Craft v. Simpler ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
DAVID W. CRAFT, )
)
Petitioner, )
)
v. ) C.A. No. K20M-10-034 NEP
)
JANA SIMPLER, Director, )
Division of Motor Vehicles, )
Respondent. )
Submitted: July 28, 2022
Decided: October 14, 2022
MEMORANDUM OPINION AND ORDER
Upon Cross-Motions for Summary Judgment on Petitioner’s Petition for a Writ
of Mandamus
Petitioner’s Motion for Summary Judgment
DENIED
Respondent’s Motion for Summary Judgment
GRANTED
James M. Stiller, Jr., Esquire, Schwartz & Schwartz, Dover, Delaware, Attorney for
Petitioner.
Bradley S. Eaby, Esquire, Deputy Attorney General, Department of Justice, Dover,
Delaware, Attorney for Respondent.
Primos, J.
INTRODUCTION
In Delaware, a driver is required to have a commercial driver license (“CDL”)
in order to operate certain commercial motor vehicles. CDLs are regulated by the
Uniform Commercial Driver License Act (hereinafter the “UCDLA”), codified as
21 Del. C. §§ 2601-2626. The UCDLA provides that a CDL holder is disqualified
from driving a commercial motor vehicle “for life if convicted of 2 or more
violations” of a variety of offenses, including driving under the influence of alcohol,
“arising from 2 or more separate incidents.”1 The UCDLA also defines “conviction”
as follows:
“Conviction” means an unvacated adjudication of guilt, or a
determination that a person has violated or failed to comply with
the law in a court of original jurisdiction or by an authorized
administrative tribunal, an unvacated forfeiture of bail or collateral
deposited to secure the person’s appearance in court, a plea of guilty or
nolo contendere accepted by the court, the payment of a fine or court
cost, or violation of a condition of release without bail, regardless of
whether or not the penalty is rebated, suspended, or probated.2
The issue in this case is whether two findings by the Division of Motor
Vehicles (“DMV”) that probable cause existed to arrest petitioner for DUI offenses
(hereinafter “probable cause findings”) qualify as “convictions” within the meaning
of the UCDLA. Petitioner offers two primary arguments for his contention that
probable cause findings are not convictions within the meaning of the statute: 1) the
DMV is not “an authorized administrative tribunal,” and 2) the term “conviction”
implies that proof beyond a reasonable doubt is required.3 For the reasons set forth
1
21 Del. C. § 2612(b).
2
21 Del. C. § 2603(12) (emphasis supplied). This definition of conviction mirrors the definition
of conviction used in the Federal Motor Carrier Safety Regulations. 49 C.F.R. § 383.5.
3
Petitioner also argues that by interpreting the definition of conviction to include probable cause
findings, the DMV has violated separation of powers principles embodied in the Delaware
Constitution. Pet’r’s Opening Br. in Support of Pet’r’s Mot. for Summ. J. (D.I. 18) [hereinafter
“Opening Br.”] at 9–11, 13–16. However, an executive agency does not violate the separation of
2
below, the Court rejects both of these arguments and concludes that probable cause
findings are convictions for which the DMV may revoke a driver’s CDL for life.
BACKGROUND AND PROCEDURAL HISTORY
The parties stipulated to all material facts in this case, summarized as follows.4
David Craft (hereinafter “Petitioner”), while holding a CDL, was charged with
Driving Under the Influence of Alcohol (“DUI”) in May of 2012. His blood alcohol
concentration (“BAC”) was 0.188,5 well over the 0.08 legal limit.6 At Petitioner’s
request, the DMV scheduled an administrative hearing. However, upon Petitioner’s
failure to attend the hearing, the DMV found by default that probable cause existed
for the arrest and for the DUI charge. Six months later, Petitioner was charged with
a second DUI, and had a BAC of 0.181.7 This time, he did not request an
administrative hearing within the 15 days prescribed by statute,8 and another
probable cause finding was made by default. On the basis of these two probable
cause findings, the DMV suspended Petitioner’s CDL for life under 21 Del. C.
§ 2612(b).
Petitioner sought a Writ of Mandamus in this Court directing Dana Simpler,
Director of the DMV (hereinafter “Respondent”), to remove his lifetime CDL
powers when it performs a function lawfully delegated to it by the legislature unless the statute
vests “discretion in administrative officials without fixing any adequate standards for their
guidance.” Atlantis I Condo. Ass’n v. Bryson, 403 A.2d 711, 713 (Del. 1979) (quoting State v.
Durham, 191 A.2d 646, 649–50 (Del. Super. 1963)). Petitioner’s argument appears to be that
probable cause findings do not fit the statutory definition of conviction, not that the definition itself
runs afoul of this non-delegation principle. Accordingly, the Court will treat this case as one of
statutory rather than constitutional interpretation.
4
Stipulation of Facts (D.I. 17).
5
Id. ¶ 1.A.
6
21 Del. C. § 4177(a)(4).
7
Stipulation of Facts (D.I. 17) ¶ 2.A.
8
21 Del. C. § 2742(d) and (f).
3
suspension and to reinstate his right to acquire a CDL.9 On March 29, 2022,
Petitioner moved for summary judgment pursuant to Superior Court Civil Rule 56.10
In response, Respondent filed an answering brief on April 29, 2022, opposing
summary judgment for Petitioner and arguing on the merits that the suspension of
his CDL was valid.11 Petitioner filed a reply brief on May 30, 2022,12 and the Court
heard oral argument on July 22, 2022. Given the lack of factual dispute, the parties
agreed at oral argument to treat the pleadings as Cross Motions for Summary
Judgment.13
STANDARD OF REVIEW
When a party moves for summary judgment on a petition for a writ of
mandamus, the court must address both “the standard for granting a writ of
mandamus and the standard for granting a motion for summary judgment.”14
Mandamus is issuable only to require the performance of “a clear legal or ministerial
duty” and even then, only if the petitioner has no other adequate remedy. 15 “In
Delaware, mandamus is a prerogative writ in the supervisory sense ” and should only
be issued “in the exercise of sound judicial discretion.”16 However, since the parties
have not briefed or argued the requirements for mandamus, the Court will assume
arguendo that mandamus would be an appropriate remedy if Petitioner prevails on
his legal claim.
9
Pet. for Writ of Mandamus or in the Alternative Declaratory J. (D.I. 1) at 1–4. In the alternative,
Petitioner requests a declaratory judgment that the “DMV is without any authority, statutory, legal,
or otherwise, to suspend Petitioner’s CDL for life.” Id. at 4.
10
Pet’r’s Mot. for. Summ. J. (D.I. 18).
11
Resp’t’s Answering Br. in Opp’n to Pet’r’s Mot. for Summ. J. (D.I. 19) [hereinafter “Answering
Br.”].
12
Pet’r’s Reply Br. in Resp. to Resp’t’s Resp. to Pet’r’s Mot. for Summ. J. (D.I. 21).
13
Oral Arg. Tr. (D.I. 24) at 3:4–10.
14
Rosario v. Town of Cheswold, 2007 WL 914899, at *1 (Del. Super. Mar. 2, 2007), aff’d, 945
A.2d 1168 (Del. 2008) (TABLE).
15
Id.16
Ingersoll v. Rollins Broad. of Del., Inc., 272 A.2d 336, 338 (Del. 1970).
4
Where mandamus is an appropriate remedy, “the Court can then consider the
appropriateness of summary judgment,” which should be granted only when “the
record shows that there is no genuine issue as to any material fact and [that] the
moving party is entitled to judgment as a matter of law.”17 However, “[s]ummary
judgment may not be granted if the record indicates that a material fact is in dispute,
or if it seems desirable to inquire more thoroughly into the facts in order to clarify
the application of the law to the circumstances.”18 Since there are no disputes of
material fact in this case, the appropriateness of summary judgment turns on
Petitioner’s argument that a lifetime CDL suspension for two probable cause
findings is not authorized by statute.
ANALYSIS
The probable cause findings against Petitioner were reached by default under
the procedure laid out in 21 Del. C. § 2742 and explained in greater detail below.
§ 2742 provides for the temporary revocation of standard driver’s licenses as a
consequence of violations of Delaware’s DUI law, 21 Del. C. § 4177, and is not part
of the UCDLA. This case turns on the interaction between § 2612(b) of the UCDLA,
which calls for lifetime revocation of CDLs upon two convictions as defined in
§ 2603(12), and the procedures in § 2742, which provides for the suspension of
driver’s licenses after opportunity for a hearing. For the reasons that follow, the
Court concludes that a probable cause finding in a § 2742 driver’s license
proceeding, even when entered by default, is a “determination that a person has
17
Rosario, 2007 WL 914899, at *2.
18
Id. (citing Ebersole v. Lowengrub, 180 A.2d 467, 468–69 (Del. 1962)).
5
violated or failed to comply with the law . . . by an authorized administrative
tribunal” for which a CDL may be revoked under the UCDLA.19
1. Administrative Tribunal
Petitioner first contends that probable cause findings cannot be convictions
because a DMV administrative hearing pursuant to 21 Del. C. § 2742 is not
conducted by an “authorized administrative tribunal.”20 However, it is a
“fundamental rule of statutory construction [] that a statute’s words and phrases
should not be read in isolation.”21 Petitioner’s assertion that the word “tribunal”
implies a judge in a court of law is undercut by the placement of the word
“administrative” immediately before it. Moreover, the phrase “administrative
tribunal” is used throughout the Delaware Code and case law to refer to non-judicial
bodies, including, for example, the Environmental Appeals Board,22 the
Unemployment Insurance Appeal Board,23 and the Code Official for Kent County
when conducting a violation hearing.24 Moreover, when faced with the question of
whether license revocation proceedings before the DMV could preclude subsequent
criminal prosecutions, this Court has implicitly identified the DMV’s hearing officer
as an administrative tribunal, stating the following:
Although the Restatement [of Judgments] recognizes that a determination by an
administrative tribunal may have the same effect as a judgment of a court, this
rule is subject to several exceptions. One exception is when this would be
incompatible with a legislative policy.
…
19
21 Del. C. §§ 2603(12) and 2612(b).
20
Oral Arg. Tr. at 25:6–10.
21
See Div. of Family Servs. v. O’Bryan, 164 A.3d 58, 62 (Del. 2017).
22
Delmarsh, LLC v. Envtl. Appeals Bd., 277 A.3d 281, 289–90 (Del. 2022).
23
Holbrook v. Dep’t of Labor, 1995 WL 411389, at *1–2 (Del. Super. June 9, 1995).
24
9 Del. C. § 5601(1) (explicitly defining the term “administrative tribunal” to mean a “violation
hearing before the Code Official for Kent County” for the chapter of the Delaware Code governing
Kent County Property Maintenance).
6
[I]t would be contrary to legislative policy to preclude criminal proceedings
based on a finding in the administrative license revocation proceedings.25
Addressing nearly identical statutory schemes, courts in other states have
construed “authorized administrative tribunal” to include their states’ equivalents of
the DMV. For example, the Supreme Court of North Dakota reasoned that North
Dakota’s Department of Transportation is an authorized administrative tribunal
because it is an agency “authorized by statute to suspend an individual’s driver’s
license.”26 The Court finds this reasoning equally persuasive here. A hearing under
21 Del. C. § 2742 is conducted by the Secretary of Transportation or the Secretary’s
designee.27 The Secretary is authorized by statute to hold probable cause hearings
and to revoke driver’s licenses. Thus, a hearing before the Secretary or his or her
designee is a hearing before an “authorized administrative tribunal.”
2. Standard of Proof
Proof Beyond a Reasonable Doubt Not Required
Petitioner also asserts that any “conviction” requires proof beyond a
reasonable doubt, and thus that a finding of only probable cause cannot be a
conviction.28 The burden of proof in criminal prosecutions, proof beyond a
reasonable doubt, is a constitutional requirement derived from the Due Process
Clause of the United States Constitution.29 This requirement, however, is
25
State v. Hendricks, 1984 WL 553552, at *2 (Del. Super. May 4, 1984) (emphasis supplied)
(internal citation omitted).
26
Bienek v. Dep’t of Transp., 736 N.W.2d 492, 496 (N.D. 2007); see also Ziehlke v. Valverde, 120
Cal. Rptr. 3d 655, 660 (Ct. App. 2011) (“The hearing in accordance with the DMV administrative
per se law is a hearing of an administrative tribunal authorized by statute to decide whether facts
exist to suspend a person’s driver’s license.”).
27
See 21 Del. C. § 2742(f) (“The hearing under this section shall be before the Secretary or the
Secretary’s designee.”); 21 Del. C. § 101(68) (“‘Secretary’ means the Secretary of Transportation
of this State or the Secretary’s duly authorized designee.”).
28
Opening Br. at 11.
29
In re Winship, 397 U.S. 358, 364 (1970) (“[T]he Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.”).
7
inapplicable to civil proceedings.30 Here, neither the probable cause findings nor the
lifetime license revocations are criminal convictions, and thus the constitutional
requirement of proof beyond a reasonable doubt does not apply. Nevertheless,
Petitioner contends that a criminal conviction is required to trigger the latter, the
license revocation, because the UCDLA uses the word “convicted.” 31
Besides the label “conviction,” Petitioner points to nothing in the statute
indicating that the legislature intended to limit the provision’s scope to criminal
convictions only. The label alone is insufficient to support that inference, as courts
from other states have repeatedly held. For example, in State v. Arterburn, the
Supreme Court of Nebraska explained that a civil or criminal label “is not always
dispositive.”32 The court went on to reject the defendant’s double jeopardy
argument, concluding that emphasis on the word “conviction” alone failed to
“consider the intent of the commercial driver’s license legislation,” which “is to
reduce or prevent commercial motor vehicle accidents, fatalities, and injuries.”33
Ultimately, it is the UCDLA’s definition of conviction that is dispositive, and
not the word “conviction” read in isolation. As noted above, 21 Del. C. § 2603(12)
defines conviction broadly, including many dispositions that do not require proof
beyond a reasonable doubt—for example, an unvacated forfeiture of bail, the
payment of a fine or court cost, and a violation of a condition of release without bail.
This broad definition is consistent with the legislation’s purpose, which is not to
impose criminal punishment, but rather to protect the public from the inherent risk
30
Mills v. State, 732 A.2d 845, 850 (Del. 1999) (“Proof beyond a reasonable doubt has
‘traditionally been regarded as the decisive difference between criminal culpability and civil
liability.’” (quoting Jackson v. Virginia, 443 U.S. 307, 315 (1979))).
31
21 Del. C. § 2612(b).
32
751 N.W.2d 157, 163 (Neb. 2008).
33
Id.; see also State v. Burnell, 966 A.2d 168, 178 (Conn. 2009) (following Arterburn and holding
that “an administrative license suspension under [Connecticut state law] does not constitute a
conviction for purposes of the federal double jeopardy protections.”).
8
of allowing drivers with a propensity for dangerous infractions to operate
commercial motor vehicles. Accordingly, the Court rejects Petitioner’s argument
that a “conviction” within the meaning of the UCDLA requires proof beyond a
reasonable doubt.
Nonetheless, it does not necessarily follow from this conclusion that a finding
of probable cause to arrest fits the conviction definition. This question requires a
closer look at the statutory scheme under which these probable cause findings are
made.
Driver’s License Revocation and Hearing Procedure
21 Del. C. § 4177(a) provides that “[n]o person shall drive a vehicle” while,
inter alia, “the person is under the influence of alcohol” or “[w]hen the person’s
alcohol concentration is .08 or more.” Upon certification by the arresting officer
“that there existed probable cause to believe that the person was in violation of
§ 4177” or a similar local ordinance, “the Secretary shall revoke the person’s driver’s
license and/or driving privilege” for a period ranging from 3 months for a first-time
offender to up to 18 months for repeat offenders.34 However, such revocation is not
effective until the person is notified and has been allowed 15 days to request a
hearing.35 If the person does not request a hearing, “the order of revocation becomes
effective,”36 and, at least in Petitioner’s case, a finding of probable cause is entered
by default.
When the person does request a hearing, the scope of that hearing is provided
for in 21 Del. C. § 2742(f), and covers two issues relevant here:
1) . . . whether the police officer had probable cause to believe the person was
in violation of § 4177 . . . of this title or a local ordinance substantially
conforming thereto.
34
21 Del. C. § 2742(c)(1).
35
21 Del. C. § 2742(d).
36
Id.
9
2) . . . whether by a preponderance of the evidence it appears that the person
was in violation of § 4177 of this title or a local ordinance substantially
conforming thereto.37
The Delaware Supreme Court has explained that these are two distinct prongs, each
of which must be satisfied to sustain a license revocation.38
In sum, there are two important takeaways from this statutory scheme. First,
the legislature has expressly attached consequences to an uncontested finding of
probable cause. Second, the person may assert a right to a hearing at which the State
must establish the person’s guilt of the underlying violation by a preponderance of
the evidence for the revocation to become effective.
Here, the parties have stipulated that the DMV entered two probable cause
findings against Petitioner by default, once because he requested the hearing and
failed to attend and again because he did not request a hearing at all.39 While
Petitioner never exercised his statutory right to have a hearing on whether, by a
preponderance of the evidence, it appeared he had actually violated the law, the
Court notes that the BAC levels stipulated to—0.188 and 0.181—would have been
more than sufficient to establish by a preponderance of the evidence that Petitioner
had operated a motor vehicle with an alcohol concentration of .08 or more.40 The
question, however, is whether the probable cause findings alone, entered by default
37
21 Del. C. § 2742(f)(1) and (2).
38
See Clendaniel v. Voshell, 562 A.2d 1167, 1170 (Del. 1989) (“To prevail pursuant to 21 Del. C.
§ 2742(f) the State must: (1) prove that the police officer had probable cause to charge the
defendant with the offense of operating a motor vehicle while intoxicated and (2) prove by a
preponderance of the evidence that the defendant committed the offense.”).
39
The Court notes that the CDL disqualification notices, consistent with the stipulation of facts,
list the “Conviction Literal” as “Probable Cause.” Answering Br. (D.I. 19) Ex. A and Ex. B.
40
See 21 Del. C. § 2742(f)(2) (“For purposes of this subsection[,] an alcohol concentration of .08
or more pursuant to testing provided for in this section, or § 4177 of this title . . . shall be conclusive
evidence of said violation.”).
10
without a hearing in both instances, are sufficient determinations of guilt for the
purposes of the lifetime revocation provision in the UCDLA.41
Construction and Purpose of the Uniform Commercial Driver License Act
The UCDLA’s definition of conviction is silent as to the level of proof that
must support an authorized administrative tribunal’s “determination” that a violation
has occurred.42 In order for probable cause findings to qualify as convictions, that
minimum standard of proof must be equal to or less than probable cause. Courts
have not defined “probable cause” to arrest with precision, but it is well settled that
it is higher than mere suspicion but less than that required to sustain a criminal
conviction (in other words, less than beyond a reasonable doubt).43
Since the statute does not specify a specific standard of proof by which a
driver’s violation must be established, it is reasonably susceptible to different
interpretations and therefore ambiguous.44 When a statute’s language is ambiguous,
the Court must interpret the language “in a way that promotes the statute’s
purpose.”45 Here, the UCDLA contains an express statement of intent and purpose,
41
The cases relied upon by Respondent, Strup v. Director of Revenue, 311 S.W.3d 793 (Mo. 2010),
and Burdine v. Arkansas Dept. of Finance & Admin, 379 S.W.3d 476 (Ark. 2010), do not resolve
the issue. There, the courts held that administrative probable cause findings by the Missouri
Department of Revenue (MDR) were “convictions” for which CDLs could be revoked under
Missouri law and the federal regulations. Strup, 311 S.W.3d at 798; Burdine, 379 S.W.3d at 481–
82. Respondent correctly points out that the definition of “conviction” applied in those cases is
nearly identical to Delaware’s. However, Missouri law differs in one critical respect—it explicitly
provides for an alcohol-related law enforcement contact as a form of DUI violation. Mo. Ann.
Stat. § 302.755(1) (West); see Burdine, 379 S.W.3d at 483 (Wills., J., concurring) (“The conduct
of being stopped on probable cause for driving under the influence and a later suspension based
on that conduct, standing alone, constitutes a disqualifying event under Missouri law . . .”).
42
21 Del. C. § 2603(12).
43
Juliano v. State, 260 A.3d 619, 629 (Del. 2021) (noting that probable cause “is an elusive concept
which avoids precise definition” but “lies somewhere between suspicion and sufficient evidence
to convict” (quoting Jackson v. State, 643 A.2d 1360, 1365 (Del. 1994))).
44
Judicial Watch, Inc. v. Univ. of Delaware, 267 A.3d 996, 1004 (Del. 2021) (“Statutory language
is ambiguous when it is reasonably susceptible to different conclusions or interpretations.”).
45
Id. at 1005.
11
which provides that “[t]he purpose of this chapter is to implement the federal
Commercial Motor Vehicle Safety Act of 1986 . . . and reduce or prevent commercial
motor vehicle accidents, fatalities and injuries” by, inter alia, “[d]isqualifying
commercial drivers who have committed certain serious traffic violations, or other
specified offenses.”46 In addition, it provides that the chapter is a “remedial law and
shall be liberally construed to promote the public health, safety and welfare.”47
Turning to the “conviction” definition,48 one common civil standard of proof
that might apply is preponderance of the evidence, which would require proof that it
is more likely than not that the CDL holder violated the law. 49 However, the
Delaware Supreme Court has consistently stated that a showing of probable cause
“does not require the officers to . . . establish that the arrestee’s guilt is more likely
than not.”50 Thus, probable cause findings would not be sufficient if the conviction
definition is construed to require proof by a preponderance of the evidence.
However, the standard of proof below preponderance of the evidence is substantial
evidence, defined as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”51 This tracks much more closely with the level
of certainty sufficient to establish probable cause to arrest—“facts which suggest,
46
21 Del. C. § 2602(a).
47
21 Del. C. § 2602(b).
48
21 Del. C. § 2603(12).
49
See JER Hudson GP XXI LLC v. DLE Inv’rs, LP, 275 A.3d 755, 782 (Del. Ch. 2022) (“Proof by
a preponderance of the evidence means proof that something is more likely than not.” (quoting
Martin v. Med-Dev Corp., 2015 WL 6472597, at *10 (Del. Ch. Oct. 27, 2015))).
50
Stafford v. State, 59 A.3d 1223, 1229 (Del. 2012), as corrected (Mar. 7, 2013); Juliano, 260
A.3d at 629 (“A finding of probable cause does not require the police to uncover information
sufficient to prove a suspect’s guilt beyond a reasonable doubt or even to prove that guilt is more
likely than not.” (quoting Jackson, 643 A.2d at 1365)).
51
Arrants v. Home Depot, 65 A.3d 601, 605 (Del. 2013) (quoting Person–Gaines v. Pepco
Holdings, Inc., 981 A.2d 1159, 1161 (Del.2009)).
12
when those facts are viewed under the totality of the circumstances, that there is a
fair probability that the defendant has committed a crime.”52
The statutory mandate to adopt constructions promoting public safety,
together with the clearly articulated purpose of preventing commercial motor vehicle
accidents, leads this Court to conclude that the definition of “conviction” should not
be construed to require determinations by a preponderance of the evidence. At most,
it requires substantial evidence of a violation, which a finding of probable cause is
sufficient to establish. A contrary result would frustrate the statutory purpose and
would create illogical incentives for CDL holders who are stopped on probable cause
of drunk driving. Requesting and attending an administrative hearing would invite
the DMV to make an express determination, by a preponderance of the evidence,
that a violation had occurred. This would certainly constitute a “determination that
a person has violated or failed to comply with the law . . . by an authorized
administrative tribunal” and thus constitute a conviction triggering license
revocation.53 There is no reason to believe that the legislature intended for CDL
holders to be able to avoid the more severe consequences set out in § 2612 of the
UCDLA simply by declining to exercise their right to a hearing and instead
accepting, uncontested, the shorter suspension period provided for in 21 Del. C.
§ 2742.54
The case at bar is illustrative. Given the BAC levels stipulated to by the
parties, there can be little doubt that had Petitioner gone forward with DMV hearings
in either case, the hearing officers would have found by a preponderance of the
evidence that he had committed an alcohol-related violation. That he did not do so
52
Juliano, 260 A.3d at 629 (quoting Jackson, 643 A.2d at 1365).
53
21 Del. C. § 2603(12).
54
See Zambrana v. State, 118 A.3d 773, 776 (Del. 2015) (noting that statutory “interpretations
which yield mischievous or absurd results are to be avoided” (quoting Spielberg v. State, 558 A.2d
291, 293 (Del. 1989))).
13
does not create a legal basis to demand that his CDL be reinstated, even if such relief
would be an appropriate exercise of this Court’s mandamus power.
CONCLUSION
For the forgoing reasons, Petitioner’s motion for summary judgment is
DENIED, and Respondent’s cross-motion for summary judgment is GRANTED.
Accordingly, Petitioner’s petition for a writ of mandamus, or in the alternative,
declaratory judgment, is DENIED, and the petition is dismissed with prejudice.
IT IS SO ORDERED.
NEP:tls
Via File & ServeXpress
oc: Prothonotary
cc: Counsel of Record
14