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Moerder v. Commnwealth2/13/2004
The Department of Transportation, Bureau of Driver Licensing (Department), appeals from the order of the Court of Common Pleas of Chester County that sustained the appeal of Mark C. Moerder (Licensee) from the requirement that he install an ignition interlock device on all vehicles that he owns before his operating privilege could be restored.
On May 28, 1996, Licensee was charged with violating 75 Pa. C.S. §3731, relating to driving while under the influence of alcohol. He accepted Accelerated Rehabilitated Disposition (ARD) for this offense. On June 30, 2001, Licensee was charged with violating the same statutory provision, for which he was convicted on January 29, 2002. The common pleas court judge who issued the sentencing order for this conviction did not require Licensee to install an ignition interlock device as provided for in Section 7002(b) of the Ignition Interlock Law (Act), 42 Pa. C.S. §§ 7002(b).
On April 18, 2002, the Department notified Licensee that his driving privilege was suspended for one year, and that he was required to have all vehicles owned by him equipped with an ignition interlock device before his driving privilege could be restored. Otherwise, his driving privilege would be suspended for an additional year. The notice also 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. Licensee did not file an appeal from this suspension notice.
On January 30, 2003, the Department sent Licensee a "Restoration Requirements Letter" outlining the steps that he would need to take in order to restore his operating privilege. Included therein was a reminder that the failure to equip his vehicles with an ignition interlock device would result in an additional year of suspension. On April 16, 2003, Moerder filed a petition in the court of common pleas seeking leave to file a nunc pro tunc statutory appeal from the ignition interlock requirement.
At the de novo hearing that followed, the Department offered into evidence certified documents, which included the report of conviction and the April 18, 2002 notice of suspension. Before the common pleas court, the Department argued that the appeal was untimely because it was not filed within 30 days of the April 18, 2002 notice of suspension. In response, Licensee argued that, in accordance with 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), the Department's order requiring interlock installation was void ab initio and, as such, the appeal was timely. The common pleas court, relying on Schneider, sustained Licensee's appeal, concluding that the Department could not impose the interlock requirement. The Department appealed this order.
On appeal, the Department argues that Licensee'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 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 requirement is to file a timely appeal from the notice of suspension and, (2) 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 un
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