Opinion
No. 104 C.D. 2012
09-07-2012
Richard Fruehwirth v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
The Department of Transportation, Bureau of Driver Licensing (PennDOT), appeals from an order of the Court of Common Pleas of Delaware County (trial court) that sustained Richard Fruehwirth's (Licensee) appeal from a 90-day suspension of his operating privilege imposed by PennDOT in accord with 75 Pa. C.S. §1532(d) based on Licensee's conviction for violating 18 Pa. C.S. §6308 (underage purchase, consumption, possession or transportation of alcoholic beverages). PennDOT contends the trial court erred in sustaining Licensee's appeal where PennDOT notified Licensee of the suspension less than a month after it received the report of conviction and where Licensee offered no evidence of prejudice resulting from a suspension after the delay. For the reasons that follow, we reluctantly reverse the trial court and reinstate the suspension.
By order dated July 2, 2012, this Court precluded Licensee from filing a brief due to his failure to comply with an earlier order directing him to file a brief within 14 days.
Background
In April 2004, the Commonwealth charged Licensee with underage drinking, a violation of 18 Pa. C.S. §6308. Thereafter, Licensee agreed to enter a pre-adjudication program through which he would perform community service in exchange for withdrawal of the charges. Licensee completed the community service and believed the charges were withdrawn.
However, in August 2011, following a seven-year delay apparently attributable to the magisterial district judge's (MDJ) office, Licensee received notice of a scheduled trial on the 2004 underage drinking charge. Unable to leave work, Licensee did not appear before the MDJ. He believed his absence would merely result in the imposition of a fine. In September 2011, the MDJ convicted Licensee in abstentia of violating 18 Pa. C.S. §6308 and ordered him to pay a fine of $463.00. Also, pursuant to 18 Pa. C.S. §6310.4 (restriction of operating privileges), the MDJ provided PennDOT with the certified record of Licensee's conviction.
In October 2011, PennDOT notified Licensee that his operating privileges would be suspended for 90 days pursuant to 75 Pa. C.S. §1532(d), based on his conviction for underage drinking. Licensee, representing himself, filed a statutory appeal from his license suspension.
Before the trial court, Licensee acknowledged his September 2011 conviction on the underage drinking charge. Notes of Testimony (N.T.), 1/10/12, at 9-10; Reproduced Record (R.R.) at 19a-20a. Licensee further testified the MDJ automatically found him guilty when he failed to appear at his court date. Id. at 11; R.R. at 21a. He explained that he could not appear before the MDJ because he could not get out of work that day. Id. Licensee also stated he completed his community service seven years ago, but for some reason, the MDJ's office failed to file or process it. See id. at 5, 13; R.R. at 15a, 23a.
When asked PennDOT's position in the case, its counsel explained:
Our position, Your Honor, is that if [Licensee] wanted to appeal that or if he was dissatisfied with that conviction he needed to deal with that with the Magistrate in Linwood. At this [point], this gets certified to PennDOT as a conviction as of September of 2011. PennDOT acted promptly in issuing a Notice of Suspension. There are provisions in the law for unreasonable delays, but they must be delays that are caused by PennDOT.N.T. at 17-18; R.R. at 27a-28a.
Ultimately, the trial court sustained Licensee's appeal. In an opinion in support of its order, the trial court noted that under 75 Pa. C.S. §1532(d), PennDOT is required to suspend a driver's operating privilege upon notice that the driver entered into a pre-adjudication program. Smay v. Dep't of Transp., Bureau of Driver Licensing, 940 A.2d 540 (Pa. Cmwlth. 2007). Thus, to permit a nunc pro tunc appeal of Licensee's 2011 conviction based on administrative delay attributable to the MDJ would be useless where Licensee admitted his admission into a pre-adjudication program.
Further, the trial court acknowledged that to prevail in a license suspension appeal based on delay, a licensee must show: (1) an unreasonable delay attributable to PennDOT led the licensee to believe his operating privileges would not be impaired; and, (2) prejudice would result from a license suspension after such a delay. Dep't of Transp., Bureau of Driver Licensing v. Gombocz, 589 Pa. 404, 909 A.2d 798 (2006); Terraciano v. Dep't of Transp., Bureau of Driver Licensing, 562 Pa. 60, 753 A.2d 233 (2000). Nevertheless, the trial court reasoned:
While PennDOT, an agency of the Commonwealth, is correct in that the present delay was caused by the Magisterial District Court and not PennDOT, the delay was clearly attributable to the Commonwealth and not [Licensee]. Further, the prejudice suffered by [Licensee] speaks for itself where an employed adult loses his driving privileges for three months as a result of an offense that occurred 7 years prior. The prejudice is clear and presumptive.Tr. Ct., Slip Op., 3/1/12, at 4 (footnote omitted). In short, the trial court determined a license suspension issued seven years after the occurrence of the underlying criminal offense constituted a significant injustice which the court felt bound to address and remedy on equitable grounds. See id. at 5-6. PennDOT appeals.
Appellate review of a trial court's decision in a license suspension case is limited to determining whether the trial court's factual findings are supported by competent evidence and whether the trial court committed an error of law or abuse of discretion. Dep't of Transp. Bureau of Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989).
Issue
On appeal, PennDOT contends the trial court erred in sustaining Licensee's appeal where PennDOT notified Licensee of the suspension less than a month after receiving the report of conviction and where Licensee offered no evidence of prejudice resulting from a suspension after the delay in this case.
Discussion
To begin, PennDOT contends, where it is not guilty of any administrative delay, any delay caused by the judicial system in not notifying PennDOT in a timely manner will not invalidate a suspension authorized by the Vehicle Code. Pokoy v. Dep't of Transp., Bureau of Driver Licensing, 714 A.2d 1162 (Pa. Cmwlth. 1998); Green v. Dep't of Transp., Bureau of Driver Licensing, 546 A.2d 767 (Pa. Cmwlth. 1988). Rather, in determining whether there was an unreasonable delay attributable to PennDOT, the relevant time period is that between the date PennDOT receives notice of the driver's conviction from the judicial system and the date PennDOT notifies the license that his operating privileges are suspended. Id.
Here, PennDOT asserts, the MDJ certified Licensee's 2011 conviction for a violation of 18 Pa. C.S. §6308 to PennDOT on September 15, 2011. See R.R. at 35a. PennDOT then sent Licensee a notice of suspension with a mail date of October 7, 2011. Id. at 32a-34a. Accordingly, PennDOT urges, it is not responsible for any delay in notifying Licensee of his 90-day suspension. We agree. Only an unreasonable delay by PennDOT, and not the judicial system, invalidates a license suspension by PennDOT. Pokoy. In Green, this Court explained the reasons for its consistent adherence to this policy:
Although, paraphrasing Ralph Waldo Emerson, a foolish consistency is the hobgoblin of little minds, this court can do no better than to adhere to the steady line of decisions in which we have held that, where [PennDOT] has not been guilty of administrative delay, judicial system delay in notifying [PennDOT] will not operate to invalidate driver's license suspensions merited by Vehicle Code convictions.Green, 546 A.2d at 768-69 (citations omitted, emphasis added).
The principle steadfastly applied in these decisions is consistent with sound policy. Under the Vehicle Code, PennDOT is the agency made responsible for impositions of the sanctions which the law uses to keep unsafe drivers off the highways for stated periods. This court has held that a material breach by [PennDOT] of that responsibility will invalidate the legal effectiveness of the sanction. If [PennDOT] too often failed to meet the responsibility thus focused upon it, the locus of fault would be clear and executive and legislative remedies could be directed at [PennDOT]. But a very different situation would prevail if the effectiveness of the Vehicle Code sanctions became dependent upon scores of court clerks and hundreds of functionaries within the minor judiciary. This court's rule therefore protects the vehicle safety laws from the vulnerability to delays within a system where detection and correction of official failure would be much more difficult.
Here, the trial court reasoned:
While the substantial and unreasonable delay in suspending [Licensee's] operating privilege was not attributable to PennDOT and while PennDOT's suspension of Licensee's license was technically proper,
it is patently unfair for the office staff for a Magisterial District Justice to send out notice and certification of conviction more than 7 years after the date of a charge .... The legislature anticipated that the Courts and their staffs would be acting effectively and efficiently so that their statutory scheme would have relevance to the behavior it intended to adjust. It did not anticipate hearing notices sent out 7 years later, presumably discovered during a district court audit.Tr. Ct., Slip Op. at 4-5. Notably, the trial court determined the delay in this case was not attributable to PennDOT and that the license suspension was technically proper. Nonetheless, the trial court sustained Licensee's appeal based upon delay attributable to the MDJ's office. Clearly this is contrary our decisions in Pokoy, Green and similar cases. See, e.g., Dancho v. Commonwealth, 541 A.2d 54 (Pa. Cmwlth. 1988) (a delay cannot be chargeable to PennDOT before it is in receipt of the certification of conviction; this Court will not hold PennDOT responsible for a delay in processing clearly attributable to the district justice). Therefore, here we hold the trial court erred in sustaining Licensee's appeal on that basis. Pokoy; Green; Dancho.
If Licensee wanted to challenge the reasonableness of the delay between the date of his 2004 underage drinking violation and the 2011 date of his conviction, he should have done so in the criminal courts. See Commonwealth v. Duffey, 536 Pa. 436, 639 A.2d 1174, cert. denied, 513 U.S. 884 (1994) (loss of driving privileges is a civil collateral consequence of a conviction for underage drinking under 18 Pa. C.S. §6308; the scope of review in a licensee suspension proceeding does not include the authority to attack the validity of the underlying criminal conviction). "When a licensee becomes aware that he is going to lose his driving privilege as a consequence of paying a fine on a summary offense, his only remedy is to seek allowance of appeal nunc pro tunc from the summary conviction." Id. at 443, 639 A.2d at 1177. In sum, Licensee cannot challenge the validity of his underage drinking conviction in a license suspension appeal. Id.
Moreover, Licensee, proceeding without counsel, failed to present any evidence of actual prejudice resulting from the delay. Even assuming for the sake of argument, that PennDOT could be charged with responsibility for the seven-year delay here, Licensee still had the burden to show he suffered actual prejudice as a result of the delay. Orloff v. Dep't of Transp., Bureau of Driver Licensing, 912 A.2d 918 (Pa. Cmwlth. 2006).
"Prejudice is shown when the licensee is able to demonstrate that he changed his circumstances to his detriment in reliance on his belief that his operating privileges would not be impaired." Orloff v. Dep't of Transp., Bureau of Driver Licensing, 912 A.2d 918, 924 (Pa. Cmwlth. 2006). For example, the loss of a job or the closing of a business requiring a driver's license constitutes prejudice. Id. Prejudice is also established where a licensee changed jobs to a position that requires a driver's license. Id. --------
To that end, PennDOT asserts, actual prejudice cannot be assumed, it must be proven. See Jacobs v. Halloran, 551 Pa. 350, 710 A.2d 1098 (1998) (presumption of prejudice due to passage of time alone is inconsistent with the well-established notion that a party must suffer harm before a case is dismissed for lack of prosecution). In Jacobs, the Supreme Court overruled its earlier decision in Penn Piping, Inc. v. Insurance Commissioner of North America, 529 Pa. 350, 603 A.2d 1009 (1992), which held that a lack of docket activity for a period of two years is presumptively prejudicial. In light of Jacobs, we agree with PennDOT that the trial court further erred in sustaining Licensee's appeal on the ground that the prejudice here "speaks for itself" where an employed adult loses his driving privilege for three months as a result of an offense that occurred seven years prior. See Tr. Ct., Slip Op. at 4.
Finally, PennDOT asserts the trial court is not free to forgive a licensee's suspension simply because the trial court believes it is in the interest of justice to do so. See Commonwealth v. Moogerman, 385 Pa. 256, 122 A.2d 804 (1956) (common pleas courts are not boards of clemency; they are strictly courts of law); Banks v. Dep't of Transp., Bureau of Motor Vehicles, 856 A.2d 294 (Pa. Cmwlth. 2004) (in appeal from a three-month registration suspension, trial court could not consider hardship driver would incur from suspension of her vehicle registration; trial court may not substitute its discretion for the requirements of law). Again, we are constrained to agree with PennDOT. As discussed above, the trial court may not attribute any delay caused by the MDJ's office, a component of the judicial system, to PennDOT on the basis that it as an agency of the Commonwealth. Pokoy; Green.
In addition, it is well settled that a trial court may not, under the guise of a de novo hearing, examine the facts of a case to determine whether the licensee actually deserves a suspension. Dep't of Transp., Bureau of Traffic Safety v. McCartney, 279 A.2d 77 (Pa. Cmwlth. 1971). See also Glidden v. Dep't of Transp., Bureau of Driver Licensing, 962 A.2d 9 (Pa. Cmwlth. 2008) (in a license suspension case, the only issues are whether the criminal court convicted the licensee and whether PennDOT acted in accordance with applicable law).
For these reasons, we reluctantly reverse the compassionate, but unsustainable, order of the trial court and reinstate PennDOT's 90-day suspension of Licensee's operating privileges.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 7th day of September, 2012, the order of the Court of Common Pleas of Delaware County is REVERSED and the Department of Transportation's 90-day suspension of Appellee Richard Fruehwirth's operating privileges is REINSTATED.
/s/_________
ROBERT SIMPSON, Judge