Mohamed v. Commonwealth, Department of Transportation, Bureau of Motor Vehicles

DISSENTING OPINION BY

Judge LEAVITT.

The majority yields to the request of the Department of Transportation to correct a “legislative inadvertence” in the Judicial Code. Because such a correction requires an act of the General Assembly, I must respectfully dissent.

The Pennsylvania Constitution has invested the General Assembly with exclusive power to determine the jurisdiction of our courts.1 In accordance with our Constitution, the General Assembly has vested Commonwealth Court with general authority to provide judicial review of “final orders of government agencies” rendered in accordance with the Administrative Agency Law. 42 Pa.C.S. § 763(a)(1).2 Such final orders include those issued by the Department.

There are a few exceptions to this general rule. The legislature has conferred jurisdiction upon the courts of common pleas to provide judicial review of a limited number of “final orders of government agencies” that would otherwise be heard by Commonwealth Court. Section 933 of the Judicial Code states, in relevant part, as follows:

Each court of common pleas shall have jurisdiction of appeals from final orders of government agencies in the following cases:
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(ii) Determinations of the Department of Transportation appealable under the following provisions of Title 75 (relating to vehicles):
Section 1377 (relating to judicial review).
Section 1550 (relating to judicial review).
Section 4.724(b) (relating to judicial revieio). 3
*462Section 7303(b) (relating to judicial review).
Section 7503(b) (relating to judicial review).

42 Pa.C.S. § 933(a)(1)(ii)(emphasis added). The majority adds a sixth section of the Vehicle Code, ie., Section 4726(c), to this list. For several reasons, this is error.

First, the majority disregards the language of the statute. Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), 585 Pa. 366, 372, 888 A.2d 758, 761 (2005). Where the words of a statute are clear and free of ambiguity, “the letter of it cannot be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(a).

A straightforward reading of Section 4726(c) and Section 763(a)(1) of the Judicial Code, 42 Pa.C.S. § 763(a)(1), establishes that the mechanic whose certification is suspended by the Department is entitled to a Title 2 hearing before the Department followed by judicial review from this Court in our appellate jurisdiction. Section 4726(c) states:

(c) Judicial review. — Any mechanic whose certificate has been denied or suspended under this chapter shall have the right to appeal to the court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure). The court shall set the matter for hearing upon 60 days’ written notice to the department and take testimony and examine into the facts of the case and determine whether the petitioner is entitled to certification or is subject to suspension of the certification under the provisions of this chapter.

75 Pa.C.S. § 4726(c). Section 4726(c) does not appear in the list of Department actions for which the courts of common pleas have jurisdiction by reason of Section 933(a)(l)(ii) of the Judicial Code. Accordingly, the general rule for appeals of final orders of government agencies set forth in 42 Pa.C.S. § 763(a)(1) applies to Section 4726(c) suspensions.4

*463Second, there is no ambiguity in the statutory scheme. It is true that this scheme provides that the suspension of an inspection station license will be litigated in a different way than the suspension of an individual mechanic’s license. It may be more logical and convenient to have the two proceedings conducted before the same tribunal and at the same time. An inconsistency, however, is not a conflict, and an inconsistency does not give this Court permission to disregard the language of the statute. As has been explained by our Supreme Court:

There is nothing inherently inconsistent in the existence of two distinct statutory procedures for the resolution of the same disputes, even though the result may be a lack of symmetry in the area.

Pennsylvania Turnpike Commission v. Sanders & Thomas, Inc., 461 Pa. 420, 429, 336 A.2d 609, 614 (1975). In short, the lack of symmetry in the Judicial Code does not create an ambiguity.

The Department claims that Title 42 is ambiguous, so that it may invoke the extrinsic aids to determine legislative intent.5 The particular aid invoked by the Department is its “expertise” in the licensing of inspection stations and individual mechanics. However, this expertise extends no further than the standards by which an inspection station or mechanic will be licensed. The Department has no expertise in the jurisdiction of Pennsylvania’s courts; merely to state the proposition that the Department has such expertise is to refute it.

Third, the courts may not fix what the Department calls a “legislative inadvertence” or a “legislative oversight” in omitting “Section § 4726(c)” from the list in Section 933(a)(1)(h) of the Judicial Code. Department Brief at 5, 12. Our Supreme Court has provided clear direction to the courts with regard to statutory omissions:

As the court in construing a statute must ascertain and give effect to the legislative intent as expressed in the language of the statute, the court cannot, under its powers of construction, supply omissions in a statute, especially where it appears that the matter may have been intentionally omitted. It makes no difference that the omission resulted from inadvertence, or because the case in question was not foreseen or contemplated, ... The intention and meaning of the Legislature must primarily be determined from the language of the statute itself, and not from conjectures aliunde. When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction.... This principle is to be adhered to notwithstanding the fact that the court may be convinced by extraneous circumstances that the legislature intended to enact something very different from that which it did enact....

*464Commonwealth ex rel Cartwright v. Cartwright, 350 Pa. 638, 645-646, 40 A.2d 30, 33 (1944) (emphasis added, citations omitted). Accordingly, the majority’s conviction that the General Assembly meant “to enact something very different” from what appears in Section 933(a)(1)(ii) of the Judicial Code does not allow it to overlook what has been stated there with textual precision.

The statutory construction principle ex-pressio unius est exclusio alterius teaches that the legislature’s failure to include Section 4726(c) in the very specific list of Department orders in Section 933(a)(l)(ii) of the Judicial Code was intentional.6 In L.S. ex rel. A.S. v. Eschbach, 583 Pa. 47, 56, 874 A.2d 1150, 1156 (2005), our Supreme Court explained that this canon of statutory construction requires courts to “refrain from judicially expanding” a statutory list of persons whose ability to sue a tortfeasor in an automobile accident was limited.

Practitioners must be able to rely upon the text of the Judicial Code as the firm authority on matters of jurisdiction. To amend the Judicial Code by decisional law renders its actual text unreliable. Thus, instead of clarifying a legislative enactment, the majority opinion creates a new uncertainty. Notwithstanding the majority’s decision, the text of Section 933(a)(l)(ii) of the Judicial Code will continue to be absent of any reference to 75 Pa.C.S. § 4726(c).

Because it is strictly the prerogative of the General Assembly to establish the jurisdiction of our courts, I dissent. I would remand the matter of Mr. Mohammed’s suspension to the Department for a hearing in accordance with the Administrative Agency Law.

President Judge LEADBETTER and Judge COHN JUBELIRER join in this dissent.

.Article 5, section 4 states:

The Commonwealth Court shall be a statewide court, and shall consist of the number of judges and have such jurisdiction as shall be provided by law. One of its judges shall be the president judge.

Pa. Const. art. 5, § 4.

Article 5, section 5 states:

There shall be one court of common pleas for each judicial district
(a) having such divisions and consisting of such number of judges as shall be provided by law, one of whom shall be the president judge; and
(b) having unlimited original jurisdiction in all cases except as may otherwise be provided by law.

Pa. Const. art. 5, § 5.

. Section 763(a)(1) of the Judicial Code, relating to appeals from government agencies, provides in relevant part:

... the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders in government agencies in the following cases:
(1) All appeals from Commonwealth agencies under Subchapter A of Chapter 7 of Title 2 (relating to judicial review of Commonwealth agency action) or otherwise ....

42 Pa.C.S. § 763(a)(1). Title 2 is the Administrative Agency Law, 2 Pa.C.S. §§ 501-508, 702-704. Section 501 makes its terms applicable "to all Commonwealth agencies.” 2 Pa.C.S. § 501(a).

. Section 4724(b) of the Vehicle Code relates to the judicial review of the Department’s *462suspension of a certificate to operate an official inspection station.

. The second sentence of Section 4726(c) authorizes this Court to take additional evidence in the appeal. By contrast, no evidence would be taken by this Court in an inspection station certification appeal from common pleas court. In any case, the parties to a Section 4726(c) appeal to this Court do not have to supplement the agency record on appeal. Parties often sidestep the opportunity to supplement the agency record in local , agency appeals brought to common pleas courts under the Local Agency Law, 2 Pa.C.S. §§ 551-555, 751-754.

A petition for review may be filed that invokes this Court's appellate and original jurisdiction. See, e.g., Werner v. Zazyczny, 545 Pa. 570, 578, 681 A.2d 1331, 1335, n. 5 (1996); see also 20A G. Ronald Darlington, et al., Pennsylvania Appellate Practice, §§ 1502.11, 1513.2. A Section 4726(c) petition for review could invoke only our appellate jurisdiction where the petitioner did not want a de novo hearing. In such a case, the petition for review would omit the notice to plead and verification, which are required whenever the petitioner invokes our original jurisdiction. Pa R.A.P. 1513(e). See also 20 Darlington, § 27:117 (discussing multiple sources of right to appeal).

Authorizing a court to supplement the record or to hear a matter de novo on appeal is not unique to Section 4726(c) proceedings. For example, “[a]ppeals to this Court from Board [of Finance and Revenue] decisions are heard de novo based on the record created before this Court or on stipulated facts,” Farda v. Commonwealth, 849 A.2d 297, 299 n. 4 (Pa.Cmwlth.2004) (emphasis added). Under the Liquor Code, "[t]he court [of common pleas] shall hear the application de novo on questions of fact, administrative discretion and such other matters as are involved....” Section 464 of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 4-467. In land use appeals, "[i]f, ... it is shown that proper consideration of the land *463use appeal requires the presentation of additional evidence, a judge of the court may hold a hearing to receive additional evidence, may remand the case to the body, agency or officer whose decision or order has been brought up for review, or may refer the case to a referee to receive additional evidence.” Section 1005-A of the Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, 53 P.S. § 11005-A.

. Where the words are not ''explicit,” then intention may be ascertained by considering, "inter alia, the occasion and necessity of the statute, the consequences of a particular interpretation, or administrative interpretations.” Gardner, 585 Pa. at 372, 888 A.2d at 761. Here, the words are explicit. Section 4726(c) of the Vehicle Code is not in the list contained in Section 933(a)(l)(ii) of the Judicial Code.

. We recognize that the Supreme Court has cautioned against using this canon of statutory construction to supplement the extrinsic aids in Section 1921(c) of the Statutory Construction Act, 1 Pa.C.S. § 1921(c). St. Elizabeth's Child Care Center v. Department of Public Welfare, - Pa. -, -, 963 A.2d 1274, 1278 (2009). Here, the canon is invoked to confirm the plain meaning rule of Section 1921(b), 1 Pa.C.S. § 1921(b).