Gigous v. Commonwealth, Department of Transportation, Bureau of Driver Licensing

DISSENTING OPINION BY

Senior Judge KELLEY.

I respectfully dissent. The Majority fails to give effect to the plain, express language of Section 3806 of the Vehicle Code, 75 Pa.C.S. § 3806.

The Majority’s expression of disbelief that the General Assembly would enact a general rule in subsection (a) of Section 3806, only to negate its application in relation to subsection (b), is flatly contradicted by the clear, unambiguous language of the statute itself:

(a) General rule. — Except as set forth in subsection (b), the term prior offense as used in this chapter shall mean

75 Pa.C.S. § 3806(a) (emphasis added). There can be no more clearly intended legislative expression of an exception to subsection (a)’s general rule than the phrase employed by the General Assembly in the first sentence of the subsection. Any construal of the entirety of Section 3806 as providing for the application of subsection (a) to the case sub judice — the calculation of Licensee’s prior offenses, if any, pursuant to Section 38021 — directly and brazenly contradicts the clear, unambiguous language of Section 3806 as a whole.

In Commonwealth v. Nieves, 935 A.2d 887 (Pa.Super.2007), petition for allowance of appeal denied, 597 Pa. 714, 951 A.2d 1162 (2008), relied upon by the Majority, Judge Gantman noted in her concurring statement:

Frankly, I think that 75 Pa.C.S.A. § 3806 is no model of clarity. Although subsection (a) provides a definition of prior offense, subsection (a) is plainly modified by subsection (b). Subsection (b) suggests a recidivist philosophy because subsection (b) calculates repeat offenses as dispositions occurring within ten years before the present offense occurred. Nevertheless, we are bound by *1204the [Commonwealth v. Stafford, 932 A.2d 214 (Pa.Super.2007) ] decision.

Nieves, 935 A.2d at 890 (concurring statement by Gantman, J.) (emphasis in original). Notwithstanding the respect due to our colleagues on Superior Court, I note that this Court is not constrained to follow Stafford, and is not addressing, as both Nieves and Stafford did, criminal sentencing, or simultaneous convictions. Notwithstanding Judge Gantman’s astute observation regarding the clarity, or lack thereof, within Section 3806, that section is quite clear in its application to this matter.

Judge Gantman raises a salient point in emphasizing that the General Assembly specifically chose as a reference point for determining prior offenses, under subsection (b), the period of “ten years before the present violation occurred ...” 75 Pa. C.S. § 3806(b) (emphasis added). The composition of the remaining portions of both subsections (a) and (b) of Section 3806 demonstrate the General Assembly’s intention to differentiate between a “conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition,” and a “violation.” 75 Pa.C.S. 3806(a) and (b) (emphasis added). We can, as a matter of statutory interpretation, only conclude that the General Assembly expressly intended to differentiate between a date of disposition, and a date of violation, in choosing the latter for the reference point in determining prior offenses under Section 3806. Similarly, we cannot, again as a matter of basic statutory interpretation, disregard the General Assembly’s choice of the occurrence of a violation, rather than the disposition thereof, as the foundation of prior offense determination. Any other interpretation of this Section serves to ignore the plain and express meaning of the language chosen by the General Assembly.

The plain language of Section 3806(a) expressly excepts from the determination of prior offenses repeat offenses as articulated in subsection (b), including those under Section 3804,2 as is applicable to the instant matter. The plain language of subsection (b) of Section 3806 expressly defines the date of occurrence of the present violation, and not any disposition, as the triggering date from which the ten year look-back should commence. It is axiomatic that when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921. Further, as our Supreme Court has stated, our Courts, in interpreting statutory language, must give effect to the meaning of each distinct word as chosen by the General Assembly. Freundt v. Department of Transportation, 584 Pa. 283, 883 A.2d 503 (2005).

Accordingly, I would reverse.

. 75 Pa.C.S. § 3802.

. 75 Pa.C.S. § 3804.