehicles owned by the licensee prior to DOT's issuance of a restricted license violated the equal protection rights of licensees who lease vehicles or own multiple vehicles. Id. Our supreme court stated further that there was no need to address this question because the statutory provisions requiring the installation of ignition interlock devices in all vehicles owned by a licensee have been severed from the law as violative of the separation of powers doctrine. Id. Thus, under Mockaitis, DOT still does not have authority to require the installation of ignition interlock devices on all vehicles owned by a licensee prior to DOT's issuance of a restricted license.
In this case, DOT imposed such a requirement upon Freedman, and Freedman challenges that requirement in his appeal. Because DOT lacked authority to impose the requirement, it was void ab initio pursuant to Watterson. Thus, I would conclude that Freedman is entitled to a nunc pro tunc appeal and affirm.
ROCHELLE S. FRIEDMAN, Judge
Judge Smith-Ribner joins in this dissent.
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