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Byrd v. Commonwealth2/11/2004
followed.
On appeal, the Department's first contention is that Byrd's appeal is untimely because he failed to appeal within 30 days of the notice of suspension and failed to demonstrate circumstances warranting a nunc pro tunc appeal. We agree. This issue is controlled by our en banc decision in Freedman v. Dept. of Transportation, Bureau of Driver License, ___ A.2d ___ (Pa. Cmwlth., No. 1141 C.D. 2003, filed February 10, 2004). In Freedman, we explained that the rationale of Watterson v. Department of Transportation, Bureau of Driver Licensing, 816 A.2d 1225 (Pa. Cmwlth. 2003), which had allowed nunc pro tunc appeals on the ground that the Department's unilateral imposition of an interlock requirement was void ab initio, was inconsistent with the analysis of our Supreme Court in Mockaitis. Consequently, since Byrd did not assert any other grounds justifying a nunc pro tunc appeal, common pleas lacked jurisdiction over the matter.
Accordingly, we vacate common pleas' order and remand with instructions to quash Byrd's statutory appeal.
BONNIE BRIGANCE LEADBETTER, Judge
ORDER
AND NOW, this 11th day of February, 2004, the order of the Court of Common Pleas of Monroe County in the above captioned matter is hereby VACATED and REMANDED with instructions to quash Byrd's statutory appeal as untimely.
Jurisdiction relinquished.
BONNIE BRIGANCE LEADBETTER, Judge
DISSENTING OPINION BY JUDGE SMITH-RIBNER
I respectfully dissent from the majority's decision to quash the appeal filed by Petitioner based on the views expressed in my dissenting opinion in Freedman v. Department of Transportation, Bureau of Driver Licensing, ___ A.2d ___ (Pa. Cmwlth., No. 1141 C.D. 2003, filed February 10, 2004).
DORIS A. SMITH-RIBNER, Judge
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