Opinion
No. 1607 C.D. 2013
06-11-2014
Mark Emery v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
The Commonwealth of Pennsylvania, Department of Transportation (DOT), Bureau of Driver Licensing (Bureau) appeals from the Lackawanna County Common Pleas Court's (trial court) August 21, 2013 order granting Mark Emery's (Licensee) appeal from the Bureau's June 26, 2013 order suspending Licensee's driving privileges for one year for violating Section 1543(a) of the Vehicle Code, 75 Pa.C.S. § 1543(a) (operating a motor vehicle while his operating privilege was suspended). The sole issue before the Court is whether Licensee's operating privilege was suspended when he received traffic citations on May 27, 2013. After review, we reverse.
The trial court's August 21, 2013 order also denied Licensee's appeal from his three-month suspension of his driving privileges for violating Section 1786 of the Vehicle Code, 75 Pa.C.S. § 1786 (failure to produce proof of financial responsibility), and his three-month suspension of his driving privileges for his violation of Section 1371 of the Vehicle Code, 75 Pa.C.S. § 1371 (operating a vehicle with a suspended registration).
On May 27, 2013, Licensee was issued traffic citations for violating Sections 1786 (operating a motor vehicle without the required financial responsibility), 1543(a) (driving while license is suspended or revoked), and 1371 (driving while registration is suspended) of the Vehicle Code, 75 Pa.C.S. §§ 1786, 1543(a), 1371. Licensee did not appear at the June 18, 2013 scheduled hearing before the Magistrate Judge (Magistrate hearing) and he was found guilty on all charges. As a result of these convictions, the Bureau notified Licensee that his driving privilege was scheduled to be suspended: for three months as authorized by Section 1786(d)(1) of the Vehicle Code; for one year pursuant to Section 1543(c)(1) of the Vehicle Code; and for three months as directed by Section 1532(b)(4) of the Vehicle Code. Licensee appealed from the Official Notices of Suspension to the trial court. On August 21, 2013, the trial court denied Licensee's appeal from his three-month suspensions, but granted him relief from his one-year suspension. The Bureau appealed to this Court.
"Our scope of review of a decision in a license suspension case is limited to determining whether the trial court's findings of facts are supported by competent evidence and whether the trial court committed an error of law or an abuse of discretion in reaching its decision." Orloff v. Dep't of Transp., Bureau of Driver Licensing, 912 A.2d 918, 922 n.7 (Pa. Cmwlth. 2006).
Licensee was precluded from filing a brief because he failed to adhere to this Court's February 25, 2014 order.
The Bureau argues that the trial court erred as a matter of law in sustaining Licensee's appeal because the Bureau's unrebutted evidence established that Licensee was convicted of violating Section 1543(a) of the Vehicle Code at a time when his operating privilege was suspended pursuant to Section 1533(b) of the Vehicle Code. We agree.
Section 1533(b) of the Vehicle Code provides:
The [Bureau] shall suspend the operating privilege of any person who has failed to respond to a citation, summons or
similar writ to appear before a court of competent jurisdiction of the United States or any state which has entered into an enforcement agreement with the [Bureau], as authorized under section 6146 (relating to enforcement agreements), for any violation of the motor vehicle laws of such state, other than parking, or who has failed to pay any fine or costs imposed by such court upon being duly notified in accordance with the laws of such jurisdiction in which the violation occurred. A person who provides proof, satisfactory to the [Bureau], that the full amount of the fine and costs has been forwarded to and received by the court shall not be regarded as having failed to respond for the purposes of this subsection.75 Pa.C.S. § 1533(b). Section 1543(a) of the Vehicle Code provides: "[A]ny person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege and before the operating privilege has been restored is guilty of a summary offense . . . ." 75 Pa.C.S. § 1543(a). Further, Section 1543(c) of the Vehicle Code specifies:
Upon receiving a certified record of the conviction of any person under this section, the [Bureau] shall suspend or revoke that person's operating privilege as follows:75 Pa.C.S. § 1543(c) (emphasis added).
(1) If the [Bureau's] records show that the person was under suspension, recall or cancellation on the date of violation, and had not been restored, the [Bureau] shall suspend the person's operating privilege for an additional one-year period.
Here, Licensee's certified driving record established that pursuant to Section 1533(b) of the Vehicle Code, Licensee's driving privilege was suspended "effective May 8, 2013." Reproduced Record (R.R.) at 58a. There is no statement in Licensee's certified driving record indicating that his operating privilege was restored on or before May 27, 2013, the day the citations were issued. See R.R. at 58a-60a. In addition, Licensee's certified driving record evidenced that he was convicted on June 18, 2013 for violating Section 1543(a) of the Vehicle Code. See R.R. at 58a. Moreover, the trial court expressly opined that "[t]he decision in this case was premised solely on a review of [Licensee's] Certified Driver's Record which was the only evidence submitted at [the] hearing. Therefore, an Opinion is not necessary." R.R. at 67a.
The Bureau's properly certified documents created a rebuttable presumption that Licensee was convicted on June 18, 2013 for violating 75 Pa.C.S. § 1543(a) on May 27, 2013. See R.R. 29a-30a; see also Dep't of Transp., Bureau of Driver Licensing v. Diamond, 616 A.2d 1105, 1107 (Pa. Cmwlth. 1992), appeal dismissed, 652 A.2d 826 (Pa. 1995). Once the Bureau established this rebuttable presumption, Licensee had the burden of showing by "clear and convincing evidence" that he was not convicted of violating 75 Pa.C.S. §1543(a). Diamond, 616 A.2d at 1107.
Licensee claimed before the trial court that he did not appear at the Magistrate hearing because he never received notice of said hearing. Although the trial court never addressed this issue, a review of the record reveals that notice of the Magistrate hearing was mailed to Licensee at the same address that appears on the citations currently before this Court - 724 South Irving Avenue. Further, each citation, in bold and capitalized print, stated: "RIGHTS AND OBLIGATIONS." R.R. at 24a. Immediately thereunder, in bold print, read: "This citation will be electronically filed with the magisterial district judge [(MDJ)] whose address appears above." Id. Underneath these statements was a listing of rights and obligations, the first one stated: "1. Within ten (10) days of the receipt of this citation you must: . . ." Id. Thus, if Licensee's address on the citation was incorrect, he had an obligation to inform the MDJ, especially when, as will be discussed below, Licensee knew that DOT listed his address as 724 South Irving Avenue.
In addition, the Bureau's three Notices of Suspension from which Licensee filed his appeal to the trial court were all mailed to the same address listed on the citations. The date of the three notices was June 26, 2013, Licensee filed his appeal with the trial court two days later on June 28, 2013. Although Licensee's current driver's license contains a different address, 612 Neville Road, that license was not issued until July 30, 2013, after the date of the Magistrate hearing.
Licensee asserted that he had moved years ago, but had problems trying to get DOT to change his address. Specifically, Licensee reported:
I have been going through this for a long time and I have been telling them over and over again and I have even, you know, sent the document in, I have said it over the phone, I don't know what else to say, I mean, about that. I always said I had a suspended license.R.R. at 14a (emphasis added). The record evidence does not support Licensee's contention that he did not receive notice of the Magistrate hearing.
Licensee's certified driving record reflects a prior license revocation effective July 1, 2009 which was restored August 12, 2009, and subsequent license suspensions effective June 23, October 1, and November 26, 2010, which were restored March 29, 2012, as well as a license suspension effective May 8, 2013, which led to the current matter. See R.R. at 56a, 57a, 58a. --------
Licensee also argued before the trial court that he had paid his outstanding fines in New York which resulted in his license suspension; however, he offered no proof beyond his statement that "I paid that in May, I got pulled over in June." R.R. at 16a. In addition to not producing any documentation to support his assertion, Licensee did not state on what day in May he allegedly paid the fine as the citation which led to his license suspension was issued on May 27, 2013.
Licensee's above declarations attack the propriety of his criminal convictions. As explained by this Court in Orndoff v. Department of Transportation, Bureau of Driver Licensing, 654 A.2d 1 (Pa. Cmwlth. 1994):
Courts of this Commonwealth have consistently recognized that a license suspension is a collateral civil consequence of a criminal conviction and in an appeal from the suspension, a licensee may not attack the validity of the underlying conviction. Commonwealth v. Duffey, . . . 639 A.2d 1174 [(Pa.)], cert. denied, 513 U.S. 884 (1994). Moreover, this Court has repeatedly held that the only issues in a civil license suspension appeal are whether the motorist was in fact convicted and whether DOT acted in accordance with applicable law. Amoroso v. [Dep't] of [Transp.], Bureau of Driver Licensing, . . . 618 A.2d 1171 ([Pa. Cmwlth.] 1992); [Dep't] of [Transp.], Bureau of Driver Licensing v. Greene, . . . 535 A.2d 306 ([Pa. Cmwlth.] 1988).Id. at 2 (emphasis added). Here, the Bureau provided uncontested evidence that Licensee was convicted on June 18, 2013 for violating Section 1543(a) of the Vehicle Code on May 27, 2013. Licensee did not produce any proof to sustain his burden of showing by "clear and convincing evidence" that he was not convicted of violating 75 Pa.C.S. §1543(a). Diamond, 616 A.2d at 1107. Consequently, the trial court erred when it sustained Licensee's appeal.
For all of the above reasons, the trial court's order is reversed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 11th day of June, 2014, the Lackawanna County Common Pleas Court's August 21, 2013 order granting Mark Emery's (Licensee) appeal from the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing's June 26, 2013 order suspending Licensee's driving privileges for one year for violating Section 1543(a) of the Vehicle Code, 75 Pa.C.S. § 1543(a), is reversed.
/s/_________
ANNE E. COVEY, Judge