C. N. Perry v. Bureau of Driver Licensing (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Christopher N. Perry v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant BEFORE: : : : : : : : : No. 589 C.D. 2007 Submitted: February 15, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: March 13, 2008 The Department of Transportation, Bureau of Driver Licensing (DOT) appeals from the order of the Court of Common Pleas of Philadelphia County (trial court) which sustained the appeal of Christopher N. Perry (Perry) from a one year suspension of his driver s license pursuant to Section 1543(a) of the Vehicle Code (Code), 75 Pa. C.S. §1543(a).1 1 Section 1543(a) of the Code states in pertinent part as follows: (a) Offense defined. -- Except as provided in subsection (b), any person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation, or cancellation of the operating privilege and before the operating privilege has been restored is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200. Section 1543(c)(1) of the Code provides in pertinent part as follows: (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: (Footnote continued on next page ¦) By official notice dated August 11, 2006, DOT informed Perry that his operating privilege was suspended for one year effective September 22, 2006, as a result of his conviction on August 8, 2006, for driving while his license was suspended or revoked on June 3, 2006. Perry appealed his suspension to the trial court pursuant to Section 1550(a) of the Code, 75 Pa. C.S. §1550(a). At a de novo hearing, DOT introduced a packet of documents certified by the DOT Director of the Bureau of Driver Licensing. The packet contained the following: the official notice of suspension, the record of conviction for driving while operating privilege suspended or revoked transmitted electronically to DOT on August 11, 2006, and listing a conviction date of August 8, 2006, and a violation date of June 3, 2006, a notice of the restoration of Perry s operating privilege effective June 14, 2006, an official notice of suspension effective May 30, 2006, and Perry s driving record. Perry, proceeding pro se, testified that after he received the notice of suspension effective May 30, 2006, he set up a court date with the Traffic Court. He appeared in Traffic Court on May 31, 2006. Notes of Testimony, February 23, 2007, (N.T.) at 4; Reproduced Record (R.R.) at 10a. Perry testified, And on May 31st I cleared up everything on my driving record, any and everything with the (continued ¦) (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. 2 judge there and then after that the judge said everything was taken care if I keep my monthly payments up. N.T. at 5; R.R. at 11a. Perry admitted that his license was not restored until June 14, 2006. N.T. at 6; R.R. at 12a. Perry introduced documentation that he appeared in Traffic Court on May 31, 2006. The trial court sustained the appeal. DOT moved for reconsideration which the trial court denied. The trial court determined: In this trial judge s opinion, this factual scenario supports a finding that Appellee Perry substantially and in good faith complied with Appellant PennDOT s official notice with the mail date of May 9, 2006. That is, he appeared before a Philadelphia Traffic Court judge who established a payment plan and assured him that everything was taken care of. . . . His citation of June 3, 2006, of driving with a suspended license was unfortunate, and occurred because of his mistaken belief and/or understanding that he could lawfully resume driving a motor vehicle. Under the circumstances, Appellee Perry s predicament constitutes a clear situation in which the interests of equity and justice demand that this court afford relief. . . . It would be a harsh penalty to suspend Appellee Perry s license when he in good faith complied with the requirements of the official notice and established a payment plan. With the supportive documentation, this trial judge found the testimony of Appellee Perry credible. Therefore, in the interest of justice and equity, this trial judge opines that there was no abuse of judicial discretion when sustaining Appellee Perry s appeal and when subsequently denying Appellant PennDOT s motion for reconsideration. The trial judge further opines that [she] did not exceed the scope of review. (Footnote and citation omitted). Trial Court Opinion, May 9, 2007, at 6; R.R. at 51a. 3 DOT contends that the trial court exceeded its limited scope of review where the trial court found that Perry was convicted of violating 75 Pa.C.S. §1543(a) and that his operating license was under suspension on the date of the violation but sustained his appeal on the basis that Perry exercised due diligence when he responded to the previous suspension notice. DOT also contends that the trial court committed reversible error and manifestly abused its discretion when it relied upon equitable principles to sustain Perry s appeal despite finding that he had in fact been convicted of the underlying offense that carries a mandatory oneyear suspension.2 Initially, DOT contends that the trial court abused its discretion when it sustained Perry s appeal after the trial court determined that Perry was convicted on August 8, 2006, of violating 75 Pa.C.S. §1543(a) on June 3, 2006, and that Perry s operating privilege was suspended on that date. This Court has consistently held that the only issues before the trial court in a civil license suspension appeal are whether the licensee was in fact convicted and whether DOT acted in accordance with the applicable law. Orndoff v. Department of Transportation, Bureau of Driver Licensing, 654 A.2d 1 (Pa. Cmwlth. 1994). 2 This Court s review is limited to determining whether the trial court s findings are supported by competent evidence, whether errors of law were committed, or whether the trial court committed an abuse of discretion in making its determination. Department of Transportation v. Renwick, 543 Pa. 122, 669 A.2d 934 (1996). 4 Before the trial court, DOT introduced the packet of documents which included a printout from the Administrative Office of Pennsylvania Courts which indicated that Perry was convicted on August 8, 2006, of violating Section 1543(a) of the Code for driving while his operator s license was suspended, revoked, or cancelled. The printout further indicated that the violation occurred on June 3, 2006. DOT also submitted the notice of suspension which it sent to Perry which indicated that the suspension of his operating license would commence on May 30, 2006, for failure to make regular payments on fines and costs for a 2005 citation. These documents create a rebuttable presumption that Perry was convicted on August 8, 2006, for violating Section 1543(a) of the Code, 75 Pa.C.S. §1543(a), on June 3, 2006, and that he was under suspension on June 3, 2006. See Department of Transportation, Bureau of Driver Licensing v. Diamond, 616 A.2d 1105 (Pa. Cmwlth. 1992), petition for allowance of appeal denied, 535 Pa. 640, 631 A.2d 826 (1995). Once DOT established the rebuttable presumption, Perry had the burden to show by clear and convincing evidence that DOT s records were incorrect. Carter v. Department of Transportation, Bureau of Driver Licensing, 838 A.2d 869 (Pa. Cmwlth. 2003). At the hearing before the trial court, Perry admitted that he received the notice of suspension. He further admitted that he had to pay a restoration fee to restore his operating privilege which did not take effect until June 14, 2006. He further admitted that he was pulled over on June 3, 2006, and was told his license was suspended. N.T. at 4-5; R.R. at 10a-11a. For his defense, Perry asserted that he went to Traffic Court on May 31, 2006, and was told everything was taken care 5 of as long as he made his monthly payments. N.T. at 5; R.R. at 11a. However, the issue before the trial court was whether Perry was convicted of driving while his license was suspended. Perry could not refute that his operating privilege was not restored until June 14, 2006, and that he was convicted of driving with a suspended license. The trial court erred when it considered Perry s reliance on the traffic court judge s assertion that everything had been taken care of. Accordingly, this Court reverses.3 ____________________________ BERNARD L. McGINLEY, Judge 3 This Court need not consider DOT s remaining argument. 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Christopher N. Perry v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant : : : : : : : : No. 589 C.D. 2007 ORDER AND NOW, this 13th day of March, 2008, the order of the Court of Common Pleas of Philadelphia County in the above-captioned matter is reversed. ____________________________ BERNARD L. McGINLEY, Judge
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