           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Harry E. Hamilton,                            :
                  Appellant                   :
                                              :
              v.                              :   No. 2705 C.D. 2015
                                              :   SUBMITTED: January 6, 2017
Commonwealth of Pennsylvania,                 :
Department of Transportation,                 :
Bureau of Driver Licensing                    :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                              FILED: May 17, 2017


              Licensee, Harry E. Hamilton, appeals pro se from an order of the
Court of Common Pleas of Luzerne County (trial court) denying his May 2014
petition to appeal nunc pro tunc from a one-year suspension of his operating
privilege imposed by the Department of Transportation, Bureau of Driver
Licensing (Department) as a result of a March 2013 conviction under Section 1543
of the Vehicle Code, as amended, 75 Pa. C.S. § 1543 (driving while his operating
privilege was suspended).1 This is the second time that this Court has considered
Licensee’s challenge to the same suspension. See Hamilton v. Dep’t of Transp.,

    1
       The conviction is referenced in Licensee’s certified driving record, which was
subsequently submitted into evidence as the result of a November 2015 hearing before the trial
court. Department’s March 20, 2013, Official Notice of Suspension at 1; Supplemental
Reproduced Record (S.R.R.) at 41b.
Bureau of Driver Licensing, (Pa. Cmwlth., No. 647 C.D. 2014, filed July 24, 2015)
(Hamilton I).2 We affirm.
                In pertinent part, the background of this matter is as follows. In July
2013, the trial court dismissed Licensee’s April 2013 statutory appeal of his one-
year suspension due to his failure to properly serve the Department and his failure
to appear at the hearing (Docket No. 2013-04843).3 After a notice of entry of the
order was mailed to the parties, Licensee filed a motion to vacate the dismissal of
his appeal on July 29, 2013. However, he did not seek reconsideration of the trial
court’s order, appeal from it within thirty days of its entry, nor petition to appeal
nunc pro tunc.        Subsequently, after Licensee failed to appear at a scheduled
hearing, the trial court issued a January 31, 2014, order affirming its dismissal of
his appeal.
                Following Licensee’s March 3, 2014, appeal to this Court from the
trial court’s order affirming its dismissal of his statutory appeal at Docket No.
2013-04843, he filed a May 2014 petition to appeal nunc pro tunc at Docket No.
2014-06677 pertaining to the same suspension at issue in his unsuccessful statutory
appeal.4 Meanwhile, in connection with the appeal pending in this Court from the

    2
        Supplemental Reproduced Record (S.R.R.) at 32-37b.
    3
        As we observed in Hamilton I:
                         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 that he served PennDOT?
Hamilton I, slip op. at 2; S.R.R. at 33b.
   4
     As the trial court observed in its opinion pertinent to the instant appeal:
                    The procedural context is additionally made more difficult
             of discernment given the assignment of more than one term and
(Footnote continued on next page…)


                                                 2
trial court’s ruling on the statutory appeal (Docket No. 2013-04843), the trial court
filed an opinion requesting that we remand the matter for an evidentiary hearing to
allow the Department to establish a prima facie case for the suspension.
               Rejecting the trial court’s request for remand, this Court in Hamilton I
vacated the trial court’s January 31, 2014, order, concluding as follows:
               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 [v. Civil Serv. Comm’n of the City of Phila.,
               702 A.2d 878, 881 (Pa. Cmwlth. 1997).] Hence, the trial
               court did not have jurisdiction to act on [Licensee’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.
Hamilton I, slip op. at 5; Supplemental Reproduced Record (S.R.R.) at 36b.
Accordingly, we determined that the July 11, 2013, order dismissing Licensee’s
statutory appeal became final upon expiration of the appeal period. Id., slip op. at
4; S.R.R. at 35b.
               In December 2015, the trial court denied Licensee’s petition to appeal
nunc pro tunc (Docket No. 2014-06677).                 Observing that Licensee failed to
demonstrate that the conviction generating his suspension was overturned, the

_____________________________
(continued…)
             number to what is obviously one license suspension appeal. The
             instant matter is filed to # 6677-2014, however, it clearly relates to
             the determination . . . at # 4843-2013.
Trial Court’s March 2, 2016, Opinion at 2; Reproduced Record (R.R.) at 8a.



                                                3
court concluded that he failed to establish that, due to extraordinary circumstances
involving fraud or breakdown in the court’s operations, he should have been
permitted to file an appeal nunc pro tunc of the same suspension that he previously
appealed unsuccessfully. Licensee filed a timely appeal with this Court, which is
now before us for disposition.
             Notwithstanding the convoluted procedural history, the issue before
the Court is straightforward. Essentially, the instant appeal is Licensee’s second
attempt to challenge the one-year suspension that the Department imposed in
response to his March 2013 conviction. In upholding the dismissal of Licensee’s
statutory appeal of that same suspension in Hamilton I, we concluded: “Because
the trial court’s July 11, 2013 dismissal of [Licensee’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.” Id., slip op. at 5 n.2. In that regard, Licensee’s May
2014 petition to appeal nunc pro tunc, which the trial court concluded lacked merit,
does not afford him a second chance to litigate his unsuccessful statutory appeal.
             Accordingly, we affirm the trial court’s order.



                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Senior Judge




Judge Cosgrove did not participate in the decision in this case.




                                          4
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Harry E. Hamilton,                 :
                  Appellant        :
                                   :
           v.                      :   No. 2705 C.D. 2015
                                   :
Commonwealth of Pennsylvania,      :
Department of Transportation,      :
Bureau of Driver Licensing         :



                                ORDER


           AND NOW, this 17th day of May, 2017, the order of the Court of
Common Pleas of Luzerne County is hereby AFFIRMED.



                                 _____________________________________
                                 BONNIE BRIGANCE LEADBETTER,
                                 Senior Judge
