Opinion
No. 647 C.D. 2014
07-24-2015
Harry E. Hamilton, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Harry E. Hamilton, proceeding pro se, appeals from the January 31, 2014 order of the Court of Common Pleas of Luzerne County (trial court) that "affirm[ed]" its previous July 11, 2013 order dismissing his statutory appeal from the one-year suspension of his operating privilege imposed by the Department of Transportation (Department) for violating Section 1543 of the Vehicle Code, as amended, 75 Pa. C.S. § 1543 (driving while operating privilege is suspended).
Hamilton argues that the trial court improperly dismissed the appeal for his failure to appear at a de novo hearing without requiring the Department to establish a prima facie case for the suspension. Hamilton and the trial court ask us to remand this matter for a further proceeding. We conclude that the trial court lacked jurisdiction to reconsider the July 11, 2013 order dismissing Hamilton's appeal after expiration of the 30-day appeal period. Accordingly, we vacate the court's January 31, 2014 order and uphold the dismissal of Hamilton's appeal in the July 11, 2013 order.
Hamilton pro se filed a statutory appeal from the notice of suspension mailed by the Department on March 20, 2013. On May 2, 2013, the trial court issued an order scheduling a de novo hearing for July 8, 2013. The court directed Hamilton to serve upon the Department a notice of the petition for appeal and the court's scheduling order by certified mail. When Hamilton did not appear at the July 8, 2013 hearing, the trial court noted that his appeal was No. 19 on the hearing list. The Department's counsel then stated: "I don't have a file on that one, Your Honor. I don't know if we were ever served. I don't have anything on that. Does he indicate in there that he served PennDOT?" July 8, 2013 Hearing, Notes of Testimony (N.T.) at 2; Supplemental Reproduced Record (S.R.) at 6b. By order dated July 11, 2013, the trial court dismissed Hamilton's appeal for his failure to properly serve the Department and failure to appear at the hearing. A notice of the entry of the order was mailed to the parties on July 12, 2013.
On July 29, 2013, Hamilton filed a motion to vacate the dismissal of his appeal. The trial court then issued a rule to show cause upon the Department to show why the relief requested by Hamilton should not be granted. The rule was returnable on October 15, 2013. In its response to the motion, the Department argued that the court lacked jurisdiction to decide Hamilton's motion because he failed to either obtain reconsideration of the July 11, 2013 order or appeal that order within 30 days of its entry. Hamilton thereafter filed a motion for continuance, and the court rescheduled a hearing for January 27, 2014 at 9:30 a.m.
Hamilton again failed to appear at the January 27, 2014 hearing. The Department's counsel reported to the court that he called Hamilton, who is a federal employee and an attorney admitted to the Pennsylvania bar, at his phone number in the Department's record forty-five minutes after the scheduled 9:30 a.m. hearing and received no response. The Pennsylvania Disciplinary Board had the same contact information for Hamilton. The Department again argued that the trial court lacked jurisdiction to consider Hamilton's motion after the 30-day period for appealing the July 11, 2013 order.
In an order dated January 31, 2014, the trial court "affirm[ed]" the July 11, 2013 order dismissing Hamilton's appeal, stating that he failed to appear at the January 27, 2014 hearing. Reproduced Record at 1a. Hamilton appealed the January 31, 2014 order to the Superior Court which transferred the appeal to this Court. In the subsequently filed opinion, the trial court asked this Court to remand this matter "for an evidentiary hearing," citing Zawacki v. Department of Transportation, Bureau of Driver Licensing, 745 A.2d 701 (Pa. Cmwlth. 2000), which held that when a licensee fails to appear at a de novo hearing, the trial court must still require the Department to present evidence to establish a prima facie case for the suspension. Trial Court's August 28, 2014 Opinion.
Hamilton argues that the trial court erred in dismissing the appeal without requiring the Department to establish a prima facie case for the suspension. The Department counters that Hamilton's appeal should be quashed because it was not filed within 30 days of the July 11, 2013 order dismissing his statutory appeal.
A notice of appeal must be filed "within 30 days after the entry of the order from which the appeal is taken," except as otherwise provided by the appellate rules. Rule 903 of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 903. The date of the entry of the order is the date when the prothonotary enters the order on the docket and gives the parties a notice of the entry of the order. Gomory v. Dep't of Transp., Bureau of Motor Vehicles, 704 A.2d 202, 204 (Pa. Cmwlth. 1998). A court may modify or rescind an order within 30 days after its entry if no appeal from such order has been taken or allowed. Section 5505 of the Judicial Code, 42 Pa. C.S. § 5505. Where the trial court fails to rescind the order within 30 days of its entry, the court lacks jurisdiction to later issue an order reinstating the appeal. Boglin v. Dep't of Transp., Bureau of Driver Licensing, 1 A.3d 997, 998 (Pa. Cmwlth. 2010).
The trial court's docket entry shows that the notice of the entry of the July 11, 2013 order dismissing Hamilton's appeal was mailed to the parties on July 12, 2013. S.R. at 1b. Hamilton did not appeal the July 11, 2013 order within the 30-day appeal period and did not seek leave to appeal the July 11, 2013 order nunc pro tunc. The July 11, 2013 order became final upon the expiration of the appeal period. A tribunal "loses jurisdiction to change an order once it becomes final; otherwise, nothing would ever be settled." City of Phila. Police Dep't v. Civil Serv. Comm'n of the City of Phila., 702 A.2d 878, 880 (Pa. Cmwlth.1997).
In the "Amended Application for Special Relief for Remand under Coram Nobis or Coram Vobis and for Leave to Proceed in Forma Pauperis," Hamilton averred that the matter should be remanded for the trial court's consideration of his application for leave to appeal the suspension nunc pro tunc. By order dated June 19, 2014, this Court denied Hamilton's application.
Assuming that Hamilton's July 29, 2013 motion to vacate the dismissal of his appeal can be treated as a motion for reconsideration of the July 11, 2013 order filed within the 30-day appeal period, the trial court still lacked jurisdiction to act on the motion after the appeal period. Under Rule 1701(b)(3) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1701(b)(3), the court may grant reconsideration of the order which is the subject of the appeal, if:
(i) an application for reconsideration of the order is
filed in the trial court ... within the time provided or prescribed by law; andWhere the court enters a timely order of reconsideration, "the time for filing a notice of appeal ... begins to run anew after the entry of the decision on reconsideration." Id.
(ii) an order expressly granting reconsideration of such prior order is filed in the trial court ... within the time prescribed by these rules for the filing of a notice of appeal ... or within any shorter time provided or prescribed by law for the granting of reconsideration. [Emphasis added.]
Here, the trial court did not grant reconsideration of the July 11, 2013 order within the 30-day appeal period and instead issued a rule to show cause upon the Department to be returnable three months after the 30-day appeal period. Where a motion for reconsideration is filed within the appeal period but was not granted within that period, the court loses jurisdiction to act on the motion for reconsideration and the original order. City of Phila. Police Dep't, 702 A.2d at 881. Hence, the trial court did not have jurisdiction to act on Hamilton's motion to vacate the dismissal of his appeal in the July 11, 2013 order, more than six months after the expiration of the 30-day appeal period.
Accordingly, we vacate the trial court's January 31, 2014 order.
Because the trial court's July 11, 2013 dismissal of Hamilton's statutory appeal was a final order which was not appealed within the statutory 30-day period, it is not before us, and remains in effect. --------
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 24th day of July, 2015, the order of the Court of Common Pleas of Luzerne County entered on January 31, 2014 in the above-captioned matter is VACATED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge