G. Burgess v. Bureau of Driver Licensing (Majority Opinion)

Annotate this Case

Download PDF

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Gerald Burgess, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing BEFORE: : : : : : : : : No. 861 C.D. 2007 Submitted: February 11, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE McCLOSKEY FILED: April 4, 2008 Gerald Burgess (Licensee) appeals from an order of the Court of Common Pleas of Susquehanna County (trial court), dated December 19, 2006, which denied Licensee s statutory appeal from a six (6)-month disqualification of his privilege to drive a commercial motor vehicle that was imposed by the Department of Transportation, Bureau of Driver Licensing (the Department), as a consequence of Licensee s conviction in the State of New York for operating a commercial motor vehicle without having a valid commercial driver s license (CDL) in his possession.1 We now affirm. 1 This matter was originally transferred to the Commonwealth Court from the Superior Court on May 7, 2007. Thereafter, this Court issued several orders requiring Licensee to comply with this Court s rules, including an order that the filing fee be paid, a dormant order for failure to file a brief, an order rejecting a brief as non-conforming, and an order dismissing the case as a result of the filing of a (Footnote continued on next page ¦) On February 17, 2006, Licensee was stopped in the State of New York for driving a commercial vehicle without a license. Licensee pled guilty on March 28, 2006. By official notice with a mail date of May 19, 2006, the Department notified Licensee that his commercial driving privilege was being disqualified for a period of six (6) months as a consequence of his conviction in the State of New York for driving a commercial vehicle without a valid CDL, which was the equivalent of a violation of Section 1606(a) of the Vehicle Code, 75 Pa. C.S. §1606(a). (Supp. R.R. at 2b-4b). Licensee filed a timely statutory appeal of the disqualification to the trial court. On December 19, 2006, the trial court conducted a hearing de novo. The Department offered into evidence an exhibit containing the following documents: (1) a certification page; (2) a copy of the notice of disqualification; (3) a copy of an out of state conviction list ; (4) a traffic safety inquiry ; (5) a copy of the form used by a disqualified commercial driver to obtain a regular driver s license; (6) a certification statement; and (7) Licensee s certified driving history. Licensee s counsel objected to the admission of the Department s exhibit on the basis that it did not contain a certification from the State of New York showing that it was an official record from the State of New York. Counsel for the Department responded that the conviction had been (continued ¦) non-conforming amended brief. On September 19, 2007, this Court then granted a petition for reconsideration and allowed Licensee to file a second amended brief. On October 19, 2007, the Department filed an application for relief, seeking to supplement the record. This Court then entered an order of the same date, vacating the briefing schedule and requiring the trial court to certify the record with missing exhibits. The trial court then filed a supplemental record. The matter was originally assigned to the authoring judge on January 15, 2008. However, at that time it was discovered that the trial court had not issued an opinion. Hence, this Court remanded the matter so that the trial court could issue an opinion. The matter was reassigned to the authoring judge on February 11, 2008, upon the Court s receipt of the trial court opinion. 2 certified electronically on May 12, 2006. The trial court admitted the Department s exhibit over the objection of Licensee s counsel. Licensee testified that he had been licensed in Pennsylvania as a commercial driver for eighteen to nineteen years, and that his Pennsylvania-issued CDL was valid on February 17, 2006, the date he was stopped in the State of New York. He testified that he showed the judge in New York his valid CDL when he pled guilty on March 28, 2006. He testified that he pled guilty to operating a commercial vehicle without a license in New York because both the judge and an attorney that he had contacted informed him that it would not affect his license and that it was more or less the same as a parking ticket in New York. (Transcript of trial court hearing, p. 22). By order dated December 19, 2006, the trial court denied Licensee s statutory appeal. Licensee then appealed the matter to this Court. On appeal,2 Licensee argues that the trial court erred when it admitted into evidence the Department s exhibit because the evidence did not conform to the requirements set forth under Sections 6103(a) and 6109 of the Judicial Code, 42 Pa. C.S. §§6103(a), 6109 (relating to proof of official records and photographic copies of business records). Licensee also argues that he should be exempt from disqualification of his license because the facts of this case fall squarely within Section 1606(d)(6) of the Vehicle Code, 75 Pa. C.S. §1606(d)(6). Although Licensee identifies in his statement of questions involved and summary of argument the issue relating to the trial court s admission of the 2 The Commonwealth Court's scope of review of trial court's decision to reverse commercial driver's license disqualification was limited to determining whether trial court's findings of fact were supported by competent evidence, and whether trial court committed error of law or abuse of discretion in reaching its decision. Department of Transportation, Bureau of Driver Licensing, v. Barco, 656 A.2d 544 (Pa. Cmwlth.), petition for allowance of appeal denied, 539 Pa. 697, 653 A.2d 1234 (1994). 3 Department s exhibit, Licensee fails to address in any manner that issue in the argument portion of his brief. Such failure to develop this argument constitutes a waiver. See Pa. R.A.P. 2116; see also Rapid Pallet v. Unemployment Compensation Board of Review, 707 A.2d 636 (Pa. Cmwlth. 1998) (holding that arguments not properly developed are deemed waived). Hence, Licensee has waived the issue on appeal relating to the trial court s admission of the Department s exhibit and we need not address that issue here. The only issue that Licensee raises and actually argues on appeal is that, although he pled guilty to operating a commercial motor vehicle in New York without having a valid CDL in his immediate possession on February 17, 2006, he nevertheless should have been found to have satisfied the requirements of Section §1606(d)(6) of the Vehicle Code based on the facts that his Pennsylvania CDL was valid, he simply did not have the license in his immediate possession, and he showed his license to the New York judge on March 28, 2006. Section 1611 of the Vehicle Code reads, in pertinent part, as follows: §1611. Disqualification. *** (f) Disqualification for failure to have CDL. - In addition to any other disqualifications required by this section, the department shall disqualify any person from driving a commercial motor vehicle for six months upon receiving a report of the person s conviction of violating section 1606(a). *** (h) Conviction In Federal Court Or Another State. For purposes of the provisions of this section, a copy of a report of conviction or a copy of a report of administrative adjudication from a Federal court or another state for an offense similar to those offenses 4 which would result in disqualification in this section shall be treated by the department as if the conviction had occurred in this Commonwealth ¦. 75 Pa. C.S. §1611(f), (h). (Emphasis added).3 Section 1606 of the Vehicle Code further provides, in pertinent part, as follows: §1606. Requirement for commercial driver s license. (a) When required. No person, except those specifically exempted in subsection (b), shall drive a commercial motor vehicle unless the person has been issued and is in immediate possession of a valid commercial driver s license and applicable endorsements valid for the vehicle he is driving. 3 The trial court interpreted Licensee s argument on appeal differently than this Court. The trial court stated that Licensee argued that the facts did not justify a disqualification pursuant to Section 1611 of the Vehicle Code because he has never operated his vehicle in Pennsylvania without a license, and, therefore, it is logically inconsistent for his license to be suspended for such a reason. The trial court addressed the argument by stating that: While, there may be to some degree a logical inconsistency considering that [Licensee] has never in fact operated without a license in Pennsylvania, there is no doubt that [Licensee] has plead [sic] guilty to a substantially similar crime in the State of New York. Despite the fact that this crime occurred in another jurisdiction, [Licensee] has committed a violation of the ¦ Vehicle Code and must face the consequences of his actions. In this case, because [Licensee] pled guilty to a crime in New York and he is licensed in Pennsylvania, that crime must be addressed here or there would be no punitive response for his self admitted violation. Additionally, the six month license suspension is consistent with [Section 1611 of the Vehicle Code]. (Trial court opinion, p. 3). We agree with the trial court s disposition of the argument as it believed it to be framed. 5 *** (d) Penalties. *** (6) No person shall be convicted of violating subsection (a) if the person produces at the office of the issuing authority within 15 days of the violation: (i) a commercial driver s license valid in this Commonwealth at the time of the violation; or (ii) if the commercial driver s license is lost, stolen, destroyed or illegible, evidence that the driver was licensed at the time of the violation and that application for a duplicate license had been made at the time of the violation. 75 Pa. C.S. §1606(a), (d)(6)(i)-(ii). (Emphasis added). Here, the State of New York electronically transmitted information regarding Licensee s conviction to the Department. The State of New York informed the Department that Licensee had been convicted of an offense related to driving a commercial vehicle without a license, which offense New York classified for purposes of reporting violations to other states as a CDLIS Code B51.4 A conviction reported as a CDLIS Code B51 is interpreted by the Department as relating to an offense similar to a violation of Section 1606(a) of the Vehicle Code, which is also classified as a CDLIS Code B51 violation. Therefore, the Department properly disqualified Licensee pursuant to Section 1611(f) of the Vehicle Code. 4 CDLIS is the acronym for the Commercial Driver s License Information System. Section 1603 of the Vehicle Code (relating to definitions) defines CDLIS as the information system established pursuant to the Commercial Motor Vehicle Safety Act of 1986 (Public Law 99-570, 49 U.S.C. app. 2701 et seq.) to serve as a clearinghouse for locating information related to the licensing and identification of commercial motor vehicle drivers. 75 Pa. C.S. §1603. 6 Moreover, the provision of Section 1606(d)(6) of the Vehicle Code is available only to a driver who would have been convicted in Pennsylvania except for the fact that the driver produced to the issuing authority within fifteen (15) days of the violation either a valid CDL or evidence that he had applied for a replacement or duplicate CDL prior to the date of the violation. Section 1606(d)(6) of the Vehicle Code does not provide a mechanism for drivers to avoid their convictions in other jurisdictions.5 5 The Department argues that the disqualification was consistent with the statutory language of Sections 1606 and 1611 of the Vehicle Code, and we have affirmed on that basis. However, the Department also characterizes Licensee s appeal as an attempt to collaterally attack his New York conviction. In furtherance of that argument, the Department states that case law prohibits a licensee from collaterally challenging an out-of-state conviction in a disqualification appeal in Pennsylvania. In so doing, the Department cited a lengthy passage from this Court s opinion in Aten v. Department of Transportation, Bureau of Driver Licensing, 649 A.2d 732 (Pa. Cmwlth. 1994), which included the following language: Courts of this Commonwealth have consistently recognized that a license suspension is a collateral civil consequence of a criminal conviction and in an appeal from the suspension, a licensee may not attack the validity of the underlying criminal conviction. The only relevant issues in a civil license suspension appeal are whether the motorist was in fact convicted and whether DOT acted in accordance with applicable law. Licensee maintains that because the exception to Section 1611(f) of the Vehicle Code allows a licensee to avoid conviction by producing a commercial driver's license within fifteen days of a violation of Section 1606(a), his West Virginia offense is not essentially similar to the offense which would result in disqualification under Section 1611(f). He contends that the legislature made a specific exception to the Pennsylvania statute to prevent a driver who possesses a commercial driver's license from being convicted under Section 1606(a) and that no such exception exists to the West Virginia law. The argument that because of this distinction the two offenses are not essentially similar unfortunately misses the issue. That Section 1611(f) provides an (Footnote continued on next page ¦) 7 Accordingly, we must affirm the order of the trial court. JOSEPH F. McCLOSKEY, Senior Judge (continued ¦) exception to disqualification of a commercial driver in Pennsylvania is inconsequential in determining whether elements of the offenses are essentially similar, specifically where the driver lacks a valid commercial driver's license at the time of the offense and was unable to produce one within fifteen days of the offense to avoid disqualification. Moreover, Licensee cites no authority to augment his argument nor has he demonstrated to the Court that he would not have been convicted had the offense been committed in Pennsylvania. Aten, 649 A.2d at 735 (emphasis added) (citations omitted). Here, we note that Licensee did not argue that the New York and Pennsylvania offenses are not essentially similar for purposes of disqualification, nor did Licensee submit any evidence as to whether the New York statute provides a mechanism for a driver to avoid a conviction similar to Section 1606(d)(6) of the Vehicle Code. Had those circumstances existed and such arguments been preserved and developed in the case at hand, we cannot say that Aten necessarily would have been controlling. While Aten argued that the West Virginia and Pennsylvania offenses were not essentially similar for purposes of disqualification because the West Virginia statute did not provide a mechanism to avoid conviction, we rejected that argument, in part, specifically because Aten lacked a valid commercial driver's license at the time of the offense and would not have been able to produce it within fifteen days of the offense to avoid disqualification. 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Gerald Burgess, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing : : : : : : : : No. 861 C.D. 2007 ORDER AND NOW, this 4th day of April, 2008, the order of the Court of Common Pleas of Susquehanna County is hereby affirmed. JOSEPH F. McCLOSKEY, Senior Judge

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.