650 A.2d 36 | Pa. | 1994
ORDER
Appellee McMahon was charged with violating 75 Pa.C.S. § 3731 (driving under the
Subsequent to the entry of the court’s order, DOT filed a request for reconsideration to the Court of Common Pleas’ order. DOT requested the Court of Common Pleas to reconsider its ruling on the five-year revocation, but also, if it affirmed that ruling, to impose the mandatory one-year suspension. DOT also filed an appeal to the Commonwealth Court, inasmuch as the thirty-day period for taking an appeal had commenced with the entry of the common pleas court’s order.
On appeal to the Commonwealth Court, DOT argued that the five-year additional suspension was appropriate. In the alternative, DOT argued that the trial court, having made a decision of law different from that of DOT, was required to exercise its discretion under Department of Transportation, Bureau of Traffic Safety v. Kobaly, 477 Pa. 525, 384 A.2d 1213 (1977), and impose the one-year mandatory suspension under 75 Pa.C.S. § 1532(b)(3). The Commonwealth Court disagreed that the five-year suspension was appropriate, but refused to consider DOT’s argument that an alternate suspension should be imposed since it determined that the issue “was never properly raised and reviewed by the trial court....”
DOT now contends that Kobaly should also extend to the Commonwealth Court, which, after having made conclusions of law different from DOT, should have imposed a penalty it deemed appropriate. We disagree with DOT’s argument that Kobaly should be extended to these circumstances. We find no support for the contention that the Commonwealth Court in this situation is a trial court within the meaning of Kobaly. Kobaly, which gives a trial court the authority to impose its own penalty after reaching conclusions of fact and law different from that of DOT,
We are also constrained to find that the Commonwealth Court did not err in failing to remand to the trial court for consideration of the proper suspension to be imposed.
Accordingly, the Order of the Commonwealth Court is affirmed.
MONTEMURO, J., is sitting by designation.
. 75 Pa.C.S. § 1532 provides in pertinent part: (b) Suspension..—
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(3) The department shall suspend the operating privilege of any driver for 12 months upon receiving a certified record of the driver’s conviction of section 3731 (relating to driving under influence of alcohol or controlled substance) .... [emphasis added]
. The Court of Common Pleas issued a rule returnable to Appellee to show cause why the relief requested by DOT should not be granted. A rule to show cause pertaining to an application for reconsideration does not comply with the requirement of Pa.R.A.P. 1701 and does not toll the 30-day appeal period.
. However, the trial court is not required to determine its own penalty; it can remand the case to DOT for imposition of the proper penalty.
. However, we see no reason that DOT cannot proceed to impose a suspension under 75 Pa.C.S. § 1532(b)(3).