Opinion
No. 905 C.D. 2013
10-21-2013
Brett Steven Tracy, Petitioner v. Department of Transportation, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Brett Steven Tracy (Petitioner) petitions for review from an order of the Secretary of the Department of Transportation (Department) denying his exceptions and request for administrative credit toward the suspension of his driver's license imposed by the Bureau of Driver Licensing (Bureau). Finding error, we reverse.
Following multiple convictions for Driving Under the Influence (DUI), the Department sent Petitioner three notices of suspension of his driving privilege for a total of nine years, effective July 29, 2003. All three notices were mailed to his last known address in Glen Mills, Pennsylvania, the address that he provided to the Department when he obtained his Pennsylvania license. Each notice was returned as unclaimed. Petitioner, therefore, did not acknowledge the suspension until June 29, 2012, at which time the suspension began. He filed an appeal with the Department seeking credit for seven years of his suspension to commence on July 29, 2003, when the notices were initially mailed.
Petitioner's license was suspended for one year for each of the three DUI convictions, five years for being designated a habitual offender, and two years for a subsequent conviction in Philadelphia County, of which the Department was not made aware until 2012.
Section 1540(b)(1) of the Vehicle Code (Code), 75 Pa. C.S. §1540(b)(1), provides that the Department will notify an individual that his or her license is suspended in writing at the individual's address of record. Section 1541(a), 75 Pa. C.S. §1541(a), provides that "[n]o credit toward the revocation, suspension or disqualification shall be earned until the driver's license is surrendered to the [D]epartment ... A nonresident licensed driver or an unlicensed individual, including a driver whose license has expired, shall submit an acknowledgment of suspension or revocation to the department in lieu of a driver's license."
Before the Hearing Officer, Petitioner testified that the address on file with the Department was the address he had on his Pennsylvania driver's license which he got in 1994. In 1996, his entire family moved to Wilmington, Delaware, at which time he obtained a Delaware driver's license and surrendered his Pennsylvania license. Petitioner said he was arrested in Delaware County, Pennsylvania, for DUI on June 6, 2002; January 25, 2003; and February 7, 2003; and he presented his Delaware license to the arresting officer each time. He was subsequently convicted on all three arrests on April 14, 2003. He said that when he was convicted, he was never informed of the ability to change his address and did not receive a form to do so. He reviewed the DL-21 conviction report forms for all three convictions and noted that they all listed his address at his mother's home in Wilmington, Delaware; he said that he had no part in the preparation of those forms.
Petitioner said that he served about three months in prison for his convictions and upon his release, went to a rehabilitation facility for 21 days. After his release from the rehabilitation facility, he moved back to his mother's home in Wilmington, Delaware, where he lived until 2006. Petitioner further testified that he never received any information from the Department or his attorney that his driving privileges would be suspended, but when he found out about the suspension when he went to renew his Delaware license in 2012, he immediately contacted the Department. He said that the Department informed him that his suspension runs for seven years from the acknowledgment of his suspension, but because he had never acknowledged it, the suspension had not started. Petitioner requested the paperwork, acknowledged his suspension, and filed the appeal seeking credit dating back to the point when his suspension initially was to begin. He finally testified that he has a temporary Delaware license until the suspension issue is resolved, and his job requires that he have a valid driver's license. On cross-examination, Petitioner testified that he did not update his address with the Department when he moved to Delaware. He also said that because he was not specifically told that his convictions would have an effect on his driving privileges in the Commonwealth, he did not believe his license would be suspended.
Janet Danner (Danner), an administrative assistant for the Department, testified that license suspension notices are mailed to the address the Department has on record for the individual, which he or she has the opportunity to change by checking the request box on the DL-21 form on which the Clerk of Courts reports the violation. However, any change to one's address is up to the defendant to report to the Department. She testified that the Department had the Glen Mills, Pennsylvania address listed in its records as Petitioner's most recent address, with his driver's license attributed to that address expiring in 1998. Danner said that Petitioner's suspension notices, which were sent to the Glen Mills' address, were all returned as unclaimed mail. She said that Petitioner's address was changed to the Wilmington residence on June 7, 2012, when he called the customer call center to correct it. Danner further testified that each county has its own procedure for taking an individual's license upon conviction and suspension, and the Department gets the conviction report and issues the suspension notices.
67 Pa. Code §81.4 provides, in relevant part:
(a) General Rule. The clerk of a court of record of this Commonwealth, within 10 days after final judgment of conviction or acquittal or other disposition of charges under 75 Pa. C.S. (relating to vehicle code), shall send to the Department a record of the judgment of conviction, acquittal or other disposition on Form DL-21. A record of the judgment shall also be forwarded to the Department, on Form DL-21, upon conviction or acquittal of a person of a felony in the commission of which the judge determines that a motor vehicle was essentially involved, under 75 Pa. C.S. §6323 (relating to reports by court of record).67 Pa. Code §81.4(a)-(b) (emphasis added).
(b) Content of report. The report of the clerk of court showing the conviction or acquittal of any violation of 75 Pa. C.S. or of another act in the commission of the crime in which a motor vehicle was used, Form DL-21, shall indicate:
(1) Name and current address of individual convicted or acquitted.
(2) Operator's number or date of birth, or both, of individual convicted or acquitted.
(3) Date of violation.
(4) Date of conviction or acquittal.
(5) Description of charge.
(6) Section, subsection and name of the act violated.
(7) Sentence.
(8) Court, term and number.
(9) Indicate whether summary offense, manslaughter, other misdemeanor, or felony.
(10) Seal.
Petitioner's DL-21 forms which listed his Wilmington address, as well as the license suspension notices which listed the Glen Mills' address, were entered into evidence. Based on the testimony and evidence presented at the hearing, the hearing officer entered a proposed report finding that the DL-21 forms all list the Wilmington address as his home, and the forms give defendants the option to request an address change, but Petitioner had no involvement in the preparation of the forms, never saw the completed forms, and was not asked whether he wanted to change his address with the Department. She further found that as a result of Petitioner's conviction, the Department suspended his driving privileges for three one-year terms, as well as a five-year term for being a habitual offender, effective July 29, 2005. The hearing officer also found that in November 2002, Petitioner was cited and convicted of DUI in Philadelphia County, but the Department was not made aware of the conviction until September 12, 2012, and a two-year suspension was imposed effective June 29, 2019. She further found that Petitioner never received the suspension notices and first learned of the suspension when he attempted to renew his driver's license in Delaware in June 2012, at which time he immediately contacted the Department and was informed of the suspensions, which he acknowledged on June 29, 2012.
The Hearing Officer's findings of fact indicate that the Department learned of the Philadelphia conviction on July 27, 2012; however, the Secretary, in adopting the Proposed Report, modified this finding to correct that date to September 12, 2012. (Reproduced Record [R.R.] at 91a.)
Based on these findings of fact, the Hearing Officer opined that Petitioner was not entitled to credit toward his suspension because the only way one may earn credit toward a suspension "is through the submission of an acknowledgment of suspension/revocation to the Department." (Proposed Report dated January 7, 2013, at 9.) She concluded that Petitioner's testimony was "inconceivable," id., as he could not expect to escape suspension of his license simply because the DUI arrests occurred in Pennsylvania and he was a resident of Delaware. Moreover, the Code provides that credit will not be given toward suspension or revocation until the license and acknowledgement are submitted. See 75 Pa. C.S. §1541(a). The Hearing Officer noted that although Petitioner surrendered his Pennsylvania license to the Delaware Department of Motor Vehicles when he relocated, the Department received no indication of the same, and the Department's records still listed his history as having a regular license and photo identification, whereas it would have indicated that he was out of state had the Department been notified. Additionally, the Code states that the Department will notify a person of a license suspension at their address of record which, in this case, was the Glen Mills' address. The Hearing Officer, therefore, determined that Petitioner was not entitled to credit toward his suspension prior to June 29, 2012. The Secretary of the Department denied Petitioner's exceptions and adopted the Hearing Officer's Proposed Report. This appeal followed.
This Court's review of the Secretary's decision concerning credit toward suspensions and revocations of driving privileges is limited to determining whether constitutional rights have been violated, whether an error of law has been committed, or whether the necessary findings of fact are supported by substantial evidence. Martin v. Department of Transportation, 6 A.3d 589, 593 n.6 (Pa. Cmwlth. 2010). Where, as here, the issue is a question of law, the standard of review is de novo and the scope of review is plenary. Whalen v. Department of Transportation, Bureau of Driver Licensing, 613 Pa. 64, 67, 32 A.3d 677, 679 (2011).
Petitioner argues that the Department's failure to mail the notices of suspension and acknowledgment forms to his correct address denied him due process of law, especially considering that: (1) all the documentation pertaining to his convictions listed his Wilmington address; and (2) the forms mailed to the Glen Mills' address were returned as unclaimed. What Petitioner is contending is a defense we normally see in the context of a challenge to a license suspension, but, according to Petitioner, is equally applicable to an instance where a person is seeking time credit based on delay caused by the Department in sending the requisite notice. Under that standard, to receive credit based on delay, Petitioner must establish that: (1) an unreasonable delay chargeable to the Department led him to believe that his operating privileges would not be impaired; and (2) prejudice would result by having his operating privileges suspended after such delay. Terraciano v. Department of Transportation, Bureau of Driver Licensing, 562 Pa. 60, 66, 753 A.2d 233, 236 (2000); Brozena v. Department of Transportation, Bureau of Driver Licensing, 802 A.2d 1, 5 (Pa. Cmwlth. 2002), appeal denied, 573 Pa. 673, 821 A.2d 588 (2003).
Petitioner also argues that the Hearing Examiner erred in refusing to admit affidavits of individuals regarding the processes followed in Delaware County which related to the issues in this case, as well as in refusing to continue the hearing to bring those individuals to testify when the affidavits were denied as inadmissible hearsay. However, the Hearing Examiner did not err in determining that those affidavits were inadmissible hearsay or in determining "that circumstances relating to the requested continuance occurred within 10 calendar days of the hearing date." 67 Pa. Code §491(e)(2).
Whether the unreasonable delay will be charged to the Department is determined based upon the circumstances of each individual case. Terraciano, 562 Pa. at 66; 753 A.2d at 236 (citing Lancos v. Department of Transportation, Bureau of Driver Licensing, 689 A.2d 342 (Pa. Cmwlth. 1997)). Administrative delay may be considered for the purposes of determining whether the Department committed an unreasonable delay. Id. The Department has the burden of proving that the delay was caused by some factor other than mere administrative inaction. Department of Transportation, Bureau of Driver Licensing v. Turner, 624 A.2d 759, 761 (1993).
The Department contends that it is not responsible for the delay because Petitioner was responsible for reporting his new address and that he could have done so by checking the "Defendant Requests Address Change" box on the DL-21 form. In McCrea v. Department of Transportation, 783 A.2d 380 (Pa. Cmwlth. 2001), appeal denied, 569 Pa. 712, 805 A.2d 527 (2002), a licensed Pennsylvania driver moved to Delaware, surrendered his Pennsylvania license to the Delaware Department of Motor Vehicles when he obtained a Delaware license, and was arrested in Pennsylvania for refusing to submit to a blood test. While the arrest report reflected his correct Delaware address, the Department sent the notice of suspension to the driver's former Pennsylvania address, resulting in a delay in the appellee being notified of his suspension. We agreed with the trial court that the driver was not required to provide his new Delaware address to the Department, holding:
[O]nce McCrea surrendered his Pennsylvania license to the Delaware motor vehicle authorities, the licensing provisions of the Vehicle Code, including Section 1515 no longer governed him. Because Section 1515 is inapplicable to individuals who do not hold Pennsylvania driver's licenses, the Department had no basis to send notice to a Pennsylvania address when it was in possession of a current Delaware address obtained by the police and obviously sent to the Department.McCrea, 783 A.2d at 384. Because Petitioner was a non-Pennsylvania driver with a Delaware license, he had no obligation to update his address with the Department and Section 1515, therefore, does not apply to him. The Department's position that Petitioner could have checked the box on the DL-21 forms to change the address ignores that the Wilmington address listed on the forms was correct. Moreover, Petitioner had no reason to assume that he had any obligation to report a change of address to the Department once he surrendered his Pennsylvania license, one that had naturally expired four years prior to his first arrest.
In this case, the circumstances clearly establish that the administrative delay in giving Petitioner notice was the Department's fault. The Department mailed letters of the suspension to the Glen Mills' address in 2002 and 2003 when Petitioner's Pennsylvania license was surrendered in 1996 when he obtained his Delaware license and, in any event, expired in 1998; all of the offenses occurred when Petitioner was driving on a Delaware license, not on a Pennsylvania license; the DL-21 forms, which clerks of courts use to report a conviction on a license back to the Department, listed his Wilmington address on his Delaware license; and all the notices of suspension sent to the Glen Mills' address came back unclaimed.
Once the Department is charged with the delay, Petitioner "must also establish that the unreasonable delay led [him] to believe that [his] operating privileges would not be suspended and that []he would suffer prejudice by having [his] license suspended after the delay." Terraciano, 562 Pa. at 68, 753 A.2d at 237. "Prejudice is established when a licensee shows that []he, believing her privileges were no longer impaired, changed her circumstances to [his] detriment." Id. (citing Fisher v. Department of Transportation, Bureau of Driver Licensing, 682 A.2d 1353, 1356 (Pa. Cmwlth. 1996)).
Petitioner testified that his criminal lawyer never told him that his license was going to be suspended; he was not informed by the court at the time of his guilty pleas that he had to relinquish his license; no one at the Delaware County Courthouse took any steps to have Petitioner hand in his license; and he was unaware that his license was suspended until eight years after the suspension. He also testified that he cannot perform his job without a driver's license and actually turned down a job in Pennsylvania because he cannot currently drive here.
75 Pa. C.S. §1540(a) provides, in relevant part:
Upon a conviction by a court of competent jurisdiction for any offense which calls for mandatory suspension in accordance with section 1532 (relating to suspension of operating privilege), the court or the district attorney shall require the surrender of any driver's license then held by the defendant and shall forward the driver's license together with a record of the conviction to the department.
Accordingly, the Department erred in refusing to grant Petitioner's request for credit, as the delay in suspending his license was due to the Department's own error in sending the notifications of suspension to an address attributed to a surrendered and expired license, and we reverse the order of the Secretary and order the Department to give him the credit for seven years of his suspension to commence on July 29, 2003, when the notices were initially mailed.
Finally, there is a serious question as to whether there is anything for the Department to adjudicate. First, the Department lacks subject matter jurisdiction because there is no license to suspend, as Petitioner's Pennsylvania license was both surrendered and expired. Second, under the Driver's License Compact, 75 Pa. C.S. §§1581-1586, when an arrest is made on an out-of-state license, the Department should never have sought to suspend the license but instead report the convictions to the licensing state — in this case, Delaware. See 75 Pa. C.S. §1581 ("The Department of Transportation of the Commonwealth shall furnish to the appropriate authorities of any other party state any information or documents reasonably necessary to facilitate the administration of Articles III [(Reports of Conviction)], IV [(Effect of Conviction)] and V [(Applications for New Licenses)] of the compact."). --------
/s/_________
DAN PELLEGRINI, President Judge Judge Simpson concurs in the result only. ORDER
AND NOW, this 21st day of October, 2013, the order of the Secretary of Transportation, entered April 24, 2013, is reversed and the matter is remanded to the Department of Transportation to apply credit as set forth in the foregoing opinion. Jurisdiction relinquished.
/s/_________
DAN PELLEGRINI, President Judge