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

DISSENTING OPINION BY

Judge COHN JUBELIRER.

Because I disagree with the majority’s interpretation of Section 1533(d) of the *1018Vehicle Code, as amended, 75 Pa.C.S. § 1533(d), as well as its reliance on Rossi v. Department of Transportation, Bureau of Driver Licensing, 580 Pa. 238, 860 A.2d 64 (2004), and Commonwealth v. Williams, 872 A.2d 186 (Pa.Super.2005), I must respectfully dissent.

In this case, Ezra J. Burgess’s (Burgess) operating privilege was indefinitely suspended, effective July 5, 2007, pursuant to Section 1533(a),1 because he failed to timely respond to a citation that he received for speeding and driving an unregistered vehicle. Burgess paid the fine for the underlying citation on August 16, 2007, and he was deemed convicted of the charges on that date. The Pennsylvania Department of Transportation, Bureau of Driver Licensing (Department) subsequently suspended Burgess’s operating privilege for an additional fifteen days, pursuant to Section 1544(a) of the Vehicle Code, 75 Pa.C.S. § 1544(a),2 on the basis that his record showed an additional point accumulation while his operating privilege was suspended. Burgess accumulated the additional points due to his conviction for the speeding and driving an unregistered vehicle charges.

The majority opinion upholds the Department’s imposition of the fifteen-day add-on suspension, concluding that, pursuant to Section 1533(d), Burgess’s operating privilege remained “suspended until he paid his restoration fee as required by Section 1960 [of the Vehicle Code, as amended, 75 Pa.C.S. § 1960].” Burgess v. Department of Transportation, Bureau of Driver Licensing, 991 A.2d 1014, 1017 (Pa.Cmwlth.2010).

I respectfully disagree with the majority’s interpretation of Section 1533(d). Section 1533(d) provides:

(d) Period of suspension. — The suspension shall continue until such person shall respond to the citation, summons or writ, as the case may be, and pay all fines and penalties imposed or enter into an agreement to make installment payments for the fines and penalties imposed provided that the suspension may be reimposed by the department if the defendant fails to make regular installment payments and, if applicable, pay the fee prescribed in section 1960 (relating to reinstatement of operating privilege or vehicle registration).

75 Pa.C.S. § 1533(d). Like Burgess, I believe that Section 1533(d), by its plain language, performs two functions: (1) it specifies that the indefinite suspension period provided for in Section 1533(a) ends when a licensee responds to the citation and either pays all fines and penalties imposed or enters into an agreement to make installment payments for the fines and penalties imposed; and (2) it allows the De*1019partment to reimpose a suspension where a licensee “fails to make regular installment payments and, if applicable, pay the fee prescribed in section 1960.” Id. Section 1533(d) does not require a licensee to restore his operating privilege in order for the statutorily imposed indefinite suspension period to end.3

This interpretation is supported by the fact that the words “if applicable” immediately precede the “pay the fee prescribed in Section 1960” language contained in Section 1533(d). 75 Pa.C.S. § 1533(d). Significantly, Section 1960 provides that “[t]he department shall charge a fee of $25 or ... $50 to restore a person’s operating privilege or the registration of a vehicle following a suspension or revocation.” 75 Pa.C.S. § 1960 (emphasis added). This means that the general rule is that the restoration fee is always applicable. Thus, under the majority’s interpretation, the words “if applicable” do not have any meaning. However, Section 1921(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(a), requires that a statute must “be construed, if possible, to give effect to all its provisions.” 1 Pa.C.S. § 1921(a). I believe that the inclusion of the provision permitting a licensee to enter into an agreement to make installment payments for the fines and penalties imposed is a clear indication that the Legislature intended to give individuals who are not financially capable of immediately paying off the full amount of the fines and penalties imposed the opportunity to have their statutorily imposed indefinite suspension period end at an earlier time. I also believe that the Legislature considered that, in some situations, a licensee who enters into an agreement to make installment payments for the fines and penalties imposed might not immediately pay the restoration fee to actually have his operating privilege restored. Therefore, in order to give meaning to the words “if applicable,” I believe that the second part of Section 1533(d) should be construed as giving the Department the authority to reimpose an indefinite suspension in situations in which a licensee fails to follow through on making installment payments and fails to pay the restoration fee, if he has not already done so at an earlier time.

Moreover, while the majority relies on Rossi and Williams, I believe that such reliance is misplaced. In Rossi, the Pennsylvania Supreme Court upheld the Department’s imposition of an additional one-year suspension, pursuant to Section 1543(c)(1) of the Vehicle Code, as amend*1020ed, 75 Pa.C.S. § 1543(c)(1),4 against a licensee who had operated a motor vehicle in the time period following a statutorily imposed suspension period, but prior to the restoration of the licensee’s operating privilege. Rossi, 580 Pa. at 241-44, 860 A.2d at 65-67. In doing so, the Supreme Court relied on the language “and had not been restored,” which had been added to Section 1543(c)(1) in 1994. Id. at 241, 860 A.2d at 65-66. Specifically, the Supreme Court stated, “[i]n light of the language added, § 1543(c)(1) requires an individual to complete the proper administrative steps after a statutory suspension has ended before being entitled to drive without restriction.” Id. at 244, 860 A.2d at 67. Thus, it was the language “and had not been restored” added in Section 1543(c)(1) that gave the Department the authority to impose the additional suspension. In Williams, the Superior Court followed the Supreme Court’s holding in Rossi, but expanded upon it by holding that a licensee is not permitted to operate a motor vehicle until he receives formal notice that his driving privilege has been restored. Williams, 872 A.2d at 188-89.

Here, the Department imposed additional suspension time under Section 1544(a), and not Section 1543(c)(1), as in Rossi and Williams. Section 1544(a) allows additional suspension time to be added when a licensee’s record shows “an accumulation of additional points during a period of suspension or revocation.” 75 Pa.C.S. § 1544(a). Importantly, Section 1544(a) does not contain the same “and had not been restored” language that was added to Section 1543(c)(1). Thus, Section 1544(a) and Section 1543(c)(1) are materially different, and I do not believe that they were intended to be applied in the same manner. Unlike Section 1543(c)(1), which specifically gives the Department the authority to impose additional suspension time for operating a motor vehicle prior to having one’s operating privilege restored, Section 1544(a) does not give the Department the authority to impose additional suspension time for points accumulated following a statutory suspension period, but prior to the restoration of a licensee’s operating privilege. Therefore, Rossi and Williams do not control the outcome of this case.

Furthermore, while the purpose behind Section 1543 is to prevent a licensee from operating a vehicle during periods when he is not permitted to drive, Section 1533 serves a much different purpose; it encourages a licensee with outstanding citations to respond to those citations in a timely manner — the longer that the licensee waits to respond, the longer the indefinite suspension will continue to run. As soon as the licensee responds to the citation and pays the applicable fines and penalties, the need for the indefinite suspension ceases. Although Rossi and Williams make clear that there are additional administrative criteria that a licensee must satisfy before he may actually begin driving again without incurring an additional suspension, those cases do not provide any basis for holding that the indefinite suspension, itself, under Section 1533 must continue to run until the licensee’s operating privilege has been restored. Therefore, contrary to the majority, I do not *1021believe that Burgess’s interpretation of Section 1583 is inconsistent with Rossi and Williams.

Ultimately, given my belief that the period of Burgess’s indefinite suspension under Section 1533 ended when he responded to the citation and paid the fines and penalties imposed, I do not believe that the Department had the authority to impose additional suspension time under Section 1544(a). Once Burgess responded to the citation and paid the fines and penalties imposed, the need for the indefinite suspension under Section 1533 ceased. Because Burgess did not commit any driving infractions other than the initial infractions which gave rise to the citation, there is no reason why Burgess should not have simply received the points associated with those initial infractions.

Accordingly, I respectfully dissent.

. Section 1533(a) provides:

(a) Violations within the Commonwealth. — The department shall suspend the operating privilege of any person who has failed to respond to a citation or summons to appear before an issuing authority or a court of competent jurisdiction of this Commonwealth for any violation of this title, other than parking, or who has failed to pay any fine or costs imposed by an issuing authority or such courts for violation of this title, other than parking, upon being duly notified by an issuing authority or a court of this Commonwealth.

75 Pa.C.S. § 1533(a).

. Section 1544(a) provides:

(a) Additional point accumulation. — When any person’s record shows an accumulation of additional points during a period of suspension or revocation, the department shall extend the existing period of suspension or revocation at the rate of five days for each additional point and the person shall be so notified in writing.

75 Pa.C.S. § 1544(a).

. Section 1533(d) was, as the Department points out, amended to its current form after this Court’s decision in Department of Transportation, Bureau of Driver Licensing v. Cable, 135 Pa.Cmwlth. 475, 580 A.2d 1194 (1990). However, I do not believe that the amendments that were made to Section 1533 were intended to supersede this Court's holding in Cable and combine the statutorily imposed indefinite suspension period with the separate and distinct period that falls between the conclusion of an indefinite suspension and the restoration of a licensee’s operating privilege. In Cable, this Court was faced with the same issue presented in this case, but with regard to the former version of Section 1533, which provided, in relevant part: "The suspension [imposed for failing to respond to a citation] shall be for an indefinite period until such person shall respond and pay any fines and penalties imposed.” Id. at 1196 (alteration in original) (emphasis omitted). Interpreting this language, this Court held that the suspension period under Section 1533 ends when a licensee responds to the citation and pays the applicable fines and penalties. Id. Accordingly, the Court did not allow the Department to impose additional suspension time under Section 1544(a). Id. The Court explained that: "A period of suspension is a distinct condition under the Vehicle Code (as is a period of revocation) and is not identical to any or all periods of time when operating privileges have been lost or are unavailable and have not yet been restored.” Id.

. Section 1543(c)(1) provides:

(c) Suspension or revocation of operating privilege. — Upon receiving a certified record of the conviction of any person under this section, the department shall suspend or revoke that person’s operating privilege as follows:
(1) If the department’s records show that the person was under suspension, recall or cancellation on the date of violation, and had not been restored, the department shall suspend the person's operating privilege for an additional one-year period.

75 Pa.C.S. § 1543(c)(1) (emphasis added).