Opinion
No. 2312 C.D. 2012
07-12-2013
Gregory Kenneth Moore, Petitioner v. Department of Transportation, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Gregory Kenneth Moore petitions for review of the order of the Secretary of the Department of Transportation (Department) that denied Moore's request for administrative credit toward a five-year revocation of his operating privilege pursuant to Section 1542 of the Vehicle Code (Code), 75 Pa. C.S. § 1542. After review, we affirm.
Section 1542 of the Code, Revocation of habitual offender's license, provides in pertinent part:
(a) General rule.- The department shall revoke the operating privilege of any person found to be a habitual offender pursuant to the provisions of this section. A "habitual offender" shall be any person whose driving record, as maintained in the department, shows that such person has accumulated the requisite number of convictions for the separate and distinct offenses described and enumerated in subsection (b) committed after the effective date of this title and within any period of five years thereafter.
(b) Offenses enumerated.- Three convictions arising from separate acts of any one or more of the following offenses committed by any person shall result in such person being designated as a habitual offender:
. . . .
(1.1) Any violation of Chapter 38 (relating to driving after imbibing alcohol or utilizing drugs) except for sections 3808(a)(1) and (b) (relating to illegally operating a motor vehicle not equipped with ignition interlock) and 3809 (relating to restriction on alcoholic beverages)....
Moore was a resident of Pennsylvania for most of his adult life until he moved to Wilmington, North Carolina sometime in January 2005, where he still resides. According to Moore, after establishing residency in North Carolina, he attempted to secure a North Carolina driver's license, but was informed he had an outstanding issue in New Jersey that had to be dealt with first. The "outstanding issue" was Moore's citation for DUI in New Jersey on May 23, 1993. Moore then renewed his Pennsylvania driver's license with the Department over the internet on March 21, 2005, and was issued a camera card. During that same transaction, Moore updated his address with the Department to his parents' then-address in York, Pennsylvania, even though he testified that North Carolina was "[his] new permanent address." Hearing of June 4, 2012, Notes of Testimony (N.T.) at 10.
Thereafter, Moore obtained counsel in New Jersey and pled guilty to the DUI charge on April 7, 2005. He then traveled to York, Pennsylvania, where he had his photo taken for his Pennsylvania driver's license. Shortly after returning to North Carolina, Moore was able to obtain a North Carolina driver's license. The Department received notification of Moore's New Jersey DUI conviction on April 18, 2005.
Because Moore was still a Pennsylvania licensed driver at the time of his DUI conviction in New Jersey, the New Jersey Division of Motor Vehicles reported his conviction to the Department in accordance with the requirements of Article III of the Driver's License Compact, 75 Pa. C.S. § 1581, Article III, and N.J.S.A. § 39:5D-3 (relating to reports of conviction).
As a result of Moore's DUI conviction in New Jersey, the Department imposed a habitual offender revocation against Moore's operating privileges for five years, effective July 6, 2005. On June 1, 2005, the Department mailed the official notice of revocation to Moore at his address of record, his parents' home in York, Pennsylvania. The notice, which Moore identified at the hearing as the one he received, specifically advised Moore that he had to immediately return any and all Pennsylvania driver's licenses in his possession to the Department at the address listed on the notice. Moore was instructed that if he did not have his license in his possession, he was to "send a sworn notarized letter stating [he was] aware of the revocation of [his] driving privilege [and] [he] must specify in [his] letter why [he was] unable to return [his] driver's license." It further advised Moore that he would not receive credit toward his suspension until the Department received his license or a sworn acknowledgment, and sent him a receipt, and that he was to contact the Department if he did not receive a receipt within three weeks of sending in his license.
Moore's Certified Driving History shows that he was convicted on June 30, 1994, of two violations: (1) a violation of former 75 Pa. C.S. § 3731 [relating to driving under the influence of alcohol or controlled substance (DUI)] on June 25, 1993; and (2) another violation of former 75 Pa. C.S. § 3731 on March 4, 1994. He received a third conviction for DUI on April 7, 2005, for violating the New Jersey DUI statute on May 23, 1993. Because Moore's three DUI violations occurred within a five-year period, he was designated by the Bureau as a habitual offender and his operating privileges were revoked for five years pursuant to 75 Pa. C.S. § 1542. Moore did not appeal this revocation. Original Record (O.R.), Item 6, Department Exhibits D-1 and D-2.
Moore testified that the notice was either forwarded to him in North Carolina, or his parents brought it to him. N.T. at 23.
The Official Notice of Revocation is part of the Department's Certified Driver License Records for Moore admitted as Department Exhibit D-2 at the hearing. See O.R. Item 6; Reproduced Record (R.R.) at 60a-62a.
Moore testified that after he received the notice, he sent his Pennsylvania license back to the Department as instructed, stating that he no longer needed it because he now had a North Carolina driver's license. Although he never received a receipt from the Department acknowledging that they had received his license, Moore did not inquire into the matter any further at that time, testifying that: "I simply neglected to do so . . . I thought that I had done what was necessary. And it was just something that fell through the cracks. I just never followed up with it, unfortunately." N.T. at 22.
While attempting to renew his North Carolina driver's license in 2010, Moore learned that there was a hold on the National Driver Registry against his operating privileges due to another outstanding issue, this time in Pennsylvania. Moore once again sought legal counsel and was advised to acknowledge the outstanding issue of his license revocation by completing a Department DL-16LC form. Moore also requested an administrative hearing to determine whether he should be credited towards his revocation period retroactive to July 6, 2005, the date his revocation was originally to be effective according to the Notice of Revocation mailed June 1, 2005. The Department subsequently notified Moore that it had received his affidavit and that credit towards his five-year revocation would begin on June 7, 2011.
The Department's Form DL-16LC is an Acknowledgement of Suspension/Revocation/Disqualification/Cancellation of an operator's license or permit, required under Section 1541 of the Vehicle Code, 75 Pa. C.S. § 1541. Moore's signature on the acknowledgment is dated June 6, 2011. See O.R. Item 6, Ex. D-2 at 3-3A.
After a hearing before a hearing officer of the Department on June 4, 2012, at which Moore and a department employee, Janet Danner, appeared and testified, Moore's request for credit retroactive to July 6, 2005, was denied. In her proposed report, the hearing officer found that North Carolina was part of the Driver's License Compact, including in 2005, and that members of the Compact must adhere to the same rules regarding qualifications for licensure. (Proposed Report, Findings of Fact Nos. 23-24, O.R. Item 7, at 5). She also found that an individual relocating to another state must relinquish his out-of-state license to the new state in which he seeks licensure, and therefore, North Carolina was responsible to ensure Moore did not hold a license in another state before issuing him a North Carolina driver's license. Id., Nos. 25-26. Finding "Moore's testimony that he mailed his license to the Department in June of 2005 . . . simply not credible[,]" the hearing officer recommended that the credit date of June 7, 2011, established by the Department, should be affirmed and that Moore's request for credit from June 2005, be denied. Id. at 7.
Moore filed exceptions to the hearing officer's proposed report with the Secretary, arguing that the hearing officer abused her discretion in concluding that Moore could not have returned his Pennsylvania driver's license to the Bureau in June 2005 as he alleged because, pursuant to the requirements of the Driver's License Compact, North Carolina had already taken his Pennsylvania license from him in order to issue him a North Carolina driver's license. Moore argued that there was no evidence of record that he surrendered his license to North Carolina and requested a remand for the purpose of reassessing his credibility. The Secretary, without taking any additional evidence, granted Moore's exceptions to the extent that he agreed that there was no evidence in the record to make a finding "on the specific actions of the North Carolina Bureau of Motor Vehicles in regard to the surrender or non-surrender of [Moore's] license when he obtained a North Carolina driver's license in 2005." Memorandum Opinion and Order, November 30, 2012, O.R., Item 10, at 2. The Secretary found, however, that even discounting this error, Moore's testimony was not credible and that Moore failed to provide the Department with his Pennsylvania driver's license or an acknowledgment until June 7, 2011. Specifically, the Secretary opined that:
Article V of the Compact states, in pertinent part, that:
Upon application for a license to drive, the licensing authority in a party state shall ascertain whether the applicant has ever held or is the holder of a license to drive issued by any other party state. The licensing authority in the state where application is made shall not issue a license to drive to the applicant if:
. . . .
(3) The applicant is the holder of a license to drive issued by another party state and currently in force unless the applicant surrenders such license.
The undisputed evidence in this case establishes that Moore attempted to evade his suspension by misrepresenting his address to the Department in 2005 to obtain a license when he was on the verge of being convicted for a DUI offense. This supports my conclusion that he is not a credible witness. Further, the record clearly established that Moore did not send his license or an acknowledgment to the Department until June 7, 2011.Id. at 4. By order dated November 30, 2012, the Secretary adopted as modified the proposed report of the hearing officer.
It appears that the Secretary's original order contained a typographical error stating that the date Moore's credit was to start was "June 7, 2012." By order dated December 18, 2012, the Secretary issued an order correcting the start date to "June 7, 2011 , rather than June 7, 2012, as stated in the prior November 30, 2012 Order." O.R. Item 11. --------
On appeal, Moore questions whether the Secretary should have remanded the matter for the hearing officer to reevaluate his credibility in light of the Secretary's determination that there was no evidence that the State of North Carolina must have taken Moore's Pennsylvania driver's license from him in 2005, which was one of the reasons the hearing officer disbelieved Moore's testimony that he had surrendered his license to the Bureau in June 2005. Although Moore concedes that the Secretary is the ultimate fact-finder, he argues that, "it was the hearing officer, not the [S]ecretary, who was the primary finder of fact," and thus, according to Moore, "it should have been the hearing officer, not the Secretary, who reevaluated the issue of credibility." Moore's Brief at 10 (emphasis added). Citing for support, Hillman Coal & Coke Co. v. Pennsylvania Public Utility Commission, 433 A.2d 634 (Pa. Cmwlth. 1981), Moore asserts that once the Secretary granted his exceptions in part, this was, in essence, an "amended ruling," and the Secretary could have remanded the matter to the hearing officer for a credibility determination "under the auspices of the amended ruling." Moore's Brief at 10.
We disagree that the Secretary was required to either remand the matter to the hearing officer to reassess Moore's credibility or to hold a hearing himself. The Secretary is not bound by the proposed report of the Hearing Officer and is the ultimate fact-finder. Realmuto v. Dep't. of Transp., 637 A.2d 769, 771 (Pa. Cmwlth. 1994). In that respect, the Secretary has the discretion to accept or reject all or part of a witness's testimony. Id. It is not the function of this court to review the credibility determinations made by the Secretary on appeal. Id. (citations omitted).
Moreover, we find Moore's reliance on Hillman to be misplaced, as that case is easily distinguishable from the matter sub judice. In Hillman, an administrative law judge (ALJ), held a hearing on West Penn Power Company's application to exercise the power of eminent domain as to Hillman's property. The ALJ's initial report, which included findings of fact and conclusions of law, also included an order directing the scheduling of future hearings, but did not include a recommended resolution of the matter. After holding a public meeting, the Commission remanded the matter to the ALJ with instructions that "he either conduct additional hearings if they were deemed to be necessary or present the case to the Commission for its final determination." 433 A.2d at 635 (footnote omitted). Because the relevant statutes mandated that the ALJ's initial decision include "the appropriate rule, order, sanction, relief, or denial thereof," this court concluded that a remand was proper. Id. (citations omitted).
Here, however, the Secretary was not faced with a proposed report by the hearing officer which did not contain a recommended final action, but one in which a specific finding was challenged as being unsupported by the evidence of record. The Secretary, in reviewing Moore's exceptions to the hearing officer's proposed report, agreed that there was no evidence to support a finding that North Carolina took Moore's Pennsylvania driver's license from him when issuing him a North Carolina driver's license and thus Moore could not have mailed his Pennsylvania driver's license to the Bureau as he testified. However, the Secretary made it clear that, based on a review of the entire record, this error was not dispositive, as he concluded that there was ample evidence of Moore's evasive action and misrepresentations to support his conclusion that Moore was not a credible witness. Specifically, the Secretary found that Moore "obtained a Pennsylvania license while living in North Carolina at the time of his New Jersey DUI conviction by listing a Pennsylvania address (his parents' address) as his home of record despite living in North Carolina." Memorandum Opinion and Order at 3. The Secretary discredited Moore's testimony that he sent the Department his license in June, finding that there was no evidence that the Department ever received Moore's Pennsylvania license, pointing out that Moore admitted not receiving a receipt from the Department, and that, "[o]ther than his oral testimony, Moore offered no proof that he sent his license to the Department." Id. at 2. In addition, based on the credited evidence submitted by the Department, the Secretary also found that Moore did not send his license or an acknowledgement to the Department until June 7, 2011.
Finally, we reject Moore's argument that the Secretary should have conducted his own hearing to determine Moore's credibility, rather than "relying upon the cold record under the circumstances." Moore's Brief at 11. Indeed, as we stated in Pellizzeri v. Bureau of Professional & Occupational Affairs, 856 A.2d 297, 301 (Pa. Cmwlth. 2004):
A fact finder's observation of the demeanor of a witness is important in determining credibility but this Court has held that administrative adjudicators may determine credibility from the reading of a transcript. Cavanaugh v. Fayette County Zoning Hearing Board, 700 A.2d 1353 (Pa. Cmwlth. 1997). Administrative agencies often use a system of adjudication where a hearing examiner or presiding officer takes evidence and the ultimate fact
finder is a board or commission, which has the power to make findings of fact based solely on a review of the record. See, e.g., Kramer v. Department of Insurance, 654 A.2d 203 (Pa. Cmwlth. 1995) (presiding officer conducted an evidentiary hearing, but the adjudication was issued by the Insurance Commissioner). Having a case adjudicated by a person who did not hear the testimony does not deny a litigant due process of law. A.O. v. Department of Public Welfare, 838 A.2d 35 (Pa. Cmwlth. 2003).
Accordingly, for all of the foregoing reasons, we affirm the final order of the Secretary of the Department of Transportation.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 12th day of July 2013, the order of the Secretary of the Department of Transportation in the above-captioned matter is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge
75 Pa. C.S. § 1581, Article V.