Opinion
Argued February 7, 1974
March 1, 1974.
Motor vehicles — Revocation of motor vehicle operator's license — The Drug, Device and Cosmetic Act, Act 1961, December 26, P. L. 1664 — Timeliness of appeal — The Vehicle Code, Act 1959, April 29, P. L. 58 — Motion to quash appeal.
1. An appeal from action by the Secretary of Transportation, revoking a motor vehicle operator's license as a result of a conviction under The Drug, Device and Cosmetic Act, Act 1961, December 26, P. L. 1664, which is not filed within the time required for such filing by provisions of The Vehicle Code, Act 1959, April 29, P. L. 58, should be quashed. [138-9]
Argued February 7, 1974, before Judges CRUMLISH, JR., WILKINSON, JR. and MENCER, sitting as a panel of three.
Appeal, No. 1053 C.D. 1973, from the Order of the Court of Common Pleas of Bucks County, in case of Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety, v. Gordon J. Balestrieri, No. 73-1596-05-6.
Revocation of motor vehicle operator's license by Secretary of Transportation. Licensee appealed to the Court of Common Pleas of Bucks County. Appeal sustained. GARB, J. Commonwealth appealed to the Commonwealth Court of Pennsylvania. Held: Reversed. Revocation order reinstated.
John L. Heaton, Assistant Attorney General, with him Anthony J. Maiorana, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellant.
No appearance for appellee.
Appellee was notified on March 29, 1972 by the Department of Transportation that his operating privileges were being revoked for a period of one year under Section 616(a)(4) of The Vehicle Code, Act of April 29, 1959, P. L. 58, as amended, 75 Pa.C.S.A. § 616 (a)(4) as a result of the receipt by the Department of a certification of conviction under The Drug, Device and Cosmetic Act. Act of December 26, 1961, P. L. 1664, 35 P. S. § 780-1, et seq.
Appellee applied for a renewal of his operator's privileges and was notified by the Department on January 29, 1973 that his operator's privileges would not be renewed due to the prior revocation. On February 16, 1973, over 10 months after the revocation, appellee filed his Petition for Appeal in the court below.
On April 9, 1973 the Commonwealth filed a Motion to Quash this appeal on the grounds that it was not filed within the time mandated by Section 620 of The Vehicle Code, 75 Pa.C.S.A. § 620, i.e., within 30 days. The record shows that the Notice of Revocation was placed in the mail on March 29, 1972 and there is no denial it was received. The reasons stated in the Petition for Appeal are that the appellee was not given a hearing before the revocation, that he was "never notified as to the exact reason for the license being withdrawn," and the legal conclusion that the withdrawal was illegal, unreasonable and an abuse of discretion.
A reading of the entire record discloses that appellee does not treat notices of legal actions of concern to him with the regard to which they are entitled. He did not appear on the first date fixed to hear this appeal in the court below, nor did he appear on the second date on which the hearing was held. He did not respond to the communications of his attorney at that time nor did he respond to his attorney when he notified him of this appeal. His attorney notified this Court that under the circumstances he could no longer represent him. Therefore, this Court notified him of the time fixed for argument in this Court, but he did not respond in any way nor did he appear.
The Commonwealth's Motion to Quash should have been granted by the court below. See Brown v. Department of Transportation, 4 Pa. Commw. 308, 286 A.2d 492 (1972).
Accordingly, we enter the following
ORDER
NOW, March 1, 1974, the Order of the court below, dated July 3, 1973, is reversed and the Order of Revocation imposed by the Secretary of Transportation is reinstated. A reinstated revocation shall be issued by the Secretary of Transportation within 30 days.