Opinion
November 5, 1986.
Motor vehicles — License — Suspension — Collateral attack.
1. The criminal conviction underlying a motor vehicle license suspension may not be collaterally attacked in the suspension proceeding by challenging the timeliness of the criminal proceeding. [648]
2. In a motor vehicle license suspension case, the Pennsylvania Department of Transportation is chargeable only for a delay that is attributable to it; a delay attributable to the licensee's failure to pay the fine promptly or to the failure to make prompt certification of the conviction to the Department is not attributable to the Department. [648]
Submitted on briefs October 7, 1986, to President Judge CRUMLISH, JR., Judge DOYLE, and Senior Judge KALISH, sitting as a panel of three.
Appeal, No. 2756 C.D. 1984, from the Order of the Court of Common Pleas of Cambria County in the case of Commonwealth of Pennsylvania, Department of Transportation v. James Jude Urbasik, No. 1984-1777.
Motor vehicle operator's license suspended by the Department of Transportation. Licensee appealed to the Court of Common Pleas of Cambria County. Appeal sustained. McWILLIAM, P.J. Department appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellant.
Joseph D. Messina, Joseph D. Messina Law Offices, Inc., for appellee.
This is an appeal by the Department of Transportation (DOT) from an order of the Court of Common Pleas of Cambria County which reversed DOT's imposition of a six-month suspension of the operating privileges of James Jude Urbasik (Licensee). The suspension was issued pursuant to Section 1532(b)(2) of the Vehicle Code (Code), 75 Pa. C. S. § 1532(b)(2), which provides that a person twice convicted of driving without a license in violation of Section 1501(a) of the Code, 75 Pa. C. S. § 1501(a), shall receive a six month suspension.
Licensee was first convicted on April 23, 1982 of violating Section 1501(a) on April 10, 1982. Licensee also violated Section 1501(a) on April 1, 1982, but he was not convicted until March 26, 1984. It was upon receipt of the second notice of conviction that DOT, by letter dated May 16, 1984, notified Licensee that his operating privileges would be suspended for six months as of June 20, 1984.
Licensee appealed to the common pleas court which determined, inter alia, that "[p]roceedings were not instituted within thirty (30) days after commission of the alleged offense" and that Licensee had been prejudiced by the delay.
The proceeding to which the trial court referred is the one governing summary offenses. See Section 5553(a) of the Judicial Code, 42 Pa. C. S. § 5553(a). There is nothing in the record to indicate whether in fact these proceedings were timely; this is of no import, however, because the challenge to the timeliness of that proceeding constitutes a collateral attack to the underlying criminal conviction which we have repeatedly held is not properly attacked in a DOT license suspension action. See, e.g., Department of Transportation, Bureau of Traffic Safety v. Valentine, 71 Pa. Commw. 8, 453 A.2d 742 (1982).
Licensee's April 1 citation, which is of record, clearly indicates a conviction date of March 26, 1984. While this is admittedly a long period of time from the date of the incident, Licensee in his testimony indicated that he had paid his fine in installments. This would explain the delay in processing. Whatever the reason, however, we have previously held that DOT is chargeable for a delay only attributable to it and that it can not possibly act until it receives notice of the conviction. Department of Transportation, Bureau of Traffic Safety v. Koch, 94 Pa. Commw. 329, 503 A.2d 1026 (1986). Any delay here was based upon Licensee's failure to pay the fine to the District Justice and/or the District Justice's failure to certify the conviction to DOT. We have expressly stated that such delay is not chargeable to DOT. Koch; Chappell v. Commonwealth, 59 Pa. Commw. 504, 430 A.2d 377 (1981). In the instant case DOT acted approximately six weeks after receiving the certification of conviction. This does not constitute unreasonable delay. See Koch (five week delay not unreasonable); Chappell (four month delay not unreasonable).
It is clear that DOT is mandated under the language of Section 1532(b)(2) to suspend the license of an individual who has twice violated Section 1501(a). Accordingly, the trial court in sustaining the appeal committed legal error.
Section 1532(b)(2) provides in pertinent part:
The department shall suspend the operating privilege of any driver for six months upon receiving a certified record of the driver's conviction of a subsequent offense under . . . Section 1501(a) (relating to driver's required to be licensed).
(Emphasis added).
The trial court also determined that Licensee had been "severely prejudiced" by the delay in suspending his operating privileges. The record discloses that Licensee testified that approximately sixty percent of his job entailed driving. RR 13a. It is well settled, however, that the Secretary of DOT is mandated to suspend a license under Section 1532. Schultz v. Department of Transportation, 88 Pa. Commw. 43, 44 n. 1, 488 A.2d 408, 409 n. 1 (1985).
Reversed.
ORDER
NOW, November 5, 1986, the order of the Court of Common Pleas of Cambria County, No. 1984-1777, dated September 4, 1984 is reversed and the Department of Transportation's six month suspension is hereby reinstated.