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Seiver v. Commonwealth10/12/2005
This case returns to us after our remand in Charles L. Seiver, II v. Dep't of Transp., Bureau of Driver Licensing, No. 480 C.D. 2004 (Pa. Cmwlth., filed September 27, 2004)(Seiver I). In Seiver I, we remanded to the Court of Common Pleas of Mercer County (trial court) for a determination of whether Charles L. Seiver, II (Licensee) was entitled to a "now for then" appeal from the Department of Transportation, Bureau of Driver Licensing's (PennDOT) requirement he install ignition interlock devices on all his vehicles before restoration of his operating privilege. PennDOT required installation of the interlock devices pursuant to what is commonly referred to as the Ignition Interlock Device Act (Act), 42 Pa. C.S. §§7001-03. Because the trial court did not err in denying Licensee a "now for then" appeal, we affirm.
Licensee was arrested for driving under the influence (DUI) in 1995 and again in 2002. After the more recent conviction, PennDOT mailed Licensee an Official Notice of Suspension in November 2002 which stated his operating privilege was suspended for one year and he must install interlock devices prior to restoration of his operating privilege. Licensee did not appeal from this notice.
In November 2003, PennDOT mailed Licensee a Restoration Requirements Letter, again noting the interlock requirement. Licensee appealed to the trial court within 30 days of this letter. The trial court sustained Licensee's appeal, and PennDOT appealed to this Court.
During the initial appeal to this Court, PennDOT for the first time questioned the trial court's jurisdiction because Licensee's appeal to the trial court was not filed within 30 days of the Notice of Suspension. We noted a licensee is required to file an appeal from the notice of suspension, not the restoration requirements letter. Licensee's failure to do so made his appeal untimely. Citing Dwyer v. Dep't of Transp. Bureau of Driver Licensing, 849 A.2d 1274 (Pa. Cmwlth. 2004), and Hess v. Dep't of Transp., Bureau of Driver Licensing, 821 A.2d 663 (Pa. Cmwlth. 2003), we noted untimely appeals may be heard on their merits in only very limited circumstances, where the appeal was untimely due to fraud or a breakdown in the administrative process. Because PennDOT did not raise this issue before the trial court and, therefore, deprived the trial court of the opportunity to make necessary factual findings, we remanded solely for a determination of whether Licensee was entitled to a "now for then" appeal.
On remand, the trial court held a hearing at which Licensee was the sole witness. Licensee testified he read the portion of the Notice of Suspension discussing the interlock requirement. He stated he knew the interlock requirement was being imposed on him and the Notice of Suspension correctly reflected that. Licensee testified he did not consult with his attorney about the Notice of Suspension. Licensee did not testify to any confusion regarding the interlock requirement as contained in the Notice of Suspension.
Although it lamented the unsettled law in this area, the trial court determined Licensee was not entitled to a "now for then" appeal. The trial court noted this Court's decision in Hess v. Dep't of Transp., Bureau of Driver Licensing, 821 A.2d 663 (Pa. Cmwlth 2003), where the notice of suspension sent by PennDOT was so unclear as to amount to a breakdown in the administrative process. However, the trial court found the subsequent decision in Freedman v. Dep't of Transp., Bureau of Driver Licensing, 842 A.2d 494 (Pa. Cmwlth. 2004)(licensee's appeal must be filed from the notice of suspension) implicitly overruled Hess. Therefore, the trial court denied Licensee's request for leave to appeal "no
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