IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Victor Joseph Thorpe :
:
v. : No. 1095 C.D. 2018
: Submitted: April 26, 2019
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, :
:
Appellant :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION BY JUDGE WOJCIK FILED: July 12, 2019
The Department of Transportation, Bureau of Driver Licensing (DOT)
appeals the order of the Allegheny County Court of Common Pleas (trial court) that
sustained the appeal of Victor Joseph Thorpe (Licensee) from DOT’s 90-day
suspension of his operating privilege pursuant to Section 1532(d)(1) of the Vehicle
Code.1 We affirm.
1
75 Pa. C.S. §1532(d)(1). Section 1532(d)(1) states, in relevant part:
(d) Additional suspension.—[DOT] shall suspend the operating
privilege of any person upon receiving a certified record of the
driver’s . . . admission into a preadjudication program for a violation
under 18 Pa. C.S. §[]6308 (relating to purchase, consumption,
possession or transportation of liquor or malt or brewed
beverages)[.] The duration of the suspension shall be as follows:
(1) For a first offense, [DOT] shall impose a suspension for a
period of 90 days.
On September 17, 2017, Licensee was cited for a violation of Section
6308 of the Crimes Code.2 On March 8, 2018, pursuant to Section 6310.4(a), (b)(1)
of the Crimes Code,3 the Mercer County Court of Common Pleas (Mercer County
Court) notified DOT via an electronically transmitted Form DL-21C that Licensee
had a “Preadjudicative Disposition” of the charge. See Reproduced Record (R.R.)
at 22a. By March 16, 2018 letter, DOT notified Licensee of the suspension pursuant
to Section 1532(d)(1) of the Vehicle Code. See id. at 18a-21a. Licensee appealed
to the trial court.
At the trial court hearing, DOT offered into evidence a packet of
documents, marked as Exhibit 1. R.R. at 11a. As stated by DOT’s counsel at the
2
18 Pa. C.S. §6308 (prohibiting the purchase, consumption, possession, or transportation
of liquor or malt or brewed beverages by individuals under the age of 21 years of age).
3
18 Pa. C.S. §6310.4(a), (b)(1) (repealed effective April 22, 2019). The former Section
6310.4(a) and (b)(1) stated, in pertinent part:
(a) General rule.—Whenever a person . . . is admitted to any
preadjudication program for a violation of section . . . 6308 (relating
to purchase, consumption, possession or transportation of liquor or
malt or brewed beverages)[,] the court . . . shall order the operating
privilege of the person suspended. A copy of the order shall be
transmitted to [DOT].
(b) Duration of suspension.—When [DOT] suspends the
operating privilege of a person under subsection (a), the duration of
the suspension shall be as follows:
(1) For a first offense, a period of 90 days from the date of
suspension.
See also Section 1534(a) of the Vehicle Code, 75 Pa. C.S. §1534(a) (“[I]f a person is arrested for
any offense enumerated in section 1532 (relating to revocation or suspension of operating
privilege) and is offered and accepts Accelerated Rehabilitative Disposition [(ARD)] under general
rules, the court shall promptly notify [DOT].”).
2
hearing, Document 2 of Exhibit 1 is the Form DL-21C “that was electronically
transmitted to [DOT] by the office of the Clerk of [the Mercer County Court] on
March 8th of [2018],” which “shows that [Licensee] received a preadjudication
disposition from the Mercer County [Court] on the charge of violating [S]ection
6308 of the Crimes Code, the date of that offense being September 17, 2017.” Id. at
11a-12a. Following the trial court’s admission of the documents, DOT rested its
case. Id. at 12a.
Licensee’s counsel argued that DOT’s Exhibit 1, although certified by
DOT, was not sufficient to support Licensee’s suspension because DOT was
required to present documents certified by the Mercer County Court to sustain its
burden of proof. R.R. at 13a, 14a. With respect to DOT’s evidence, specifically the
Form DL-21C, counsel stated:
Well, I don’t know if that is from Mercer County, sir, or if
it is not. But if you kindly look at the document for the
certification that [DOT’s counsel] is referring to, it is
clearly a []DOT document, because there’s a []DOT seal
on the top left-hand side, the left-hand portion of the
document that was submitted. There’s no seal from
Mercer County, and there’s nothing establishing that
whatever certification they’re alleging [] was received
from Mercer County.
Id. at 15a. The trial court agreed, and sustained Licensee’s appeal. Id. See also id.
at 28a. DOT then filed the instant appeal to this Court.
On appeal,4 DOT alleges that the trial court erred in sustaining
Licensee’s appeal based on the admissibility of the Form DL-21C that was
4
“Our scope of review in a license suspension case is limited to determining whether
necessary findings are supported by competent evidence of record and whether the trial court
committed an error of law or abused its discretion in making its decision.” Levinson v. Department
of Transportation, Bureau of Driver Licensing, 926 A.2d 1284, 1285 n.5 (Pa. Cmwlth. 2007).
3
electronically transmitted to DOT. Nevertheless, assuming arguendo that DOT’s
allegation of error in this regard is correct,5 the record in this case demonstrates that
Licensee’s appeal of the suspension should be sustained because, as conceded by
DOT, “[t]he ‘Date of Disposition’ block on the DL-21C form is not completed.
(R.R. 22a).” Brief for Appellant at 18 n.8. Thus, the irregularity of the only evidence
offered by DOT to support the instant license suspension is manifest.
As this Court has explained:
“In a license suspension case, the only issues are
whether the criminal court convicted the licensee, and
whether [DOT] acted in accordance with applicable law.”
[DOT] bears the initial burden to establish a prima facie
case that a record of conviction supports a suspension. An
essential part of satisfying this burden is the production of
an official record of the conviction supporting the
suspension. [DOT] must also establish it acted in
accordance with applicable law.
Rawson v. Department of Transportation, Bureau of Driver Licensing, 99 A.3d 143,
147 (Pa. Cmwlth. 2014) (citations omitted).
Former Section 6310.4(a) of the Crimes Code, 18 Pa. C.S. §6310.4(a)
(repealed), stated that “[w]henever a person . . . is admitted to any preadjudication
program for a violation of section . . . 6308 (relating to purchase, consumption,
possession or transportation of liquor or malt or brewed beverages)[,] the court . . .
shall order the operating privilege of the person suspended. A copy of the order shall
be transmitted to [DOT].” See also Section 1534(a) of the Vehicle Code, 75 Pa. C.S.
5
See, e.g., Holt v. Department of Transportation, Bureau of Driver Licensing (Pa.
Cmwlth., No. 2232 C.D. 2015, filed June 13, 2017), slip op. at 9-14; Sections 6103, 6109 of the
Judicial Code, 42 Pa. C.S. §§6103, 6109; Sections 1516, 1550 of the Vehicle Code, 75 Pa. C.S.
§§1516, 1550; Pa. R. Crim. P. 471, 771. See also Section 414(a) of this Court’s Internal Operating
Procedures, 210 Pa. Code §69.414(a) (“Parties may . . . cite an unreported panel decision of this
court issued after January 15, 2008, for its persuasive value, but not as binding precedent.”).
4
§1534(a) (“[I]f a person is arrested for any offense enumerated in section 1532
(relating to revocation or suspension of operating privilege) and is offered and
accepts [ARD] under general rules, the court shall promptly notify [DOT].”);
Section 6323(1), 75 Pa. C.S. §6323(1) (“The clerk of any court of this
Commonwealth, within ten days after . . . other disposition of charges under any of
the provisions of this title . . . shall send to [DOT] a record of the judgment of . . .
other disposition.”).
With respect to the forms transmitted to DOT, Section 81.1 of DOT’s
regulations states:
This chapter defines more fully the requirements of 75
Pa. C.S. §§1534, 1771, 6104(a)[6] and 6323 (relating to
notice of acceptance of [ARD]; court reports on
nonpayment of judgments; administrative duties of
[DOT]; and reports by courts of record) by specifying the
information which shall be indicated in a certified copy of
a judgment . . . in a report by a court of record in order to
facilitate the obligation of the [DOT] to implement 75
Pa. C.S. (relating to Vehicle Code) and other statutes
administered by the [DOT].
67 Pa. Code §81.1 (emphasis added).
In turn, Section 81.4(a) of DOT’s regulations states, “The clerk of a
court of record of this Commonwealth, within 10 days after final judgment of . . .
other disposition of charges . . . shall send to [DOT] a record of the judgment of . . .
6
Section 6104(a) of the Vehicle Code states:
(a) Forms.—[DOT] shall prescribe suitable forms of applications,
certificates of title, registration cards, drivers’ licenses and all other
forms requisite or deemed necessary to carry out the provisions of
this title and any other laws the administration of which is vested in
[DOT].
75 Pa. C.S. §6104(a).
5
other disposition on Form DL-21.” 67 Pa. Code §81.4(a). See also Section 81.2(a),
67 Pa. Code §81.2(a) (“If a person is offered and accepts [ARD] under the
Pennsylvania Rules of Criminal Procedure for any offense enumerated in 75 Pa. C.S.
§1532 (relating to revocation or suspension of operating privilege), . . . the court
shall promptly notify [DOT] on Form DL-21A, under 75 Pa. C.S. §1534 (relating to
notice of acceptance of [ARD]).”).
Additionally, Section 81.4(b)(4) of DOT’s regulations states that “[t]he
report of the clerk of court . . . , Form DL-21, shall indicate: . . . (4) Date of
conviction or acquittal.” 67 Pa. Code §81.4(b)(4) (emphasis added). See also
Section 81.2(b)(4), 67 Pa. Code §81.2(b)(4) (“The report of the clerk of court, Form
DL-21A, shall indicate: . . . (4) Date individual was placed on [ARD].”) (emphasis
added).
Moreover, Section 81.4(c) of DOT’s regulations states:
(c) Incomplete report. [DOT] will not process the report
of the clerk of court showing conviction or acquittal unless
all the required information indicated in subsection (b) is
provided to [DOT]. An incomplete Form DL-21 will be
returned to the clerk of court for completion.
67 Pa. Code §81.4(c) (emphasis added). See also Section 81.2(c), 67 Pa. Code
§81.2(c) (“[DOT] will not process the report of the clerk of court showing [ARD]
unless all the required information indicated in subsection (b) is provided to [DOT].
An incomplete Form DL-21A will be returned to the clerk of court for completion.”)
(emphasis added).
As conceded by DOT herein, the “Date of Disposition” of Licensee’s
“Preadjudicative Disposition” of the instant charge has been omitted from the Form
DL-21C that was submitted to DOT by the Mercer County Court. See R.R. at 22a.
This is the only evidence submitted by DOT to support the instant license
6
suspension, id. at 11a-12a, and this evidence is missing critical information that is
required to be stated therein pursuant to DOT’s regulations. 67 Pa. Code
§§81.2(b)(4), 81.4(b)(4).
Moreover, pursuant to its regulations, DOT was compelled to refuse to
process the instant Form DL-21C submitted by the Mercer County Court because it
is missing this required information, and to return the Form DL-21C to that court for
completion. 67 Pa. Code §§81.2(c); 81.4(c).
Based on the foregoing, pursuant to its regulations,7 DOT should not
have processed the instant license suspension based upon the defective Form DL-
21C that was submitted by the Mercer County Court; rather, DOT should have
returned the incomplete Form DL-21C to the Mercer County Court for completion
to include the “Date of Disposition” of Licensee’s “Preadjudicative Disposition” of
the instant charge. Because the defective Form DL-21C was the only evidence
introduced by DOT to establish its prima facie case supporting the instant license
suspension, and because Licensee made no admissions with respect to the charge or
the disposition of the charge underlying the suspension, the trial court did not err in
sustaining Licensee’s appeal because DOT improperly imposed the suspension
based on the defective Form DL-21C.
Accordingly, the trial court’s order is affirmed. 8
7
These regulations “ha[ve] the force of law and [are] as binding as a statute on a reviewing
court.” Rostosky v. Department of Environmental Resources, 364 A.2d 761, 763 (Pa. Cmwlth.
1976) (citations omitted).
8
It is well settled that this Court may affirm on other grounds where the grounds for
affirmance exist. Karl Smith Development Company v. Borough of Aspinwall, 558 A.2d 181, 185
n.6 (Pa. Cmwlth. 1989).
7
MICHAEL H. WOJCIK, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Victor Joseph Thorpe :
:
v. : No. 1095 C.D. 2018
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, :
:
Appellant :
ORDER
AND NOW, this 12th day of July, 2019, the order of the Allegheny
County Court of Common Pleas dated July 26, 2018, is AFFIRMED.
MICHAEL H. WOJCIK, Judge