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Fey v. Commonwealth2/17/2004
The Department of Transportation, Bureau of Driver Licensing (Department), appeals from the order of the Court of Common Pleas of Monroe County that sustained the appeal of Daniel James Fey (Licensee) from the requirement that he install an ignition interlock device on all vehicles that he owns before his operating privilege can be restored. The Department imposed the ignition interlock requirement pursuant to what is commonly referred to as the Ignition Interlock Law (Act), 42 Pa. C.S. §§ 7001-7003. The common pleas court sustained Licensee's appeal based upon this Court's decision in Schneider v. Department of Transportation, Bureau of Driver Licensing, 790 A.2d 363 (Pa. Cmwlth. 2002), ruling on petition for allowance of appeal reserved (No. 80 MAL 2002, May 9, 2002), wherein this Court held, among other things, that the Department lacked the authority to require installation of an ignition interlock device absent an order by a common pleas court.,
On July 8, 1995, Licensee was charged with violating 75 Pa. C.S §3731, for which he accepted Accelerated Rehabilitative Disposition (ARD). On March 3, 2001, Licensee was charged a second time with violating 75 Pa. C.S. §3731. He was convicted of this offense on October 23, 2001. At the time of his sentencing for this conviction, the trial court did not order him to install an approved ignition interlock device, as provided for in 42 Pa. C.S. § 7002(b).
On November 13, 2001, the Department provided Licensee with written notice that his driving privilege was suspended for one year. The notice also indicated that, as a prerequisite to the Department restoring his license at the end of this year-long suspension, Licensee was required to have each vehicle he owned equipped with an ignition interlock device. The notice indicated that failure to have the ignition interlock systems installed in his vehicles would result in the Department suspending his license for an additional year. Additionally, the notice advised Licensee that he had 30 days from the date of the notice to appeal the Department's action to the court of common pleas. Approximately fifteen months later, on February 19, 2003, Licensee filed an appeal of this notice.
At the de novo hearing that followed, the Department offered into evidence certified documents, which included the report of conviction and the November 13, 2001 notice of suspension. At the hearing, counsel for Licensee argued that, although the appeal was filed outside the 30 day time period, under Schneider, the action was "still timely" because "the action of the Department was ultra vires." (Hearing Transcript at 4). Licensee also argued that, under Alexander, the Act may not be applied retroactively, thereby precluding the Department from considering his 1995 conviction for purposes of imposing the Act's requirements as to second offenders. Based upon Schneider and Alexander, the common pleas court sustained Licensee's appeal and ordered the Department to restore Licensee's operating privileges. The Department appeals from this order.
On appeal, the Department argues that Licensee's appeal was 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 recent en banc decision in Freedman v. Department of Transportation, Bureau of Driver Licensing, ___ A.2d ___ (Pa. Cmwlth. 2003) (No. 1141 C.D. 2003, filed February 10, 2004). In Freedman, we explained that
(1) the proper procedure to challenge the Department's imposition of the ignition interlock device requirement is to file a timely appeal from the notice of suspension and, (2) the ration
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