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HomeMy WebLinkAbout96-03604 , " i ~ . ~ Ct o ( ( Q ~ ~ " " ~ ',- '-., '\ / " " ,.,.;'" "., (' \. ~ " .. .:) ~ " ")... c;:) ~l riecide the issue of whether, at the tilne of SUllivan's license suspension, PennDOT had the authority to suspend a driver's license based on an out'of'state conviction pursuant to the Driver. License Compact of 1961 (Compact). Because we conclude that, at the relevant time, the Commonwealth had not enacted the Compact into law, we affirm the Or:der of the Commonwealth Court, El\CTUAL lIND PROCEDURAl. HISTORY The Compact is a contractual agreement among states intended to pr:omote compliance with each party state's dr:iving laws and regulations. Besides Pennsylvania, the Compact has thirty-nine party jurisdictions (thirty-eight states and the District of Columbia), each of which has enacted the Compact into law by statute. J (,. ,continued) or an adjUdication of delinquency based on section 3731 or 3733. . ~ Ala. Code 55 32.6.30 to 36; Ari;:, Rev. Stat, 55 28.160l to 1605: Ark. Code 55 27'l7.l01 to 106: Cal, Veh. Code 5 l5000 at seg,; Colo. Rev, Stat, 55 24-60-110l to ll07: 1992 Conn. Acts 92.186 (Reg. Sess.); Del. Code tit. 21,5 8l01; D,C,Code 55 40.1501 and l502; 23 F1a, Stat, Ann. 55 322,43 to 322.48; Haw, Rev. Stat. 55 286C.1 and 286C-2; Idaho Code 55 49-2001 to 2003; Ill, Ann, Stat. ch. 625, ~ 5/6.700 to 708; Ind. Code Ann, 55 9-28-1'1 to 6; Iowa Code 55 321C.1 and 321C,2; Kan. Stat, Ann. 55 8-1212 to 12l8; La. Rev. Stat. Ann, 55 32:1420 to 1425; Me. Rev, Stac. tit. 29, 55 631 to 675; Md, Transp, Code 55 16-701 to 708: Minn. Stat, Ii 5 171. 50 to 56; Mi s s, Code Ann, 95 63 - 1 - 101 to 113; Ho. Ann. S ta t , 55 301.600 to 302,605; Mont, Code Ann, 59 61-5-401 to 406; 2A Neb. Rev, Stat, App, at 840; Nev. Rev, Stat. 55 483,640 to 483,690; N,H, Rev, Stat, 5 263.77; N.J. Stat. Ann. 55 39:50-1 to 14; N.M. Stat, Ann, 5566-5-49 to 5l; N.Y, Veh. & Traf, l.aw 5516; N,C, Gen. Stat, li5 20-4,21 to 4,30; Ohio Rev. Code Ann, 5 4507.60 Okla. Stat. tit, 47, 55 781 to 788; Or. Rev. Stat. !i 802,540; S,C. Code Ann, 55 56.1.610 to 690; Utah Code Ann. 5~ 41-2-501 to 506; Vt. Stat. Ann, (continued,. ,) (J-158-1997] . 2 he did argue that PennDOT improperly failed to notify Sullivan that the suspension of his license was based on the Compact. The trial cou~t sustained Sullivan's appeal, and PennDO'l' appealed to the Commonwealth Cour:t, The Commonweal th coun considered Anicle VII I of the Compact, which provides as followsl (l) This compact shall enter into force and become effective as to any state when it has enacted the same into law. (2) Any party stat~ may withdraw from this compact by enacting a statute repealing the same. . . The court concluded that the Conunonwealth had not "enacted [the Compact) into law" as r:equired by Article VIII (l), and, ther:efore, PennDOT lacked the authority to suspend Sullivan's license based on his conviction in Nebraska. /ll.S.CUSSION On appeal to this Court, PennDOT first argues that the Commonwealth Court sh'Juld not have addr:essed the issue of whether the Conunonwealth enacted the Compact into law, because Sullivan did not raise it in the trial court. In the first instance, PennDO'l' overlooks the fact that, until the September 20. 1995 hearing, it had not notified Sullivan that it was relying on the Compact for authority to suspend his license, Moreover, the general rule that issues not r:aised in the lower court may not be raised on appeal applies only to appellan ts, not to appellee:>. Ssl.e Conunonwealth v. K~, 540 I?a, 416, 658 A.2d 345 (1995) (plurality opinion); [.J'158-1997J - 5 ~:d.QQsl v, Ell/art, 383 Pa, 110, ll7 A,2d 899 (1955). lis an appellee, Sullivan was not precluded from r:aising in the Commonweal th Court the issue of whether: the Compact had been enacted into law,' PennDOT next argues that the Commonwealth did enact the Compact into law pur:suant to Section 6146 of th~ Vehicle Code, 75 Pa,C.S. ~ 6146, which pr:ovides as follows: The secr:etary may enter into agr:eements r:elating to the enfor:cement of this title, including, but not limited to: (l) the Driver l,icense Compact and any other agreements to notify any state of violations incurred by residents of that state. . According to PennDOT, the Secretary's exercising the authority conferred upon him by 75 Pa.C,S, ~ 6146(1) is sufficient to constitute enactment of the Compact into law.5 We regretfully disagree. In its brief, PennDOT makes reference to Pa,R,/I,P. 1551, which governs the scope of review of quasijudicial orders, Rule 1551 provides, in part, that, "[nJo qucsti.on shall be heard or considered by the court which was not raised before the gover:nment unit except: (l) Questions inVOlving the validity of a statute. . " Although the question of whether the Commonwealth enacted the Compact into law involves the effect of Section 6146 of the Vehicle Code, 75 Pa.C.S, ~ 6146, that statute's validity is not at issue, Accordingly, Rule l55l(a) (1) is inapplicable. Pursuant to Section 6152 of the Vehicle Code, 75 Pa.e.S. ~ 6152, agreements entered into by the Secretary must be published in compliance with Part II of Title 45, In the Commonwealth Court, Sullivan argued that PennDOT's published notice failed to comply with those requirements, in that the notice contained only a synopsis of the Compact and not the full text. However, because we conclude that enactment of the Compact into law requires the passage of a statutl~ by the LegiSlature, we do not address the adequacy of the published notice. [J-158 -1997J - 6 The Compact is a contract between states, Accordingly, we are bound to interpret its ter:ms according to their plain medning, .5m1, e...s4, Stl!!uart-Y...J1cChesnev, /198 Pa, 45, 444 A.2d 659 (1982), Fur:thermore, this Court will not rewrite the terms of a contract, nor give them a meaning that conflicts with that of the language used, .I.d.." at 50-51, 444 A.2d at 662 (quoting Robert F. Felte.. Inc. v. White, 451 Pa, 137, 144, 302 A,2d 347, 351 (l973) (quoting Haaartv v. Wi..ll.iaJJL..hk.eui, Jr. Co.. Inc" 342 Pa. 236, 239, 20 l\.2d 317, 319 (1941))). Pursuant to Ar:ticle VIII (1) of the compact, its provisions "enter into force and become effective as to any state when it has enacted the [Compact] into law," In the context of law making, the plain meaning of the term "enactment" is "(t]he method or pr:ocess by which a bill in the Legislature becomes a law," BL/lCK'S LAW DrCTION/lRY 526 (6th ed, 1990), The language of Article VIII(2) of the compact supports this interpretation, It provides that, "[alny party state may withdr:aw from this compact by enacting a statute repealing the same,. " If the passage of a statute were not also required for entry into the compact, the withdrawal provision of Article VIII(2) would be incongruously burdensome, We cannot conclude that the Compact's drafters intended such a disparity between entry into and withdrawal from the Compact, nor are we empowered to give the terms of the contract a meaning inconsistent with the drafters' clear intent, .s..e.e, fLJL" Steuart, 498 Pa, at 48.49, 444 A.2d at 66l; Felte, 451 Pa. at 143-44, 302 l\,2d at 351, Thus, we hold that the [J'158-1997! . 7 Compact bacomeo effective as to the Conunonwealth only when the Legislature passes a statuto adopting it, Any other construction would impermissibly strain th~ language of the contract beyond its plain meaning. Notwithstanding the Compact's expr:esa language, PennDOT argues that, in passing Section 61~6 of the Vehicle Code, 75 Pa,C,S, 9 6146, the Legislatur:e proper:ly df.!ll~gatod to the Secr:etary of Transportation (Secretary) the authority to enter into the Compact. Overall, the Legislature may delegate policy making authority to an administrative agency, so long aa the Legislature makes the "basic policy ci10ices" and establIshes "adequate standards which will guide and restrain the exercise of the delegated administrative fllOctions." Gilliaan v.~nsvlvania Horse Racing Conunission, ~92 Pa. 92, 96, 422 A,2d ~87, 489 (1980) {citing IiLlliam Penn Parking ~araae, Inc. v, Citv of Pitts!lur.!Jb, 464 Pa. 168, 346 A,2d 269 (1975); Chartiers Va11ev Joint Schools v, Countv Board of Scho~ Directors of Alleaheny County, 418 Pa, 520, 211 A,2d 487 (1965); Be10vskv v. Redevelooment Authoritv of the City of Phi1adelohia, 357 Pa. 329, 5~ A,2d 277 (1947)). Here, PennDOT asserts tha t Section 61~1 of the Vehicle Code, 75 Pa,C.S. 5 6141, evinces the Legislature's basic policy choice to participate tn interstate agreements regarding the regulation of drivers,' and that Section Section 6141 of the Vehicle Code, entitled "Declaration of policy", provides thatl It is the policy of this Conunonwealth to promote and (continued" ,) I,) . 1 'i 8 - 199 '/ ] - 8 Compact becomes effective as to the Commonwealth only when the Legislature passes a statute adoptinq it. Any other: constr:uctlon would impermissibly strain the lanquage of the contract beyond its plain meaning, Notwithstanding the Compact's express language, PennDOT argucs Lhat, in passinq Section 6146 of the Vehicle Code, 75 Pa.C,S, ~ 6146, the Leg islature properly delegatcd to the Secretary of Transportation (Secr:etar:y) the authority to enter: into the Compact. Over:all, the Legislature may delegate policy making author:ity to an administrative agency, so long as the Legislature make,s the "basic policy choices" ilnd establishes "adequate standards which will guide and restrain the exercise of the delegated administrative functions," Gilliaan v, PennsYlvania Horse Racing comml ssion, 492 Pa. 92, 96. 422 A.2d 487, 489 (1980) (citin') lii.U.i.am Penn parkina ~..a..g"e...o-....IILC-.....-CLo. City oL Pittsburgh, 464 Pa, 168, 346 A.2d 269 (1975) I Chartiers Valley .JoJ.n.!;;...lichools v. County Board of School Directors o~ Alleahenv County, 418 Pa. 520, 211 A.2d 487 (1965) I Belovsky v, RpdeveloDment Authoritv of the City of Philadelnhia, 357 Pa. 329, 54 A,2d 277 (1947)), Here, PennDOT asserts that Section 6141 of the Vehicle Code, 75 Pa,C.S, ~ 614l, evinces the Leqislature' 5 basic policy choice to participate in interstate agreements regarding the regulation of drivers,' and that Section , Section 6141 of the Vehicle Code, entitled "Declaration of pOlicy", provides that: It is the policy of this Commonwealth to pr:omote and (continued", ) (J-158-19971 - 8 In Ruch v. Wilhelm, 352 I'a, 586, 43 A.2d 894 (1945), this Court held that the power of "substantive enactment" is vested in the Legislature alone, Thus, the Court deter:mined that, "[a)uthor:lty may be given to a government official or: an administrative agency to make rules and regulations to cover.' mere maUet's of detail for the impleml!ntation of 01 statute, but where the statute itsolf is lacking in essential substantive provisions the law does not permit a transfer of the power to supply them, for the leqis~ature cannot delegate its power to make a law." ~, at 592-93,43 A,2d at 897. In this case, We view 75 Pa,C,S. Ii 6146(1) mer:ely as a delegation of author:ity to implement the mechanics of the Compact in the Commonwealth, pur:suant to the Constitution's separation of power:s, however, the Legislature could not delegate to the Secretary the power to enact the Compact into law as r:equired by its terms, Thus, while not unconstitutional, 75 Pa.C.S, Ii 6146(1) is insufficient to render the Compact effective as to the Commonwealth. Indeed, the LegiSlature seemed to concede as much in passing Act No. 1996 .l4 9 (Act) Al though the Secretary had purported to enter into the Compact effective January 1, 1995, on December 10, 1996, the Leqis~atur:e passed the Act, which, ilUJll: A.U.a, added Section 1581 to the Vehicle Code. That section sets forth the full text of the Compact and provides that, "[tJ he Driver's License [J-158 '1:)97) - 10 as mandated by 75 Pa. C.S, 51532 (b) (3). At the statutor:y appeal hearing, DOTasser:ted its authority to suspend Rulli van's license based on the Nebraska conviction under the Dr:iver Licens$ Compact (Compact), effective January 1, 1995, pur:suant to notice published in 24 Pa, Bull. 5609, According to DOT, the Compact a\Jthor:izes the home state to give effect to the out-of-state conduct as provided by the laws of the home state, DOT then moved to admit a copy of the Nebraska conviction report, Counsel for Sullivan objected to admission of the repor:t as inadmissible hearsay because the document was not pr:operly cer.titied as required by 42 Pa. C.S. 55329(a). In addition, counsel for Sullivan asserted the following: 1)' the notice purported to suspend the license under 75 Pa. C,S, S1532(b) for violation of 75 Pa. C.S, 53731, and Sullivan did not violate that section; 2) for the notice to be valid, it must set forth the authority under which DOT is proceeding; and 3) DOT had no authority to suspend Sullivan'S license under the Vehicle Code or under the Driver License Compact, which has not been enacted into law in the Commonwealth. Common Pleas sustained Sullivan's appeal. The court tound that DOT's notice was deficient in that it failed to set forth the authority upon which DOT based the suspension, and it found that the Nebraska conviction report WaSilot properl.y certified. DOT appealed. Our review of a common pleas decision in a motorist'. 2 statutory appeal from suspension of his or her operating privilege is limited to deter:mining whether necessary findings of fact were supported by competent evidence of record and whether the trial cour:t cOl1ll11itted error:s of law or abused its discr:etion. Commonwealth v, Dan!Q..r..th, 530 Pa, 327, 608 A,2d 1044 (1992). Before this Court, DOT asserts 1) that the notice was sufficiently infornativfl to apprise Sullivan of the factual and statutory basis for the suspension and to provide him with the opportunity to adequately prepare a defense, and 2) that DOT's certification of the Nebraska conviction report was admissible as a DOT document pursuant to 75 Pa, C,S, S1550(d). DOT defends the adequacy of its notice of suspension on due process grounds, but the issue is not precisely framed in terms of due process. In substance, Sullivan's objection and the basis for his statutory appeal, is that DOT had no authority to suspend Sullivan's license for the Nebraska conviction either under 75 Pa, C,S, S1532(b), as stated in the notice, or under any other law of the Commonwealth, At the statutory hearing, when DOT first revealed that it was pr:oceeding under the Driver License Compact (Notes of Testimony at p. 2.), Sullivan il1ll11ediately asserted DOT's lack of authority to have entered into an interstate compact and its lack of authority to proceed under the Compact, (Notes of Testimony at p. 4.) We now consider whether DOT has the authority (or jurisdiction) to suspend a driver's license based on an out-of- state conviction pursuant to the Compact, The power and authority 3 to bEl exercised by administrative agendes must be .ither expr.ssly conferred or given by necessary implication by the logislature, DeDar:tment ot EnviI~ntal ReAQur.~4S v. ~tl.r_~~unty HU8hrQQ; [ADa, 499 Pa, 509, 454 A,2d 1 (1982), Accor:ding to DOT, thQ General Assembly, in 75 Pa. C,S, 56146, specitioallY author:ized the Secretary ot Tran~portation to enter into the Compllct on the Commonwea 1 th' s behalf, 'I'hat section, in pertinent par:t, per:mits the secretary to enter into agreements relating to .~torcument ot thie tit~e, inCluding, but not limited tOI (1) the Dr i ver: License compact and any other agr:eements to notity any stllte ot violations incurr:ed by residents ot that state I (2) agr:eemonts to Buspend or revoke the oper:at ing prl. v 110ge of Ponn5Y 1 von ia licensed dr:iver:s who are convicted in foderal court or in another stllte of l'lny oUenae essontially similar to thORO enumer:ated in section 1532(a) and (b) (relating to rovocation or: suspension ot operating privilege) I 75 Pa, C,S, 56146, "Allagreoments, arran'iJemente and declarations, and amendments thor:eto, shall be in writing and shall be published in compliance with Part II ot Title 45 (rolating to publication and ettectiveness ot Commonwealth documents), The department shall provide copies tor public distrl.bu1:ion upon nquest, II 75 Pa. C.S. 56152, Although 75 Pa. C,S, 56146 doss speoitically mention the Compact in its grant ot author i ty to enter into entorcement agreements, that authority is insutticient to give the Compact the ettect ot law, A state can delegate to an administrative agency the authority to enter into an interstate compact, but a state may 4 join a compact only in the manner specified in the compact, Par:ticipation in the Driver License compact is only by enactment, Ar:ticle VIII of the Compact pr:ovides, "(1) This compact shall enter into force and become effective as to any state when it has enacted the same into law(,]" and "( 2) (a] ny par:ty state may withdraw from this conlpact by enactin9 a statute repealing the sam.",," The Driver License Compact: Administrative Procedures Manual 4-5, U,S, Dep't of Transp, (1990), A history, published as Appendix E of the Administrative Procedures Manual, characterizes the Compact as "(a]n inter:state compact " , a formal and contractual agreement between two or mor:e states, '" enacted into state law in each par:ticipatin9 jurisdiction, usually with identical wordin9' " IlL. at 37, Participation in the Compact must be effected by enactment, and the Compact, by its own ,terms, is not effective until it is enacted into law.2 2 Enactment is "(tJhe method or process by which a bill in the Le9islature becomes a law." Black's Law Dictionary 472, (5th ed, 1979), All participatin9 states have enacted the Compact into law: Ala, Code 5532-6-30 - 32-6-36 (1975)1 Ariz. Rev. stat. 5528-1601 - 28-1605, Ark. Code 5527-17-101 - 27-17-106; Cal. Veh. Code 515000 et seq. (West); Col". Rev. stat. 5524-60-1101 - 24-60-1107; 1992 Conn, Acts 92-186 (Re9' Sess.); Del. Code tit. 21, 58101; D.C. Code 5540-1501, 40-1502 (1981); 23 Fla. stat, Ann. 55322.43-322.48 (West); Haw. Rev. stat. 55286C-l, 286C-2; Idaho Code 5549-2001 - 49-2003; Ill, Ann. Stat. ch. 625, para. 5/6-700 - 5/6-708 (Smith- Hurd); Ind, Code Ann. 559-28-1-1 - 9-28-1-6 (West) 1 Iowa Code 55321C.l, 321C.2; Kan. Stat. Ann, 558-1212 - 8-1218; La. Rev. stat. Ann. 5532:1420-32:1425; Me. Rev. Stat. tit. 29, 55631-675; Md, Tr:ansp. Code 5516-701 - 16-708; Minn. Stat. 55171.50-171,56; Miss. Code Ann. 5563-1-101 - 63-1-113 (1972); MO. Ann. stat. 55301.600- 302.605 (Vernon); Mont, Code Ann. 5561-5-401 -61-5-406; 2A, Neb. Rev. stat, app. at 840 (Reissue 1985); Nev. Rev, Stat. 55483.640- 483.690; N.H. Rev. Stat 5263.77; N.J. Stat, Ann. 5539:50-1 - 39:50- 14 (West); N.M, Stat. Ann. 5566-5-49 - 66-5-51 (MiChie 1978); N,Y. Veh, & Traf. Law 5516 (McKinney 1989); N,C. Gen. Stat. 5520-4,21 _ 20-4.30; Ohio Rev, Code Ann. 54507.60 (Baldwin); Okla, Stat, tit, 5 In contrast, Flo~ida's Nonresidsnt Violator Compact, 23 Fla, stat. Ann, 55322.49-322,50, which tolloWB the Florida Driver License compact in the Flor:ida statutes, provide. tor par:ticipation by resolution, Ar:tich VII ot Florlda'. Nonresident Violator Compact states that entry into the compact is mad. by resolution ot ratification, executed by authori zed ort ic id. ot the applying jurisdiction, and including a citation ot the authority by which the jurisdiction i. empowerod to become a party to the compact, 23 Fla. stat, Ann, 5322.50, It the Driver License Compact provided tor such a procedure, other than enactment, the authorization in 75 Pa. C.S. 56146 would be sutficient to permit DOT to join the ~ompact by agreement, how~ver, it does not, The Commonwealth'. nttumpt to participate in the Compact wi thout enactment threa tons the Compact'. ertecti venen in other state., Oecisione trom juri.dictions where the Compact has been enacted illustrate the kind ot pr:oblem. that can arise when the Compact has not be.n enacted in the reporting state, In peocle v. Siems, 523 N,!,2d 727 (Ill. ^pp, ct, 1988), an Illinois appeals court retused to uphold a license llIuspension based on a Kentucky conviction becauee Kentucky had not enacted the Compact, In McKenzie v. Reaht.I.Ax, No, 9!l-01-005, 1996 Ohio App. LEXIS 854 (Ohio Ct. App, Mar, 5, 1996) (per curiam), the court reached the 47, 55781-788/ Or. Rev, Stat, 5802,540/ S,C. Code Ann. 5556-1-610 - 56-1-690 (Law, co-op. 1976)/ Utah Code Ann. 5541-2-501 - 41-2-506 (1953)/ Vt, Stat. Ann, tit, 23, 553901-3910; Va, Code 5546.2-483 - 46.2-488 (1950) / Wuh, Rev. Code Ann. 5546,21.010-46,21.040 (West) / W. Va. Code 55178-1A-1, 178-1A-2 (1986); Wyo. Stat. 5531-7-201, 31- 7-202 (1977). 6 ~ame conclusiQn, again based on KentuckY not having enacted the compact. In Division of Motor Vell~l.es v. KleiMtl, 486 A.2d 1J24 (N,J, Super, ct. App. oiv. 1985), the court r:eached a contrary concl.usion, upholding a suspension based on a Vermont conviction even though Vermont was not a member state, but only because another New Jersey statute, other than the compact, authorized suspension based on an out-of-state conviction, The Compact's language requiring enactment is consistent with the Commonwealth's established legal principles. Article III of the Compact would have the effect of making an out-of-state traffic offense punishable within the commonwealth, ~ at J, in contravention of the well-settled rule that only the legislature has the power to detine criminal offenses and to determine the punishment to be imposed.l Not only has the Compact not been enacted in the commonwealth, DOT has not complied with the pr:ocedures required to give effect to reciprocal agreements authorized by 75 Pa, C,S, 56146, DOT has failed to publish the compact in compliance with Part II of Title 45, as specified in 75 Pa. C.S. 56152, 00'1' published a notice of its membership in the Compact with a synopsis, 24 Pa. Bull, 5609 (1994), The full text of the Compact has never appe~red in the Pennsylvania Bulletin or in the Pennsylvania Code; therefore, DOT is not entitled to tho statutory 3 Section 107 of the Crimes Code, 18 Pa. C.S. 5107. In pertinent part, "(bl COIllllOD law orime. abolbbed.-- No conduct constitutes a crime unless it is a crime under this title or another statute of this Commonwealth." 18 Pa, C,S. 5107(b). 7 presumption ot 45 Pa. C,S. 5905 that the document was duly promulgated and that all applicable regulations were tollowed.4 w. are dismayed wi th DOT's lack ot candor during all phases ot this litigation, In its notice to sullivan, DOT made no mention ot the Compact as the basis tor the license suspension; Sullivan made his appeal knowing that his Nebraska trattic violation was not a viohtion ot 75 Pa, C,S, 51!532(b), At the statutory hearing, DOT announc.d that it waB proceeding under the Compact, citing to the Pennsylvania Bulletin. DOT's briet to this Court quotes ) iberally t~om the Compact. At no time was the Compact made part ot the recor:d in this case, even though the Compact is not published and is available to the public only through DOT, In weighing tho mer:its ot the arguments, the Court is entitled to review the Compact in its entirety, not just those provJ,sions that DOT deems pertinent. Because the Compact itselt requires that it be enacted into law by the legislatures ot all the participating states and because the Commonwealth has never enacted the Compact, DOT is without authority to proceed under the Compact to suspend the operator's license ot any Commonwealth resident based on an out-of- state conviction tor any tr:attic ottense, At the present time, DOT may not suspend an operator's license based on an out-ot-state 4 45 Pa. C.S. 5905 provides that publication ot a document in the code or the bulletin creates a rebuttable presumption that the document was duly issued or promulgated, approved as to legality, and all requirements othe~wise met. Even it DOT were entitled to the presumption, our conclusion that the Compact is invalid unless enacted ettectively rebuts this presumption. S COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSI)(mTATION (WHn: OF C'IIIU'I'OI'NSt:1. ,"WICI,I: & 'I!lAHK l.AW 1lI\'ISION IUn:llHIOI'iT OFHn: n:NTt:II 1101 SIlUTlIl'lION'r SHIEH IIAllIUSlIUIIG, rl:NNS\'l. \' ANI,\ 17104.1514 (717) 787.1H.\0 l'AX, (717) 705.1111 September 16, 1996 Judge George E, !'!oITer Court of Co 111m on Pleas of Cumberland COUnly Courthouse, I Courthouse Square Carlisle, PA 17013 .]1..0'/ REI Samuel Larry Reed, Jr, v Comlllw. or I'a" Dept. or Transportation, No. 96.306lt Civil Term Dear Judge Hoffer: Enclosed please Ilnd a MOlion for Continuance in the above mentioned malter, TIle malter is scheduled for hearing September 23, 1996. and the Department is respectfully requesting a cOnlinuance, I contacted Mr, Hershey, Esquire, auomey lor the mOlorist. and he does nOI object to the continuance. For your convenience, ! hllve prepared II proposed Order, Sincerely, . J t\A../{C"-?- Georg/H, Kabusk Assistant Counsel GK/gk Enclosures (3) Cc: David E. Hershey, Esquire, 2233 North Front Street. Harrisburg, PA 17110 , , " r. ; ., I " . I ... (11) yuur P~llllun~r '~I1e1ng p~null1ed 0 oee<llld llm~ fllr uClluno fur whlcl1 he hud I)r~vluuhly h~en penull1ed ond/ur woo llcqulll~d Ill' churl!~h, (c) lIullc~ III lh~ puhllc I. eOlltPined In the Pennhylvunlu llull~tiu Vul. 24, Nu, 4~, Nuv, ~, I'I'J4, p, ~()I)'I, Indkpted Ihpt unly dlUr~~h Ill' "drunk driving" ore r~dprocul ond lh~ chorge. ol!oin.t the dd~lIdunl did n'.,1 cUII.lltut~ drunk drlvllll!., (d) nllllncullllll III Ih~ puhlle Cllncernlng reciprllclly Uh wdl a. the Priv~r Ueen5f1 CumpucI uud Admlni.trollve Procedure. Mauuul, d~urly IndlcPte that driving a mlltllr vehicle while under the influence I. IImil~d III Ihn.c churgco which op~ciflcully ar~ "driving a motor vehicl~ whll~ lInd~r Ihe influenc~ uf alcohllllc h~verul!~' Ilr u nurcotic 10 a degr~~ which r~nder' Ihe driver Incupahl~ Ill' ,afdy drivilll!. n IllOlor vehicle" of which cunduct lhe defendunl Wllh nut I!ullty, (e) th~ 1)~nl1hylvania Bullelln, U6 well uo thc Driver licen.e Cum pact and Adminlhlrallve Procedure~ Manual, clearly Indicale, Ihul Ihe IIcenhlnl! authorily ill the home hlate .hall give 'ouch effecl to th~ conducl "' Is provided hy the law, of lh~ hllllle statc' and under the lawo uf th~ hllllle 'llll~ your Petllillner would h~ ARD eliglhle, (f) Ihe Driver Ucen~e Compacl I~ nul helng enforc~d lu Pennsylvania excepl f',r a f~w vllllullonh and said enforcement therefore d~nl~. equal prlltectlon and due proce," and has resulted In Illegal delegation of aUlh"rity and vlolallon of law, 2 961508940000504 -....... Sineertl\l, ~'S,~ RtbteeB L. Bickle~, Dirtetor 8ureBu of Driver Licensing SEND FEE/LICENSE/OL-16LC/TDI OePBrtment of TrBnsportBtion BureBu of Orivtr Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 INFORMATION (7100 AM TO 6130 PM) Pittsburgh Area - 412-565-5670 Philadelphia Area - 215-698-8100 Harrisburg Area - 717-787-3130 Toll Free 1- 800-932-4600 T.O.O. 1- 800-228-0676 ',II \ , ~ .. ~" "; -, I', .. ~J; . ... \:.': ;',' W " :.i )1 (:1: (I.) ',j <'I j G.l, 'i',) I <- '1.1.. 'i. u, :') u 1.:' U WI DO HI"C"V C~"T1" THAT THI WITHIN I A T.UI AND C'" ~lHe:l::~TH. ORIGINAL IV. AmwoNl'r- "j ,'.J ,., I' \ 'r . "-..,, l~..., '--> \ ' ~ \--- T-J ~, r~ - ~ 1\" ..... '-.J I) 1 'J ~ '" .... .....,1-> ~ ':...J 1-' ')' ..~ ::,. 'l< ~i~ SJ l,,"WQHIUb "'U MANCKE. WAGNER. HERSHEY & TUll vJU: :' 1 j996 [if . .Ih :"9 - III ~ ,1 '. ~ F ~ ~ Ii ~ Cl ~ F ~~~i~ ~ ~ ~ P UUl~i Za:A< <(WAX ::! J: ~W-HlMh hoI)f".,j M "I' ~ ~n" ...."t1'"u 1<1 I,., r.:1'N Vw\::.n I,QI fi~\' "1(;,, ~,~'.,,'1i"'~~:IJ'::~IoI."1 '~ I .Y..,~.- SAMUEL LARRY REED. JR, PETITIONER IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA lJ6.3064 v. DEPARTMENT OF TRANSPORTATION. : BUREAU OF DRIVER LICENSING RESPONDENT LICENSE SUSPENSION APPEAL MOTION !'OR CONTINUANCE The Commonweahh of Pennsylvania. Department ofTransportlltion, Bureau of Driver Licensing (Dep~.rtment). by and through its attorney, George H. Kabusk. Esquire, respectfully represents a~ follows: I. The Department mailed to Samuel Larry Reed, Jr.. a notice intimning him that as a result of the Department of Transportation (Deparllnent) receiving notification from Maryland of his conviction on March 25. 1996. of driving unrler the influence on July 3. 1995. which is the equivalent to Section 3731 of the pennsyl vania Vehicle Code, his driving privilege was being suspended for one year as mandated by Section 1532B of the Vehicle Code. 2. Mr. Reed tiled an appeal of the above mentioned suspension. 3. A hearing in the matter is schcduled for September 23, 1996,at 10:30 a.m. in Courtroom Number 3. 4. The suspension which is the subject of this appeal is based on the Driver License Compact (Compact). ('Olll/l/(I/III'l!allll '1(1'I!III1,I)'/I'<III/a. f)1!f!a,."lIt'l/l (1/7;"1II,ll/oI'lal/01/, IllIl'l'l/Il '!I'f)I'/VI!I' Uet'lIs/l/l(, 682 A.2d 5 (I'll, Cmwlth, 1996). 5. Thc suspcnsion which is thc subject ufthisappcal is bascd unthc Drivcr's Liccnsc Compact. 6. Thc Communwcalth Court on July 29, 1<)96, in SlIfl/vallv. ('Oll/lI/OIlWt'(IIIII 0/ Pel/I/.lylvall/a, f)ef!al'/Il/e/ll O/7;"III.ljJOl'I(II/01/. BIII'I!(/f/ '!I'DI'/wI' Un'IIs/lIg, 682 A.2d 5 (I'll. Cmwlth, 1996) hcld thatthc Dcpartmcnt did not hllvc lIuthority to suspcnd I) driver'sliccnsc ba~ed onlln out-of-statc conviction pUrSUal1l10 thc Driver's Liccnsc Compact bccausc it had not been propcrly cnactcd intu law. 7. Thc Suprcme COUl1acccptcd f!el/l/olI./iJI' aI/oCt/IIII' filcd by thc Dcpartmcnt. 8. The Suprcmc Cuurt affinncd thc ordcr uf thc Cummonwcalth Court in SIII//vall v, COllllllomveallh o/Pellllsylval//l/. Def!l/rtllll!/II of Trall.\11O/'Ial/cm. BIII'el/1I o./DI'/vf!/' Llcells/lIg, No. 0023 W.O. Appeal Docket 19<)7, in an opinion issued on Fcbrullry 26, 1998. 9. The Departmcnt had no authority 10 slIspcnd the motorist's operating privilege in this matter because the Commonwcalth had not propcrly enacted thc Driver's Licensc Compact at the time when the Departmel1ltook this action. J O. Thc Commonwealth cnactcd into law the Drivcr's License Compact by Section 10 of Act of 1996, Dec. 10, P.L. 925, No. 149, cffcctivc December 10, 1996, at 75 Pa. C.S. 1581-1585. II. The enactment ofthc Driver's Liccnsc Compact has no cffect on this suspension whi~h was based upon the Driuer's License Compact bcfore it was enacted. See MOl'eland v. Deparllllelll 0./ Trallsportal/oll, 70 I A.2d 294 (Pa. Cwmth. 1997). 12. The motorist's opcrating privilcgc has bccn rcstorcd pending appcal pursuant to Section 1550 of the Vehiclc Codc.