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Rosenko v. Commonwealth3/8/2004
he notice. 75 Pa. C.S. §1550; 42 Pa. C.S. §§5571(b), 5572; Department of Transportation, Bureau of Driver Licensing v. Johnson, 641 A.2d 1170 (Pa. Super. 1994). Further, it is well settled that an untimely appeal precludes common pleas from having subject matter jurisdiction. Hudson v. Department of Transportation, Bureau of Driver Licensing, 830 A.2d 594, 598 (Pa. Cmwlth. 2003).
Formerly, in Watterson, which concerned an analogous situation of an untimely appeal, this Court held that the licensee was entitled to a nunc pro tunc appeal after finding that only the court and not the Department had authority to impose the ignition interlock restriction. Therefore, the Department's insistence upon a licensee's compliance with the interlock requirement prior to restoring a license was deemed to be void ab initio. Id., 816 A.2d at 1227. In Mockaitis, however, our Supreme Court concluded that the restoration of driving privileges, if and when repeat DUI offenders are entitled to conditional restoration of their license, is not the responsibility of the court, but rather of the Department. Similarly, this Court, in its recent en banc decision in Freedman v. Department of Transportation, Bureau of Driver Licensing, ____ A.2d ____ (Pa. Cmwlth.) (No. 1141 C.D. 2003, filed ______), noted that a challenge to the Department's imposition of the ignition interlock device requirement is properly made by filing a timely appeal from the notice of suspension, and that an untimely appeal deprives common pleas of subject matter jurisdiction. Additionally, in Freedman, this Court noted that the rationale set forth in Watterson, which had permitted nunc pro tunc appeals on the basis that the Department's unilateral imposition of an interlock requirement was void ab initio, was not consistent with the Supreme Court's position in Mockaitis. Since the Supreme Court has essentially rejected the Watterson rationale for allowing an untimely appeal, and because Rosenko has not asserted other grounds that would warrant the granting of a nunc pro tunc appeal, we agree with the Department's argument that Rosenko's failure to file a timely appeal challenging the imposition of the ignition interlock requirement, deprived common pleas of jurisdiction over the matter.
Accordingly, the common pleas court's order is vacated, and we remand the matter with the directive to quash Rosenko's statutory appeal as untimely.
ORDER
AND NOW, this 8th day of March 2004, the order of the Court of Common Pleas of Luzerne County in the above-captioned matter is hereby vacated, and the matter is remanded with instructions to quash Rosenko's statutory appeal as untimely.
Jurisdiction relinquished.
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