dissenting.
I agree with the majority that Barbera’s delivery of the title documents to Nelson’s was not equivalent to delivery of the documents to the Department for purposes of 75 Pa.C.S. § 1374(a)(5). I also agree that because Nelson’s is an authorized messenger service required to comply with Department regulations regarding timely submission of documents, its failure to submit Barbera’s title documents in a timely fashion constitutes a “relevant mitigating event” under § 1374(b) that should be considered in evalu*926ating the charges that Barbera violated § 1374(a)(5). I dissent from the judgment, however, because I do not believe that a remand to the Department is necessary or appropriate.
The order imposing the penalty stated, “The Department has not found sufficient mitigating events which would warrant exoneration, or reduction of the penalty.” R.5a. There is no record of whether Barbera argued that the messenger service’s fault was a “relevant mitigating circumstance” or whether the Board gave any consideration to this theory. It is thus possible that the Department has already done what the Court is directing it to do on remand, i.e., “decide whether it is appropriate to impose a penalty, and if so, what the proper amount of the penalty should be, in light of the relevant mitigating circumstances.” Majority opinion at 925, n. 8.
More importantly, Barbera’s appeal was taken pursuant to 75 Pa.C.S. § 1377(a). That section provides that the court shall schedule a hearing “and thereupon take testimony and examine into the facts of the case and determine whether the petitioner is entitled to registration, subject to suspension of registration or other sanction under the provisions of this title or departmental regulations.” As with driver’s license suspension and revocation appeals under § 1550, the common pleas court’s consideration of the matter is de novo. It has long been understood that in such de novo appeals although the court should give due consideration to the Department’s exercise of discretion in interpreting and applying the statute and regulations, it is not bound thereby. See Commonwealth v. Emerick, 373 Pa. 388, 96 A.2d 370 (1953). The Commonwealth Court thus erred in stating that “[t]he discretion to consider mitigating events is expressly granted to DOT, and DOT’S decision on that question should not be reversed absent an abuse of that discretion.” Commonwealth Court Memorandum Opinion at 1189-90.
After Barbera’s witness had testified, counsel for the Department argued to the court that “although [Barbera’s counsel] has explained the reason for the lateness, I don’t believe that is a relevant mitigating event....” The court then asked, “What would be a mitigating event if they are using a messenger service? Don’t they have a right to rely upon DOT’s licensing of the messenger service? If the person wasn’t reliable and so on, one would think DOT wouldn’t license them_” R. 25a-26a. Later, in explaining its reasons for sustaining the appeal, the court stated
I think we should emphasize the fact that the messenger service is licensed; that the cost of using the service is paid by the dealer ... and hence increases the dealer’s expense. The dealer ought to get something out of this, and one of the things they should get is the peace of mind that comes from knowing, if the darn stuff gets there late, its the messenger’s fault, and DOT can easily suspend the messenger’s license or hang the messenger out to dry as opposed to hanging the dealer out to dry.
R. 42a. Thus despite the court’s erroneous conclusion that delivery to the messenger was tantamount to delivery to the Department, the record adequately indicates as an alternative basis for its ruling that the court considered the fact that the lateness was attributable to the messenger to be a relevant mitigating event.
For these reasons, I would hold that Commonwealth Court erred by applying the abuse of discretion standard to the common pleas court’s review of the Department’s order imposing the penalty. Rather, the common pleas court’s decision was subject to reversal only for abuse of discretion, error of law, or lack of substantial evidence. Having determined that the common pleas court did not commit an error of law in treating the messenger’s delay as a relevant mitigating event, I would vacate the order of the Commonwealth Court and reinstate the order of the court of common pleas.
FLAHERTY, C.J., joins this Dissenting Opinion.