The URL can be used to link to this page

Home My WebLink About02-4874Becky L. Hebeflig, : Appellant : Commonwealth of PA, : Department of Transportation, : Bureau of Driver Licensing, : Appellee : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No.: ~O~. ~ ~ '7 ~ Civil Term PETITION FOR APPEAL FROM IMPOSITION OF IGNITION INTERLOCK REQUIREMENTS 1. Appellant herein is Becky L. Heberlig, residing at and having a mailing address of: 14 Courtyard Drive, Carlisle, PA 17013. 2. Appellee herein is the Department of Transportation of the Commonwealth of Pennsylvania, having a mailing address o~ Pennsylvania Department of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office Center, Harrisburg, Pennsylvania 17104-2516. 3. Appellant was convicted in this Court for violating, inter alia, 75 Pa.C.S. §3731(a), Driving Under the Influence. 4. Appellant was sentenced on September 25, 2001, by The Honorable Judge Edgar B. Bayley to pay the costs of prosecotion, a term of imprisonment of 30 days to 23 months, and a $300 fine. The sentence did not require the installation of an ignition interlock device on vehicles owned by Appellant. 5. Appellee suspended Appellant's driving privileges for a period of 1 year pursuant to 75 Pa.C.S. §1552(b)(3). Appellant's driving privileges were to be restored on November 9, 2002. 6. By letter or notice dated September 19, 2002, the Department of Transportation informed Appellant that her driving privileges would be suspended for one additional year if she did not install an ignition interlock device on every vehicle she owned. If Appellant does not comply, Appellee will not restore her driving privileges until August 12, 2003. Appellant appeals this new requirement and restoration date. (A copy of the letter is attached hereto and marked as Appellant's Exhibit "A"). Appellant complied with all other requirements required by Appellee in order to restore install an ignition interlock device on every vehicle she owned. If Appellant does not comply, Appellee will not restore her driving privileges until August 12, 2003. Appellant appeals this new requirement and restoration date. (A copy of the letter is attached hereto and marked as Appellant's Exhibit "A'). 7. Appellant complied with all other requirements required by Appellee in order to restore driving privileges as well as with all requirements ordered by this Court as part of her sentence. 8. On January 11, 2002, the Commonwealth Court of Pennsylvania held that "the trial court has jurisdiction over driver license suspension appeals and ... the plain language of the Act does not permit PennDOT to have independent authority to impose installation of an ignition interlock device." Schneider v. Commonwealth, 790 A.2d 363 (Pa. Cmwlth. 2002). 9. Following the holding of Schneider, Appellant asserts that imposition of ignition interlock requirements is unlawful in that it was done unilaterally by Appellee without legal authority and in the absence of the imposition of those requirements by this Court. WHEREFORE, Appellant respectfully requests this matter be set down for a hearing, Appellee restore Appellant's driving privileges supersedeas pursuant to 75 Pa.C.S. §1550(b) pending said hearing, and Appellee's imposition of ignition interlock devices on Appellant's vehicles be set aside. Respectfully Submitted, By: ~] ~ I[.J ~' Paul Bradford Orr, EsquilL Attorney for Appellant 50 East High Street Carlisle, PA 17013 (717) 258-8558 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION BUREAU OF DRIVER LICENSING HARRISBURG, PA 17125 09/19/02 BECKY L HEBERLIG lq COURTYARD DRIVE CARLISLE PA 17015 DRIVER'S LICENSE BIRTH DATE: ELIGIBILITY DATE: NUMBER: 15767226 08/21/52 11/09/02 Dear MS. HEBERLIG : This is a RESTORATION REQUIREMENTS LETTER. It lists what you must do to restore your driving privilege. PLEASE BE AWARE THAT THIS LETTER DOES NOT AUTHORIZE YOU TO DRIVE. You wiiI be notified by the Department of Transportation (PennDOT) that Your driving privilege has been restored. Oniy after that may YOU drive. An ELIGIBILITY DATE is listed above. This is the date you are eligible to have your driving priviiege restored, provided no other violations are processed against your driving record. This date is effective regardiess of any other dates listed within this letter. Please read the following information carefully and be sure to complete all requirements to have your driving privilege restored. Unless another address is indicated, return any documents and/or fees to the MAILING ADDRESS listed at the end of this letter. RESTORATION FEE -You must pay a ~25.00 restoration fee to PENNDOT. Write your driver's license number (listed above) on the check or money order to ensure proper credit. Your check or money order should be made payable to PENNDOT. PROOF OF INSURANCE -Within 50 days of your ELIGIBILITY DATE, provide a copy of one of the following to PENNDOT to show that all motor vehicles currently registered in Pennsylvania in your name are insured: ~Insurance ID card ~Declaration Page of Your insurance Policy ~Insurance Binder ~An application of insurance to the PA Auto Insurance Plan If you do not own a motor vehicle currently registered in Pennsylvania, send a signed statement of this fact to PENNDOT which reads "I do not own any motor vehicles currently registered in PennsYlvania". Please include Your name~ address, driver's license number and date of birth on the statement. TERM SUSPENSION/REVOCATION -.. :~ ....... , i LICENSE NO. : 15767226 -You have a 1 YEAR(S) suspension/revocation that began (or will begin) on 09/25/01. Credit for serving this suspension/revoca- tion began (or will begin) on 10/25/01 and will end on 10/25/02. The suspension/revocation resulted from a violation on 05/07/01 of Section 5751, DRIVING UNDER INFLUENCE IGNITION INTERLOCK You are required to have an approved Ignition Interlock System installed in all of your vehicle(s). APproximately 50 days before your ELIGIBILITY DATE, you should contact one of the following approved vendors listed below to make arrangements to have the System installed. -Interlock Installation Services - 1-800-q52-175g -Consumer Safety Technology~ Inc. 1-877-777-5020 -National Interlock, Inc. (serving Eastern PA) 1-866-5~2-~98q -American Court Services (serving Central/Western PA) 1-888-565-6227 -Guardian Interlock Systems 1-800-q99-O99q -Draeger Interiock, Inc. - 1-800-552-6858 You will need to provide the vendor the following court information before the System can be installed. COUNTY COURT NUMBER COURT TERM CUMBERLAND CTY 01085 2001 Please retain a copy of this letter to assist you in this process. If You choose not to install the Ignition Interlock System in your vehicle(s)~ your driving Privilege will remain suspended for an additional year. TERM SUSPENSION/REVOCATION -You have a 15 DAY(S) suspension/revocation that began (or will begin) on 09/25/02. Credit for serving this suspension/revoca- tion began (or wili begin) on 10/25/02 and wili end on 11/09/02. The suspension/revocation resulted from a violation on 05/07/01 of Section 571q, CARELESS DRIVING IGNITION INTERLOCK LICENSE -In order to have your driving privilege restored you must apply for an Ignition Interlock license. An Ignition Interlock license entitles you to drive only vehicles equipped with an Ignition Interiock System. You may make application 50 days BEFORE your eligibility date. An application is enclosed for your convenience. 2 LICENSE NO. : 15767226 This letter identified the requirements necessary to restore Your driving privilege and we are looking forward to working with you to do this. Unless another address was indicated, return any documents and/or fees to the NAILING ADDRESS listed below. Phone numbers are provided for your use. To ensure prompt customer service, please write your driver's license number, listed at the beginning of this letter, on all documents You send to PENNDOT. Thank YOU. P.S. REMEMBER, your ELIGIBILITY DATE is 11/09/02. MAILING ADDRESS: PENNDOT Bureau of Driver Licensing P.O. Box 6869~ Harrisburg, PA 17106-8695 INFORMATION (7:00 IN STATE OUT-OF-STATE TDD IN STATE TDD OUT-OF-STATE AM to 9:00 PM) 1-800-932-4600 717-391-6190 1-800-228-0676 717-391-6191 LICENSE NO. : 15767226 IGNITION INTERLOCK LICENSE APPLICATION To apply for an Ignition Interlock license, please sign below and submit this page with a check or money order in the amount of $10.00 to the maiiing address listed at the bottom of this ietter. Your check or money order shouid be made payable to PENNDOT. DRIVER'S LICENSE NUMBER 15767226 BECKY L HEBERLIG lQ COURTYARD DRIVE CARLISLE PA 17015 SIGNATURE TELEPHONE NO: If your address has changed, please Print the correct address here: If you choose not to install an Ignition Interlock System, you do not have to apply for an Ignition Interlock license, MAILING ADDRESS: PENNDOT P.O. Box 68695 Harrisburg, PA 17106-8695 VERIFICATION I verify that I am the petitioner and that the statements made in the foregoing Petition are tree and correct. I understand that false statements herein are made subject to the penalties of Pa. C.S. § 4904, relating to unswom falsification to authorities. Becky Lou Heberlig c, Becky L. Heberlig, Appellant V. Commonwealth of PA, Department of Transportation, Bureau of Driver Licensing, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No.: Civil Term CERTIFICATE OF SERVICE I hereby certify that on this date, I mailed a true copy of a Petition for Appeal from Imposition of Ignition Interlock Requirements by the Department to the following person at the following address by U.S. Mail, Certified mail, postage prepaid, remm receipt requested, delivered to addressee only: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor Riverfront Office Center Harrisburg, PA 17104-2516 Becky L. Heberlig, Appellant Commonwealth of PA, Departmem of Transportation, Bureau of Driver Licensing, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No.: dTo~- Z/t~2~/ Civil Term appeal, a hearing shall be held on the _1~___. M in Courtroom Number ~ OR1)ER AND NOW, this ~{~;k day of(~ ~.}/A, 2002, upon consideration of Appellant's I~{:k dayof~2002, at o~10b o'clock , Cumberland County Courthouse, Carlisle, Pennsylvania. AND NOW, Appellee is hereby ordered to reinstate Appellant's driving privilege supersedeas pursuant to 75 Pa.C.S. §1550(b) pending said hearing. Paul Bradford Orr, Esquire Law Offices of Paul Bradford Orr 50 East High Street Carlisle, PA 17013 Pennsylvania Department of Transportation Office of Chief Counsel Third Floor Riverfront Office Cemer Harrisburg, PA 17104-2516 BECKY L. HEBERLIG, Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DKIVER LICENSING, Respondent · IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4874 CWIL TERM · LICENSE SUSPENSION APPEAL ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Respondent, in the above-entitled matter. Terrance M. Edwards Assistant Counsel Appellate Section Vehicle & TraJfic Law Division Attorney I.D. No. 25231 Department of Transportation Office of Chief' Counsel Riverfront Officer Center, Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 BECKY L. HEBERLIG, Petitioner Vo COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent · IN THE! COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4874 CIVIL TERM · LICENSE SUSPENSION APPEAL OF PROOF OF SERVICE I hereby certify that I have on this day and date duly served a true and correct copy of the foregoing Entry of Appearance upon the person and in the manner indicated below, which service satisfies the requirements of Pa. R.A.P. 121' December 11, 2002 First Class Mail; Postage Pre-Paid; . Addressed as Follows: Paul Bradford Orr, Esquire TERRANCE M. EDWARDS Assistant Counsel Attorney for Petitioner 50 East High Street Carlisle, PA 17013 (717) 258-8S58 BECKY L. HEBERLIG, Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent MOTION TO QUASH APPEAL : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 02-4874 CIVIL TERM : LICENSE SUSPENSION APF~ .AL~ ~) TO THE HONORABLE EDGAR B. BAYLEY, JUDGE OF SAID COURT: COMES NOW your Respondent, the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Bureau), by and through its attorney, Terrance M. Edwards, Esquire, and moves this Honorable Court to quash the appeal in the above-captioned case for the following reasons: 1. The appeal is untimely. The Vehicle Code, 1976, P.L. 162, June 17, as amended, 75 Pa.C.S. § 1550, provides that any person denied a driver's license or whose operating privilege has been recalled, canceled, suspended or revoked by the Department shall have the right to appeal to the Court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure). 2. 42 Pa.C.S. §933 provides that the Courts of Comm{m Pleas shall have jurisdiction of appeals of final orders issued by the Department of Transportation pursuant to, inter alia, Section 1550 of the Vehicle Code, 75 Pa.C.S. §1550. 42 Pa.C.S. §5571(b) provides that an appeal from a "government unit to a court.., must be commenced within 30 days after the entry of the order from which the appeal is taken." 42 Pa.C.S. §5572 provides that the.' date of entry of such order is the "date of mailing if service is by mail." In the case subjudice, notice of suspension of Ms. Heberlig's driving privilege was properly mailed on October 24, 2001, to her "address of record" pursuant to Section 1540(b)(1) of the Vehicle Code, 75 Pa.C.S. §1540(b)(1). See Appendix A. 3. Accordingly, Ms. Hebeflig was required to file her appeal, if any, within 30 days of the date the notice was mailed to her on October 24, 2001. Maxion v. Department of Transportation, Bureau of Driver Licensing, 728 A.2d 442 (Pa. Cmwlth. 1999); McKeown v. Department of Transportation, 601 A.2d 486 (Pa. Cmwlth. 1991). 4. Pursuant to 1 Pa.C.S. § 1908, the thirty-day period began on the day following the date of mailing i.e., on Thursday, October 25, 2001. The thirtieth day was Friday, November 23, 2001. However, the appeal was not filed in this Honorable Court until October 7, 2002, nearly a year late. 5. In Schneider v. Department of Transportation, Bureau of Driver Licensing, 790 A.2d 363 (Pa. Cmwlth. 2002), petition for allowance ofappealpending, 80 MAL 2002 (Pa. Feb. 7, 2002), Commonwealth Court held that the Bureau's notice of imposition of an ignition interlock requirement is a final order that merely continues the original suspension for driving under the influence. /d. at 366 n.7. Although Ms. Heberlig has attached a copy of a "RESTORATION REQUIREMENTS LETTER" dated September 19, 2002, to her' petition, the final order requiring installation of the Ignition Interlock System was contained in the Bureau's notice dated October 24, 2001. The Bureau respectfully submits that Ms. Heberlig rrtay not "appeal" the Restoration Requirements letter. See Department ofTransportation, Bureau ofDriver Licensing v. Stollsteimer, 626 A.2d 1255 (Pa. Cmwlth. 1993) (Licensee's appeal was tmti[mely and the trial court therefore lacked subject matter jurisdiction, because the licensee failed to, file a timely appeal of any of ten notices of suspension, but instead attempted to "appeal" a copy of his certified driving history). 6. In Bye v. Department of Transportation, Bureau of Driver Licensing, 607 A.2d 325 (Pa. Cmwlth. 1992), the issue arose as to when an appeal of a notice of suspension or revocation must be filed, i.e., within thirty (30) days of the mailing date of the Bureau's notice, or within thirty (30) days of the date on which the suspension or revocation was to go into effect. CitingKlitsch Motor Vehicle Operations License Case, 213 Pa. Super. Ct. 53,245 A.2d 688 (1968), Commonwealth Court held that "the legislature has mandated that such appeals must be taken within thirty days of the mailing date of the notice of [suspension or] revocation." Bye, 607 A.2d at 326. "If an appeal is not filed within the statutorily mandated period of thirty days, the court has no jurisdiction to hear the appeal of the suspension, unless the delay in filing the appeal was caused by fraud, deception, coercion, duress or breakdown in administrative procedure." /d. at 327. 7. Accordingly, this appeal was clearly filed more than thirty (30) days from the date the notice of imposition of the Ignition Interlock requirement was mailed. "Where an act of assembly fixes the time within which an appeal must be taken, the time may not be extended in the absence of fraud or its equivalent." Department of Transportation, Bureau of Traffic Safety v. Royster, 377 A.2d 1038, 1039 (Pa. Cmwlth. 1977), quoting Luckenbach v. Luckenbach, 443 Pa. 417, 419, 281 A.2d 169, 169 (1971). See Also: Department of Transportation, Bureau of Motor Vehicles v. Shemer, 629 A.2d 1063 (Pa. Cmwlth. 1993),petition for allowance of appeal denied, 536 Pa. 635, 637 A.2d 294 (1993) (Appeal quashed when filed one day after the expiration of the 30 day appeal period). Fisher v. Department of Transportation, Bureau of Driver Licensing, 682 A.2d 1353 (Pa. Cmwlth. 1996) (Department of Transportation must file a motion to quash an untimely filed appeal in order to avoid a claim of delay in reinstating a suspension). Department of Transportation, Bureau of Traffic Safety v. Warenczuk, 636 A.2d 1225 (Pa. Cmwlth. 1991), aff'd, 534 Pa. 623, 633 A.2d 1167 (1993), cert. denied, 511 U.S. 1092, 114 S.Ct. 1854, 128 L.Ed.2d 478 (1994). Department of Transportation, Bureau o.[Driver Licensing v. Gelormino, 636 A.2d 224 (Pa. Cmwlth. 1993). Department of Transportation, Bureau osfDriver Licensing v. Grasse, 606 A.2d 544 (Pa. Cmwlth. 1991). Department of Transportation, Bureau oJDriver Licensing v. Kruc, 557 A.2d 443 (Pa. Cmwlth. 1989). Korell v. Department of Transportation, Bureau of Driver Licensing, 551 A.2d 398 (Pa. Cmwlth. 1988),petition for allowance of appeal denied, 525 Pa. 606, 575 A.2d 571 (1990). 8. As Ms. Hebeflig has not sought to appeal the October 24, 2001 notice on a nuncpro tunc basis, her right to do so is waived. Stollsteimer, 626 A.2d at 1256-1257. Moreover, the iaw is well- settled that appeals nuncpro tunc are allowed only "where the party making the request has shown that the delay in filing the appeal was engendered by extraordinary circumstances involvingfraudor a breakdown in the court's operations through a default of its officers, which has resulted in injury to the appealing party." Department of Transportation, Bureau of ~¥affic Safety v. Rick, 462 A.2d 902, 903 (Pa. Cmwlth. 1983) (emphasis in original). The Bureau respectfully submits that Ms. Heberlig cannot satisfy this standard. 9. "Jurisdiction is the predicate upon which a consideration of the merits must rest." Robinson v. Pennsylvania Board of Probation and Parole, 525 Pa. 505, 511,582 A.2d 857, 859 (1990). An appeal taken after the fight to take an appeal has expired is null and void and is subject to being quashed for want of jurisdiction. Maxion; Stollsteimer; McKeown. WHEREFORE, the Bureau respectfully requests that its Motion to Quash be granted and that the aforesaid appeal be dismissed. Respectfully submitted, Terrance M. Edwaa:ds, Esquire Assistant Counsel Attorney I.D. No. 25231 Riverfront Office Center Office of Chief Counsel 1101 South Front Street, 3rd Floor Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 EXHIBIT A Notice of Suspension dated October 24, 2001 CONNONWEALTH OF PENNSYLVANIA DEPARTNENT OF TRANSPORTATION Bureau of Driver Licensing Hail Date: OCTOBER 24, 20G! BECKY L H£B£RLZ& ZOqq SOUTH PZTT ST CARLZSL£ PA UZ~ i, O~2qOb~q3Sbb35 OOZ PROC£SSZNG ~AT£ ~O/~?/2OO~ ~RZV[R LZCENSE ~ ~576722b ~AT£ OF BZRTH OBI2~/~flS2 LICENSE ZN BUREAU Dear #S. HEBERLZG: This is an O~ftolaZ No~i~e o~ the Su~enlton of your Driving Privilege as authorized by Section Z532B o'f the Pennsylvania Veh~cXe Code. As I result of your 07/24/200) conv~ct~on of 'v~oXltJng Section 37~ of the Vehicle Code DRZVZNG UNDER ZNFLUENCE on 03/07/200Z: Your driving privilege YEAR(S) effeat~ve 09/25/2001 et memeammeeeeoeeameoe#seemeeeeee#mmessseeee~tee#smmeeeeeeememe #ARNING: Zf you are convicted of driv:ing fhiZe your license is suspended/revoked the penal~tes fill be a #ZNZ#UN of 90 days imprisonment AND a ~,000 fine AND your driving privilege frill be suspendiBd/revoked for a HINZ#UN ! Year period Before PennDOT can restore your driving privilege, you must fo2)of the instructions in this Zetter for CONPLYZNG NZTH THZS SUSPENSION, PAYING THE RESTORATION FEE and PROVIDZNG PROOF OF INSURANCE. YOU ~houZd fOZ~OuALL ~netPuctLcme very cePofu~y. Even if you have eerved eZ2. the t~dee on the eue~en.~on/revooet~on, ~e cermet restore ]four dr~v~ng pr~v- tZfle until e2Z the PequLpementl are eat~/fLed. 01290&llaSB663s pRISON RELEASE REOUIRENENT (ACTISI) The Court of CUNBERLAND CTY, Court Number 01085, Court Term 2001 has sentenced you to serve a prison term for this vi- olation. Pursuant to Section 1541(a.1) of the Vehicle Code, you will not receive credit for this suspension/revocation or any additional suspension/revocation until you complete your prison term. Tho Court must certify your completion to PenflDOT. You Bay wish to contact your probation officer end/or the Court after your release to, make sure that PennDOT is properly notified. p~YING THE RESTORATION FEE You must pay m rostormtton fee to PennDClT to be restored from · susPension/revocation of your driving privilege. To ply your restoration fee, complete the follomlng steps: 1. Return the enclosed Application for I~estoretJon. The amount due is listed off the epplicmtion. 2. #rite your drtveres license number (listed on the first page) on the check or money order to ensure proper credit. $. Follow the payment end moiling instructions on the back of the application. ~GNITION INTERLOCK Before your driving privilege carl be restored you ore re* quired by low to have ill vehicle(s) owned by you to be equipped with mn Ignition Interlock System. This is u result of your conviction for Driving Under the Influence. Zf you fall to comply with this requirement, your driving privilege will remain suspended for on additional year. You calve more iflforBItJofl regarding this reeluirement opproxi- lately $0 dlys before your eligibility dire. PROVIDING PROOF OF INSURANCE #tthin the lest 30 days of your suspension/revocation, we viii send you I letter asking thee you pruvide proof of in- surance Bt that time. This letter wtl:L list acceptable documents and whet will be needed if you da, not own · vehicle registered in Pennsylvania. ZlN~OPtaflt: P/ease make sure that PennDOT is notified if you move from Your current address. You may notify PennDOT of your address charge by calling any of the phone numbers listed at the end of this letter. You have the right to appeal th~s action to the Court of Common Pleas (Civil Division) u~thln $0 days of the mail data, OCTOBER 24, 2001, of this letter. I~ you Y~ZO on 8o- mi Jn the County CouPe; the CouPe ir~11 give you · tJJm- otlmlmd eoPtlff~d oooy rr the appeal. In order for your appeal to be valid, you must send this time-stamped certi- fied copy of the appeal by certified nil raj Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Rlverfront Office Center Harrisburg, PA 2710402S16 Remember, this Is on OFFICIAL NOTICE OF SUSPENSION. Sincerely, Rebecca L. Blckley, Director Bureau of Driver Licensing INFORNATION 7tO0 a.m. to 9t0O a.m. IN STATE 1-800-952-4600 TDD IN STATE OUT-OF-STATE 717-391-6190 TDD OUT-OF-STATE MEB SITE ADDRESS ww.dot.stete.pa.us 1-800-228-067& 717-391-6191 BECKY L. HEBERLIG, Petitioner COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Respondent : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 02-4874 CWIL TERM : : LICENSE SUSPENSION APPEAL : PROOF OF SERVICE I hereby certify that I have on this day and date dui3, served a tree and correct copy of the foregoing Motion to Quash Appeal upon the person and in the manner indicated below, which service satisfies the requirements of Pa. R.A.P. 121: First Class Mail; Postage Pre-Paid; Addressed as Follows: Paul Bradford Orr, Esquire Attorney for Petitioner 50 East High Street Carlisle, PA 17013 (717) 258-855~ /I TERRANCE M. EDWARDS Assistant Counsel December 1 l, 2002 BECKY L. HEBERLIG, APPELLANT COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLEE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-4874 CIVIL TERM IN RE: APPEAL REGARDING IGNITION INTERLOCK REQUIREMENT AND 'NOW, this ORDER OF COURT day of December, 2002, the refusal by the Department of Transportation to restore appellant's driving privilege following the completion of her one year suspension for a conviction of driving under the influence, IS REVERSED. Terrance M. Edwards, Esquire For the Department of Transportation Paul Bradford Orr, Esquire For Appellant Edgar B. Bayley, J. :sal BECKY L. HEBERLIG, APPELLANT COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLEE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-4874 CIVIL TERM IN RE: APPEAL REGARDING IGNITION INTERLOCK REQUIREMENT OPINION AND ORDER OF COURT Bayley, J., December 19, 2002:-- On October 24, 2001, the Department of Transportation sent appellant, Becky L. Heberlig, the following notice: As a result of your 07/24/2001 conviction of violating Section 3731 of the Vehicle Code DRIVING UNDER INFLUENCE on 03/07/2001: Your driving privilege is SUSPENDED for a period of 1 YEAR(S) effective 09/25/2001 at 12:01 a.m. (Emphasis added.) The notice also stated: IGNITION INTERLOCK Before your driving privilege can be restored you are required by law to have all vehicle(s) owned by you to be equipped with an Ignition Interlock System. This is a result of your conviction for Driving Under the Influence. If you fail to comply with this requirement, your driving privilege will remain suspended for an additional year. You will receive more information regarding this requirement approximately 30 days before your eligibility date. (Emphasis added.) On October 8, 2002, appellant filed an "APPEAL FROM IMPOSITION OF IGNITION INTERLOCK REQUIREMENTS." The ignition interlock requirement is 02-4874 CIVIL TERM contained in Act 63 of 2000. The following provisions of the Act took effect on September 30, 2002. § 7002. Ignition interlock systems for driving under the influence. (b) Second or subsequent offense -- In addition to any other requirements imposed by the court, where a person has been convicted of a second or subsequent violation of 75 Pa.C.S. § 3731, the court shall order the installation of an approved ignition interlock device on each motor vehicle owned by the person to be effective upon the restoration of operating privileges by the department. A record shall be submitted to the department when the court has ordered the installation of an approved interlock ignition device. Before the department may restore such person's operating privilege, the department must receive a certification from the court that the ignition interlock system has been installed. (Emphasis added.) § 7003. Additional driver's license restoration requirements. In addition to any other requirements established for the restoration of a person's operating privileges under 75 Pa.C.S. §1548 (relating to requirements for driving under influence offenders): (1) Where a person's operating privileges are suspended for a second or subsequent violation of 75 Pa.C.S. §3731 (relating to driving under influence of alcohol or controlled substance), or a similar out-of- State offense, and the person seeks a restoration of operating 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. (2) A person seeking restoration of operating privileges shall apply to the department for an ignition interlock restricted license under 75 Pa.C.S. §1951(d) (relating to driver's license and learner's permit) which will be clearly marked to restrict the person to operating only motor vehicles equipped with an approved interlock ignition system. -2- 02-4874 CIVIL TERM (3) During the year immediately following restoration of the person's operating privilege and thereafter until the person obtains an unrestricted license, the person shall not operate any motor vehicle on a highway within this Commonwealth unless the motor vehicle is equipped with an approved ignition interlock system. (4) One year from the date of issuance of an ignition interlock restricted license under this section, if otherwise eligible, a person may apply for an additional replacement license under 75 Pa.C.S. §1951(d) that does not contain the ignition interlock system restriction. (5) A person whose operating privilege is suspended for a second or subsequent violation of 75 Pa.C.S. §3731 or a similar out- of-State offense who does not apply for an ignition interlock restricted license shall not be eligible to apply for the restoration of operating privileges for an additional year after otherwise being eligible for restoration under paragraph (1). Section 3. The provisions of 42 Pa.C.S. Ch. 70 shall apply to all persons convicted of a second or subsequent violation of 75 Pa.C.S. §3731 on or after the effective date of this section... (Emphasis added.) In Commonwealth v. Mockaitis, 50 Cumberland L.J. 184 (2001), decided on February 12, 2001, this court found that the authorization to PennDOT to withhold restoration of a driving privilege under Sections 7002 and 7003 of Act 63 of 2000, following the completion of a one year suspension, was unconstitutional? In Schneider v. Commonwealth of Pennsylvania, 790 A.2d 363 (Pa. Commw. 2002), the Commonwealth Court of Pennsylvania held that: "PennDOT has no unilateral authority to impose ignition interlock device requirements if the trial court fails to do so.''2 The certified record of PennDOT does not reflect that its action imposing an ignition ~ Mockaitis is on appeal to the Supreme Court of Pennsylvania. Schneider is on appeal to the Supreme Court of Pennsylvania. -3- 02-4874 CIVIL TERM interlock requirement at the end of the one year suspension of appellant's driving privilege resulted from an order of the trial court that sentenced her for driving under the influence. This court has consistently reversed that part of the orders of PennDOT imposing an ignition interlock requirement under Sections 7002 and 7003 of Act 63 of 2000.3 However, before we can provide appellant relief on the merits we must resolve a motion by PennDOT to quash this appeal as untimely. The Judicial Code at 42 Pa.C.S. Section 5571(b) provides: Except as otherwise provided in subsections (a) & (c), an appeal from a tribunal or other government unit to a court.., must be commenced within 30 days after the entry of the order from which the appeal is taken, in the case of an interlocutory or final order. 'The timeliness of an appeal is a jurisdictional issue. Department of Transportation, Bureau of Driver Licensing v. Shemer, 157 Pa. Commw. 380 (1993). PennDOT notes that a final order requiring installation of an ignition interlock system for appellant to restore her driving privilege after the completion of the one year suspension was contained in the notice it sent to her dated October 24, 2001. Because this appeal was filed on October 8, 2002, PennDOT maintains that this court has no jurisdiction and the appeal must be quashed. VVhile facially appealing, the motion to quash is without merit. The license suspension in PennDOT's notice to appellant dated October 24, 2001, was for one year. As set forth by the Commonwealth Court in 3 See, Shannon v. Commonwealth of Pennsylvania, 01-0131 Civil, (order and supporting opinion filed October 24, 2002). ,4B 02-4874 CIVIL TERM Schneider v. Commonwealth of Pennsylvania, supra, PennDOT has no statutory authorization to direct an ignition interlock requirement absent an order of a trial court. Yet that is exactly what PennDOT did in imposing an ignition interlock requirement on appellant. Now, a year after appellant served her one year suspension, PennDOT still resists restoring her driving privilege. This is not a situation where PennDOT issued a lawful order that appellant believed was wrong for which an appeal lies under Section 5571(b) of the Judicial Code. Rather, PennDOT's action, taken without statutory authorization, was null and void at its inception even if the Supreme Court of Pennsylvania should determine that Act 63 of 2000 is not unconstitutional· Given these facts, appellant can now challenge PennDOT's current refusal to restore her driving privilege until all vehicles owned by her are equipped with an ignition interlock system, and it has received a certification from the trial court that such interlock systems have been installed. ORDER OF COURT day of December, 2002~ the refusal by the Department of Transportation to restore appellant's driving privilege following the completion of her one year suspension for a conviction of driving under the influence, IS REVERSED. Edgar B. Bayley, J. ~', -5- j 02-4874 CIVIL TERM Terrance M. Edwards, Esquire For the Department of Transportation Paul Bradford Orr, Esquire For Appellant :sal -6- COMMONWEALTH OF PENNSYLVANIA DEPARTMENT O F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TERRANCE M. EDWARDS ASSISTANT COUNSEL APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 BECKY L. HEBERLIG, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 02-4874 Civil Term Notice of Aopeal Notice is hereby given that the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, hereby appeals to the Commonwealth Court of Pennsylvania from the order that was filed in this matter on December 19, 2002. This order is from a statutory appeal and cannot be reduced to judgment. The order has been entered in the docket and notice of its entry has been given under Pa. R.C.P. 236. A copy of the docket entries are attached hereto. TERRANCE M. EDWARDS Assistant Counsel Appellate Section Riverside Office Center - Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT O F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DWISION BY: TERRANCE M. EDWARDS ASSISTANT COUNSEL APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 BECKY L. HEBERLIG, Appellee vS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 02-4874 Civil Term Request for Transcript A notice of appeal having been filed in this matter, the official court reporter is hereby requested to produce, certify and file the transcript in this matter in conformity with Pa. R.A.P. 1922. Prepare only the original for inclusion in the record as the Appellant, Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, does not desire a copy of the transcript..-,~~' TERRANCE M. EDW-A~g Assistant Counsel Appellate Section Riverside Office Center - Third Floor 1101 South Front Street Harrisburg, Pennsylvania 17104-2516 (717) 787-2830 PYS510 Cumberland County Prothonotary's Office Civil Case Inquiry 2002-04874 HEBERLIG BECKY L (rs) PA COMMONWEALTH OF Reference No..: Case TyDe ..... : APPEAL - MISC Judgmen% ....... 00 Judge Assigned: Disposed Desc.: Case Comments ............. Filed ........ : Time ......... : Execution Date Jury Trial .... Disposed Date. Higher Crt 1.: Higher Crt 2.: Page 1 10/07/2002 10:15 0/00/0000 o/oo/oooo General Index Attorney Info ORR PAUL BRADFORD HEBERLIG BECKY L APPELLANT 14 COURTYARD DRIVE CARLISLE PA 17013 PENNYLVANIA COMMONWEALTH OF APPELLEE DEPT OF TRANSPORTATION OFFICE OF CHIEF COUNSEL 3RD FL RIVERFRONT OFFICE HARRSIBURG PA 17104 EDWARDS TERRANCE M * Date Entries . ***~*****************~************~**************************~**********~******* FIRST ENTRY - ............. 10/07/2002 PETITION FOR APPEAL FROM IMPOSTION OF IGNITION INTERLOCK REQUIRMENTS 10/11/2002 6~6~-;-~5~]{62{{~6~-;-~-~-~5;~-~£-~~-~i~£-~-- ~ELD ON 12/16/02 AT 2:00 PM IN CR 2 CE~BERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 10/14/02 ........ 12/16/2002 12/16/2002 MOTION TO QUASH APPEAL - BY TERRANCE Mi EDWARDS ESQ REQUIREMENT - THE REFUSAL BY THE DEPT OF TRANS TO RESTORE APPELLANT'S DRIVING PRIVILEGE FOLLOWING THE COMPLETION OF HER ONE YEAR SUSPENSION FOR A CONVICTION OF DRIVING UNDER THE INFLUENCE IS REVERSED - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 12/20/02 .............. LAST ENTRY .............. * Escrow Information . * Fees & Debits Beg Bal Pymts/Adj End Bal * APPEAL MISC 35.00 35.00 .00 TAX ON APPEAL .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 5.00 5.00 .00 * End of Case Information . TRUE COPY FROM P, COPD COMMONWEALTH OF PENNSYLVANIA DEPARTMENT O F TRANSPORTATION OFFICE OF CHIEF COUNSEL VEHICLE & TRAFFIC LAW DIVISION BY: TERRANCE M. EDWARDS ASSISTANT COUNSEL APPELLATE SECTION ATTORNEY IDENTIFICATION NO. 25231 RIVERFRONT OFFICE CENTER - THIRD FLOOR 1101 SOUTH FRONT STREET HARRISBURG, PENNSYLVANIA 17104-2516 (717) 787-2830 BECKY L. HEBERLIG, Appellee VS. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellant IN THE; COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO. 02-.4874 Civil Term Proof of Service I hereby certify that I have on this day and date duly served a tree and correct copy of the foregoing documents upon the persons and in the manner indicated below, which service satisfies the requirements of Pa. R.A.P. 121: Judge Edgar B. Bayley Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 First Class Mail; Postage Pre-Paid; Addressed as Follows: Court Reporter Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Paul Bradford Orr, Esquire Att. forAppellee Heberlig 50 East High Street Carlisle, PA 17013 DANA M. BRESSLER Appellate Paralegal for Vehicle & Traffic Law Division Date: January 3, 2003 BECKY L. HEBERLIG, Appellee : IN THE COURT OF COM~ON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : COM~{ONWEALTH OF : PENNSYLVANIA, DEPARTMENT : OF TRANSPORTATION, : BUREAU OF DRIVER : LICENSING, : Appellant : CIVIL ACTION - LAW NO. 02-4874 CIVIL TERM .IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE EDGAR B. BAYLEY, j., Cumberland County Courthouse, Carlisle, Pennsylvania, on December 16, 2002, at 2:03 p.m. in Courtroom Number Two. APPEARANCES: TERRANCE M. EDWARDS, Esquire For the Department of Transportation PAUL B. ORR, Esquire For Becky L. Heberlig 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 6 December 16, 2002, 2:03 p.m. Carlisle, Pennsylvania (Whereupon, the following proceedings were held:) MR. EDWARDS: Good afternoon again, Your Honor. By official notice dated October 24th, 2001, the Department of Transportation, Bureau of Driver Licensing, notified the licensee, Becky L. Heberlig, that as a result of her conviction on July 24th, 2001, of violating Section 3731 of the Vehicle Code, 75 Pa.C.S. Section 3731, driving under the influence on March 7th, 2001, the Bureau was imposing a one year suspension of her operating privilege effective September 25th, 2001. The Bureau's notice also advised Ms. Heberlig that, quote, before your driving privilege can be restored, you are required by law to have all vehicles owned by you to be equipped with an ignition interlock system, unquote. Finally, the notice advised Ms. Heberlig that, quote, you have the right to appeal this action to the Court of Common Pleas civil division within 30 days of the mail date, October 24th, 2001, of this letter, unquote. At this time the Bureau offers into evidence a packet of documents, Commonwealth.s Exhibit No. 1, signed and sealed by the Secretary of Transportation and the 2 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 Director of the Bureau of Driver Licensing and certified in accordance with 42 Pa.C.S. Section 6103 and 6109 relating to proof of official records, and 75 Pa.C.S. Section 1377 relating to judicial review establishing the notice to Ms Heberlig of the suspension of her operating privilege, the requirement for installation of ignition interlock system, and a 30 day time limit in which to appeal this notice. I misspoke. The judicial review should be 75 Pa.C.S. 1550 rather than 1377, Your Honor. Upon admission of Commonwealth,s Exhibit No. 1 into evidence, the Bureau would move to dismiss Ms. Heberlig's statutory appeal as untimely filed which, of course, would deprive this Honorable Court of subject matter and jurisdiction. In this regard, Your Honor, I have prepared a written motion to quash which I previously mailed to the Court. I have an additional copy to provide Your Honor. THE COURT: Okay. MR. EDWARDS: If Commonwealth's Exhibit No. 1 is admitted, Your Honor, then we would just present the motion to quash. THE COURT: MR. EDWARDS: provide an extra copy. Exhibit No. 1 is admitted. If I may, Your Honor, I'll THE COURT: What was the date of the notice? 3 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 MR. EDWARDS: Of the motion, Your Honor? THE COURT: What was the date of the notice mailed? MR. ORR: THE COURT: October 24, 2001, Your Honor. October 24, 2001. When was the appeal filed? MR. ORR: I have a clocking date, October 7, 2002. MR. EDWARDS: We concur, Your Honor. MR. ORR: I would just like to make a brief argument, Your Honor, based on the exhibit that the Commonwealth has provided to you. In the interlock ignition provision of their notice, the last sentence says, you are to receive more information regarding this 30 days before your eligibility date. I would submit that right there that sentence is telling a driver that may or may not be clear as to any potential appeal from this additional year's suspension that that sentence right there gives them some opportunity to address something that they are just saying, quote, you will receive more information regarding this requirement approximately 30 days before your eligibility date. That's the argument as far as the petitioner. THE COURT: I understand it. I will take it under advisement. 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 (Whereupon, the hearing was concluded at 2:06 p.m.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 ~ERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. ~mela R. Sheaffer ficial Court Reporte~ The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. N~ng~ ~d~ca~al~sJ~ r~ct 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA BeckyL. Heberlig 4~ ~c~- L~ ]¢ ~ v. No. 65 C.D. 2003 Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant Argued: Ivlarch 31, 2004 BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE RENI2E L. COHN, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: May 17, 2004 The Department of Transportation, Bureau of Driver Licensing (PennDOT) appeals from an order of the Court of Common Pleas of Cumberland County (trial court) sustaining the appeal of Becky L. Heberlig from the requirement that she install ignition interlock devices on all her vehicles before restoration of her operating privilege. PennDOT required installation of the interlock devices pursuant to what is commonly referred to as ,t~e Ignition ? Interlock Device Act (Act), 42 Pa. C.S. §§7001-03. Because we determine Heberlig's appeal was untimely, we vacate and remand with direction to quash. Heberlig was accepted into an Accelerated Rehabilitative Disposition (ARD) program with respect to an October 1996 arrest for driving under the influence (DUI). In July 2001, Heberlig was convicted of a second DUI offense. The court did not sentence Heberlig to install ignition interlock devices under Section 7002(b) of the Act.~ In October 2001, PennDOT sent Heberlig an Official Notice of Suspension, stating her operating privilege was suspended for one year and, as a condition of restoration of her operating privilege, she would be required to install interlock devices on all her vehicles. Reproduced Record (R.R.) at 16a-18a. Heberlig did not appeal from this notice within the required 30-day period. About 11 months later, in September 2002, PennDOT sent Heberlig a Restoration Requirements Letter, again noting she needed to install ignition interlock devices on all her vehicles before her operating privilege would be restored. R.R. at 5a-7a. Heberlig appealed to the trial court, arguing PennDOT could not order installation of ignition interlock devices when the sentencing court did not do so. The trial court sustained Heberlig's appeal. Although PennDOT argued Heberlig's appeal should be quashed as untimely, the trial court decided it could hear the appeal despite its untimeliness and relied on our decision in Schneider v. Dep't of Transp., Bureau of Driver Licensing, 790 A. 2fd 363 (Pa. Cmwlth. 2002), to conclude PennDOT was without independent aui~ority to order ~ At the time of sentencing, Section 7002(b) of the Act provided, for a second or subsequent offense of DUI, the trial court "shall" order installation of ignition interlock devices on all vehicles owned by the defendant. 42 Pa. C.S. §7002(b). That provision was later deemed unconstitutional by our Supreme Court in Commonwealth v. Mockaitis, Pa. 834 A.2d 488 (2003). ' 2 installation of ignition interlock devices when the sentencing court did not order them. PennDOT filed a timely appeal to this Court,2 arguing: 1) It did not apply the Act retroactively to Heberlig, because her second DUI conviction occurred after the effective date of the Act; 2) this Court's decision in Alexander v. Dep't of Transp., Bureau of Driver Licensing, 822 A.2d 92 (Pa. Cmwlth. 2003), addressing improper retroactive application of the Act, was incorrectly decided and should be reversed; and, 3) the trial court erred in he~rdng the merits of Heberlig's appeal despite its untimely filing. As to the first two issues, the trial court did not address whether PennDOT's imposition of the ignition interlock requirement was impermissibly retroactive. Because Heberlig did not raise retroactivity before the trial court, it is not at issue before this Court. Goppelt v. City of Phila. Revenue Dep't, 841 A.2d 599 (Pa. Cmwlth. 2004); Pa. R.A.P. 302(a). Therefore, we decline to address Alexander. 2 This Court's review is limited to determining whether the trial court's findings of fact were supported by competent evidence, whether legal errors were committed, ~offwhether the trial court committed an abuse of discretion. Schneider v. Dep't of TransP., Bureau of Driver Licensing, 790 A.2d 363 (Pa. Cmwlth. 2002). 3 Also, PennDOT initially asserted independent authority to order installation of interlock devices even in the absence of a sentencing court order. We nded not reach the independent authority issue because the timeliness issue is dispositive, and PermDOT abandoned this argument. As to the timeliness of Heberlig's appeal, it is well settled that a licensee is required to file her appeal within 30 days of the notice of suspension. See, e.g., Hess v. Dep't of Transp., Bureau of Driver Licensing, 821 A.2d 663,665 (Pa. Cmwlth. 2003); Dep't of Transp., Bureau of Driver Licensing v. Stollsteime~, 626 A.2d 1255, 1256 n.3 (Pa. Cmwlth. 1993). That did not occur here. In Wattersor~, we permitted a "now for then" appeal based on the rationale that PennDOT's interlock requirement was void without court sanction. 816 A.2d at 1227. However, the Watterson rationale for permitting an untimely appeal is no longer valid. More specifically, in Commonwealth v. Mockaitis, .. Pa.. , 834 A.2d 488 (2003), our Supreme Court held that PennDOT enjoys statutory authority to restrict license restoration of repeat DUI offenders that does not depend on a sentencing court order. We recently held that an untimely appeal was not warranted under circumstances materially identical to those here. In Freedman v. Dep't of Transp., Bureau of Driver Licensing, 842 A.2d 494 (Pa. Cmwlth. 2004), we vacated a trial court order granting an untimely appeal in an interlock case, and we remanded with instructions to quash the appeal. Heberlig does not articulate any other circumstances warranting allowance of a "now for then" appeal. Thus, Freedman controls here. Accordingly, we enter the same order. See Strick v. D~el~'t of 4 Transp., Bureau of Driver Licensing, A.2d __ (Pa. Cmwlth., 143 C.D. 2003, filed May 17, 2004); Dwyer v. Dep't of Transp., Bureau of Driver Licensing, __ A.2d _ (Pa. Cmwlth., 492 C.D. 2003, filed May 17, 2;004). ROBERT SIM ~)N, Judge President Judge Colins concurs in the result only. 5 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Becky L. Heberlig Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant No. 65 C.D. 2003 ~RDER to quash Heberlig's appeal as untimely. Jurisdiction relinquished. AND NOW, this 17th day of May, 2004, the order of the Court of Common Pleas of Cumberland County is vacated and remanded with instrg~ions (7) ROBERT SIh~ ;ON, Judge Certified from the Record ~AY 1 7 2004 and Order Exit IN THE COMMONWEALTH COURT OF PENNSYLVANIA Becky L. Heberlig Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant No. 65 C.D. 2003 Argued: Nlarch 31, 2004 BEFORE: HONORABLE JAMES GARDNER COL]NS, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE RENI~E L. COHN, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED DISSENTING OPINION BY JUDGE SMITH-RIBNER FILED: May 17, 2004 I disagree with the majority's decision to vacate the order of the Court of Common Pleas of Cumberland County and to remand with instructions for that court to quash the appeal of Becky L. Heberlig. 1 disagree with the majority for the reasons expressed in my dissent in Strick v. Department of Translgortation, Bureau of Driver Licensing, __ A.2d (Pa. Cmwlth., No. 143 C.D. 2003, filed May 17, 2004), and in Freedman v. DelPartment of Transportation,/Bureau of Driver Licensing, 842 A.2d 494 (Pa. Cmwlth. 2004). ~ ' [5OP,~IS A. S VII'ITH-RIBNER, Judge BECKY L. HEBERLIG, PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, DEFENDANT : 02-4874 CIVIL TERM AND NOW, this ORDER OF COURT day of June, 2004, pursuant to an order of remand by the Commonwealth Court of Pennsylvania on May 17, 2004, the appeal from the order of this court, IS QUASHED. Edgar B. ~i~ley, ~. Terrance M. Edwards, Esquire For Defendant :sal Paul B. Orr, Esquire ~'~ For Plaintiff