HomeMy WebLinkAbout00-2146 CivilCOMMONWEALTH OF
PENNSYLVANIA,
DEPARTMENT OF
TRANSPORTATION,
Respondent
Vo
JOHN ANDREW
VOGELSANG,
Petitioner
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 00-2146 CIVIL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Oler, J., September 21, 2000.
In this license suspension case, the petitioner appealed to this court from a
suspension of his driving privilege by the Pennsylvania Department of
Transportation. The suspension was imposed by the Department under a provision
of the Vehicle Code providing for a suspension where a licensee has committed an
offense in another state substantially similar to one which would occasion a
suspension in this state. Specifically, the Department suspended petitioner's
Pennsylvania driving privilege for one year as a result of his conviction in New
York State of driving while ability impaired, an offense which the Department
deemed equivalent to driving under the influence under Pennsylvania law.
A hearing was held on petitioner's appeal on June 26, 2000. At the
hearing, petitioner contended (1) that the New York offense was not equivalent to
Pennsylvania's offense,~ (2) that to the extent that a recent amendment to the
Pennsylvania Vehicle Code could be interpreted to equate the offenses for license
suspension purposes the amendment would be invalid,2 and (3) that an exhibit
l N.T. 7-8, Hearing, June 26, 2000 (hereinafter N.T. __).
2N.T. 8.
introduced by the Department relating to petitioner's New York conviction was
deficient and should not have been admitted into evidence.3
On August 3, 2000, the court issued an order denying petitioner's appeal
and affirming the suspension of petitioner's driving privilege. From this order,
petitioner filed an appeal to the Pennsylvania Commonwealth Court on August 31,
2000.
This opinion in support of the order appealed from is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925.
STATEMENT OF FACTS
According to a certificate of conviction from the Elmira, New York, City
Court, attached to petitioner's appeal from license suspension, petitioner
... on the 14th day of January, 2000, appeared before the
Hon. Steven W. Forrest on a charge of two counts of Driving
While Intoxicated in violation of Section 1192, subd. 2 and 3,
of the Vehicle and Traffic Law of the State of New York.
[Petitioner] on the 14th day of January, 2000, ... pled guilty
to the reduced charge of Driving While Ability Impaired, in
violation of Section 1192, subd. 1, of the Vehicle and Traffic
Law of the State of New York, and was sentenced to one year
Conditional Discharge, fined $400.00 and assessed the
mandatory surcharge of $25.00.4
As a result of this conviction, the Pennsylvania Department of Transportation
notified petitioner by letter dated March 10, 2000, of a one-year suspension of his
Pennsylvania driving privilege. The notice read, in pertinent part, as follows:
Section 1581 of the Vehicle Code requires the Department
to treat certain out of state convictions as though they had
occurred in Pennsylvania. Therefore, as a result of the
Department receiving notification from NEW YORK of your
conviction on 01/14/2000 of an offense which occurred on
01/02/2000, which is equivalent to a violation of Section 3731
3 N.T. 4-6.
4 Petitioner's Petition for Appeal from Order of Department of Transportation
Suspending Operator's License, paragraph 3 and Exhibit B.
2
of the Pa. Vehicle Code, DRIVING UNDER INFLUENCE,
your driving privilege is being SUSPENDED for a period of 1
YEAR(S), as mandated by Section 1532B of the Vehicle
Code.5
Petitioner filed an appeal from the notice of suspension with this court on
April 7, 2000. At the hearing held on petitioner's appeal, the Department
introduced an exhibit in the form of a certified Penn DOT record pertaining to
petitioner.6
This record included a document dated January 24, 2000, received by the
Department from the New York Department of Motor Vehicles. The New York
document did not contain a certification by an official from that state; it provided
the following notice of petitioner's conviction for driving while ability impaired:
THE FOLLOWING 4 OUT-OF-STATE DRIVERS, CONVICTED IN NEW YORK, ARE
BEING PROVIDED PER THE DRIVER LICENSE COMPACT AGREEMENT:
GENDER:M
MI: 21025805
VOGELSANG, JOHN, A DOB: 10/27/65
44 WINCHESTER GARDEN
CARLISLE PA ZIP: 17013
VIOL DATE: 01/02/00 CONY DATE: 01/14/00 ACD CODE: A25 ANSI CODE: DI6
VIOLATION: DRVG WHILE IMPAIRED
COURT: CHEMUNG COUNTY, CITY OF ELMIRA
COMMERCIAL VEH: IUNK.I HAZ. MATERIALS: [UNK.] TICKET [NO.]:
LD96548647
In objecting to the admission of this portion of the exhibit, petitioner's
counsel noted that the document had not been sealed and that, inter alia, it did not
specify the statutory section violated by petitionerfi The exhibit was admitted
over petitioner's objection.
5 Petitioner's Petition for Appeal from Order of Department of Transportation
Suspending Operator's License, paragraph 2 and Exhibit A; Commonwealth's
Exhibit 1, Hearing, June 26, 2000 (hereinafter Commonwealth's Exhibit !).
6 Commonwealth's Exhibit 1. The record was certified by the Director of the
Commonwealth's Bureau of Licensing.
7 Commonwealth's Exhibit 1.
8 N.T. 4-6.
As noted previously, following the hearing the court entered an order
denying petitioner's appeal and affirming the suspension of his license.
DISCUSSION
Section 1581 of the Pennsylvania Vehicle Code, which represents the
Commonwealth's joinder in and enactment of the Driver's License Compact,9
provides, in pertinent part, as follows:
Article III
Reports of Conviction
The licensing authority of a party state shall report each
conviction of a person from another party state occurring
within its jurisdiction to the licensing authority of the home
state of the licensee. Such report shall clearly identify the
person convicted, describe the violation specifying the section
of the statute, code or ordinance violated, identify the court in
~vhich action was taken, indicate whether a plea of guilty or not
guilty was entered or the conviction was a result of the
forfeiture of bail, bond or other security and shall include any
special findings made in connection therewith.
Article IV
Effect of Conviction
(a) The licensing authority in the home state, for the
purposes of suspension, revocation or limitation of the license
to operate a motor vehicle, shall give the same effect to the
conduct reported, pursuant to Article III of this compact, as it
would if such conduct had occurred in the home state in the
case of convictions for:
(2) driving a motor vehicle while under the
influence of intoxicating liquor ... to a degree which
renders the driver incapable of safely driving a motor
vehicle ....
9 See Sullivan v. Commonwealth of Pennsylvania, Department of Transportation,
550 Pa. 639, 708 A.2d 481 (1998).
4
(c) If the laws of a party state do not provide for offenses
or violations denominated or described in precisely the words
employed in subdivision (a) of this article, such party state
shall construe the denominations and descriptions appearing in
subdivision (a) of this article as being applicable to an'd
identifying those offenses or violations of a substantially
similar nature and the laws of such party state shall contain
such provisions as may be necessary to ensure that full force
and effect is given to this article.~°
Article IX of the compact provides, further, that the "compact shall be
liberally construed so as to effectuate the purposes thereof...
By legislation enacted in 1998, the General Assembly clarified (or changed,
depending upon one's viewpoint) two aspects of the compact for purposes of its
application in Pennsylvania. Section 1584 of the Vehicle Code was amended to
include the following language pertaining to reports of convictions received from
other states:
The omission from any report received by the department from
a party state of any information required by Article III of the
compact shall not excuse or prevent the department from
complying with its duties under [Article] IV ... of the
compact. ~2
Section 1586 of the Vehicle Code was added with regard to the equivalency
of offenses among party states:
The department shall, for purposes of imposing a
suspension or revocation under Article IV of the compact, treat
reports of convictions received from party states that relate to
driving, operating or being in actual physical control of a
vehicle while impaired by or under the influence of alcohol ...
as being substantially similar to section 3731 (relating to
driving under the influence of alcohol ...). The fact that the
offense reported to the department by a party state may require
a different degree of impairment of a person's ability to
10 Act of December 10, 1996, P.L. 925, {}4, 75 Pa. C.S. {}1581 (2000 Supp.).
~ Act of December 10, 1996, P.L. 925, §4, 75 Pa. C.S. {}1581 (2000 Supp.).
12 Act of December 21, 1998, P.L. 1126, {}20, 75 Pa. C.S. {}1584 (2000 Supp.).
operate, drive or control a vehicle than that required to support
a conviction for a violation of section 3731 shall not be a basis
for determining that the party state's offense is not
substantially similar to section 3731 for purposes of Article IV
of the compact.13
The statute in New York State respecting the offense of driving under the
influence provides in pertinent part as follows:
§ 1192 - Operating a motor vehicle while under the influence
of alcohol or drugs
1. Driving while ability impaired. No person
shall operate a motor vehicle while the person's ability
to operate such motor vehicle is impaired by the
consumption of alcohol.
2. Driving while intoxicated; per se. No person
shall operate a motor vehicle while such person has. 10
of one per centum or more by weight of alcohol in the
person's blood as shown by chemical analysis of such
person's blood, breath, urine, or saliva ....
3. Driving while intoxicated. No person shall
operate a motor vehicle while in an intoxicated
condition.TM
The statute in Pennsylvania respecting the offense of driving under the
influence provides in pertinent part as follows:
§3731. Driving under the influence of alcohol or controlled
substance.
(a) Offense defined.--A person shall not drive, operate or
be in actual physical control of the movement of a vehicle in
any of the following circumstances:
(1) While under the influence of alcohol to a
degree which renders the person incapable of safe
driving.
Act of December 21, 1998, P.L. 1126, §21, 75 Pa. C.S. {}1586 (2000 Supp.).
N.Y. Veh. & Traf. Law, §1192(1), (2), (3).
6
(3) While under the combined influence of
alcohol and any controlled substance to a degree
which renders the person incapable of safe driving.
(4) While the amount of alcohol by weight in
the blood of:
(i) an adult is 0.10% or greater; or
(ii) a minor is 0.02% or greater.
The issue raised by petitioner in the instant case with regard to the
equivalency of New York's driving while ability impaired offense with
Pennsylvania's driving under the influence offense, for purposes of the compact,
has been considered by the Honorable Kevin A. Hess of this court in Singleton v.
Commonwealth of Pa., Dept. of Transportation, No. 00-0366 Civil Term (June 30,
In resolving this issue adversely to the licensee, Judge Hess stated as
2000).
follows:
[One] issue raised by the [licensee/petitioner] is whether or
not the offense of Driving While Impaired in New York is an
offense "substantially similar" to the Pennsylvania DUI statute
so as to warrant suspension. Our courts have earlier held that
these two offenses are not substantially similar. See Olmstead
v. Dept. of Transp., 677 A.2d 1285 (Pa. Cmmwlth. 1966) and
Petrovick v. Dept. of Transp., Bureau of Driver Licensing, 741
A.2d 1264 (Pa. 1999). In an apparent reaction to these two
cases, the legislature amended Section 1586 of the Motor
Vehicle Code to include the following language:
The fact that the offense reported to the department by
a party state may require a different degree of
impairment of a person's ability to operate, drive or
control a vehicle than that required to support a
conviction for a violation of section 3731 shall not be a
basis for determining that the party state's offense is
not substantially similar to section 3731 for purposes
of Article IV of the compact.
75 Pa. C.S. Section 1586. We are satisfied that this new
language defeats the petitioner's present argument. 16
Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §3731(a) (2000
Supp.).
7
The issue raised by petitioner in the instant case with regard to the validity
of Section 1586 of the Vehicle Code as thus interpreted has also been considered
by Judge Hess in Singleton, wherein the licensee/petitioner contended that the
provision "violate[d] the contractual provisions of the compact and the petitioner's
due process rights under the Pennsylvania and federal constitutions.''~7 The issue
was resolved adversely to the licensee/petitioner by Judge Hess.~8
In this regard, the rationale adopted by the Honorable R. Barry McAndrews
of the Court of Common Pleas of Chester County in Commonwealth of
Pennsylvania, Department of Transportation v. Wenger, No. 99-4618-20-6
(Chester Co., November 23, 1999) is also helpful. In I, Venger, President Judge
McAndrews held that the 1988 legislation as it related to reporting requirements
by party states "[h]ad not unilaterally altered the Compact .... Rather, the
amendment merely demonstrate[d] the legislative intent as to how the Compact
should be construed. See 75 Pa. C.S. {}1581, Article IX.'d9 The 1988 legislation
as it related to equivalency of offenses may similarly be regarded as representative
of the legislature's intent as to the construction of the compact.
The issues raised by petitioner in the instant case with regard to the report
of his conviction from New York State have also been considered by Judge Hess
in Singleton. In resolving these issues adversely to the licensee, Judge Hess stated
as follows:
... The first contention [of the licensee/petitioner] is that
the record of the New York conviction is inadmissible. In
16 Singleton v. Commonwealth of Pa., Dept. of Transportation, No. 00-0366 Civil
Term, Slip Op. at 2-3 (June 30, 2000).
~? Singleton v. Commonwealth of Pa., Dept. of Transportation, No. 00-0366 Civil
Term, Slip Op. at 3 (June 30, 2000).
~8 Singleton v. Commonwealth of Pa., Dept. of Transportation, No. 00-0366 Civil
Term, Slip Op. at 3 (June 30, 2000).
~9 Commonwealth of Pa., Dept. of Transportation v. I, genger, No. 99-4618-20-6
Civil Term, Slip. Op. at 5 (Chester Co., November 23, 1999).
support of his contention he cites Hoover v. Com., Dept. of
Trans., 725 A.2d 1254 (Pa. Cmmwlth. 1999). In Hoover, the
department attempted to suspend the appellant's operating
privileges for a violation of the Drug, Devi[c]e and Cosmetic
Act. The court held that a certified record of the convictioh
was necessary in light of 42 Pa. C.S. Section 6103 which
governs the proof of official records "kept within this
Commonwealth." The matter sub judice, of course, involves
an out-of-state record and, as Hoover itself notes, such records
are governed by 75 Pa. C.S. Section 1550(d). That section, in
turn, provides that documents received from out of state
become the records of DOT and are admissible. We agree with
the [licensee/petitioner] that Section 1532(b)(3) appears to
suggest that reports made pursuant to the Drivers License
Compact are required to be certified. Such an interpretation,
however, is clearly at odds with Section 1550(d). As noted in
the law of statutory construction:
(a) The object of all interpretation and construction of
statutes is to ascertain and effectuate the intention of
the General Assembly. Every statute shall be
construed, if possible, to give effect to all its
provisions.
1 Pa. C.S.A. Section 1921. We are satisfied that it was the
intention of the legislature to relax reporting requirements
with respect to out-of-state convictions. This is evident from
no less than the adoption of the compact itself which requires
the department to act upon receipt of "reports" of convictions
in other jurisdictions. See 75 Pa. C.S.A. 1581.
Next, the petitioner alleges that the report from New York
does not contain the required information by which the
department can act pursuant to the Drivers License Compact.
This issue we recently resolved adversely to the motorist in
Fox v. Com. of PA. Dept. of Transp., Cumberland County,
2000-0145. In that case we found that this situation was
governed by Section 1584 of the Vehicle Code as recently
amended. Succinctly stated, that provision provides that the
department may suspend a license based upon the report of a
9
conviction even though the report does not comply strictly
with Article 111.20
20 Singleton v. Commonwealth of Pa., Dept. of Transportation, No. 00-0366 Civil
Term, Slip Op. at 1-2 (June 30, 2000).
Judge Hess expressed the rationale for the holding that the Department may
suspend a license based upon a report of conviction even though the report does
not comply strictly with Article III in Fox v. Com. of Pa. Dept. of Trans., No. 00-
0145 Civil Term, Slip Op. at 1-4 (May 22, 2000), as follows:
...[Licensee/petitioner] contends that PennDOT failed to
satisfy the requirements of the Driver's License Compact (in
Pennsylvania at 75 Pa. C.S.A. 1581 et seq.). Article III of the
Compact requires that the "licensing authority of a party state
shall report each conviction of a person from another party
state occurring within its jurisdiction to the licensing
authority of the home state of the licensee." 75 Pa. C.S.A.
1581. The Compact further requires that such reports shall:
(1) clearly identify the person convicted; (2) describe the
violation specifying the section of the statute, code or
ordinance violated; (3) identify the court in which action was
taken; and (4) certify how the conviction was obtained (by
trial, guilty plea or as a result of some kind of forfeiture). In
1998, the Commonwealth Court held that the reporting
requirements of Article III were mandatory and that a failure
to fully comply with the reporting requirements made the
suspension of the motorist's operating privileges improper.
See Mazurek v. Com., Dept. of Transp., 717 A.2d 23 (Pa.
Cmwlth. 1998). In an apparent response, the legislature
amended the Vehicle Code to provide, at 75 Pa. C.S.A. 1584,
that:
The omission from any report received by the
department from a party state of any information
required by Article III of the Compact shall not excuse
or prevent the department from complying with its
duties under Article IV and V of the Compact.
Article IV of the Compact requires the licensing authority
of the home state to give the same effect to out-of-state
conduct as it would if such conduct had occurred in the home
state.
10
In this case, the Department of Transportation submitted a
[state] driving record which contained [the
licensee/petitioner's] name and Pennsylvania driver's license
number, his date of birth, gender and eye color, a violatioti
date, conviction date and a description of the offense which
merely read "operate under influence liq./drugs." The report
... clearly failed to comport with the requirements of Article
III of the Compact. Under Mazurek, supra, [the
licensee/petitioner] would be entitled to relief. The
department counters, however, that the strict application of
Article III is no longer necessary because of the 1998
amendment to the Vehicle Code. [The licensee/petitioner]
argues, in turn, that the language of Section 1584 relaxing the
reporting requirements of Article III is unconstitutional.
There are not yet any appellate decisions on this issue. The
lower courts are split.
In Com. Department of Transp. v. Anderson, 48 Ches. Co.
Rep. 3 (1999) Chester County Judge James P. MacElree
considered the notice requirements of Article III of the
Compact to be of constitutional dimension. Concerning the
1998 amendments to the Vehicle Code relaxing those
requirements, Judge MacElree observed:
The Amendment violates the specific requirements of
Article III of the Compact and it violates due process
requirements under the United States and Pennsylvania
Constitutions. [T]he purpose of due process notice is
founded on the concept of fundamental fairness. Due
process requires that the defendant have enough
information to respond to the charge. An examination
of 75 Pa. C.S.A. §1584 reveals a broad and sweeping
provision, which permits Pennsylvania to suspend a
driver's license where "any information" is omitted
from the report required by Article III of the Company.
Applying § 1584 literally could result in Pennsylvania
suspending the license of a driver where the report
only contained the licensee's name or operator's
license number. Such-notice would be really no notice
at all because it would lack fundamental facts
sufficient to advise the licensee of who, what, where or
when an alleged violation occurred.
11
While we certainly share Judge MacElree's concerns,
nonetheless, we will follow the approach taken by Bucks
County President Judge R. Barry McAndrews. In Com. of
Pa., Dept. of Transp. v. Wenger, 73 Bucks Co. L. Rep. 54
(2000), he wrote:
This Court agrees with Judge MacElree in part, but
disagrees with [his] conclusion that the amendment is
per se unconstitutional. First, it is a well-established
principle of statutory construction that vests all
enactments of the legislature with a strong
presumption of constitutionality. 1 Pa. C.S. §1922,
Plowman v. Department of Transportation, 535 Pa.
314, 635 A.2d 124 (1993). Second, a court reviewing
a statute should interpret the enactment of the
legislature in a constitutional manner, if possible. 1
Pa. C.S. §1922(3), Commonwealth v. Hude, 492 Pa.
600, 425 A.2d 313 (1980); Commonwealth v.
McDonald, 464 Pa. 435,347 A.2d 290 (1975). Article
IX of the Compact clearly sets forth that the provisions
of the Compact should be broadly construed so as to
effectuate the Compact's remedial purpose. 75 Pa.
C.S. §1581, Article IX; See also, 1 Pa. C.S. §1928(c)
(regarding liberal construction of statutes). Procedural
due process simply requires that the Department of
Transportation provide the licensee with sufficient
notice of the conduct that forms the basis of the
Department's action so that the licensee can prepare a
defense. The use of an out-of-state conviction report
that does not fully comply with all the technical
requirements of Article III does not necessarily
impinge on Petitioner's due process rights. The
Department still has the burden of proof; hence the
report must still be suitably informative so as to allow
the Department to identify the driver and the offense
for which the driver has been convicted. In other
words, the report must still contain the fundamental
facts.
We reach the same conclusion as Judge McAndrews and for
the same reasons.
12
"It is well-settled that, absent the most compelling circumstances, a judge
should follow the decision of a colleague on the same court when based on the
same set of facts." Yudacufski v. Commonwealth of Pennsylvania, Department of
Transportation, 499 Pa. 605,612, 454 A.2d 923,926 (1982). No circumstances in
the present case suggested any infirmities in the logic of the holdings of Judge
Hess on the issues presented.
For the foregoing reasons, the order of court denying petitioner's appeal
and affirming the Department's suspension of his driving privilege was entered.
BY THE COURT,
.~esley O~r,/ Jr., J.
George Kabusk, Esq.
Office of Chief Counsel
Department of Transportation
3rd Floor, Riverfront Office Center
1101 South Front Street
Harrisburg, PA 17104-2516
Attorney for Respondent
Paul B. Orr, Esq.
50 East High Street
Carlisle, PA 17013
Attorney for Petitioner
13