Freedman v. Commonwealth, Department of Transportation, Bureau of Driver Licensing

842 A.2d 494, 2004 Pa. Commw. LEXIS 113

• Court: Commonwealth Court of Pennsylvania
• Decided: February 10, 2004
• Status: Published

Opinions

OPINION BY

Judge LEADBETTER.

The Department of Transportation, Bureau of Driver Licensing (Department), appeals from the order of the Court of Common Pleas of Lehigh County (common pleas) that sustained the appeal of Kerry Freedman from the requirement that he install ignition interlock devices on all vehicles that he owns before his operating privilege could be restored. The Department imposed the ignition interlock requirement pursuant to what is commonly referred to as the Ignition Interlock Device Act (Act) 42 Pa.C.S. §§ 7001-7003.¹ Over the objection of the Department that Freedman’s appeal was untimely, common pleas allowed the appeal nunc pro tunc and held that the Department lacked authority to require installation of an ignition interlock device absent court order and sustained Freedman’s appeal. For the reasons set forth below, we vacate and remand with instructions that common pleas quash the appeal.

Freedman pled guilty to driving under the influence (DUI) of alcohol in violation of 75 Pa.C.S. § 3731. Since this was Freedman’s second DUI conviction, the sentencing court imposed a fine and a term of imprisonment. The sentencing order did not include the requirement that Freedman install an ignition interlock device as provided for in Section 7002(b).² Neither the Commonwealth nor Freedman appealed the judgment of sentence. Thereafter, in April of 2002, the Department notified Freedman that his operating privilege was suspended for one year and that prior to the restoration of his operating privilege he would need to have an ignition interlock device installed on his vehicles. Freedman did not take an appeal from this suspension notice within the statutory period.

In January of 2003, the Department sent Freedman a “Restoration Requirements Letter” outlining the steps he would need to take in order to restore his operating privilege. Included therein was the requirement that he equip his vehicles with an ignition interlock device. Shortly thereafter, on February 6, 2003, Freedman filed an appeal challenging the Department’s authority to require that he install ignition interlock devices on his vehicles prior to the restoration of his operating privilege. Common pleas sustained Freedman’s appeal concluding that it could properly consider Freedman’s appeal nunc 'pro tunc and that pursuant to this court’s decision in Schneider v. Department of Transportation, Bureau of Driver Licensing, 790 A.2d 363 (Pa.Cmwlth.2002), allo-catur granted, -Pa.-, 842 A.2d 408 (2004), the Department lacked the authority to require the installation of an ignition interlock device absent a court order. The present appeal followed.

Prior to Commonwealth v. Mockaitis, 575 Pa. 5, 834 A.2d 488 (2003), this court held in a series of cases, beginning with Schneider, that the Department had no independent authority under the Act to require the installation of an ignition interlock device prior to restoring a licensee’s driving privilege. See, e.g., McGrory v. Dep’t of Transp., Bureau of Driver Licensing, 828 A.2d 506 (Pa.Cmwlth.2003); Schneider. Accordingly, in those cases, we affirmed common pleas’ order sustaining the licensee’s appeal from the Department’s imposition of such a requirement absent a court order. See id.

In Mockaitis, our Supreme Court addressed the constitutionality of those sections of the Act that required sentencing courts both to order installation of ignition interlock systems on motor vehicles owned by licensees convicted of repeated violations of driving under the influence (DUI) of alcohol in violation of 75 Pa.C.S. § 3731 and to certify to the Department that such systems had been installed. See 42 Pa. C.S. § 7002(b). After review, the Court ultimately concluded that the Act’s delegation of executive responsibility to the courts of common pleas in connection with the restoration of the operating privileges of serial DUI offenders was unconstitutional on the grounds that such delegation violated the separation of powers doctrine. In doing so, the Court opined in pertinent part:

[Delegation to the judiciary of the executive functions necessary to effectuate issuance of an ignition interlock restricted license — i.e., ordering installation of the interlock system(s) as a condition to applying to the Department for a restricted license, verifying compliance, and apprising the Department of the court’s determinations — impermissibly violates the separation of powers doctrine ....

The General Assembly cannot constitutionally impose upon the judicial branch powers and obligations exclusively reserved to the legislative or executive branch; nor can it in essence deputize judicial employees to perform duties more properly reserved to another of the co-equal branches of government. But, in terms of the obligation it imposes upon the trial courts to regulate the restoration of driving privileges in this instance, that is exactly what [the Act] entails.... This scheme essentially forces court employees to serve the Junetion of the Department of Transportation in discharging its executive responsibility of regulating whether and when repeat DUI offenders are entitled to conditional restoration of their operating privileges.

575 Pa. at 24-26, 834 A.2d at 499, 500 (emphasis added). Consequently, the Court severed three provisions of the Act, specifically, subsection 7002(b), subsection 7003(1), and the last clause of subsection 7003(5),³ which refers to subsection 7003(1).

Importantly, and relevant to the instant appeal, the Court emphasized that notwithstanding its severance of those three subsections of the Act, the Act’s ignition interlock requirement was still viable and enforceable, and permitted effectuation of the legislative requirement that serial DUI offenders can have their driving privileges restored only after securing an ignition interlock restricted license, which permits a licensee to operate a motor vehicle only if it is equipped with an approved ignition interlock system. Id. at 9-10, 834 A.2d at 490. Specifically, the Court opined:

Our holding that [the Act’s] delegation of executive responsibilities to the trial court is unconstitutional does not ineluctably require striking the Act in its entirety. *

Here, severing those portions of [the Act] which effectuate the delegation to the sentencing court of the license restoration-related executive responsibilities of ordering installation of the devices and certifying that they have been installed does not render the remainder of the statute incapable of execution in accordance with legislative intent. Our separation of powers holding can be effected by severing three provisions of [the Act]: subsection 7002(b), which delegates to the court the inter-related tasks of ordering a serial DUI offender to install the devices, apprising the Department of that order, verifying compliance, and certifying compliance to the Department; subsection 7003(1), which provides that, when a recidivist DUI offender seeks restoration of driving privileges, “the court shall certify to the department that each motor vehicle owned by the person has been equipped with an approved ignition interlock system;” and the last clause of subsection 7003(5), which refers back to subsection 7003(1) (i.e., “after otherwise being eligible for restoration under paragraph (1)”). With these provisions severed, the legislation still requires recidivist DUI offenders seeking restoration of driving privileges to apply to the Department for an ignition interlock restricted license. 42 Pa.C.S. § 7003(2). The Act also precludes the offender in possession of such a restricted license from operating any motor vehicle on a highway in the Commonwealth unless that vehicle is equipped with an approved ignition interlock system. Id. § 7003(3). The Act thus still prevents recidivist DUI offenders from lawfully operating motor vehicles on the highways in Pennsylvania unless they have an approved limited license and are driving a properly-equipped vehicle.

Id. at 28-30, 834 A.2d at 502.

The Department makes two arguments on appeal, that common pleas erred when it allowed Freedman to appeal nunc pro tunc and that it has an independent mandate under Section 7003 to impose ignition interlock device requirements upon repeat DUI offenders.⁴ We do not reach the second argument because we find the first to be dispositive.

The proper procedure to challenge the Department’s imposition of the ignition interlock device requirement is to file an appeal from the notice of suspension. Schneider at 366 n. 7; Turner v. Dep’t of Transp., Bureau of Driver Licensing, 805 A.2d 671, 674 (Pa.Cmwlth.2002); Hess v. Dep’t of Transp., Bureau of Driver Licensing, 821 A.2d 663, 665 (Pa.Cmwlth.2003). It is well settled that a licensee must file his appeal within 30 days from the date the Department mails such notice. 75 Pa.C.S. § 1550; 42 Pa.C.S. §§ 5571(b), 5572; Dep’t of Transp., Bureau of Driver Licensing v. Stollsteimer, 156 Pa.Cmwlth. 64, 626 A.2d 1255, 1256 n. 3 (1993). The Department correctly notes that an un timely appeal deprives common pleas of subject matter jurisdiction, Hudson v. Dep’t of Transp., Bureau of Driver Licensing, 830 A.2d 594, 598 (Pa.Cmwlth.2003), an issue which may be raised at any time. Id. at 598 n. 7. Nonetheless, in Watterson v. Dep’t of Transp., Bureau of Driver Licensing, 816 A.2d 1225 (Pa.Cmwlth.2003), we held that a nunc pi-o tunc appeal was appropriate. We reasoned that only the court had the lawful power to impose the interlock restriction, and thus the Department’s refusal to restore a license absent compliance with the interlock requirement was so outside its lawful authority as to be void ab initio. 816 A.2d at 1227. However, Mockaitis makes clear that the restoration of driving privileges, i.e., “whether and when repeat DUI offenders are entitled to conditional restoration of their operating privileges,”⁵ is not a function of the court, but rather the unique authority and responsibility of the Department. Since the rationale in Watterson for permitting an untimely appeal has been rejected by our Supreme Court, and there is no contention by Freedman that other circumstances warrant allowance of a nunc pro tunc appeal, we agree that Freedman failed to timely challenge the Department’s imposition of the ignition interlock requirement.

Accordingly, we vacate common pleas’ order and remand with instructions to quash Freedman’s statutory appeal.⁶

ORDER

AND NOW, this 10th day of February, 2004, the order of the Court of Common Pleas of Lehigh County in the above captioned matter is hereby VACATED and REMANDED with instructions to quash Freedman’s statutory appeal as'untimely.

Jurisdiction relinquished.

1 . The legislature recently amended the Act with the passage of the Act of September 30, 2003, P.L.-(Act 24). In addition, the Act was held unconstitutional in part by our Supreme Court in Commonwealth v. Mockaitis, 575 Pa. 5, 834 A.2d 488 (2003).

2 . Section 7002(b), which was one of the provisions severed from the Act by the Supreme Court in Mockaitis, required trial courts to, among other things, order the installation of an ignition interlock device on each vehicle owned by a licensee convicted of a second or subsequent violation of 75 Pa.C.S. § 3731. We note that the legislature’s recent amendment of the Act with Act 24 gives the Department independent authority to require an ignition interlock device absent a court order. Section 3 of Act 24 amended, among other sections; Section 7002(b) of the Act by adding the following provision:

If a second or subsequent violation of 75 Pa.C.S. § 3731 occurs after September 30, 2003, a court’s failure to enter an order in compliance with this subsection shall not prevent the department from requiring, and the department shall require, the person to install an approved ignition interlock device in accordance with this chapter.

This provision is not at issue in the present appeal.

3 . We note that the Act 24 amendments deleted subsection 7003(5) in its entirety.

4 . This second issue is before our Supreme Court in Schneider, but that court has not yet decided whether the restoration orders at issue in these cases exceeded in some respects the limits of the Department's authority under the Act prior to the September, 2003 amendments.

5 . Mockaitis, 575 Pa. at 26, 834 A.2d at 500.

6 . For reasons that are unclear, the Department raises a third contention regarding whether it improperly applied the Act retroactively. No such argument has ever been raised by Freedman, so the issue would not properly be before us, even were we to reach the merits of Freedman’s statutory appeal.