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Rosenko v. Commonwealth3/8/2004
The Department of Transportation, Bureau of Driver Licensing (Department) appeals from the order of the Court of Common Pleas of Luzerne County (common pleas) that denied in part and sustained in part the appeal of Paul Jeffrey Rosenko (Rosenko) from the Department's imposition of a one-year suspension of his operating privileges for driving under the influence and its imposition of the ignition interlock restoration requirement.
On February 6, 2002, Rosenko pled guilty to two counts of driving under the influence of alcohol or controlled substance (DUI) in violation of Section 3731 of the Motor Vehicle Code, as amended, 75 Pa. C.S. §3731. He was sentenced to 48 hours to 12 months of incarceration, community service, and payment of fines and costs. Additionally, the February 6, 2002 sentencing order included a directive that Rosenko install an ignition interlock device on his vehicle as a requirement prior to restoration of his driving privilege, pursuant to the Ignition Interlock Device Act (Act), 42 Pa. C.S. §§7001-7003.
On March 1, 2002, the Department forwarded Rosenko the official notice of suspension of his driving privileges which notice advised him that before restoration of his driving privileges, he was required to install an ignition interlock system on all his vehicles. On April 16, 2003, Rosenko filed a nunc pro tunc motion to modify sentence, requesting that the ignition interlock device requirement be vacated. On this same date, the Court granted this motion and entered an order vacating the ignition interlock device requirement from its prior February 6, 2002 order.
Rosenko, on May 21, 2003, filed an appeal from the Department's order requiring his compliance with the ignition interlock system. After a hearing held on June 11, 2003, common pleas, on June 18, 2003, entered an order denying Rosenko's appeal of the one-year suspension of his operating privilege but granting his appeal with respect to the ignition interlock restoration requirement. This appeal by the Department followed.
On appeal, the Department argues that Rosenko filed his appeal over a year after the Department notified him of the ignition interlock requirement thereby rendering his appeal untimely. In this regard, the Department maintains that Rosenko did not submit any evidence that would support allowing him a nunc pro tunc appeal, and that in any event, considering the Supreme Court's decision in Mockaitis, common pleas did not have subject matter jurisdiction to hear this appeal. The Department further contends that Mockaitis implicitly overruled this Court's decisions both in Schneider v. Department of Transportation, Bureau of Driver Licensing, 790 A.2d 363 (Pa. Cmwlth. 2002), and in Watterson v. Department of Transportation, Bureau of Driver Licensing, 816 A.2d 1225 (Pa. Cmwlth. 2003), by determining that only the Department has the authority, as an executive agency, to implement the constitutional sections of the Ignition Interlock Act, including mandating the installation of an ignition interlock device as a requirement for restoring a licensee's operating privilege. Finally, the Department argues that common pleas lacked the authority to vacate, by its April 16, 2003 order, the ignition interlock requirement that it had imposed in its February 6, 2002 order as part of Rosenko's sentence.
We concur with the Department's contention that Rosenko's appeal is untimely, and that Rosenko failed to submit other evidence to warrant a nunc pro tunc appeal. A licensee wishing to challenge the Department's imposition of the ignition interlock device requirement should file an appeal from the notice of suspension within 30 days from the date the Department mails t
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