92 Pa. Commw. 610 | Pa. Commw. Ct. | 1985
Opinion by
The Department of Transportation (Department) appeals from the order of the Court of Common Pleas of Philadelphia which dismissed a six-month suspension of the operating privileges of Felix Padilla (Appellee).
On March 20, 1981 Appellee was convicted under Section 1543(a) of the Vehicle Code (Code)
Before a hearing was held on this appeal, the court of common pleas, criminal section, considered Appellee’s separate nunc pro tunc appeal from his March 20, 1981 conviction in Traffic Court of driving with a suspended license, and found Appellee not guilty on September 16, 1982.
On September 21, 1982, a hearing on the appeal from the fifteen-day suspension was held, at which time Appellee submitted into evidence a copy of his nunc pro tunc acquittal on his Section 1543(a) charges. Instead of addressing the validity of the
On Appeal to this Court, the Department argues that the trial court exceeded its authority in dismissing the six-month suspension, since the only order before it on appeal was the fifteen-day suspension of April 8, 1981. The Department also argues that, even assuming the court could consider the six-month suspension, the court erred in basing its determination on the number of points properly assigned against Appellee, since the suspension was not based on point accumulation under Section 1539, but instead was based on a Section 1543 conviction for driving with a suspended license.
Initially ¡we note that at no time during the hearing did the Department’s attorney make any objection to the trial court’s treatment of the appeal. On the contrary, he agreed with Appellee’s attorney that the issue on appeal was whether there were eleven points
I think the only real additional line [Appellee’s attorney] needs to take care of is the five points on the restoration of 5/6/81. Then he’s gotten himself under 11, and I guess he wins.
The Department never informed the court that the' order before the court for review involved only a fifteen-day suspension under Section 1544(a). The Department, therefore, has waived any argument it might have made as to the proper issues which should have been considered hy the trial 'Court.
Despite this waiver by the Department, the issue still remains as to whether the trial court had subject matter jurisdiction to dismiss the six-month suspension of September 29, 1981. Lack of subject matter jurisdiction cannot be waived, and may be raised at any stage of a proceeding. Department of Transportation, Bureau of Traffic Safety v. Weaver, 51 Pa. Commonwealth Ct. 70, 414 A.2d 144 (1980). Certainly the Department cannot by its own inadvertence confer upon the court jurisdiction which it otherwise does not have. The suspension of September 29, 1981 was not appealed and was not properly before the court. Even if we were to consider the present appeal to include an appeal from this suspension, the order of September 29, 1981 was still not properly before the court, because the order was not appealed within thirty days of the suspension as required under Section 1377 of the Vehicle Code.
In addition, we note that the nunc pro tunc acquittal of the Appellee on the charges which resulted in the suspension did not vest the court with jurisdiction to consider the validity of the suspension itself.
Since the trial court was without jurisdiction to dismiss the six-month suspension of September 29, 1981, we are constrained to vacate its order.
Order
Now, November 8, 1985, the order of the Court of Common Pleas of Philadelphia County, Docket No. 1146 May Term, 1982, dated September 22, 1982, is hereby vacated. The matter is remanded to the said court for a ruling upon the validity of the Department’s suspension of April 8, 1982.
Jurisdiction is relinquished.
75 Pa. C. S. §1543(a).
75 Pa. O. S. §1544(a). Section 1544(a) provides:
Additional point accumulation. — When any person’s record shows an accumulation of additional points during a period of suspension or revocation, the department shall extend the existing period of suspension or revocation at the rate of five days for each additional point and the person shall be so notified in writing.
Although the Department’s notice of suspension did state that Appellee had accumulated eleven points, it made it clear that the present fifteen-day suspension was based upon the accumulation of three points while under suspension, pursuant to Section 1544.
75 Pa. C. S. §1539.
75 Pa. C. S. §1377.
This result does not necessarily leave Appellee without a remedy in this situation, since an action in mandamus is still available to compel the Department to remove the suspension.
We note that a document is included with the trial court record certified to this court which on its face appears to be a signed court order rescinding the fifteen-day suspension on July 8, 1982. This document, however, is marked “hold over,” is not date stamped by the prothonotary, and is not included among the official docket entries. We must conclude, therefore, that the order was never entered by the court, and that the issue remains unresolved.